MADISON, Wisconsin — A county health officer’s emergency order that closed schools to in-person instruction for grades 3-12 faces a “pretty tall order” to overcome constitutional protections for religious liberty, a Wisconsin Supreme Court justice said Tuesday in a case brought by a coalition of Catholic and other private schools.
In a case that pits the free exercise of religion against government efforts to control communicable diseases like COVID-19, Justice Brian Hagedorn said Wisconsin has stringent legal protections for the exercise of religion.
“Our court has been quite clear that if you are burdening a sincerely held religious belief that religion is preferred,” Hagedorn said during oral arguments live-streamed from the Wisconsin Capitol Building. “Religious belief and practice is preferred to other actions. That is the clear teaching of our cases. Religion is not just to be treated as the same, but is actually given special protection, where the people of the state of Wisconsin have said, ‘You can tread no further.’”
One of the key issues in the suit brought against Public Health Madison & Dane County is whether the agency’s August 2020 ban on in-person classroom instruction infringed upon the exercise of religion. Attorneys for a group of parents, schools and education organizations said it does, and thus must be held to a legal standard known as strict scrutiny. Justice Hagedorn, one of four conservatives on the seven-member court, seemed to agree, noting that the public good of controlling disease isn’t necessarily the top concern.
“You keep talking about sort of balancing against the common good, but that’s not really a part of our test,” Hagedorn said. “The test is, is this a sincerely held religious belief? Is that belief burdened by the application of that law, and if so, then you have the burden of proving this is a compelling state state interest…that cannot be served by a less-restrictive alternative. So the balancing here is a pretty tall order, meeting strict scrutiny.”
The case arose out of an emergency order from Janel Heinrich, director of Public Health Madison & Dane County, released after close of business on Friday, August 21. Emergency Order #9 banned in-person classroom instruction for grades 3-12 for all private and public schools in the county. Some private schools had already opened for the fall term, and some were set to open on August 24. Parents were left scrambling to find child care and make arrangements for virtual learning from home. Public Health Madison had given no indication it would reverse its July 1 order that allowed schools to reopen for the fall after a long shutdown due to the COVID-19 pandemic. Public schools had largely decided on virtual learning, so the impact of the order fell squarely on Catholic and other private schools.
Three plaintiff groups filed original actions with the Wisconsin Supreme Court, asking justices to restrain Dane County from enforcing the order. On a 4-3 vote, the court issued a temporary injunction September 10, noting that the local health officers appeared to lack statutory authority to close schools during a pandemic. The court ordered the three plaintiff groups to consolidate their cases and file briefs for the December 8 hearing. Plaintiffs are represented by the Thomas More Society, a civil rights law firm; the Wisconsin Institute for Law & Liberty of Milwaukee; and Veterans Liberty Law of Cedarburg, Wis.
The case pits the power of Wisconsin counties, public schools and teachers unions against private-sector religious and secular schools, parents and groups that advocate for school choice. The attorney representing Public Health Madison & Dane County argued that there are limits on religious exercise during a pandemic.
“There’s a place for religion in the public square and it should be cherished and protected,” said attorney Remzy D. Bitar of Municipal Law and Litigation Group. “But the rights of one person to exercise their religion in the public square, just like their rights to swing their arms in the public square, stop at another person’s nose. The liberty secured by the Constitution does not import an absolute right to do all things at all times in all circumstances, totally free from restraint. There are manifold restraints to which every person is necessarily subjected for the common good.”
Attorney Misha Tseytlin, representing St. Ambrose Academy of Madison and a coalition of Catholic schools and parents, argued that the county health order infringed on his clients’ rights to the free exercise of religion. “The lion’s share of the argument that I’m presenting here in regards to constitutional claims is based on the burden on religious exercise,” he said. “With regard to that burden, we have paragraph after paragraph after paragraph in the statement of undisputed facts that our students, our schools are burdened in their religious exercise.”
