The parents of a child prevented from attending school by administrators concerned about the healthy student’s possible exposure to Covid-19 have asked a Cook County judge to decide if the student's south suburban school district has the legal authority to wield such “quarantine” powers, even if the local health department has declined to seek a court order backing its quarantine recommendation.
On April 27, attorney Lucas Fuksa, of the firm of Fuksa Khorshid, of Chicago, filed suit in Cook County Circuit Court against Flossmoor School District 161.
The lawsuit was filed on behalf of Danielle and Kevin Such. They are identified in the complaint as parents of a District 161 student, identified only as R.S. According to the complaint, R.S. attends Western Avenue Elementary School in south suburban Flossmoor.
Lucas Fuksa
| fklawfirm.com
According to the complaint, the lawsuit was filed to challenge the decision by District 161 administrators to exclude R.S. from attending in-person classes at the elementary school for 10 days, after the student was allegedly exposed to Covid-19 at the school.
According to the complaint, the Such family received an “Order for Quarantine of an Individual” from the Cook County Department of Public Health on April 22, purportedly requiring that R.S. remain away from school until May 1.
R.S. had purportedly been exposed to Covid-19 while at lunch at the school on April 21, according to the notice.
According to the complaint, the Suches emailed the Cook County Department of Public Health to object to the quarantine order, and asking the department “if a petition was filed with the Circuit Court of Cook County to authorize the Order for a period beyond 48 hours” as they asserted was required by the Illinois Department of Public Health Act.
According to the complaint, the CCDPH responded they intended to file such a petition. However, no such petition was ever filed, prompting the parents to hire their lawyers.
In response to questions from the parents’ lawyers, District 161 allegedly told the couple no such petition was ultimately needed, because District 161 itself had decided to exclude R.S. from school.
“… Although relevant to this discussion, the CCDPH quarantine order is not the primary source of [R.S.’s] exclusion from school or the conditions of her return,” District 161 wrote in an email to the parents’ attorneys, according to the complaint.
“The School District maintains its own set of local rules that it uses to respond to a COVID incident in the buildings, including both the positive individual and those identified as ‘close contacts,’ such as Ms. Such.”
In their complaint, however, the parents assert the school district has no such independent authority to order students to quarantine away from school.
The parents assert R.S. has tested negative for Covid and is exhibiting no symptoms of Covid.
“In this cause, the CCDPH has taken no action to extend the Quarantine Order by petitioning a court of law to authorize the Quarantine Order,” the parents wrote in their complaint. “There can be no doubt the District, and (its superintendent), are attempting to compel the Child to quarantine.
“The District, and Defendant Smith, have no lawful authority to compel the Child to quarantine.”
They note state law confers quarantine powers exclusively to public health departments, like CCDPH. But even those quarantine powers are subject to due process rights for people who may wish to challenge the medical basis for such orders.
The parents complaint points to a prior ruling from Cook County Judge Sanjay Tailor, who rejected an attempt by the CCDPH to obtain a court order requiring 10 day quarantine of a child from school, simply because the otherwise healthy child had been possibly exposed to Covid-19.
The parents in that case were also represented by the Fuksa firm.
In that case, Judge Tailor noted “the duration of an order of quarantine constitutes an infringement of a liberty interest as much as order of quarantine itself.” So, he said, the health department must either provide a medical basis to order the student excluded from school, or withdraw the quarantine order.
And Judge Tailor said that medical basis needs to be more than just a quarantine “to prevent community transmission of Covid-19.”
The parents of R.S. said the school district similarly should be bound by the same rules, should the district attempt to order quarantine on a student.
“It would be an absurd proposition for the District … to suggest the local health department (CCDPH) is required to obtain consent of the parent, or a court order, in order to compel the Child to quarantine, but they somehow can disregard procedural and substantive due process,” the parents wrote in their complaint.
“Quite simply, the District, and Defendant Smith have infringed upon the lawful right of the Child and parents to be free to choose for themselves what health and safety measures they feel are appropriate for the Child, absent an order from this Court to the contrary.”
The parents are seeking a court order declaring District 161 overstepped its authority by excluding R.S. from school for 10 days, regardless of the district’s own internal rules.
They are also seeking an injunction blocking District 161 from enforcing 10-day quarantines against R.S., unless that order come from CCDPH, under its legal authority, after petitioning the court.
The case is pending before Cook County Judge Celia Gamrath, according to Cook County court records.