A Springfield judge is expected to rule in coming days on the question of whether Gov. JB Pritzker and Illinois school districts should be barred from enforcing state mandates on masking, COVID testing and COVID contact tracing-related “exclusions” of students in schools, as the courts continue to consider whether Pritzker overstepped the law in ordering the various school-related mandates.
On Thursday, Jan. 20, attorneys for a group of hundreds of plaintiffs from throughout Illinois wrapped up days of arguments against attorneys representing Pritzker and 140 school districts, before Sangamon County Circuit Judge Raylene Grischow, over a request from the plaintiff parents for a temporary restraining order against Pritzker, the Illinois State Board of Education and the school districts.
Following the nearly 5-hour long hearing, Grischow said she was not yet prepared to rule on the TRO request, and told the parties not to expect a decision “before next Friday,” Jan. 28.
Sangamon County Judge Raylene Grischow
The hearing has covered multiple days since Jan. 3, when the lawyers lobbed their opening salvos against each other over the TRO.
The lawsuit identified nearly 150 defendants, including Pritzker and 69 Chicago area public school districts. The districts included the Chicago Public Schools and districts from all regions of Chicago’s suburbs.
In the lawsuit, the parents of children enrolled in each of the defendant school districts accuse the school districts and the state of violating Illinois law and the students’ and parents’ rights to due process in the way the state and school districts have enforced state rules and orders, issued in the name of fighting COVID-19. The lawsuit is filed as a class action on behalf of all parents and students in all of the named Illinois school districts.
The lawsuit takes particular aim at executive orders issued by Pritzker, “emergency rules” issued by the IDPH, and “guidance” to schools issued by the ISBE, since mid-September.
Those orders and rules explicitly require school districts to compel all students to wear face coverings while at school.
Further, an “emergency rule” issued by the IDPH allows schools to block students from attending in-person classes and other school activities, should school officials classify such students as close contacts of others who may have tested positive for COVID.
The lawsuit asserts that emergency rule essentially rewrote the definition of quarantine under state law, removing exclusion from school as part of the definition of quarantine.
The lawsuit says the state took such actions solely to thwart court orders secured by Devore on behalf of other parents, barring school districts from enforcing state masking and exclusion rules. In those cases, Devore had argued the school districts lacked the authority under state law to enforce any kind of quarantine against students.
The plaintiffs asserted said such authority is granted solely to county health departments and the courts.
DeVore and the attorneys for the school districts and the state again sounded familiar themes throughout the hearing on Thursday.
Lawyers for the school districts pushed back on DeVore’s assertions that all decisions related to forced masking and COVID-related student exclusion must follow procedures outlined in the state’s public health law.
They argued the state’s School Code gives school districts their own independent “inherent authority” to set health rules within schools to limit the spread of infectious disease and maintain classroom safety.
They said this could include requiring students to wear masks while at school, and keeping students out of school if they had been deemed to have been “close contacts” of other students or staff members who may have tested positive for COVID.
They also disputed DeVore’s assertion that students who were excluded as part of COVID contract tracing and mitigation, were being denied their right to education. They said, with the remote learning option, it was similar to being sent home with homework, if a student should fall ill.
Should schools be required to obtain official quarantine orders each time for “close contacts” of students who test positive for COVID, it would require the school districts to be in court constantly, they said, given the virulence of the COVID contagion.
Grischow twice questioned different school district attorneys why, with such powers and concerns over the spread of contagious diseases, school districts have never previously sought to exercise that authority to order masking and such severe school exclusion policies to limit the spread of any other contagious disease, such as influenza, or even to protect immune compromised students.
Lawyers for the districts said the school districts have taken other, unspecified measures in the past to mitigate the spread of disease, but they look to the guidance and expertise from public health departments, and follow their “recommendations” when taking such action.
Arguing for Pritzker, Assistant Chief Deputy Illinois Attorney General Thomas Verticchio pushed back on the assertion that DeVore’s plaintiffs’ case could even hold up in court.
As in past cases challenging Pritzker’s authority to issue COVID-related executive orders, Verticchio reiterated the state’s position that Pritzker holds broad, sweeping powers under both the Illinois state constitution and the state’s Emergency Management Agency law to issue mask, testing and exclusion mandates for schools.
He also said Pritzker, the State Board of Education and other state agencies were within their authority to rewrite state rules to address an ever-evolving pandemic.
And Verticchio said the due process rights spelled out for Illinoisans under the Illinois Department of Public Health Act don’t apply to those rules, because those mandates were not issued by the IDPH, but rather by the governor, acting within his emergency powers.
“Nothing in the Public Health Act supersedes the governor’s authority under the IEMA Act,” said Verticchio.
Verticchio’s assertions prompted Judge Grischow to then question whether the governor’s “unlimited authority” under the IEMA Act, as framed by Verticchio, would allow him to simply order a statewide lockdown.
“I’m not saying he (Pritzker) has unlimited authority,” said Verticchio. “I’m saying the statute provides broad emergency authorities.”
DeVore reasserted his earlier claims throughout the hearing. He asserted the plaintiffs are not seeking a court order prohibiting student masking, or COVID testing, or student exclusion.
Rather, he said, they are asking the court to order the state and school districts to no longer “disregard” the state’s public health law, and to begin providing parents and students due process to challenge the mandates.
“We’re not saying masks should never be worn, and students should never be excluded,” said DeVore. “We’re here asking you to say that if those things are going to happen, that meaningful rights under the law be provided to these citizens.”