Wisconsin Justices Hear Challenge to School Closure Powers

A crew of custodial staff cleans a classroom closed for in-person learning. (Colter Peterson/St. Louis Post-Dispatch via AP)

MADISON, Wis. (CN) — The Wisconsin Supreme Court heard arguments Tuesday in a set of lawsuits challenging local health officials’ authority to close schools, including religious ones, for in-person instruction amid the coronavirus pandemic.

The hearing centered on three consolidated petitions brought by parties ranging from school choice advocacy groups to multiple parochial schools and parents of students at those schools, all of whom argue officials in Madison and Dane County exceeded their authority in unilaterally barring in-person classes for grades 3-12 and violated their constitutional rights to practice their religion in the process.

Madison and Dane County Public Health Director Janel Heinrich in particular is the target of these lawsuits as the one who entered the executive order shutting down non-virtual classes on Sept. 1. Also named as defendants were public health office itself and Dane County Executive Joseph Parisi.

Badger State conservatives, local businesses and business-friendly lobbies, often with the backing of the GOP-controlled Wisconsin Legislature, have challenged nearly every state-level attempt to limit movement and commerce made by the administration of Democratic Governor Tony Evers.

The legal battles have mostly ended in Wisconsin’s highest court, which has a four-justice conservative majority that has been largely receptive to litigants’ attempts to check state executive and public health officials’ ability to mandate coronavirus restrictions with the stroke of a pen.

The high court tossed Evers’ first coronavirus lockdown order back in May and recently heard the latest in a series of arguments over the authority he and other bureaucrats have to impose restrictions on the public and private spheres due to Covid-19. The divided court also enjoined the closure of Dane County and Madison schools in September when it took up the three lawsuits argued Tuesday.

The 90-minute virtual arguments on Tuesday touched on many of those statutory themes with the added dimension of whether specifically closing religious schools for in-person instruction infringes constitutional protections for religious liberty.

Arguments opened with Rick Esenberg, founder and general counsel for the Wisconsin Institute for Law & Liberty, a conservative group at the forefront of many challenges to the state’s coronavirus directives, such as one issued by the governor mandating masks.

Attorneys and justices are seen during a Wisconsin Supreme Court hearing Tuesday over orders to close schools during the Covid-19 pandemic.

Esenberg, representing several Christian schools and parents of students at those schools, sparred early with liberal Justice Rebecca Dallet over what the plain language of the Wisconsin statute says local health officials can do as the so-called “boots on the ground” in reacting to a public health crisis. Esenberg argued that the broad statutory language does not “confer unlimited police power” on a single official, who may limit public gatherings with certain restrictions but cannot close all schools.

Liberal Justice Jill Karofsky resisted the idea that schools were even technically closed by the order, given that they shifted to virtual instruction in response to the order. Esenberg retorted that virtually no one could conclude that a school students cannot enter to interact and engage in the educational process is not closed.

Dallet challenged the assumption that virtual instruction does not qualify as open school, asking, “Have you ever observed online school? People are interacting.”

Misha Tseytlin, representing schools, churches and parents from the Chicago office of Troutman Sanders, appeared Tuesday to argue against the school closures as well.

Tseytlin, formerly Wisconsin’s solicitor general under Republican former Governor Scott Walker, took the tack that closing religious schools is a constitutional violation of free religious practice.

“Indefinitely taking away communal religious instruction” involving practices like communal prayer and adoration of the Eucharist in the Catholic faith subjects the order to strict scrutiny, Tseytlin said. He argued the order infringes religious practice even though the law at issue itself is facially neutral.

Dallet asked Tseytlin, “How can you assert that you are somehow being burdened in your religion when the order makes special exemptions for religious gatherings” such as Catholic mass on weekends.

Tseytlin countered that “religious practice is suffused with everything that happens in every one of our classes,” including the practice of frequent communal prayer throughout the day, although Dallet was not convinced that religious learning could not be accomplished virtually.

Joseph Voiland, a former Ozaukee County Circuit Court judge representing a parent with his Veterans Liberty Law firm, appeared briefly and argued that it was enough to nix the law if parents of children in religious schools believe their kids are being specifically disadvantaged by the school closures.

Remzy Bitar, an attorney for the Madison and Dane County defendants with the Waukesha-based Municipal Law & Litigation Group, opined that the right to exercise religion in the public square, like the right of another person to swing their arms in the public square, “ends with another person’s nose.”

The Constitution, Bitar said, does not allow people to exercise all rights at all times indefinitely and the local health officials operated in line with state law in fighting “one of the biggest threats to mankind other than war.”

“Religious practice has always been balanced with public health, welfare and safety,” the attorney said.

Justice Brian Hagedorn, part of the court’s conservative majority, checked that point, saying that the balancing test does not relieve the order from strict scrutiny. Given the heavy burden the defendants face in defending the order, Hagedorn warned Bitar “you’ve got the deck stacked against you” in proving that shutting down in-person learning completely was the only viable means to slow the spread of Covid-19.

Conservative Justice Rebecca Grassl Bradley agreed that there are less restrictive means available than barring in-person school and said the Wisconsin Constitution’s religious freedom protections are even stronger than the First Amendment’s.

The high court did not say when it would rule on the consolidated petitions at the close of arguments Tuesday.

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