IJ to Wisconsin Supreme Court: Dane County Order Closing Private Schools is Unconstitutional Protectionism

Arlington, Va.—The Institute for Justice, a non-profit public interest law firm that advocates for educational choice and economic liberty, filed an amicus brief with the Wisconsin Supreme Court in support of parents challenging a Dane County, Wisconsin, order closing private (and public) schools for grades 3-12. While Dane County allows childcare and educational camps at these facilities, it has completely banned in-person instruction at the behest of private schools’ competitors—teachers’ unions. In its brief, IJ reminds the Wisconsin Supreme Court that this protectionism is an illegitimate purpose under the Wisconsin Constitution.

“The Wisconsin Constitution forbids politicians from protecting special interests from competition,” said IJ Attorney Milad Emam. “In closing schools for their competitors’ benefit, Dane County has violated parents’ right to direct their children’s schooling.”

After Dane County first closed schools in August, a group of families and private schools petitioned the Wisconsin Supreme Court to review the County’s order. Last month, the Court temporarily enjoined the order for being beyond the County’s authority. While legal counsel for the families and schools has focused its arguments on whether the order complies with state law and whether it violates religious-liberty protections, the IJ brief reminds the Court that the order also fails constitutional scrutiny because it is purely protectionist.

IJ has successfully challenged several protectionist restrictions on economic liberty in three Wisconsin cases. In the past decade, IJ has won constitutional challenges to Wisconsin’s ban on selling home-baked goods, Milwaukee’s cap on taxi permits and a Door County town’s ban on food trucks.

Since its founding over a quarter-century ago, IJ has also successfully defended school choice programs across the country, including three times at the U.S. Supreme Court. IJ is currently representing families in Tennessee seeking to protect a newly established scholarship program and challenging discriminatory scholarship programs in Maine, Vermont and New Hampshire.