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Wisconsin Supreme Court Weighs Challenge To Local School Closure Orders

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Interior view of the Wisconsin Supreme Court courtroom, inside the Wisconsin State Capitol building, Madison.

The Wisconsin Supreme Court heard arguments virtually Tuesday in a case that could determine whether local health officials can close schools during the COVID-19 pandemic.

In September, Dane County issued an order restricting in-person instruction for students in grades 3-12. Private schools and parents sued — and the supreme court temporarily blocked the order.

The court also blocked a more recent school closure order from Racine until this case is decided.

>>Private Schools Take Legal Action Against Racine Health Order Closing Schools

Attorneys for the private schools and parents made two main arguments Tuesday. First, that state statute doesn’t give local health officers authority to close schools. Attorney Rick Esenberg with the Wisconsin Institute for Law and Liberty said that power lies with the state Department of Health Services.

“Local health officials may be, as they like to say, the boots on the ground,” Esenberg said. “But in this instance, the boots on the ground need to receive orders from above.”

The second argument was that closing religious schools infringes on religious liberty. Attorney Joseph Voiland represents a Lutheran school parent, who says communal prayer during in-person school is vital to her family’s religious beliefs.

“Virtual learning is not the practice of her faith or her children’s faith,” Voiland said. “It has to be in-person, because she believes that her children need to be in-person with other children as part of the body of Christ.”

But the attorney for Dane County, Remzy Bitar, argued that the government can put constraints on religious practice for public health and safety reasons.

“The rights of one person to exercise their religion in the public square, just like their rights to swing their arms in the public square, stop at another person’s nose,” Bitar said. “The liberty secured by the constitution does not import an absolute right to do all things at all times in all circumstances, totally freed from restraint.”

It’s uncertain when the court, which is composed of four conservative-learning justices and three liberal-leaning justices, will rule on this case.

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