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‘Fundamental rights of children’: Supreme Court asked to block order mandating virtual schooling

A Dane County resident is asking the Wisconsin Supreme Court to prevent the enforcement of an emergency order that’s preventing her two kids from attending their Lutheran private school in person.

The attorneys Joseph Voiland of Veterans Liberty Law in Cedarburg, Brent Eisberner at Levine Eisberner in Madison and Bernardo Cueto of Onalaska filed a petition for original action on Tuesday on behalf of Fitchburg resident Sara James.

The petition accuses Janel Heinrich, the public health officer of Madison and Dane County, of acting outside the plain limits of her authority with the issuance of an emergency public health order on Aug. 21. The order, which went into effect on Monday, only allows in-person instruction for students in kindergarten through second grade, while the other grades must use virtual learning.

James said she enrolled her two children, in grades four and seven, at Our Redeemer Lutheran School in Madison, and they started school in person on Aug. 19. But because of the emergency order, they now have to switch to remote learning.

The petition said the order effectively bans any in-person, communal, faith-based education.

“Emergency Order No. 9 infringes on these rights under the Wisconsin Constitution,” the petition said. “It prohibits individuals from ‘practic[ing] their religious faith in groups, as collections of individuals’ and it both takes ‘control of’ and ‘interferes’ with their rights to do so. That interference must be promptly enjoined.”

The petition asks the Wisconsin Supreme Court to immediately and permanently prevent enforcement of the emergency order and prevent Heinrich from creating other orders to close private schools or restrict private gatherings.

“This is a case about fundamental rights of children and the awesome power of government,” the petition said.

The state Supreme Court ordered Heinrich to file a response to the petition by 4 p.m. on Friday.

About Michaela Paukner, mpaukner@wislawjournal.com

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at mpaukner@wislawjournal.com.

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