School mask fight not over: Illinois AG vows to take matter to Supreme Court

[February 19, 2022]  By Greg Bishop

(The Center Square) – The Illinois attorney general is asking the Illinois Supreme Court to take up the legal challenge to Gov. J.B. Pritzker's COVID-19 mitigations in schools.

The Fourth District Court of Appeals late Thursday found Pritzker's appeal of a lower court blocking mask and exclusion rules for students and vaccine or testing mandates for teachers and school staff moot.

The court said the emergency rules promulgated by the governor’s executive order expired and new rules filed this week were blocked by a legislative panel.

On Friday, Attorney General Kwame Raoul said in a statement the ruling does not affect the governor’s executive orders, only the emergency “technical” rule filed by the Illinois Department of Public Health.

“That rule does not affect the executive orders issued by the governor under the Illinois Emergency Management Agency Act, including the governor’s executive order requiring the use of masks in school, the exclusion from school of persons exposed to COVID-19, and testing of unvaccinated school employees working on school premises,” Raoul said. “That order continues to apply to all persons not specifically named as plaintiffs in the” lawsuit.
 

The lawsuit encompasses the children of more than 700 parents at more than 145 schools, and dozens of staff from more than 20 districts.

Attorney Thomas DeVore, who brought the case on behalf of the plaintiffs, reads the appeals court decision differently than Raoul does.

“Absent some lawful way for an agency to enforce your policy directives and your executive orders, they're just that, they're policy directives and they have no force and effect that they can actually be pursued against anyone,” DeVore told WMAY Friday.

The appellate court did say local control of the issue is still in place.

Illinois attorney general Kwame Raoul

Greg Bishop | Watchdog.org

“We note the language of the [circuit court's temporary restraining order] in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19," the court wrote. "Thus, it does not appear the school districts are temporarily restrained from acting by the court’s TRO.”

With that, DeVore maintains his arguments that enforcing quarantine measures without individual due process through local health departments and courts violates the law.

“You’ve got school districts like Chicago trying to say ‘that means we can do what we want’ and if [Sangamon County Judge Raylene Grischow] believed that that’s what she ordered, she wouldn't have signed contempt orders requiring them to appear in her court and answer as to why they’re not allowing the children in this case to go without a mask.”

Several school districts are violating the Sangamon County order, DeVore says, and are set to appear before the judge on contempt charges Feb. 25.

Following the late Thursday ruling from the appeals court, some school districts said they are continuing to require masks. But DeVore said he knows more districts that are going mask optional.

“I know of hundreds of them that have coalesced in these groups across the state, and I’ve talked to their lawyers, they’re not going back anyways,” DeVore said. “The governor has lost this battle and he needs to own it.”

The Illinois State Board of Education did not respond to an email requesting an updated list of schools that have gone mask optional, and whether the agency will pursue nonrecognition status of such districts.

Raoul is requesting the issues be addressed by the Illinois Supreme Court.

“The COVID-19 pandemic is not over, and the Attorney General is committed to defending the governor’s actions,” Raoul said.

It’s unclear if the Supreme Court will take up the case.