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Testing the limits of power

By M.D. Kittle 

Wisconsin Spotlight | Dec. 10, 2020 

MADISON — Do local, unelected health directors have unlimited police powers during a pandemic? 

The Wisconsin Supreme Court’s liberal justices seem to think so. 

This week the court heard oral arguments in a consolidated lawsuit challenging Public Health Madison & Dane County director Janel Heinrich’s order barring in-person education for third-grade and older students in all of Dane County’s schools. 

A private religious school and parents fought back against the health order — issued days before the fall semester began. They filed a lawsuit claiming the order violated state law and stepped on their First Amendment rights of freedom of religion. The Supreme Court in a 4-3 ruling in September agreed to take the case and issued a temporary injunction against Heinrich and her edict. 

Attorney Misha Tseytlin, representing St. Ambrose Academy, told the court that communal prayer throughout the school day is at the core of  the Catholic private school’s educational mission.

As long-time St. Ambrose parent Angela Hineline earlier put it, the public health agency chose not to recognize the school’s constitutional rights. 

“They are not just ignoring but openly attacking our faith-based schools,” she said. 

Liberal Justice Jill Karofsky didn’t see it that way. In fact, Karofsky didn’t know what all the fuss was about. 

“Where is this information that (students) are being disadvantaged” by not being in the classroom and learning online? the justice asked. 

“Where is the proof? Where is the evidence?” Karofsky asked later in the hearing. Students are still getting their reading, writing and arithmetic, even if through virtual channels.  

Putting aside the fact that top health officials and education experts have urged reopening schools and returning to in-person learning as more students fall academically behind and social isolation spread, Karofsky misses the fundamental point. Faith-based schools aren’t merely about math calculations and essays, Tseytlin said. They are about the soul of the child and the communal faith shared together — in person, in class. 

Well, why not just meet up at a local church, liberal justice Rebecca Dallet sneered. She noted places of worship are exempt from many of the restrictions in the health order. 

“Catholic masses can still be held outside the context of the school day,” she said. 

The question discounts the daily experience of prayer in the classroom among students and teachers as opposed to a weekend mass, Tseytlin said. Attorneys for the school and parents argue the health order defies quintessential constitutional rights. 

Karofsky doesn’t seem to believe schools have been closed to education. She disingenuously chided conservative attorneys for their lack of strict originalist reading of the state statute. 

“No school was ordered to be closed,” the justice said. It was a parsing of terms. 

Rick Esenberg, attorney for one of the plaintiffs in the lawsuit, said the order closing schools to in-person learning is pretty clear. 

State law, more so, does not specifically give local health officials the power to close schools. That authority is particularly granted to the state Department of Health Services. 

The liberal justices assert state law gives public health officers the power to take “all measures necessary to prevent, suppress and control communicable diseases.” 

But that authority can’t be unlimited, courts have found over time. 

The Wisconsin Supreme Court in May struck down DHS’ extended state lockdown. In the majority opinion, Chief Justice Patience Roggensack noted the statutory and constitutional limits on the executive branch. 

“…That kind of broad language cannot be read to confer unlimited police power on a single executive official,” said Esenberg, president and chief legal counsel of the Wisconsin Institute for Law & Liberty. 

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