The Wisconsin Supreme Court on Sept. 10 issued a temporary blocking order telling school officials in Dane County that they don’t have the authority to mandate virtual at-home instruction for children in K-12 schools during the COVID-19 pandemic.

"We conclude that local health officers do not appear to have statutory authority to do what the (stay-at-home learning) order commands," the justices ruled in an unsigned majority opinion.

The ruling is a temporary injunction. Conservatives are hailing it as a victory although Dane County health officials on their web page have indicated they would continue to oppose the ruling.

The state high court's decision came on a day that set a record in virus cases in the county according to Wisconsin Public Radio (NPR). 

Dane County public health officials called the court ruling a mistake.

“[This] decision by the Wisconsin Supreme Court will put kids and teachers back in group settings just as this pandemic hits a new peak in this community," Dane County Executive Joe Parisi said in a written statement.

The court’s order was determined along party lines with a conservative majority vote that favored keeping schools open for in-person teaching.

Conservative justices added that denying parents the right to have their children taught in an in-person classroom would bring harm to the children, parents and schools.

"Many parents irreparably lose the full benefits of the communal education they chose for their children, including in-person instruction, relationships with teachers and other students, and religious and spiritual formation," the conservative opinion stated. "And while technology may mitigate some ill effects for some students, petitioners maintain that distance and technology-based learning is less than ideal, if not harmful, for many students."

Justice Rebecca Dallet, whom the NPR report identified as a liberal justice, said public health is more important than children gathering in classrooms.

"Throughout the COVID-19 pandemic, certain members of this court have repeated the mantra of local control: that we should take care not to 'usurp' local officials' ability to control the spread of COVID-19 due to the virus's unique impact on each locality," Dallet wrote. "But today, those same justices interfere with a local health officer's ability to make difficult, health-based decisions."

Dallet added that backers of in-person classrooms failed to demonstrate virtual learning on a temporary basis would harm students and their parents.

Gov. Tony Evers, a Democrat, ordered schools closed last March because of the pandemic and extended the order at least until fall.

Most school districts in Wisconsin were using remote learning to begin with in September, with some planning to move to a hybrid combination of virtual and in-person instruction later in the school year depending on the number of virus cases.

The Wisconsin Institute for Law & Liberty identified as a Milwaukee-based public interest law firm with a conservative and libertarian bent earlier challenged Evers’ stay-at-home and mask mandates. The law firm backed the in-person instruction ruling along with groups like School Choice Wisconsin, a nonprofit that described the Supreme Court ruling on Facebook as a “huge win” for Wisconsin families and schools.

However, Parisi said the virus is spreading.

"[Madison and Dane County] Public Health's order prioritized the safety and well-being of kids, parents, teachers, and the communities they call home,” he said. “[This] order will jeopardize those goals and may lead to more illness and needless human suffering."    

Dane County health officials on their website at Madison and Dane County Public Health said they would oppose the Supreme Court’s temporary block.

“The court has issued a briefing schedule and will be scheduling oral arguments to hear the case,” the website stated. “We are disappointed in this decision and strongly urge all schools to continue voluntary phasing-in of classes for in-person instruction for grades 3-12 per Public Health Madison & Dane County recommendations.”

In their written response opinion filed with the Supreme Court, health officials said gathering children together will spread the virus.

“In schools children all walk through the hallways at the same times during the day, they have their lockers right next to each other in the hallways, and they all eat lunch at the same times, not to mention commingling in single classrooms for much of the day,” the response read. “A child from one family will naturally interact with many other children from other households and, at the end of the day, they return to their families. Thus there is much more potential for a child to pick up the virus from others they have not been commingling with before.”