Today, on June 11, 2021, in the matter of James v. Heinrich, 2021 WI 58, the Wisconsin Supreme Court ruled that that local health officers do not have the statutory power to close schools under Wisconsin Statute § 252.03. Additionally, because the schools involved in the case were private religious institutions, the Court held that an order closing schools infringes the Petitioners’ fundamental right to the free exercise of religion guaranteed under the Wisconsin Constitution.

On August 21, 2020, the Madison and Dane County Public Health Department issued Emergency Order #9, closing all public and private schools in the county for in-person instruction in light of the COVID-19 pandemic. Several Dane County private school parents quickly filed a lawsuit, contending that the Order exceeds the local health officer’s statutory authority under Wisconsin Statute § 252.03 and violates their fundamental right to the free exercise of religion. On September 10, 2020, the Wisconsin Supreme Court issued a temporary injunction, ceasing enforcement of the Order while the case was ongoing. In the injunction, the Court noted that the Petitioners were likely to succeed on the merits of their claim, concluding that local health officers do not appear to have statutory authority to close schools under the Order.

Now, the Wisconsin Supreme Court has issued is final ruling in the case, holding that local health officers do not have the statutory power to close schools under Wisconsin Statute § 252.03, and that the Order infringes the Petitioners’ fundamental right to the free exercise of religion. The Wisconsin Supreme Court reasoned that Wisconsin Statute § 252.03 does not contain the express authority of local health officers to close schools, in contrast to Wisconsin Statute § 252.02, which expressly permits state health officers and the Wisconsin Department of Health Services to close schools. Rather, the Court noted that local health officers have fewer powers in preventing the spread of communicable diseases, including forbidding public gatherings, inspecting schools, and doing what is reasonable and necessary to mitigate communicable diseases. The Court further reasoned that the absence of the express power to close schools ultimately prohibited Madison and Dane County Public Health from ordering all schools to close during the COVID-19 pandemic.

Additionally, with regard to the closure of private religious schools, the Court held that the Order infringes the Petitioners’ fundamental right to the free exercise of religion. The Court reasoned that the Order barred students at private religious schools from “attending Mass, receiving Holy Communion at weekly Masses with their classmates and teachers, receiving the sacrament of Confession at school, participating in communal prayer with their peers, and going on retreats and service missions throughout the area.” Ultimately, the Court determined that the local health officers burdened those students’ free exercise of religion by preventing the students from performing those physical acts essential to their sincerely-held religious beliefs. 

The Wisconsin Supreme Court’s ruling ultimately prevents local health officers and local health departments from closing schools or requiring schools to cease in-person instruction for reasons related to the spread of communicable diseases. 

If you have any questions about this Legal Update, please contact Attorney Emily Turzinski at 262-364-0268 eturzinski@buelowvetter.com, or Attorney Gary Ruesch at 262-364-0263 or gruesch@buelowvetter.com, or your Buelow Vetter attorney.