Yesterday (4/13), in a 4-3 decision written by Chief Justice Roggensack, the state Supreme Court struck down the emergency order that had extended the state’s “Safer at Home” order until May 26. However, that decision did not affect the portion of the order that addressed school closures for pupil instruction and extracurricular activities.
What does it mean for schools that yesterday’s Supreme Court decision overturned the order but allowed the ban on opening schools for pupil instruction or extracurricular until June 30, 2020 to remain in place?
The Court’s majority opinion provided no explanation as to why its decision did not affect the portion of the overturned order that affects school closures for pupil instruction and extracurricular activities.
The most likely reasons for the lack of explanation are that: a) lawmakers who brought the lawsuit challenging the extension of the Safer at Home did not explicitly ask the Court to overturn the portion of the order closing schools; and b) the Court recognized that state statutes [in section 252.02(3)] give DHS explicit authority to “close schools and forbid public gatherings in schools… to control outbreaks and epidemics.” The Court’s decision suggests that this authority is likely not dependent upon the statutory rulemaking process.
In any event, based upon the Court’s decision, the statewide school closure order remains in effect, and all public and private schools must remain closed for pupil instruction and extracurricular activities for the duration of the current school year (i.e., through June 30). Schools may continue to provide “distance learning or online learning” to students.
School leaders should also be aware that–based on DHS’ independent statutory authority to close schools–the current statewide school closure order could possibly be extended by the DHS if necessary to “control outbreaks and epidemics.” That authority also allows DHS to forbid gatherings in schools “to control outbreaks and epidemics.”
While schools will remain closed for pupil instruction and extracurricular activities through June 30, 2020, schools should monitor communications from and consult with their local county or city health departments for guidance about activities that may take place that are not pupil instruction or extracurricular activities.
Because the Court’s decision took effect immediately, it has spurred local county health officials in at least four counties—Brown, Dane, Kenosha and Rock— as well as the cities of Milwaukee and Racine to issue their own versions of a Safer at Home-type orders or to continue to apply the state’s Safer at Home as a local order, setting up the possibility of a “patchwork quilt” of regulations on businesses and travel throughout the state. Please note that these local orders impose restrictions other than school closures and may limit travel, gatherings or business operations.
(Note: Several news organizations are tracking where local health orders are in place. Here is a link to a list and a map from Wisconsin Public Radio of where local restrictions are in place )
Finally, because the ruling held that the state Department of Health Services’ issuance of the now-voided order without legislative involvement exceeded statutory authority, any additional directives not related to school closure will be subject to statutory emergency rulemaking procedures established by the Legislature. As a result, those future orders will have to by promulgated as an emergency administrative rule and receive approval from a legislative committee.
School leaders may wish to pay careful attention to this emergency rulemaking process and whatever directives it may produce.