Wisconsin's top court rules city health agency lacks power to close schools over COVID

The Wisconsin Supreme Court has ruled against the city of Madison's public health agency in a dispute over the power to close schools during the pandemic.

A top city health official decried Friday's decision, saying it would put children at risk.

“The Wisconsin Supreme Court ruled that local health officers cannot close schools within their jurisdictions. We are extremely disappointed in the court’s decision, which has much further reaching implications than just this current pandemic,” health director Janel Heinrich said.. “This decision hinders the ability of local health officers in Wisconsin to prevent and contain public health threats for decades to come.”

The Wisconsin Institute for Law and Liberty brought the case. WILL argued that Public Health Madison & Dane County overstepped its bounds by unilaterally ordering all schools, public and private, to close. WILL also argued the order infringed on parents’ rights to decide about their children’s education.

Justice Rebecca Bradley wrote the majority opinion, saying Heinrich’s office had relied on an over-generalized reading of state law.

“The power to take measures ‘reasonable and necessary’ cannot be reasonably read as an open-ended grant of authority,” Bradley wrote. “If Heinrich's argument were correct, then the general provision would essentially afford local health officers any powers necessary to limit the spread of communicable diseases. This cannot be. What is reasonable and necessary cannot be reasonably read to encompass anything and everything.”

Bradley said Public Health Madison & Dane County, along with all other local health departments in Wisconsin, have never had the power to close schools.

“Nothing in the text of [state] statute confers upon local health officers the power to close schools,” Bradley wrote.

Henrich said losing the power to order schools closed sets a dangerous precedent.

“This ruling means that … we are no longer able to contain a measles, pertussis, or flu outbreak in a school,” Henrich explained. “This ruling impedes our ability to respond to any disease that might impact students, teachers, and school staff, and impacts family and friends beyond the walls of the school. Unnecessary, preventable illness may certainly occur as a result of this ruling.”

WILL’s Rick Essenberg said the ruling should result in a “correction,” and “ought to prevent future abuses of power in an emergency.”