Chicago Public Schools may need to explain why they have continued to require students to wear masks, even after a Springfield judge in early February ruled the mandates violated their due process rights, guaranteed under Illinois state law, and after two appellate courts opted not to strike down the judge’s legal reasoning.
On Feb. 28, attorney Tom DeVore asked Sangamon County Judge Raylene Grischow to issue a temporary restraining order against CPS for forcing students he is representing to wear masks while at school.
In the motion for TRO, DeVore returned to familiar themes he has established in earlier arguments in the long-running lawsuits over state and local school district mandates, forcing students to wear masks and submit to COVID testing and possible exclusion from classrooms, should they be suspected to have been exposed to COVID-19.
On Feb. 4, Judge Grischow had issued a restraining order barring Gov. JB Pritzker and two state agencies under his control from forcing schools to require the COVID-related masking, testing and exclusion mandates.
The judge ruled the mandates violated the rights of students, parents and educators under state law to challenge the so-called modified quarantine rules. Further, the judge ruled such modified quarantines can only be set by public health departments.
The Pritzker administration appealed that ruling, first to the Illinois Fourth District Appellate Court in Springfield and then to the Illinois Supreme Court.
In both instances, the courts determined the governor’s appeals were moot, because a committee of Illinois state lawmakers had blocked Pritzker from reimposing the state mandates when they expired shortly after Judge Grischow’s ruling. Since the governor’s mandates no longer were in effect, there was nothing to restrain, the appellate courts determined.
Some dissenting justices on both courts, however, said the courts should have answered the key legal question of whether Pritzker’s mandates violated the law and the rights of students, parents and educators, as DeVore had argued and Grischow had ruled.
The Supreme Court, however, also vacated Grischow’s order as moot. This prompted Pritzker and his allies to declare victory, and assert the governor still had the power to again force students to wear masks in the future, if he believes it is needed.
DeVore has disputed that conclusion, noting neither appellate court ever struck down Grischow’s legal findings concerning the limits of the powers of the governor or school districts to impose such quarantine measures.
Since the TRO, nearly all Illinois schools have lifted mask requirements. Almost immediately after the Supreme Court vacated the TRO, Pritzker also said he was lifting the state school masking mandates, even though the appellate courts had determined his mandates no longer existed.
The underlying lawsuit remains pending before Judge Grischow, with further arguments over the limits of Pritzker’s and the school districts’ quarantine powers slated for coming months.
However, some school systems, including CPS, have clung to the mask mandates.
CPS has publicly asserted it will require students to wear masks because of a deal struck between CPS administration and the Chicago Teachers Union, which requires CPS to force students to mask until the end of the current school year, at least.
DeVore had asked Grischow to find CPS in contempt of court for defying Grischow’s restraining order.
However, after the Supreme Court vacated that order, DeVore instead returned to court to ask Grischow to again restrain CPS from allegedly violating state law and the rights of the students he is representing, amid potentially thousands of other students statewide.
In his new motion, DeVore does not directly address CPS’ claims that students can be required to wear masks as a condition of the CTU’s collective bargaining agreement.
But DeVore argues CPS “continues to force the Students to wear a mask … without any lawful authority to do so,” and are “unlawfully violating the statutory procedural and substantive due process” rights of students.
In a footnote in the motion, DeVore noted Grischow had issued a prior TRO addressing those due process rights, and “even went so far as to clarify” following a hearing on DeVore’s contempt petition that “the policies of CPS cannot violate the students due process rights if they refuse to wear a mask as a type of quarantine.”
“CPS continues to openly violate this Court’s findings, which are still the law of the case,” DeVore said, urging the judge to issue a new restraining order against CPS.
Grischow has not yet ruled on the restraining order request, and a hearing date had not yet been scheduled at the time of this article’s publication.