On May 13, 2020, the Wisconsin Supreme Court struck down Emergency Order #28, Safer at Home Order, issued by the State of Wisconsin Department of Health Services (DHS) Secretary, Andrea Palm, in Wisconsin Legislature v. Palm. Order #28, and its predecessor order, extended Governor Tony Evers’ original Safer at Home Order through May 26, 2020.  After uncertainty about the effect of the decision, on Friday May 15, 2020, the Wisconsin Department of Public Instruction (DPI) and the Wisconsin Attorney General (AG) issued guidance.  This legal update provides an overview of the Wisconsin Supreme Court decision, the DPI and AG guidance, and recommendations for schools at this time.

Background: Supreme Court Decision related to Emergency Order #28 Safer at Home Order

The Supreme Court, by a 4-3 majority, declared Emergency Order #28 “unlawful, invalid, and unenforceable,” concluding that Order #28 was an administrative rule that had not been lawfully created through the rule making process subject to Wis. Stats. Chap. 227.  The Supreme Court also found that Secretary Palm’s Order was overly broad, and that confining all people to their homes, forbidding travel and closing businesses exceeded Secretary Palm’s statutory authority under Wis. Stat. § 252.02, specifically subsections 252.02(4) and (6). While declaring Order #28 invalid and unenforceable for failing to follow the rule making process, the Supreme Court indicated that its decision was not applicable to paragraph 4. a., of Emergency Order #28, which states:

“4.  Closures.  All of the following facilities shall be closed:
a. Schools. Public and private k-12 schools shall remain closed for pupil instruction and extracurricular  activities for the remainder of the 2019-2020 school year.  Schools may continue to facilitate distance learning or virtual learning. Schools may continue to be used for Essential Government Functions and food distribution.  This section does not apply to facilities operated by the Wisconsin Department of Corrections.”

While the Schools exception is not explained, both footnotes are found in textual passages which indicate that the statutory rule making process was required because the order fit the statutory definition of a “General Rule,” based on Emergency Order #28’s content. It is worth noting that pursuant to Wis. Stats. § 252.02 Powers and Duties of Department., the DHS Secretary is provided the following powers and obligations:

“(3)  The Department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.”

As the COVID-19 health pandemic progresses across the state, the Supreme Court decision does not address and appears to leave Secretary Palm’s authority unchanged with respect to schools under Wis. Stats. § 252.02(3). If the basis of the exclusion of schools from the Supreme Court decision was the authority of the DHS Secretary under Wis. Stats. § 252.02(3), the Secretary may in the future exercise that authority to close the schools beyond June 30, 2020.  In addition, the Supreme Court advises that the decision does not address or attempt to change the Governor’s authority.

As a result of the decision and conclusion that rule-making processes must be followed, the Governor, DHS Secretary and the legislature are currently engaged in rule-making pursuant to Wis. Stats. § 227. The scope statement for the rule making process is currently open for public comment.  While the Supreme Court encouraged a speedy and productive discussion between the executive and legislative branches of government, there is no guarantee that the process will produce a rule.

AG Emergency Opinion Dated May 15, 2020

After the Wisconsin Supreme Court invalidated the majority of the Safer At Home Order, some local governments issued or extended local orders, while others have rescinded orders or issued recommendations only.  Confusion mounted as to whether the Supreme Court decision also affected local authority to issue Safer At Home orders.  In response to the confusion, the Attorney General opined in an Emergency Attorney General Opinion, dated May 15, 2020, that local authorities are permitted to create orders under Wis. Stats. § 252.03, explaining that the statute was not addressed by the Supreme Court decision.

However, the AG cautioned against criminal penalties in local orders, and suggested such penalties may exceed local authority. The AG noted that the Supreme Court concluded that DHS’s exercise of certain powers exceeded the scope of DHS’s statutory authority under Wis. Stats. § 252.02, specifically directing people to stay at home, forbidding certain travel, closing certain businesses and imposing criminal sanctions for violations. While the AG opines that the Supreme Court analysis as to those specific circumstances “may” not apply to the local powers under Wis. Stats. § 252.03, and their authority under 252.25, the AG concluded that a local order that does not threaten a criminal penalty cannot cause the same concerns as addressed in the Supreme Court decision regarding Wis. Stats. § 252.02.

The Attorney General issued its Emergency Opinion quickly in order to provide guidance, but not according to their office’s normal process. As such, the Attorney General is providing the public an opportunity to comment and advised that the Emergency Opinion may be supplemented.

Implications for School Operations, Graduation and DPI Guidance Post Supreme Court Decision

For schools, the Supreme Court’s decision has left some restrictions on operations and activities unchanged and brought heightened uncertainty to others. The following remain unchanged:

1. Public and private k-12 schools remain closed for the balance of the 2019-20 school year, June 30, specifically for pupil instruction and extra-curricular activities.
2. Schools may continue to facilitate distance learning or virtual learning, which may include virtual meetings with parents including special education process meetings.
3. Schools may continue to be used for Essential Government functions, such as school board meetings (and board committee meetings), and Food Distribution.

However, with the invalidation of Order #28, certain restrictions appear to have changed for schools.  While the schools remain closed for pupil instruction and extra-curricular activities, the Supreme Court decision, which invalidated restrictions related to mass gatherings and essential services, arguably expanded other potential types of permitted school activities. Likewise, the state-mandated safety precautions under Order #28, such as social distancing, are no longer enforceable.

