A parent of children who attend Our Redeemer Lutheran School in Madison is seeking a ruling from the Wisconsin Supreme Court over a public health order that prevents third through 12th graders from in-person learning. (Photo © Andy Manis)
A parent of children who attend Our Redeemer Lutheran School in Madison is seeking a ruling from the Wisconsin Supreme Court over a public health order that prevents third through 12th graders from in-person learning. (Photo © Andy Manis)

Order no longer allows third through 12th grades to meet for in-person instruction.

A parent of two children who attend a private school in Madison is asking the Wisconsin Supreme Court to step in and overturn an order issued by the Dane County public health director that requires third through 12th grades to begin virtually this fall.

In her filing with the Wisconsin Supreme Court Tuesday, Sara Lindsay James of Fitchburg states the case is about the “fundamental rights of children and the awesome power of government.” 

The suit challenges the ability of Janel Heinrich, the health director for Madison and Dane County, to order children to stay home from school whether or not they are sick, and to prohibit them from gathering in-person with other children to receive a religious education. 

Heinrich has until 4 p.m. Friday to file her response with the court. If the court accepts the case it would be unique in so far as it would not be tried in a lower level court prior to being accepted by the state Supreme Court. 

James is the single parent of two children who attend Our Redeemer Lutheran School. One child is in fourth grade, the other is in seventh. According to the court document, school administrators worked with Heinrich’s agency in order to reopen the school with safety precautions in place. 

The school began its school year, in person, last week Wednesday. Two days later, Heinrich issued emergency order No. 9, which prevents all schools in Dane County from holding in-person classes from students in grades three through 12. 

“Ms. James chose to enroll her children in a religious school because she sincerely believes it is essential that they receive a faith-based education,” said the court document. “She believes it is essential that her children’s education take place ‘in person’ and ‘together with others as part of the body of Christ.’”

Madison Bishop Donald Hying sent a letter on Saturday to the parents of children attending private schools within the Madison diocese, urging them to contact Dane County officials if they were not happy with Heinrich’s order. 

“We are extraordinarily disappointed at this order and its timing,” said Hying in the letter. “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. We urge you to contact your elected officials, Joe Parisi, county executive, and Janel Heinrich, director of public health, to voice your opinion.”

Attempts to reach the Madison Diocese spokesperson and the principal of Our Redeemer Lutheran School were not immediately returned Wednesday. 

In the emergency order, Heinrich said “this remains a critical time for Dane County to decrease the spread of COVID-19, keep people healthy, and maintain a level of transmission that is manageable by health care and public health systems.”

She said in order for grades three to five to resume in-person learning, the number of COVID-19 cases in Dane County must be at or below a 14-day average of 39 new cases per day for four consecutive weeks.

Grades six through 12 can resume in-person instruction when the average is 54 new cases. As of Aug. 21, the county was averaging 42 new cases per day. 

She said the health department has defined school metrics to guide decisions for in-person instruction. 

“Moving students in grades 3-12 to virtual learning is not a step we take lightly, as schools provide critical services, and in-person instruction offers unparalleled opportunities and structure for students and parents,” Heinrich said. “Given our current case count, we believe moving students in grades 3-12 to virtual learning is necessary for the safety of our community.”

The court document cites a case from May in which the court sided with Republican lawmakers, ruling the secretary of the state Department of Health Services did not have the authority to issue the statewide safer-at-home order as legal grounds for the case.

That order subsequently caused confusion among local health officials, with many left wondering if they still had the authority to issue public health orders.