MADISON, Wisconsin — A classical Catholic school academy voted Monday to hire a former Wisconsin solicitor general to pursue litigation against a school-closing order issued by the Dane County public health agency just 60 hours before parochial schools were set to open for fall 2020 instruction. A crowd-funding effort by Madison-based St. Ambrose Academy had raised nearly $91,000 in less than 48 hours to challenge the last-minute closing order aimed at preventing spread of COVID-19.
Joan Carey, executive director of St. Ambrose Academy, said the school has engaged the services of Misha Tseytlin, a partner with Troutman Pepper Hamilton Sanders LLP, a law firm that earlier this year helped the Diocese of Madison defeat attempts to place strict limits on Mass attendance due to the coronavirus. The decision to challenge the legality of the school-closure order was ultimately an easy one, she said.
“It was so obvious what we had to do. We knew the cost. We took a leap of faith and just hoped others would agree that our children deserve better than to spend their lives in front of a video screen,” Carey told Catholic World Report. “Sometimes people cheer you on from the sidelines, but that is not what is happening right now. That $90,000 speaks for itself. My reaction? Every time another donation comes in, I break into tears of thanksgiving. I have been on my knees all summer, begging Jesus to show us the way. Well, He just did.”
On Saturday, August 22, St. Ambrose put up a GiveSendGo crowdfunding site that within 18 hours raised $60,000 and in less than 48 hours topped its upgraded goal of $80,000. The fund was generated by donations from 701 individuals, in amounts from a few dollars to $1,000 and more. “Dane County Health has gone way overboard with many of its pandemic-related restriction,” an anonymous donor posted on the site on August 24. “Thank you so much for taking on this fight,” another donor wrote. A woman who pledged $100 wrote, “May God Bless your efforts in that you may be a leading in this nation’s fight for our children. I wish you every grace and strength needed for this battle.”
Carey said St. Ambrose is prepared to take the case to the Wisconsin Supreme Court, because the county health agency has infringed on the rights of Catholic parents, students and schools. “The Wisconsin Constitution has some of the strongest protections for religious liberty of any state in the nation,” she said. “Our argument in founded in the right of parents to pursue the religious education of their choice for their children. Only very high justification can infringe on that right. Restrictions on religious liberty are subject to the strict scrutiny of the court. We believe Dane County hasn’t met that standard.”
Public Health Madison & Dane County issued Emergency Order #9 after close of business on Friday, August 21, mandating that students from grades 3-12 in Dane County could not attend in-person instruction. The primary impact of the order was felt by Catholic families who were preparing for classes to open starting on August 24. The last-second order sent parents scrambling to make child-care arrangements, and schools were faced with abandoning months of planning for safe classroom operation. CWR reached out to Dane County Executive Joe Parisi, but had not gotten a reply by press time.
Carey said the county closing order threatened to harm the overall well-being of students at St. Ambrose and other parochial schools that chose to reopen classrooms after months of COVID-19 closure. “Without a doubt the greatest impact will be the emotional and spiritual toll taken on children who are socially isolated from their friends and teachers and placed in front of computer screens for hours, days and weeks on end,” she said. “Religious schools were determined to reopen in order to protect our children’s formation and development from such a negative impact.”
The county order came despite guidance from the federal Centers for Disease Control and Prevention that recommended schools could reopen for fall instruction. The CDC guidance noted that children appear to be at lower risk of contracting COVID-19, and fewer than 0.1 percent of COVID-related deaths have been among people 18 and younger.
Sarah Mattes, Communications supervisor for Public Health Madison & Dane County, said “based on Dane County current average number of cases per day, it is not safe for all grade levels to open for in-person instruction. Data and the latest evidence will continue to inform our decisions about opening and closing schools, and we will continue to work closely with schools, as we have been during this entire pandemic.”