An important caveat is that there are still recommended health precautions in place from the CDC, the Wisconsin DHS and local health departments.  In addition, local orders may be in place restricting operations and requiring certain safety precautions. Also, as the State re-opens and parents and guardians return to work, the effectiveness of distance learning and virtual learning may be affected, which schools may need to take into account for the remainder of the school year.

On Friday May 15, 2020, Assistant State Superintendent Michael Thompson provided guidance regarding the effect of the Wisconsin Supreme Court decision.  He noted the following upon reviewing the Wisconsin Supreme Court decision:

1. Public and private schools remain closed for pupil instruction and extracurricular activities through June 30. However, for any activity that is not pupil instruction or an extracurricular activity, schools should consult with their local health departments as to how to engage in that activity safely, or whether to engage in that activity at all.
2. Schools should also plan for how to provide pupil instruction and extracurricular activities safely once restrictions expire.  To that end, the Department of Public Instruction (DPI) is working with the Department of Health Services (DHS) to provide schools with additional health recommendations.
3. As schools consider activities such as graduation, which DPI reports is not typically considered an extracurricular activity, DPI advises school districts to review earlier graduation guidance released by DHS and to consult with local health authorities as to how to hold a safe alternative graduation activity on or off school grounds.

At this time, while the remaining portion of Order #28 applicable to schools does not appear to ban in-person graduation ceremonies, particularly outside of the school or off campus, DHS continues to recommend that schools cancel or postpone all in-person ceremonies for spring and summer graduations. Public gatherings such as traditional graduation ceremonies are not advised until the state has met benchmarks articulated in the state’s Badger Bounce Back plan and the state determines that it is safe to do so. Currently, DHS recommends that individuals avoid all public and private gatherings of any number of people that are not part of a single household or living unit.  This applies to events like traditional graduation ceremonies.  DHS continues to recommend that any graduation events held at this time should be virtual or non-contact, and should not physically convene large groups of people.

Outlined in the graduation guidance, DHS and DPI offer ideas to honor seniors through virtual or other alternative celebrations while ensuring public health safety.  DHS and DPI also continue to advise that gatherings of students and families in drive-through ceremonies, even in separate cars, may result in situations where ensuring adequate social distancing and protection of families and school staff is difficult.  This may put students and their families at risk, particularly for students or family members with underlying risk factors that put them at risk for severe health impacts if they contract COVID-19.  However, if a school district pursues plans for a drive-through ceremony, more care and planning is required to control and minimize risk. DHS examples of drive-through ceremonies that purport to involve minimal risk are found in the graduation guidance. See Guidance at https://www.dhs.wisconsin.gov/covid-19/schools.htm.

At this juncture, although the Supreme Court invalidated Emergency Order #28 and lifted restrictions for mass gatherings, school districts are advised to proceed with caution, keeping in mind the following for any expanded operations (i.e. staff training, outside organization meetings, recreation department programs such as swimming lessons, practices for non-district teams, etc.), graduation ceremonies or activities (other than in-person student instruction and extra-curricular activities which continue to be prohibited):

1. Consult with your local or area health departments, families, and other community members to ensure that graduation activities, other activities and increased school operations meet all requirements and take into account recommended best practices for public health protections.
2. Be aware of local “Safer At Home” orders from the counties or municipalities where your school district is located and changes to those orders.
3. Check with local law enforcement. There is confusion at this time over local county orders being issued and withdrawn, and the level of enforcement in individual communities.
4. Check with your insurance carrier and check your insurance policies. The insurer may not be able to confirm whether coverage will apply because each claim is based upon its specific circumstances. In addition, general liability or school district liability policies may not cover claims specifically for COVID-19 injury arising from mass gathering graduation events. Some insurers have advised that they do not expect coverage to be afforded under these circumstances. It would be a case-by-case analysis, based upon the circumstances of the particular event, and the language of the policy.   There may be a different policy language for payment of defense costs, as opposed to damages.
5. Consider the use of a consent and/or waiver for all attendees at alternative graduation events acknowledging voluntary participation (similar to WIAA participations waivers).
6. Use reasonable care in planning any graduation events and other activities, and for beginning to re-open school facilities for additional operations, which may include implementing screening procedures, cautioning attendance by any individuals exposed to COVID-19 or displaying symptoms, and reviewing precautions from local, state and federal agencies with participants in the activities to protect students, families, and the community.
7. Consult with your school appointed medical advisor and review emergency medical policies. Plan contingencies for individual students who are exposed to or have active COVID-19 symptoms.
8. Plan for any required accommodations for students or family members with disabilities, and pupil record or FERPA considerations in any graduation ceremonies or activities.
9. Consult with your school district attorney related to such events and expanded operations to assist in, for example, review of applicable insurance policies, review of local orders, development of screening and other safety protocols, revising policies and procedures, and potential modifications to permission slips, waivers and building use forms.

Conclusion

This is a transition period that is filled with uncertainty and change for school districts and all people of the State of Wisconsin. It has been a period of tremendous efforts and creativity by the public schools in terms of providing a wealth of educational instruction, opportunities and activities for students and families during the Emergency Orders. We applaud your efforts.

However, more change is anticipated in the weeks ahead. Local governments and health agencies are unsure of their authority after the Supreme Court decision.  As always, we will continue to monitor and provide updates.

If you have questions regarding implementation of the Supreme Court decision, graduation or other school related activities or the Attorney General Emergency Opinion, please contact your Buelow Vetter attorney.