COVID-19 closing order causes “irreparable harm” to Catholic schools, lawsuit argues

MADISON, Wisconsin — The last-minute COVID-19 school-closing order by the Dane County health authority tramples on constitutionally protected freedom of religion and has caused “irreparable harm” to local Catholic schools that spent hundreds of thousands of dollars using the county’s own guidelines to prepare for safe opening of classrooms, a schools group said Friday in filing for a Wisconsin Supreme Court emergency injunction.

St. Ambrose Academy of Madison, a group of seven other Dane County Catholic schools and parishes, and thirteen parents filed a nearly 60-page petition with the Wisconsin Supreme Court asking it to block the school-closing order issued after close of business on August 21 by Public Health Madison & Dane County. The coalition asked the court to issue a temporary injunction by Sept. 4 so Catholic schools in the county can open on September 8. The coalition has raised more than $103,000 for the legal challenge using a crowdfunding web site. Defendants in the case are Dane County Executive Joe Parisi and Janel Heinrich, director of the health agency.

The plaintiffs’ attorney, Misha Tseytlin of Troutman Pepper Hamilton Sanders LLP, argued that the public-health agency is interfering with free practice of religion and has no statutory legal authority to restrict school operations. “The order violates parents’ constitutional rights to religious exercise and to direct the upbringing of their children, as well as the schools’ rights to inculcate religious values,” Tseytlin wrote in the petition. The Wisconsin constitution’s freedom-of-conscience clauses require “strict scrutiny” on government orders that burden religious exercise, he wrote.

“The county cannot possibly satisfy strict scrutiny,” Tseytlin wrote. “While stopping the spread of COVID-19 is compelling, the school-closure order is obviously not narrowly tailored to further that interest … because it bans schools from reopening where the schools have implemented the county’s own safe reopening plans, and because it permits the reopening of colleges, universities, daycare centers, movie theaters and much more.”

Unless the closure order is blocked by the high court, Tseytlin wrote, it will cause “spiritual and educational devastation.” The county order “has gutted parents’ and schools’ ability to provide religious instruction, undermining their mission to give children in-person education,” he wrote. Only in-person classroom instruction will fulfill the responsibility for providing Catholic education, he argued.

“Satisfying that obligation depends on in-person instruction, as these parents have chosen Catholic schools for their children so that they may receive Holy Communion at Mass, confess their sins to a priest through the Sacrament of Confession, join with the community of students and teachers to pray together and otherwise achieve the full religious and spiritual benefit of these sacred activities.”

Catholic schools spent months adapting classrooms and other spaces for physical distancing, proper hygiene and disinfection, and their plans far exceed those required of businesses that offer in-person services, Tseytlin wrote. The plaintiff schools collectively spent $326,400 to prepare facilities for safe learning and implemented measures such as frequent hand washing, placement of hand sanitizer in all rooms, requiring face coverings, reducing student movement between classrooms, and limiting classroom occupancy. St. Ambrose leased a nearby building in order to provide the needed classroom space.

“The thoroughness of these plans is why petitioner parents uniformly support their schools reopening, knowing that their children will learn in-person, in a safe environment,” Tseytlin wrote. Many parents observed that during school closures last spring and over the summer, their children struggled with distance learning, especially those who have special needs or work under an Individualized Education Plan (IEP). Parents, some of whom are low income and receive parish tuition support, had already purchased school uniforms and classroom supplies for the year.

Rev. Scott Jablonski, pastor of St. Francis Xavier Catholic Church in Cross Plains, said parents and teachers “overwhelmingly” supported reopening classrooms at the parish school. “Without in-person schooling, St. Francis Xavier simply will not be able to provide the same exceptional education it has offered to its students during its rich academic history,” Father Jablonski wrote in an affidavit to the Wisconsin Supreme Court.

Despite guidance from the Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics, Public Health Madison & Dane County has said closing classrooms to third grade and higher is key to preventing the spread of the coronavirus that causes COVID-19. Under Dane County’s new metrics, lower-grade classrooms can’t reopen until the number of daily COVID cases averages no more than 39 for four consecutive weeks. Grades 6 to 12 might be allowed to open if COVID case numbers average 19 or lower per day over an additional four weeks.

Tseytlin said the county’s COVID regulations are “incongruous,” noting that the same classrooms closed to daily learning can be used for child care and recreation programs. “So, under the order itself, a private 3-12 school may welcome 15 students in each classroom to run a recreational or education camp, a daycare and youth program, but may not provide these students with in-person religious instruction,” he wrote.

The Public Health Madison & Dane County closing order hit parochial and other private schools hardest, since most public school districts in the county opted to implement distance learning via the internet. Some pastors and teachers said privately that they believe the regulations are more aimed at preventing long-term enrollment shifts from public schools to Catholic or other private schools.

Wisconsin state Sen. Chris Kapenga, a Republican from Delafield, announced he is introducing legislation in the State Senate that will allow parents to move their children from one school district to another if they feel their children’s needs are not being met at home due to COVID-19 restrictions. The bill would allow parents to apply for school transfer throughout the year and not just in the spring under current law. Parents could also apply throughout the year to send their public-school children to Catholic or other private schools under Wisconsin’s school-choice program.

“Many Wisconsin school districts are opting to forgo in-person instruction or utilize hybrid models, effectively requiring parents to stay home and act as at-home educators,” Kapenga said in a news release. “This can be catastrophic for student achievement and for working parents who can’t afford to stay home. It’s imperative that for the 2020-2021 school year, we expand options for parents to use the open enrollment and choice programs to find an instructional model that best fits their child’s needs.”

The St. Ambrose motion is the third legal action taken against Public Health Madison & Dane County over the school-closing order. Earlier this week, another coalition of private schools filed suit seeking to have the Wisconsin Supreme Court take up their challenge of the closing order. A third suit by a school parent was filed the day before. Public Health Madison & Dane County has said it stands behind the regulations. County Executive Parisi said Dane County would “vigorously” defend the closing policy in court.