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‘Major victory’: Wisconsin can’t force private, religious schools to shut down

Catholic high school
A teacher speaks with students in the classroom and online as they return to in-person learning at St. Anthony Catholic High School during the COVID-19 pandemic on March 24, 2021, in Long Beach, California. |

The Wisconsin Supreme Court has ruled that local health departments can’t ban private and religious schools from holding in-person classes during health emergencies like the ongoing COVID-19 pandemic.

In a 4-3 decision, the court also ruled Friday that Public Health Madison & Dane County infringed on constitutional religious rights, Fox6 reported.

Writing for the majority, Justice Rebecca Bradley said the law that authorizes local health departments to take preventive measuresduring a health emergency “cannot be reasonably read as an open-ended grant of authority.”

The lawsuit was filed in response to Dane County’s amended health order issued last September that sought to ban in-person, in-classroom education by private and religious schools. The restrictions do not exist any longer and the school year ended this week, but the ruling is significant as it limits the powers of health departments in the future.

The conservative legal group Thomas More Society called it “a major victory to the private schools and parents” of Dane County, in which the state capital of Madison is located.

“This has been an overreach of major proportions by a local health official who ignored the fundamental constitutional right to the free exercise of religion for parents, students, and school personnel by ordering these institutions to shut down and prohibiting in-person education,” the group’s Special Counsel Erick Kaardal said in a statement. “It was a slap in the face to educational choice, an affront to families who believe that children should be in school, and a direct violation of parental rights.”

Last September, the Supreme Court had temporarily put the health order on hold.

Schools that educate students in grades three through 12 had been ordered by the county to educate students virtually. But after the court ruled in favor of a coalition of private religious schools that challenged the order, many private schools prepared to restart in-person learning for their students, Wisconsin Public Radio reported at the time.

The court’s opinion declared that the petitioners “have substantial interests in advancing childhood education and providing students a stable and effective learning environment.” It also noted that they “went to great lengths — and expended non-negligible sums — to provide students, teachers, and staff the ability to resume in-person instruction with safety precautions in place.”

On Friday, the court noted in its ruling that “the framers of the (Wisconsin) constitution, backed by Wisconsin residents, chose to describe the religious freedoms that they should be entitled to in greater detail than were given in the federal constitution,” stressing that the framers used “the strongest possible language” to protect those freedoms.

“The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed…nor shall any control of, or interference with, the rights of conscience be permitted.”

The legal group’s Executive Vice President and General Counsel Andrew Bath said the petition was against “an illegal order by a local public health officer, and the court saw that right away, first issuing a preliminary injunction in September 2020 that prohibited the county from enforcing it, and now settling the matter decisively.”

Bath added, “They have declared it both statutorily and constitutionally unlawful and have additionally affirmed that local health officers do not have the statutory authority to close schools.”

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