Dane County’s private school parents got some relief on Thursday from the Wisconsin Supreme Court.

The state’s highest court, in a 4-3 decision, agreed to take directly the lawsuits challenging an order by the Dane County health department closing all schools for grades 3-12, including the county’s private schools. In addition, the Supreme Court has granted a temporary injunction against the order until the court can hear the case, allowing schools to re-open.

The Supreme Court’s majority opinion noted, “the explicit power to ‘close schools’ is statutorily absent.”

“In short, Petitioners are likely to succeed on the merits of their argument that the Order’s broad closure of schools in this case is not within the statutory grant of power to local health officers in Wis. Stat. § 252.03,” the Court’s majority opinion states. “Beyond likelihood of success, Petitioners also have shown no legal remedy is available and that failure to grant an injunction would cause irreparable harm.”

The Wisconsin Institute for Law & Liberty (WILL), responsible for one of the three lawsuits, praised the court’s action on Thursday.

“We are pleased the Court took swift action and agreed to review Dane County’s school closure order,” said Rick Esenberg, WILL’s president and general counsel. “We are heartened that the Court concluded that our argument is likely to succeed on the merits and, for now, barred the closing of private schools. Our clients will be able to do what they do – educating children in Dane County.”

WILL filed its lawsuit on August 26 on behalf of eight Dane County families, five private schools, School Choice Wisconsin Action, and the Wisconsin Council of Religious and Independent Schools (WCRIS).

In the lawsuit, WILL asked the courts to consider the following:

  • Wisconsin statutes do not give county health departments the authority to order the closure of schools for in-person instruction.
  • Public Health Madison & Dane County cannot meet its burden of showing that school closures are “necessary” to combat COVID-19 based on Dane County’s own data and the less burdensome approach it has taken toward regulating other sectors of society. For instance, childcare in Dane County remains open but schools must close for grades 3-12.
  • Order #9 unconstitutionally infringes upon the constitutional right of parents to direct the education and upbringing of their children by sending them to private school to receive in-person instruction.
  • Order #9 unconstitutionally infringes upon the constitutional right of parents to freely exercise their religion, which includes sending their children to private, religious schools to receive religious instruction and formation.

The order issued by Public Health Madison & Dane County was county-wide in its effect, affecting both public and private schools. It was issued at the last minute just as schools were getting ready for in-person instruction.

The Dane County order also required schools to also offer an online education option for Kindergarten through 2nd grade as well as in-person instruction for those students.

The public health order itself said, according to the current data, infection rates are lower for school-aged children than the general public.

While research on school-aged children continues to emerge and evolve, a number of systematic reviews have found that school-aged children contract COVID at lower rates than older populations. This is particularly pronounced among younger school-aged children. Locally, as of August 20, 2020, nine (9) percent of all COVID cases were among children aged 0-17 in Dane County. This population comprises 22% of the county population overall. Cases among 0-4 year olds comprised 1.3% of all cases; 5-10 year olds comprised 2.7% of overall cases; and 11-17 year olds comprised 5.3% of all cases. Outbreaks and clusters among cases aged 5-17 have been rare; of the 401 cases within this age group, 32 (8.0%) were associated with an outbreak or cluster. A recent analysis also showed a higher proportion of adults with COVID in Dane County had symptoms compared to school-aged children and that the most common risk factor among school-aged children was household contact with a confirmed case.

It’s because of the lower rate of infection that Dane County allowed in-person education for K-2 students.