A south suburban school district has asserted Illinois’ public health law, and the due process rights granted to Illinois residents in that law, don’t apply to public school students, saying appellate court rulings that declared schools have the authority to force school employees to submit to Covid vaccine and testing mandates should also be understood to apply to students, as well.
On May 9, those arguments were advanced in a brief filed by attorneys representing Flossmoor School District 61.
The filing came in response to a lawsuit filed by attorney Lucas Fuksa, of the firm of Fuksa Khorsid, of Chicago. The lawsuit was filed in Cook County Circuit Court on April 27, on behalf of plaintiffs Danielle and Kevin Such.
Lucas Fuksa
| fklawfirm.com
The Suches are parents of a fourth-grade student, identified in the complaint only as R.S. She attends Western Avenue Elementary School in Flossmoor.
According to the complaint, the Suches challenged an order of quarantine issued by the Cook County Department of Public Health against their daughter.
However, the school continued to force the girl to stay home from school, and imposed masking and distancing rules on her for a time after she continued to test negative for Covid.
In communications to the parents, District 161 said they had imposed the restrictions under their own authority, not the Cook County Department of Public Health.
The Suches responded with their lawsuit, asserting District 161 lacked such authority under state law to order students to quarantine away from school.
The Suches asked the court to issue both an emergency restraining order and a permanent injunction, declaring the school district lacks the authority it claims under state law.
District 161 filed its May 9 brief in response to the motion for temporary restraining order.
The district noted any order from the judge would come well after the student’s required quarantine would have ended, so there is no emergency justifying such a restraining order on behalf of R.S.
However, in that brief, District 161 also took aim at the Suches broader legal claims.
In the reply, the school district concedes the statute known as the Illinois Department of Public Health Act vests the power to issue orders of quarantine solely with state and local public health departments. That law also gives anyone targeted by such quarantine orders the right to challenge the order of quarantine in court.
However, the school district said the Public Health law and its due process protections don’t apply to public schools.
The district claims the Suches reliance on the due process rights granted to them under that law are a “red herring.”
They assert no law prevents school districts from imposing any health restrictions on teachers, school staff, and students, alike, because the school district has the authority under state law to take all necessary steps to create a safe workplace.
To back their claims, District 161 pointed to two recent decisions issued by state appellate courts, rejecting lawsuits from public school workers and other local government employees, challenging vaccine and testing mandates.
Those decisions said state and local governments, including school districts, have the authority under state law to impose rules on employees in the name of protecting the health and safety of the workplace. Should workers choose not to comply with the rules, the local taxpayer-funded employers have the right to fire them, the appellate courts ruled.
The decisions did not indicate if the court would allow schools to extend such “workplace safety” rules to students, who are not employed by the school districts and who have certain rights to a public education under Illinois law.
District 161 argued those decisions should be read to allow public schools to lump students in with school staff.
“… Just as the IDPH’s power (or CCDPH, as is the case here) to compel individuals to submit to vaccinations or testing does not preclude public employers from adopting their own vaccination and testing rules, the IDPH’s authority, or CCDPH’s authority, to issue a quarantine order that would bar a student from attending school does not preclude a school board from adopting its own rules to exclude students from school when they are at risk of passing a contagious disease on to other students or staff,” District 161 wrote in its brief.
The brief had been filed in later April, but Cook County Judge Celia Gamrath had delayed making the brief available to the public until May 9, to allow time to determine if the brief needed to be filed under seal.
Judge Gamrath denied the Suches request for an emergency injunction, but has not yet made available a written order explaining the ruling.
In comments to the Cook County Record, attorney Fuksa said he believed the decision was based on a finding that a TRO was not needed any longer, because the girl’s quarantine period had passed.
The case remains pending.
District 161 is represented by attorneys James A. Petrungaro, Adam Dauksas and Rachel Domash, of the firm of Himes Petrarca & Fester, of Chicago.