The Wisconsin Supreme Court on Sept 10 temporarily blocked an emergency order issued by Dane County’s joint city-county health department prohibiting public and private schools in Dane County from providing in-person instruction to most students in grades 3 through 12. That emergency order was issued on August 21 and later amended to allow special needs students to receive in-person services and instruction.
The decision came after challenges were filed by groups of religious schools and the parents of students enrolled in private schools in Dane County who went directly to the state’s highest court to ask for relief. In its order, the court agreed to hear that case on the merits at a later date.
In a 4-3 decision, the court’s conservative-backed majority took the unusual step of exercising original jurisdiction, thereby bypassing lower court review of the Dane County order.
The court looked narrowly at the powers of local health departments under Chapter 252 of the Wisconsin Statutes. It did not reference an interim Attorney General’s opinion issued May 15, 2020 on related topics nor did it reference or examine local government powers set forth under the state’s emergency management statutes. Those powers are found in Chapter 323 of the Wisconsin Statutes, especially sections 323.11, Stats., and 323.14(4), Stats.
Most interestingly for schools, the Supreme Court’s decision interpreted section 252.03, Stats. (which outlines the powers of local health officers) without addressing the potential relevance of sections 115.01(10)(b), Stats., and 120.12(27)(b), Stats., both of which refer to local health officers closing schools. It would appear the decision could potentially render those latter two statutes essentially meaningless, which seems an odd result.
The decision points to a need for greater protections (i.e., immunity) for schools against liability claims based on COVID-19. While the Supreme Court’s temporary injunction is unlikely to change the opinions or the guidance/recommendations of local health departments, it may make them more reluctant to issue binding “orders.” Under such circumstances, and given that liability for COVID-19 transmission has never been looked at by courts and existing immunity protections for schools have never been tested in a COVID-related case, it is arguable that school boards need new and specific protections to be provided by either state or federal immunity legislation to protect them when they make a decision–a “choice” in a “known danger” setting–based on their own defensible due diligence. The WASB is supportive of a liability immunity proposal currently being circulated for co-sponsors.
