Editor's note: This article was first published at Wirepoints.org.
Gov. JB Pritzker dropped the statewide school mask mandate, Chicago Public Schools finally did the same and COVID infections continue to plummet. And since the most discussed lawsuit on school masking was ruled moot, you might therefore think the school mask saga is over. But it’s not.
First, some of the plaintiffs in the case originally filed in Sangamon County are seeking a declaratory judgement that Gov. JB Pritzker’s statewide mandate was illegal. That court held in their favor. Both an appellate court and the Illinois Supreme Court declined to accept an appeal, ruling the case moot, but the issue of the legality of the mandate was never resolved. The plaintiffs now, therefore, want clear confirmation that the mandate was illegal in order to assure that the controversy does not arise again.
Second, the Chicago Teachers Union has filed an unfair labor practice charge, claiming the mask-optional policy is a clear violation of their Jan. 12 safety agreement. As reported by ABC Chicago, some parents are also upset over the decision, claiming the decision unfairly targets black and brown communities. “It’s racist,” CPS parent Jesu Estrada told ABC.
Third, Pritzker continues to claim other emergency powers and, on March 4 issued yet another executive order. Take a look at it here. It’s extremely complex and lengthy, like his earlier 17 unilateral orders. It is summarized here.
Meanwhile, the General Assembly is moving to further advance union power in Chicago public schools. The House last week passed a bill to authorize Chicago school principals to unionize.
What’s most interesting is an order issued by a Cook County Circuit Court on February 22 that has gone almost entirely unnoticed. The order from the Sangamon County court that went up to the Illinois Supreme Court has gotten all the attention, but the Cook County order may be more significant.
The Cook County court ruled in favor of a seventh grader who was barred from school for refusing to wear a mask and complying with other quarantine mandates issued by Cook County. It’s the next-to-last paragraph of the order that is important.
From it:
"As this case aptly demonstrates, a quarantine order may be of such brief duration that by the time the matter is tried the quarantine order will have been lapsed and the case will have become moot. Therefore, as a practical matter, the procedure that respects the due process and other constitutional and statutory rights of a respondent would necessitate that the petitioner be prepared to present evidence in the first instance (beyond simply a petition with a declaration appended) through witnesses and documents if the respondent, as appears to be the case here, is not prepared to stipulate to, or otherwise disputes, the salient facts alleged in the petition. The Court may not deprive one of their liberty interests without giving them the opportunity to confront the government’s witnesses and to present their own witnesses."
That’s huge because it essentially signals agreement with the central claim made by plaintiffs in other Illinois school mandate cases, in language far clearer than earlier rulings. That basic claim is that blanket mandates deprive students of due process. Due process demands that they each get an immediate court review on the facts and merits, so a mandate cannot be enforced without that due process during the period before the dispute becomes moot. Excluding students from schools for not wearing a mask is a form of quarantine, according to earlier decisions.
The case is also important because it is from Cook County. Other lawsuits, including the Sangamon County decision, have been ridiculed by Pritzker and the Chicago Teachers Union, with the blame partly being placed on DeVore, the attorney who brought many of them and won the Sangamon County case.
“Tom DeVore, a grifter hundreds of miles away from our city, is using CPS families for his own political gain,” said the union in an open letter. “Devore is nothing but a fraud who wants to eliminate an effective tool that we have all fought for, and made sacrifices for to keep everyone in our school communities safe from COVID-19,” it went on.
Pritzker, too, called DeVore a grifter, ridiculed the Sangamon County decision and claimed the appellate court ruled on the basis of politics.
Well, the Cook County case was not brought by DeVore, but by an attorney named Lucas Fuksa of FuksaKhorshid. And the judge who issued the order, Sanjay T. Tailor, is a particularly smart and conscientious judge.
The Cook County order is not binding precedent because the case was settled and never subject to appeal. However, I spoke to Fuksa who believes it will be “persuasive” in other pending and future cases. Count on it being cited in further litigation.