The Volokh Conspiracy
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Wisconsin S. Ct. Strikes Down Private School Closure Order
From the majority opinion in James v. Heinrich, written by Justice Rebecca Grassl Bradley and joined by Chief Justice Annette Ziegler and Justices Patience Roggensack and, in relevant part, Brian Hagedorn:
We agree with the Petitioners and hold: (1) local health officers do not have the statutory power to close schools under Wis. Stat. § 252.03; and (2) [the closure order] infringes the Petitioners' fundamental right to the free exercise of religion guaranteed under Article I, Section 18 of the Wisconsin Constitution, which Jacobson v. Massachusetts cannot override. Accordingly, those portions of the Order restricting or prohibiting in-person instruction are unlawful, unenforceable, and are hereby vacated.
An excerpt from the majority's explanation of why the law failed strict scrutiny under the state free exercise provision (which had indeed been interpreted by past cases as requiring strict scrutiny of denials of religious exemptions from generally applicable laws):
Heinrich's earlier orders implemented less restrictive means such as specifying classroom student limits, mandating the use of masks, and requiring social distancing. In Emergency Order #8, for example, Heinrich outlined detailed safety protocols for schools, including "[e]nsuring students are at least six (6) feet from other students" and requiring that "employees are provided with and wear face coverings." These nuanced and tailored measures were completely abandoned in the Order at issue, replaced by the drastic step of forbidding in-person religious school education entirely for students in grades 3-12.
The Order distinguishes between the age demographics of students, permitting only students in grades K-2 to receive inperson instruction while relegating all students in grades 3-12 to virtual instruction only. By the Order's own reasoning, this distinction was unnecessary to achieve the government's goals. As stated in the Order's introduction, "[o]utbreaks and clusters among cases aged 5-17 have been rare." Nevertheless, a five- year-old student in kindergarten and an eight-year-old student in third grade, despite comparable infrequencies of COVID-19 transmission, were afforded entirely different educations in Dane County.
Furthermore, while students in grades 3-12 were prohibited from attending school in person, the Order allowed all higher education institutions to continue to provide in-person learning and dormitory housing, subject to certain restrictions. The Order failed to explain why college-aged students could continue to live, learn, and socialize in close communities, while students in grades 3-12 were consigned to computer screens. While the Order demonstrates the availability of less restrictive alternatives and employs them for college students as well as students in grades K-2, the Order denies them to students in grades 3-12.
Justice Rebecca Dallet, joined by Justices Ann Walsh Bradley and Jill Karofsky, dissented; as to religious exemptions, they reasoned:
Section 8 of the Order explicitly exempts religious practices from its in-person gathering restrictions: "[r]eligious entities are exempt from mass gathering requirements for religious services and religious practices" (emphases added). The majority makes no mention of that provision——possibly because it torpedoes the majority's constitutional analysis. If in-person education on every subject, religious or not, is truly religious practice, as some petitioners here claim, nothing in the Order burdens that practice.
Our cobloggers Will Baude and Stephen Sachs' Harvard Law Review article, The Law of Interpretation, is cited three times by the dissent; Randy Barnett's book Our Republican Constitution is cited by the majority.
