Wisconsin Supreme Court Rules Dane County’s Order to Close Schools Unconstitutional

A masked teacher walks by as students wait in a single file line after eating a socially distanced lunch at Medora Elementary School in Louisville, Ky., on March 17, 2021. Jon Cherry/Getty Images

In a 4–3 decision, Wisconsin Supreme Court ruled last Friday that it’s unconstitutional and violating freedom of religion for local health officials to close all public and private schools for grade 3–12 students last August.

Justice Rebecca Grassl Bradley wrote the majority opinion (pdf), stating that the majority of justices agree with the petitioners and hold “local health officers do not have the statutory power to close schools” under Wisconsin law and the local official’s order to close the school “infringes the petitioners’ fundamental right to the free exercise of religion guaranteed” under the Wisconsin Constitution.

“Accordingly, those portions of the order restricting or prohibiting in-person instruction are unlawful, unenforceable, and are hereby vacated,” Bradley continued.

Janel Heinrich, Public Health Officer of Public Health of Madison and Dane County, issued an emergency order #9 (pdf) on August 21, 2020, which closed all public and private schools for in-person instruction for students in grades 3–12, except for child care and youth recreational activities. But the order allowed k–2 students and college students to attend schools in person.

Madison is the capital of Wisconsin and the seat of Dane County.

One day after Heinrich released the order, a parent of two students enrolled in a private religious school in Madison filed a petition challenging the order’s lawfulness.

Some private schools later joined the suit or filed their own suits, saying in-person religious education is a vital part of the exercise of their religion.

On September 10, 2020, the Supreme Court consolidated the cases into one single case and issued an injunction to suspend the order, allowing schools to re-open for in-person instructions until the court decided.

Masked students wait in a socially distanced single file line before heading to the cafeteria at an elementary school in Louisville, Ky., on March 17, 2021. Jon Cherry/Getty Images

One of Heinrich’s arguments was that the Wisconsin law authorized her to close schools. For example, one statute states that “local health officers may do what is reasonable and necessary for the prevention and suppression of disease; may forbid public gatherings when deemed necessary to control outbreaks or epidemics.”

Bradley said that the statute doesn’t specifically give Heinrich the authority to “close schools” because under the doctrine of “express mention of one matter excludes other similar matters [that are] not mentioned.” In this case, “forbid public gatherings” is mentioned and excludes “close schools.”

And from the statue’s history, “close the schools” had been specifically struck down from statues which later became the present statue.

“In all this time, the legislature never gave local health officers the power to ‘close schools’—only the statewide health agency,” Bradley wrote.

Bradley pointed out that Heinrich’s order not only burdened academic schooling but also burdened the exercise of religious practices.

“While Heinrich allowed schools to use their premises for child care and youth recreational activities, the government barred students from attending Mass, receiving Holy Communion at weekly Masses with their classmates and teachers,” Bradley added.

Heinrich’s order also failed to explain why college students were able to attend schools while students in grades 3–12 were not, Bradley noted.

“Even in times of crisis—perhaps especially in times of crisis—we have a duty to hold governments to the Constitution,” Bradley cited the opinion of Supreme Court Justice Neil Gorsuch, ruling that Heinrich’s order violates the Wisconsin Constitution.

Justice Rebecca Frank Dallet called the majority’s ruling an “erroneous interpretation” in her dissenting opinion, saying the “only statutory question before the court” is whether the statute prevents the local officials from closing schools, which she believes it doesn’t.

Dallet also argued that Heinrich’s order “cannot possibly violate anyone’s constitutional rights because the majority strikes down the order.” She further pointed out that Heinrich’s order “explicitly exempts religious practices from its in-person gathering restrictions.”

Rick Esenberg, president and general counsel of the Wisconsin Institute for Law & Liberty (WILL), applauded the decision, saying in a statement that the decision “provides a critical correction that ought to prevent future abuses of power in an emergency.”

WILL represented some of the petitioners in the lawsuit.

Heinrich said he is “extremely disappointed” about the ruling.

“This decision hinders the ability of local health officers in Wisconsin to prevent and contain public health threats for decades to come,” Heinrich said in a statement. “Unnecessary, preventable illness may certainly occur as a result of this ruling.”

On March 31, the Wisconsin Supreme Court also ruled that Gov. Tony Evers’s statewide mask mandate is unlawful, saying the Democrat overstepped his legal authority.