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UPDATED Again: lawsuits name Dane/Madison Health Officer; UW president also critical

Updated: Aug 31, 2020

The Brillion News

MADISON - The Public Health Officer of Madsion and Dane County, Janel Heinrich, was hit by a lawsuit filed with the state Supreme Court on Tuesday (August 25), and was hit with strong criticism from UW System President Tommy Thompson on Wednesday (August 26).

Then a second lawsuit was filed against Heinrich in the Supreme Court of Wisconsin by several religious groups, schools and parents.

The lawsuits were prompted by Heinrich issuing her order, banning in-person schooling for students in grades three through 12. The order came on Friday, August 21, with advance warning.

Most schools in Dane County had been planning, for months, to reopen in-person schooling. One lawsuit said the order caused "significant hardship, confusion and chaos for families, students, teachers and administrators throughout the county.'

"This case is about whether or not the statutes and state constitution allow this unilateral action," one lawsuit said.

On Monday, August 31, Democratic state Attorney Josh Kaul filed a brief supporting Heinrich.

Among other things, Emergency Order 9 requires all county schools to begin the school year virtually for students in grades 3 through 12, closing them to in-person pupil instruction.

The briefs state, “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.”

The Kaul briefs argue that the Supreme Court should deny the petitions because the emergency order is a lawful and appropriate public health measure to suppress the spread of COVID-19.

His briefs support Janel Heinrich, Dane County Public Health Officer and Director of Public Health, in opposing the two petitions. The petitions contend that by barring in-person instruction, Emergency Order 9 exceeds Heinrich’s statutory authority and violates petitioners’ religious liberties and right to direct their children’s education.

The first lawsuit was filed by Sara Lindsey James of Fitchburg, whose children attend a Wisconsin Synod Lutheran school in Dane County.

The lawsuit, filed as an original action, seeks answers to three questions:

Does a local health official have the power to limit the rights of children from attending school in person?

Can a local health official limit private gatherings of children, families and other adults in private schools, or on private property, for religious purposes?

Is Heinrich's "Emergency Order No. 9" outside the scope of a local health officer's authority under Chapter 22 of the Wisconsin Statutes?

"[The] petitioner's children began the 2020 school year in the classroom with other students, and are now required to stay home by the ninth emergency order of a single, unelected official That order effectively bans any in-person, communal, faith-based educ ation, infringing on both the fundamental right to an education and the fundamental right to gather together to worship in a group with otjher believers," the lawsuit said.

The state Supreme Court gave Heinrich until 4 p.m. on Friday, August 28, to respond to the suit. Three law firms are representing Heinrich.

The second lawsuit was filed by the Wisconsin Council of Religious and Independent Schools, several private schools and parents.

It says that Wisconsin statutes do not give county health departments the authority to order the closure of schools for in-person instruction. It also claims that the Madison/Dane health agency cannot meet its burden of showing that school closures are “necessary” to combat COVID-19 based on Dane County’s own data and the less burdensome approach it has taken toward regulating other sectors of society.

For instance, childcare in Dane County remains open but schools must close for grades 3-12.

The suit also says that Heinrich's Order #9 unconstitutionally infringes upon the constitutional right of parents to direct the education and upbringing of their children by sending them to private school to receive in-person instruction, and unconstitutionally infringes upon the constitutional right of parents to freely exercise their religion, which includes sending their children to private, religious schools to receive religious instruction and formation.

Meanwhile, former Governor Thompson, now the UW System president, said the standards set by the Madison/Dane health department for reopening schools are unrealistic. He is asking that those standards be reassessed and relaxed.

"It is unrealistic to hold to a threshold of less than a few dozen cases per day on average over four weeks as we subject new populations at UW-Madison to thousands of tests," Thompson wrote.

He said the UW-Madison has invested millions of dollars in testing and personal protective equipment and yet the current Madison/Dane restrictions threaten to shut the university down.


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