The Wisconsin Supreme Court has granted a temporary injunction that prevents Dane County from closing kindergarten through grade 12 classes, which would have required students to solely learn remotely.

“Pending this court’s consideration of the merits of these matters, those provisions of emergency order No. 9 issued by Public Health Madison and Dane County on Aug. 21, 2020, as amended Sept. 1, 2020, which purport to prohibit schools throughout Dane County from providing in-person instruction to students, are temporarily enjoined, effective the date of this order,” the Sept. 10 order states.

As previously reported, St. Peter Catholic School in Middleton, Wisconsin, was set to start the first day of brick-and-mortar school Aug. 24, but an order abruptly released Aug. 21 by the Department of Public Health for Madison and Dane County limited schooling to remote only for third grade through 12th grade.

Attorney Lucas Vebber | Lucas Vebber

“It's important to leave these decisions up to the schools and to the parents,” said Lucas Vebber, deputy counsel with the Wisconsin Institute for Law and Liberty (WILL). “It’s not for Dane County to tell Madison that they know better than parents or the school. If a school can open safe, and they had been working for months on a plan for a safe reopening, they should be allowed to do so.”

WILL filed the original action directly with Wisconsin’s highest court Aug. 6, challenging Chapter 252 of Wisconsin statutes.

“This decision will mostly affect private schools,” said Corey DeAngelis, director of school choice at the Reason Foundation and adjunct scholar at the Cato Institute. “Public schools still largely have an incentive to remain closed because they generally get your money regardless of how good the reopening decision meets the needs of the family. Private schools have the opposite incentive. They are motivated to meet the needs of families because they know that families can take their money elsewhere. This ruling will have more of an effect on the openings of private schools because private schools are fighting to reopen whereas public schools, all too often, are fighting to remain closed due to an issue of incentives.” 

As of Sept. 15, the Wisconsin Department of Health reported 70,009 COVID-19 cases statewide and 1,081 deaths. In Dane County, there have been 7,903 confirmed cases and 41 deaths.

But the coronavirus is only one risk factor that parents and children face, according to Jim Bender, president of School Choice Wisconsin, one of the organizations that WILL is representing in the legal action pending before the Wisconsin high court.

“You need to factor in mental health, academic progress, social interaction and potentially students at home without supervision,” said Bender of Dane County’s order closing schools. “Additionally, there are economic hardships placed on families if child care is not available. COVID-19 virus deaths have been proven to be tied to co-morbidities, especially in the elderly. The risk for children is much lower. COVID-19 will need to be dealt with for a long time. But it must be balanced with all other risks children face.”

As a result of the Supreme Court injunction, both public and private schools are allowed to open for live learning and remote instruction. The decision now rests with each individual school district rather than the county department of public health.

“Unfortunately, the state Department of Health Services was supposed to issue specific guidance a few weeks ago on expected protocols if any students or teachers become COVID-positive but their guidance was woefully inadequate,” Bender told the Catholic Tribune. “The Department of Public Instruction has taken CDC guidance and given schools directions on what to do. School districts and private schools have also implemented outbreak plans by working with local health departments to develop the necessary protocols.”

Dane and Madison County stated on their joint public health website that it was disappointed with the decision.

“We 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.”

The Wisconsin Supreme Court has issued a briefing schedule to continue the litigation.

“We have 30 days from the date of the Supreme Court's Sept. 10 order to file our brief,” Vebber told the Catholic Tribune. “Once we file our brief, the county health department will have 20 days to file their response. We will then have 10 days to file our reply.”