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State Supreme Court puts pause on Dane County public health order barring in-person school
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State Supreme Court puts pause on Dane County public health order barring in-person school

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Emerson Elementary School first-grader Sam Cechvala listens to his teacher as she leads virtual class.

Schools in Dane County that want to open for in-person education can do so immediately for all grades after the state Supreme Court temporarily blocked enforcement of the Public Health Madison & Dane County order requiring virtual learning for grades 3-12.

The court’s conservative majority issued the 4-3 ruling, which combined three cases brought against Emergency Order No. 9 since its Aug. 21 announcement, just before 6:30 p.m. Thursday.

The court will consider the arguments against the case on its merits in the months to come, but the order is on hold in the meantime. Thursday's opinion, which lawyers believe is the first time the court has weighed in on a local COVID-19 order since the pandemic began, indicates those seeking to overturn the order will have a good chance to win.

"First, based upon the briefing submitted at this stage, Petitioners are likely to succeed on the merits of their claim," the opinion states, adding that "local health officers do not appear to have statutory authority to do what the Order commands."

[Public Health amendment allows in-person instruction for students with disabilities]

Parents, private and parochial schools and membership associations brought the lawsuits challenging Public Health Madison & Dane County director Janel Heinrich's authority to close schools. They maintain that schools planning to open took precautions over the summer to follow guidance issued by PHMDC to make in-person learning safe.

In its announcement of the Aug. 21 order, PHMDC outlined positive case averages that would be required to allow in-person school for grades 3-5 and 6-12. With the recent uptick in positive cases, mostly among UW-Madison students returning to campus, Dane County was unlikely to reach those numbers anytime soon.

County Executive Joe Parisi noted that uptick in a statement following the ruling, saying the decision "will put kids and teachers back in group settings just as this pandemic hits a new peak in this community" and that the order "prioritized the safety and well-being of kids, parents, teachers and the communities they call home."

"Our one county accounted for one-third of all of Wisconsin's cases, as test positivity rates hit new highs," Parisi said. "The virus is here and it's spreading. The short-term effects have been well documented, but now scientists are also sounding alarm over the long-term health consequences of this virus like premature heart disease."

The opinion cites the rights of parents and the potential "irreparable harm" if in-person school is not allowed while the case is argued.

"Unquestionably, denying students in-person education has the potential to harm the educational institution-Petitioners, as well as the parent-Petitioners and their children," it states. "As Petitioners assert, many parents irreparably lose the full benefits of the communal education they chose for their children, including in-person instruction, relationships with teachers and other students, and religious and spiritual formation."

Most area school districts, including the Madison Metropolitan School District, announced plans to go virtual to begin the year even before the PHMDC order. Some had begun to consider or already were open for grades K-2 in-person.

[Lawsuits challenge Public Health’s authority to close private schools]

Three of the court's conservative justices signed onto the opinion in full, while Justice Rebecca Bradley concurred, giving them the majority. 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.

Those challenging the order have 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. 

Many area private schools that planned to open had criticized the timing of the Aug. 21 order, which was issued late on a Friday the week before many were set to open. At least one school had already opened that week for in-person instruction.

PHMDC said officials had anticipated metrics from the state Department of Health Services in its guidance for schools, but when that guidance was issued it did not include any such metrics, leaving PHMDC little time to create them locally.

[New public health order requires grades 3-12 to begin virtually in Dane County schools]

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