August 22, 2020

Wisconsin Catholic schools will challenge local COVID-19 closing order

Last-minute county order leaves parents less than 60 hours to make home-based arrangements; appeal planned to Wisconsin Supreme Court.

Joseph M. Hanneman, Catholic World Report

A coalition of Catholic schools, parents and benefactors plan to hire a law firm to challenge an order issued late Friday to close all schools in Dane County to in-person instruction for students in grades 3-12. Many Catholic schools were slated to open starting August 24 after being closed much of last spring due to COVID-19.

Led by the Madison-based St. Ambrose Academy, the coalition launched a GiveSendGo crowdfunding site on August 22 that quickly raised more than $22,300 out of an initial goal of $60,000. The plan is for Catholic schools to hire Troutman Pepper Hamilton Sanders LLP, a law firm that earlier this year helped the Diocese of Madison defeat attempts to place strict limits on Mass attendance due to COVID-19. They hope to make an emergency appeal directly to the Wisconsin Supreme Court. Meanwhile, parishes have organized a Rosary rally for 3 p.m. Monday on the State Street steps of the Wisconsin Capitol Building, where last week 2,000 Catholics gathered for a Eucharistic procession and patriotic Rosary.

Scott Grabins… said he is “extremely frustrated” by the county health order.

Catholic school officials said they had no advance warning that Public Health Madison & Dane County would issue a COVID-19 school closing order. The health agency issued Emergency Order #9 after 5:00 p.m. CDT on Friday, August 21, sending Catholic schools and parents into confusion and anger just 60 hours before opening of the 2020-21 school year in many communities. Janel Heinrich, public health officer for Madison and Dane County; and Joe Parisi, Dane County executive, could not be reached Saturday evening for comment.

“We are extraordinarily disappointed at this order and its timing,” Bishop Donald J. Hying said in a letter to parents issued jointly with Michael J. Lancaster, superintendent of Catholic schools for the Diocese of Madison. “You have told us of your sadness, your anger and your children’s grief as they burst into tears when you told them of the county’s decision.”

Hying said over the past three months, principals and superintendents participated in twice-weekly calls with Public Health Madison and Dane County, the Wisconsin Department of Public Instruction, and the Wisconsin Department of Health Services. “We asked questions, adjusted plans as guidance changed and made sure we had the latest information,” Hying wrote. “Our principals worked tirelessly to draft, revise and perfect reopening plans, ensuring that all CDC, DHS and county guidelines were followed, and that no detail was overlooked in order to make our schools safe for students and teachers.”

On “numerous occasions” since July, county officials were asked to provide the metrics that would be used regarding the closing and opening of schools in light of COVID-19, Hying said. “These were not provided until Friday, leaving many of you, who have already gone back to work, with the added hardship of finding child care. Many of you have few if any options given this order.”

Joan Carey, executive director of St. Ambrose Academy, consulted over the weekend with Misha Tseytlin, a Troutman Pepper partner who formerly served as Wisconsin solicitor general. “Engaging his firm is very expensive, but he believes we have a good case and a good forum in the Wisconsin Supreme Court,” Carey said in an email sent to supporters on Saturday. “Litigation is always uncertain, but we believe an effort of this caliber could move Dane County to a reversal.”

Frustrations were already high in Dane County with what some view as heavy-handed regulations spun out of the county health agency. Earlier this year, Public Health Madison issued orders to limit attendance at Holy Mass to 50 people, regardless of building capacity, while allowing retailers, restaurants and other locations to operate with a 25 percent capacity. On June 3, the Diocese of Madison delivered a 17-page letter to city and county officials protesting the limits and indicating litigation would be initiated if the orders were not quashed. Less than 48 hours after refusing to budge of the Mass limits, Public Health Madison & Dane County backed off, citing the cost of potential litigation.

As in the current case, the Diocese of Madison was given no advance notice of the Mass-limits regulation back in June. Pastors and school officials say privately they feel the government is targeting the Catholic Church with its regulations. Some believe the school-closing order is an attempt to prevent long-term enrollment shifts from public schools (which are mostly doing online instruction) to faith-based schools, which have moved to reopen with in-person instruction and school activities.

Both the school closing order and the limits on attendance at Holy Mass raise important legal issues regarding whether a county health officer has authority to make such far-reaching rules affecting private schools, activities and athletics. On May 13, the Wisconsin Supreme Court struck down Wisconsin Gov. Tony Evers “Safer at Home” program that essentially locked down the state over concerns about spread of the coronavirus. The same Wisconsin statutes that the Supreme Court said the state could not use to mandate a society-wide quarantine have been used by local government to issue mandatory mask orders and a wide menu of rules on public behavior in businesses, stores and other venues.

Brent King, spokesman for the Diocese of Madison, said some 30 Diocese of Madison Catholic schools outside of Dane County will open for instruction over the next two weeks. Inside Dane County, the first day of school has been delayed until after Labor Day if necessary.while schools consider all legal options.

“The grassroots reaction to the Dane County order has been awesome and it has only been 24 hours,” King said. “I know of hundreds of families who have called local politicians to express their disagreement, anger, and disgust in a very short time. We hope the county will listen to these faithful families, for the sake of the kids and their spiritual, psychological, emotional, as well as physical well being. Close to 30 schools outside of Dane County are safely opening these next weeks. Dane County Catholic schools can too. We believe it is what is best for the children, given all the best available information.”

According to statistics from the Wisconsin Department of Health, Wisconsin has logged 70,009 cases of COVID-19 through August 22, with 1,081 deaths due at least in part to the virus. Nearly 1.2 million COVID-19 tests have been done; with more than 1.1 million being negative. There are currently 350 people hospitalized statewide, including 119 in intensive care. Wisconsin hospitals have total capacity of 11,500 beds. According to an analysis of state data by the MacIver Institute, total virus-related deaths represent 1.5 percent of positive COVID-19 diagnoses.

Dane County reported 55 new cases of COVID-19 on August 22, ranking fourth among Wisconsin counties. Statewide, COVID-19 hospitalizations have never exceeded 450 beds on any day since early May, according to MacIver.

On August 20, Hying wrote, “Dane County announced that the daily number of coronavirus cases had dropped by nearly 50 percent since July 13, while the seven-day average of new cases continued to decline. Yet now, despite declining numbers and all the work and diligence given to following all the guidelines for reopening, Dane County has said that only grades K-2 may return, while all other grades must start online.”

Gov. Evers issued an emergency order on July 30 mandating that masks be worn indoors by everyone age 5 and older, except at home. A number of Wisconsin county sheriffs have said they will not enforce the orders because they believe them to be unconstitutional.