Carey said St. Ambrose and other Catholic schools have taken the COVID-19 pandemic very seriously, spending all summer adapting school facilities for social distancing, including moving three of its six grades into a leased building in order to provide the recommended six-feet social distancing buffer between students. “It’s an expensive solution but was necessary to ensure we could comply with the separation regulations,” Carey said. “Other schools are making similar valiant efforts. These extensive measures to put us in full compliance with the orders bring our spaces up to the degree of safety recommended by our governing officials. We have done our part to keep students and staff safe.”
The Diocese of Madison operates 44 Catholic schools across 11 counties, including more than a dozen in Dane County. Enrollment tops 6,500 students in pre-kindergarten through grade 12. Two Catholic schools — St. Ambrose and Edgewood High School of the Sacred Heart — offer secondary education. St. Ambrose has 115 students. The size of elementary schools in the diocese ranges from 11 students to more than 450.
Rev. Scott Jablonski, pastor of St. Francis Xavier Catholic Church in Cross Plains, said parents were “deeply frustrated” by the last-minute county order. “Their children want to be in school and they want their children to be in school for in-person instruction,” Fr. Jablonski said, “especially since they know that we spent the past few months and a lot of financial resources planning to safely reopen in accordance with all CDC, national, state, county and diocesan guidelines.” St. Francis Xavier operates an elementary school covering age-4 kindergarten through grade 8. The parish has operated a school in Cross Plains since 1857.
Fr. Jablonski said he strongly supports the legal action about to be taken by St. Ambrose Academy. “I have already made a personal donation to help pursue legal action against the county,” he told CWR, “and although I wish it did not have to go this route I am hopeful that we can find a quick resolution by doing so.” He said St. Francis Xavier saw an increase in inquiries from parents of public school students, who were seeking options for in-class instruction for the 2020-21 school year. Most public school districts in the county have opted to start the school year with distance learning via computer. St. Francis Xavier could not accommodate most requests, though, because of social distancing requirements that in effect cut the school’s overall capacity.
About 100 parents, students, teachers and priests gathered Monday for a Rosary rally outside the Diocese of Madison headquarters on Madison’s west side, in support of Catholic schools opening as originally planned before the Dane County shutdown order. The rally was moved from the original location at the Wisconsin Capitol Building out of safety concerns in case violent protests erupted over the shooting of a black man by police in the southeastern Wisconsin city of Kenosha. As the Rosary crowd gathered, a radio blared a live interview on Madison radio station 1310 WIBA with Angela Hineline, St. Ambrose’s director of enrollment and learning services. Hineline told host Vicki McKenna that these kinds of educational decisions should rest with the parents.
“Parents are the primary educators of their children, and parents are experts on their children and what their children’s needs are,” Hineline said. “Parents are really good at determining the best educational environment for their child. St. Ambrose has really worked hard alongside other private schools to provide two options to parents so they have that right to choose — virtual learning, which we were all set up to make as an option from day one; or if you feel your child is best educated in an in-person environment, you can have in-person education with all of the safety protocols … that Dane County expects.”
The St. Ambrose legal challenge has the support of Bishop Donald J. Hying and Michael Lancaster, the superintendent of schools for the Diocese of Madison. The diocese is not planning its own legal action.
The coronavirus that spread into the United States starting in January quickly raised myriad legal issues that grew from state and local actions aimed at preventing hospitals from becoming overwhelmed with COVID-19 patients. The Diocese of Madison hired Troutman Pepper and worked with the Becket Fund for Religious Liberty to fight orders issued in May by Public Health Madison & Dane County to limit in-person attendance at Holy Mass to 50 people, regardless of building capacity or virus-mitigation efforts. After the diocese delivered a 17-page letter with legal arguments against the orders to county executive Parisi and Madison Mayor Satya Rhodes-Conway, the health orders were adjusted so churches were not treated differently than businesses.
As of Monday August 24, Wisconsin has logged 70,854 cases of COVID-19 and 1,081 coronavirus-related deaths. The state registered 392 new cases on Monday, the lowest single-day count since June 29, according to an analysis of state data by the MacIver Institute. Dane County registered 29 new cases on August 24, compared to 72 for Milwaukee County and 54 for Waukesha County.
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