WILL Asks Wisconsin Supreme Court to Invalidate Dane County School Closure Order

Original action on behalf of affected parents, private schools, and school associations

The News: The Wisconsin Institute for Law & Liberty (WILL) filed an original action to the Wisconsin Supreme Court asking for a review of the Dane County health department’s order closing all schools, public and private, for grades 3-12. The original action is filed on behalf of 8 Dane County families, 5 private schools, School Choice Wisconsin Action, and the Wisconsin Council of Religious and Independent Schools (WCRIS).

The Quote: WILL President and General Counsel Rick Esenberg said, “The order from Public Health Madison & Dane County closing all county schools lacks legal authority and violates the constitution and we hope the Wisconsin Supreme Court agrees to give it a review. This order injected unnecessary chaos, confusion, and frustration into the lives of children, families, and school leaders preparing to navigate a difficult new school year.”

Chris Truitt, a parent from DeForest, said, “The order by the Dane County health department to prevent our child from attending his sophomore year of high school in person is detrimental to his, and all students’, academic growth. Our son struggles with a learning disorder and the lack of in-person instruction is a barrier for his development. We were confident in our school’s plans to reopen safely and are now concerned that our son will fall further behind in his critical high school years.”

Background: Order #9, issued on Friday August 21 by Public Health Madison & Dane County, closed all schools, public and private, for in-person learning for grades 3-12 in Dane County effective Monday August 24. The order came after 5 pm and without warning for a number of private schools in Dane County that were preparing to start in-person instruction the week of August 24. At least one Dane County private school had already been open for a week when Order #9 was issued. All of WILL’s private school clients were planning on providing in-person instruction this fall and had invested significant resources into creating a safe environment for their students to return. The result has been frustration and chaos for Dane County parents and schools.

WILL’s Original Action: The original action asks the Wisconsin Supreme Court to review important questions concerning Order #9 and the authority of Public Health Madison & Dane County to close private schools.

  • Wisconsin statutes do not give county health departments the authority to order the closure of schools for in-person instruction.
  • Public Health Madison & Dane County cannot meet its burden of showing that school closures are “necessary” to combat COVID-19 based on Dane County’s own data and the less burdensome approach it has taken toward regulating other sectors of society. For instance, childcare in Dane County remains open but schools must close for grades 3-12.
  • Order #9 unconstitutionally infringes upon the constitutional right of parents to direct the education and upbringing of their children by sending them to private school to receive in-person instruction.
  • Order #9 unconstitutionally infringes upon the constitutional right of parents to freely exercise their religion, which includes sending their children to private, religious schools to receive religious instruction and formation.

WILL’s original action represents a large and diverse set of Dane County clients and claims.

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