A Springfield judge has slapped a restraining order on Illinois’ school mask mandate and other COVID-related school health rules, saying Gov. JB Pritzker, the Illinois Department of Public Health and the Illinois State Board of Education used special pandemic-related rules to execute an end-run around the law, trampling the due process rights of students, parents and school employees in the process.
On Friday, Feb. 4, Sangamon County Judge Raylene Grischow issued a temporary restraining order on Pritzker and the state agencies under his control, forbidding them from enforcing rules ordering public schools to require students, teachers and others to wear masks while in school buildings, without first giving those students and affected adults the opportunity meaningfully object, as provided under the state’s public health law.
“The Court finds the Plaintiffs’ legal rights to procedural and substantive due process are being sacrificed each and every day,” Judge Grischow wrote in her order. “They have a right to insist compliance with (state law) before the Defendant School Districts’ masking, exclusion from school, quarantine, isolation, vaccination or testing policies are being thrust upon them, especially when there has been zero evidence that those children are contagious or highly likely to spread a contagious disease.
“Due process of law is a guaranteed right to the Plaintiffs under the Illinois Constitution and has been specifically codified for circumstances such as these under (the Illinois Department of Public Health Act.) If the Legislature did not think due process rights and a method for objecting were important, they would not have created an entire statute on the issue.”
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.
The lawsuit is filed as a class action on behalf of all parents and students in all of the named Illinois school districts. Grischow, however, denied the request to allow the case to proceed as a class action, in an order issued earlier in the day on Friday.
In her 29-page order, Grischow agreed with the plaintiffs, finding Prizker and his state agencies all but ignored certain state laws in pursuit of the governor’s goal to force all school children throughout the state to wear masks at nearly all times while in school, in the name of slowing the spread of COVID.
Attorneys with the Illinois Attorney General’s Office, representing Pritzker, had argued the governor’s powers had very few limits during times of declared emergencies. They asserted this meant Pritzker’s emergency powers under the Illinois Emergency Management Agency Act allowed him to simply ignore due process provisions contained in other statutes, and particularly the Illinois Department of Public Health Act.
Under the IDPH Act, residents of Illinois are granted the right generally to challenge attempts by the IDPH or county health departments to require them to quarantine. Grischow noted the longstanding definitions of quarantine would also have included required COVID testing and compulsory wearing of face masks to reduce the spread of infectious disease.
However, the state lawyers asserted those provisions should not apply during times of deadly pandemics, when disasters are declared statewide by the governor.
Grischow, however, ruled the IEMA Act does not reign supreme over all other laws. She said both laws must be interpreted together.
And so, Grischow ruled, the due process rights of Illinois residents have not been simply suspended, because the governor and state agencies wish to ignore them.
Further, she noted the IEMA Act itself placed limits on the authority of the governor, even during times of pandemic and other disasters.
“The State Defendants also argue that the Governor has unlimited authority to do what is necessary,” Grischow wrote. “This Court finds this argument far reaching…
“…If the Legislature intended for the Governor’s powers to be endless, it simply could have deleted all those other paragraphs (in the IEMA Act) and said ‘during emergencies declared by the Governor, the Governor is authorized to do whatever is felt necessary without any restrictions.’
“But the Legislature never intended for that type of unfettered power, and therefore, the State’s interpretation is unfounded. IEMAA makes it clear that the Governor does not have the authority to make final decisions on public health…”
Grischow further blasted Pritzker, the IDPH and ISBE for issuing so-called “emergency rules” to claim power to mandate masks in public schools statewide, to sidestep the due process requirements of the IDPH Act, by rewriting the state’s quarantine rules on the fly to align with the governor’s desires concerning masking and the ability of school districts to “exclude” children from school over COVID concerns.
Plaintiffs asserted 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.
She said the emergency rules action, carried out last September, violated the law, which does not allow IDPH to delegate its public health powers to the Illinois State Board of Education, public school districts or any agency other than local public health agencies. The judge specifically declared those emergency rules null and void.
As the COVID pandemic had already been ongoing for more than 550 days at that point, and as the Delta variant had been in circulation in the state for nearly 9 months already, the only “emergency” those “emergency rules” were meant to address was the possibility that courts might declare the governor’s actions illegal, Grischow wrote.
“Perhaps the threat was because the Courts were interpreting the law as written and the Executive Branch did not like the outcome,” Grischow wrote. “How is this a threat to public safety? It is not, it is a threat to a unilateral unchecked exercise of authority by the Executive Branch.
“Stated differently, IDPH’s delegation of its authority was an end-run whereby IDPH passed the buck to schools so as not to trigger due process protections under the IDPH Act. Courts should not be fooled or misled by this egregious conduct.”
In her ruling, Grischow drew special attention to the refusal of Pritzker’s allies in the Democratic-dominated Illinois General Assembly to take any action related to compulsory student masking, or any other COVID-related rules pertaining to schools, despite two years of pandemic conditions and numerous court challenges to the governor’s actions.
In passing the laws at issue, Grischow wrote, “the Legislature understood that during times like these, liberty interests were at stake, and as such, provided due process under the law for citizens to rely upon should he or she choose to do so…
“If the Legislature was of the opinion that the public health laws as written were not satisfactory to protect public health from COVID, it has had adequate opportunity to change the law since March 2020. Given the Legislature has changed the law and has chosen not change (sic) these relevant provisions, this Court must conclude the laws which have been in place to protect the competing interests of individual liberty and public health satisfactorily balance these interest (sic) in the eyes of the Legislative branch of government.”
A spokesperson for Illinois Attorney General Kwame Raoul did not immediately reply to questions from The Cook County Record.
However, in a press release, Pritzker and Raoul blasted the judge's decision and pledged to seek an immediate appeal to the Illinois Fourth District Appellate Court in Springfield.
“The grave consequence of this misguided decision is that schools in these districts no longer have sufficient tools to keep students and staff safe while COVID-19 continues to threaten our communities – and this may force schools to go remote,” Pritzker said in the prepared statement. “This shows yet again that the mask mandate and school exclusion protocols are essential tools to keep schools open and everyone safe. As we have from the beginning of the pandemic, the administration will keep working to ensure every Illinoisan has the tools needed to keep themselves and their loved ones safe.”
“We remain committed to defending Gov. Pritzker’s actions to mitigate the spread of COVID-19 and will appeal this decision in the Illinois Appellate Court for the 4th District in Springfield,” Raoul said. “This decision sends the message that all students do not have the same right to safely access schools and classrooms in Illinois, particularly if they have disabilities or other health concerns. The court’s misguided decision is wrong on the law, demonstrates a misunderstanding of Illinois emergency injunction proceedings and has no relation to the record that was before the court. It prioritizes a relatively small group of plaintiffs who refuse to follow widely-accepted science over the rights of other students, faculty and staff to enter schools without the fear of contracting a virus that has claimed the lives of more than 31,000 Illinois residents – or taking that virus home to their loved ones.”