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Wisconsin Attorney General Josh Kaul files briefs in support of Dane County emergency school closures

Wisconsin Attorney General Josh Kaul files briefs in support of Dane County emergency school closures

School hallway

Wisconsin Attorney General Josh Kaul on Friday issued filed briefs in support of a Dane County emergency order requiring schools to start the school year online for grades 3 through 12.

Emergency Order #9 went into effect Monday and has been challenged by two petitions in the Wisconsin Supreme Court.

The briefs, filed by Kaul in support of Janel Heinrich, Dane County public health officer and director of Public Health Madison and Dane County, who issued the order, argue that the emergency order is a lawful and appropriate public health measure to suppress the spread of COVID-19.

In his briefs, Kaul states, “For over a century, Wisconsin has maintained a public health infrastructure that empowers local health officials to be a critical line of defense, barring public gatherings and swiftly taking any actions that are reasonable and necessary to suppress spreading diseases. That is precisely what Dane County did here, barring in-person school instruction in order to prevent outbreaks of COVID-19.”

Petitions challenging the emergency order were filed on behalf of eight Dane County families, five private schools, School Choice Wisconsin Action, and the Wisconsin Council of Religious and Independent Schools, by the conservative Wisconsin Institute for Law & Liberty (WILL). A petition on behalf of Fitchburg mother Sara James was filed by Veterans Liberty Law.

In its petitions, WILL states the emergency order exceeds Heinrich’s statutory authority and violates petitioners’ religious liberties and right to direct their children’s education by barring in-person education.

“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,” WILL President and General Counsel Rick Esenberg said in a statement.

Kaul’s briefs argue the decision of a public health official, such as Heinrich, during a public health crisis to implement emergency health measures is entitled to significant consideration, and that constitutional rights do not permit individuals to engage in activities that pose serious public health risks.

The briefs also argue that Wisconsin’s laws explicitly empower local health officials to take reasonable and necessary actions to suppress potentially lethal diseases like COVID-19, which may include barring in-person group instruction in appropriate circumstances.

Kaul also asked the court to reject WILL’s request to have its case directly resolved by the Wisconsin Supreme Court, in favor of a trial.

EDITOR'S NOTE: This story has been updated to include that the petition on behalf of Sara James was filed by Veterans Liberty Law.

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