Tseytlin said classroom instruction is a key ingredient in Catholic education that can’t be replicated over the internet. Attorney Joseph W. Voiland, representing parent Sara James, agreed.
“Virtual learning is not the practice of her faith or her children’s faith,” Voiland said. “It needs to be in person because she believes her children need to be in person with other children as part of the Body of Christ. That is her belief. Switching to virtual education doesn’t simply change the venue, it changes the entire education.”
Oral arguments also centered on whether Public Health Madison & Dane County or any other local health agency has statutory authority to close schools. Bitar said Chapter 252 of Wisconsin Statutes gives local health officers “a broad mandate” to do what is needed to control infectious disease. Attorney Richard M. Esenberg of the Wisconsin Institute for Law & Liberty said only the state Department of Health Services has the authority to enact school closures in a health emergency.
“We cannot read this general directive to do whatever is necessary as an unrestricted grant of police power,” Esenberg said, “and I think the Legislature quite clearly made a determination here that when we are going to take the type of extraordinary steps that we’re taking here — as reasonable as they may be, as necessary as they may be — we don’t need to get to that, because we’re not talking about whether what is done here is a good idea, we’re talking here is whether it was legally authorized and done in the correct way.”
The court now takes the case under advisement. It’s not clear when a ruling will be issued, although it could take months. Meanwhile, schools remain open under terms of the September injunction. Dane County Catholic school officials said the return to classroom instruction has been a huge benefit to students.
“Parents and teachers tell me that the overwhelming sense is joy,” said Joan Carey, executive director of St. Ambrose, a classical Catholic academy serving grades 6-12. “The faculty and students are so happy to be back to each other. One of our teachers said it was so nice to be back in person that it doesn’t even feel like work anymore. A teacher told us that when she asked the students what was the best part of summer, they said it was coming back to school. It’s a human tendency to recognize the value of a thing when it is taken away and then restored.”
There have been isolated cases of COVID-19 among students and staff in Diocese of Madison schools, but COVID did not spread from student to student, said Michael Lancaster, diocesan superintendent of Catholic schools. About 10 percent of schools decided to shift to virtual learning between Thanksgiving and the end of the year, he said.
“Overall, school has been going remarkably well,” Lancaster said. “The fact that there has been no transmission in schools suggests that all of the mitigation factors are working. Parents have also been playing a critical role as they have been tracking symptoms and keeping children home if they show any sign of illness.”
St. Francis Xavier Catholic School in Cross Plains had “a few isolated cases with students and a couple of teachers who contracted COVID,” said Rev. Scott Jablonski, pastor of St. Francis Xavier. “We chose to pivot to virtual instruction for about three weeks prior to Thanksgiving,” Jablonski said. “But on the whole, it has been a successful year thus far and undoubtedly our students have greatly benefited from the ability to be in person for the vast majority of the year.”
The Wisconsin Supreme Court case will have implications in other areas of the state. The court issued a temporary injunction in late November barring the City of Racine’s public health director, Dottie-Kay Bowersox, from closing schools due to COVID-19. Bowersox had issued an order closing all public and private school buildings from November 27 through January 15. Despite the Supreme Court injunction , Racine schools remain closed because the health department order was subsequently incorporated into a city ordinance.
Attorney Esenberg of Wisconsin Institute for Law & Liberty filed an emergency petition with the Wisconsin Supreme Court asking the court to hold Bowersox in contempt. “Wisconsin Supreme Court orders are neither optional or advisory,” said Esenberg, who represents School Choice Wisconsin Action in the Racine case. “We expect the City of Racine to immediately allow schools to open or face sanctions from the Court.”
Some local health officials “are a little drunk with power,” said Jim Bender, president of School Choice Wisconsin, an advocacy group that is also a plaintiff in the Dane County case. “It has become a very political movement whereby they feel they should not only flex their muscles under current law, but are trying to get county boards to vote them more power,” Bender said. “Unfortunately, their health orders are based a very narrow scope of the world.”
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