More Dane County children will be in school buildings beginning Monday, as private and parochial schools in the area plan to open following Thursday’s state Supreme Court order allowing them to do so.
“If we had said, come back today, they would have,” said Barbara Wiers, the director of elementary and communications at Abundant Life Christian School, which will open Monday. “When we said Monday, they were like, ‘We’ll be there.’”
The court temporarily blocked Public Health Madison & Dane County’s Emergency Order No. 9, which had forbidden schools from opening for in-person learning for grades 3-12. The court’s 4-3 ruling, decided along ideological lines, combined three challenges to the order that all sought to bypass lower courts.
While the sides make their arguments on the merits of the order over the next 60 days, the court determined that continuing to bar in-person school would do “irreparable harm” and indicated in the opinion a likelihood that the challengers will win the final decision, as well.
Many private schools had planned to open the week after PHMDC’s Aug. 21 order, and at least one had already opened for in-person school. Most area public schools, meanwhile, opted to begin the year with virtual learning, though some have in-person instruction at lower grades.
Schools that choose to open still must follow PHMDC’s requirements for in-person school, which include anyone over the age of 5 wearing a mask and certain social distancing rules.
The three cases against the PHMDC order were brought by a mix of parents, schools and membership associations. Some efforts generated significant community fundraising, including more than $100,000 to an effort led by St. Ambrose Academy. That school, which serves just over 100 students in grades 6-12, is among those that will offer an in-person option for students beginning Monday, according to various announcements following the order.
“This is good news for all of the parents that were burdened and were experiencing harm from the order,” said Angela Hineline, a staff member and parent. “It gave parents, private and public school parents, an opportunity to be heard and to be given that right to choose what’s best for their child.”
That right was cited by the court in its majority opinion, which was joined by three of the court’s conservative justices. Fellow conservative justice Rebecca Bradley concurred with the decision, giving it a majority while adding her own opinion on the court's jurisdiction in the case.
“Overriding the choices of parents and schools, who also undoubtedly care about the health and safety of their teachers and families, intrudes upon the freedoms ordinarily retained by the people under our constitutional design,” the majority opinion states. “Since it appears the Order does not rest on a sound legal basis, a consideration of the equities leads us to conclude a temporary injunction is appropriate.”
The three liberal justices dissented, with Justice Rebecca Dallet arguing that it went against the court’s previous preference for upholding local control and that the justices should not be taking the cases, which were filed directly with the Supreme Court, bypassing lower courts. Dane County Executive Joe Parisi and PHMDC director Janel Heinrich both released statements Thursday night expressing disappointment about the ruling.
“The purpose of these orders has been and continues to be to protect the health and safety of our communities,” Heinrich said. “We don’t have a vaccine. We don’t have an effective treatment. In the absence of other options, and a dramatic increase in recent cases, limiting gatherings and person-to-person interactions continues to be the essential part of controlling the spread of COVID-19.”
Madison Mayor Satya Rhodes-Conway issued a statement Friday expressing a similar sentiment.
Public Health encouraged schools to still consider its recommendations of metrics for reopening in decisions. In the Aug. 21 news release accompanying the order, PHMDC said that reopening for grades 3-5 would require at or below a 14-day average of 39 cases per day for four consecutive weeks, while doing so for grades 6-12 would require 19 cases per day for four consecutive weeks.
Given a recent surge in positive cases driven by the return of University of Wisconsin-Madison students, those metrics were likely a ways off.
Hineline pointed to efforts the school took in the summer to ensure students and staff would be safe, including renting space in a building near the school to split its junior high and high school cohorts into more space. The court’s decision offered support for that line of thinking.
“It is noteworthy that Petitioners 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,” the opinion states. “In addition, Petitioner educational institutions and parents voluntarily seek in-person instruction, understanding the health risks associated with doing so.”
Hineline cited the story of a parent who did not have WiFi access at home but found space for her child at a public library. The only catch was that the child would have to eat lunch outside, something Hineline was worried about as winter approaches, and said other parents and students faced challenges that made learning from outside the school building hard or impossible.
“In my position at our school, that’s what I deal with,” Hineline said. “I’m so happy for those parents because they’ll be able to sleep at night.”
The three challenges to the order will be combined into a single case, with that group having 30 days to file a single, combined brief. PHMDC will have 20 days to file a response, and a reply from the petitioners can be filed within 10 days after that.
Abundant Life's Wiers said the “uncertainty” of the past three weeks as they waited for a decision was “so unsettling.” ALCS was among the schools to challenge the order in one of the three lawsuits.
Adding that 92% of the school’s families have said they want in-person learning, she said the school believes decisions need to be made by individual schools based on their needs.
“It’s going to look different across Dane County, across private schools, across public schools because everybody has different considerations,” she said.
With 260 students, Wiers said ALCS is a “very small pool” of the larger community, and needed to make the decision that is best for its families even as it considers that larger community amid a pandemic.
“We are not at all opposed to Public Health,” Wiers said. “We pray for them regularly, we know that their job is an unenviable one right now. They have a huge responsibility of keeping people safe — not just this group or that group, it’s the entire community. That’s an enormous job.”
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