The Wisconsin Supreme Court blocked a local health order issued by Public Health of Madison & Dane County (PHMDC) on Sept. 10, which forbids in-person instruction in county schools until specific benchmarks are met in combatting COVID-19.

Janel Heinrich, the director of PHMDC, issued Emergency Order 9 on Aug. 21, with it going into effect on Aug. 24. At that time some of the schools in the county had already started.

In a 4-3 ruling, the court issued an injunction, which will temporarily block the health order. It also agreed to hear the case, which was brought forth by three petitioners, Sara Lindsey James, a parent whose child had already begun school at a Lutheran school in Madison on Aug. 24, Wisconsin Council of Religious & Independent Schools, School Choice Wisconsin Action, several Christian schools and parents filed on Aug. 26 and on Aug. 28 a group of Catholic schools, including St. Ambrose Academy, was also filed. The court consolidated the petitions into a single case and heard arguments and briefs on the matter.

The court’s majority found that the PHMDC order could not override a state Department of Health Services (DHS). Currently there is no state order restricting in-person learning. The DHS is not named in the case.

The majority of justices also debated the meaning of “closed” in regard to schools. They say it as “prevention of in-person learning” rather than closure as the statute was written in 1923, long before internet and online instruction were possible.

Justice Rebecca Dallet, who wrote for the dissent, said that the school were not “closed” because in-person instruction continued at facility for grades 4k-2 and students with disabilities.

She also stated that the court has been supportive of local authority making decisions in regard to public health rather than issuing statewide mandates.

She added that this was an issue that should not be taken up by the Supreme Court, but should be heard in circuit court instead.

She said that many of the facts pertain only to Dane County, including infection rates, and measures taken by PHMDC to control the spread of COVID-19. Petitioners had asked for the state’s highest court to hear the case because of concerns about the length of time it would take to make it through circuit court.

The decision allows K-12 schools to open with in-person instruction if they so choose.

“The purpose of these orders has been and continues to be to protect the health and safety of our communities. We don’t have a vaccine. We don’t have an effective treatment. In the absence of other options, and a dramatic increase in recent cases, limiting gatherings and person-to-person interactions continues to be the essential part of controlling the spread of COVID-19,” Heinrich said in a statement sent to media outlets later in the day.

Dane County Executive Joe Parisi also issued a statement regarding the order:

“Tonight’s decision by the Wisconsin Supreme Court will put kids and teachers back in group settings just as this pandemic hits a new peak in this community.

“Dane County reported a record 456 new cases of COVID-19 today. Our one county accounted for one third of all of Wisconsin’s cases, as test positivity rates hit new highs. This virus is here and it’s spreading. The short-term effects have been well documented, but now scientists are also sounding alarm over the long-term health consequences of this virus like premature heart disease.

“Public Health’s order prioritized the safety and well-being of kids, parents, teachers, and the communities they call home. Tonight’s order will jeopardize those goals and may lead to more illness and needless human suffering.”