Downtown Racine (Photo via Facebook/City of Racine)
Downtown Racine (Photo via Facebook/City of Racine)

Suit could set precedent for local health officials’ authority over private entities.

A group of private schools, School Choice Wisconsin, the Wisconsin Council of Religious and Independent Schools, and several parents on Thursday filed a lawsuit directly with the Wisconsin Supreme Court against the Racine Public Health Department, which ordered schools in its jurisdiction to close last week as COVID-19 cases continued to climb.

The court has not yet agreed to hear the case, but a ruling could either maintain or throw out a century’s worth of precedent that has afforded local health departments the broad power to shut down facilities within their jurisdiction. The Wisconsin Institute for Law and Liberty (WILL), the conservative law firm behind several anti-coronavirus safeguard lawsuits, is representing the private schools.

State law gives incredibly broad powers to local health officers, and the May Supreme Court ruling that overturned Gov. Tony Evers’ Safer at Home order reaffirmed that local authority. Statutes say local officials “may do what is reasonable and necessary for the prevention and suppression of disease” and “may forbid public gatherings when deemed necessary to control outbreaks or epidemics.”

WILL argues private schools are excluded from that because they do not constitute “public gatherings,” and further argues local health officers do not have the power to close schools (state statutes explicitly allow the state Department of Health Services to close schools, but they only say local health officers can “inspect” schools).

Dottie-Kay Bowersox, Racine’s public health administrator, was undeterred by the filing.

“The City of Racine Public Health Department will continue to do everything necessary and reasonable to protect our community from this deadly virus,” Bowersox said in an emailed statement. “Our local public health orders remain in effect until otherwise directed by the Court.”

Bowersox’s order closes schools Nov. 27 through Jan. 15. The Racine Public Health Department holds jurisdiction over the city of Racine and two small suburbs, Elmwood Park and Wind Point.

Nearly 5,300 people have contracted COVID-19 and 46 have died within the department’s jurisdiction, according to local health data. The Central Racine Health Department, which covers the rest of the county, reports an additional 6,447 confirmed and 730 “probable” cases.

Principals or administrators for EverGreen Academy, Racine Christian School, Racine Lutheran School, St. John’s Lutheran Church and School, and Trinity Lutheran School submitted affidavits in support of the lawsuit. There was not a single affidavit from a teacher or rank-and-file staff member.