The Chicago Public Schools have pushed back against a high school student’s attempt to strike down its regime of mandatory weekly Covid tests for unvaccinated student athletes, saying Illinois’ public health law and the state’s Health Care Right of Conscience laws, along with their due process protections, have no bearing on Covid testing rules deployed by public schools.
CPS further argues state law and prior court decisions give schools the authority to force students to comply with workplace health protection measures courts have said they can impose on teachers and staff.
CPS advanced those arguments in a brief filed May 9 in Cook County Circuit Court, as CPS sought to defeat an attempt to secure an emergency order blocking its Covid testing rules.
Lucas Fuksa
| fklawfirm.com
Cook County Judge Anna Helen Demacopoulos sided with CPS and, on May 10, denied the temporary restraining order sought by the plaintiffs.
The lawsuit was filed May 4 by attorney Lucas Fuksa, of Chicago, on behalf of Courtney Connolly and her daughter, identified in the complaint as M.C.
According to the lawsuit, M.C. played on the varsity women’s soccer team at Whitney Young High School this spring. In that time, she participated in two months of preseason practices and played in 10 games.
However, in late April, she was barred from team activities for refusing to submit to Covid testing through CPS’ chosen testing vendor, Color Health Inc.
Further, the complaint said CPS refused to accept negative Covid tests conducted by an outside vendor, and would require M.C. to test exclusively with Color Health. If she refused, she would be barred from playing soccer at Whitney Young.
The Connolly family responded by filing suit, claiming CPS’ Covid testing rules illegally discriminate against unvaccinated students and violate M.C.’s rights under state public health law and the Illinois Health Care Right of Conscience Act.
In the family’s complaint, they assert CPS’ Covid testing rules trespass on legal public health authority given exclusively to the Illinois Department of Public Health and local public health departments under the Illinois Department of Public Health Act.
And they say the mandate to test weekly or face consequences runs afoul of M.C.’s rights under the Right of Conscience Act which states “parents and the Child have a right to object or refuse to obtain, receive, or accept the delivery of health care services … and to prohibit forms of discrimination by reasons of their refusing to act contrary to their conscience or conscientious convictions in refusing to obtain health care services.”
“Quite simply, (CPS) and Defendant Martinez have infringed upon the lawful right of the Child and Parent to be free to choose for themselves what health and safety measures they feel are appropriate for the Child, absent an order from this Court to the contrary,” the family wrote in their complaint.
In response to their claims, CPS, however, said it has no legal obligation to pay any heed to the state’s public health laws, because its authority comes from state laws governing public education.
CPS conceded the IDPH Act grants “supreme authority” over public health measures to public health departments.
But, CPS said, “’Supreme’ authority over matters of quarantine and isolation is not the same thing as ‘exclusive’ authority to adopt measures to reduce the spread of dangerous infectious diseases.
“Nothing in the Act suggests that the General Assembly intended the IDPH Act to impose any limitation upon the concurrent authority of school boards to require students or employees to submit to COVID-19 testing as a condition of participation in extracurricular activities or as a condition of employment,” CPS argued.
Further, they said, recent decisions from state appellate courts back their claims public health laws don’t apply to public school Covid rules.
In those rulings, judges determined the state’s public health law only applies to actions by public health departments to issue quarantine orders against individuals, and do not apply to “workplace safety” rules implemented by school districts and other local governments.
Under those rules, the courts said, those government employers can require workers to comply with Covid vaccine and testing mandates, or be fired, without any due process recourse for the workers.
CPS argued that reasoning “applies with equal or greater force here, given the broad authority expressly granted to the (Chicago Board of Education) under the School Code,” even though students are not CPS employees.
“No health department has ordered M.C. to do anything,” CPS said. “The (Covid testing) Policy applies only to CPS student athletes, and M.C. is not confined or restricted in any way beyond participation in sports.
“Because M.C. has not been ‘quarantined’ by order of the health department, Plaintiff has no right to insist upon due process under (the IDPH Act).”
CPS also said the Right of Conscience Act doesn’t apply to its testing policies, in part because the law applies to “patient care” in a health care setting.
“Students who participate in testing under the Policy are not ‘patients’ of CPS or the testing vendor,” CPS said. “Neither CPS nor the testing vendor provide any patient care to students.”
Further, CPS argued the Right of Conscience Act should not be read to apply to Covid restrictions and mandates in any way, because, they said, the law was only intended to apply to health care professionals who objected to performing abortions.
The Health Care Right of Conscience Act “was not intended to create an unqualified ‘conscience’ objection to health requirements for student athletes,” CPS asserted.
CPS’ arguments largely mirror those recently advanced by another school district.
Flossmoor District 61 is also defending against a lawsuit brought by Fuksa on behalf of a family there objecting to Covid prevention measures, which they say also infringes on their rights under the state’s public health laws.
A judge also rejected a request for a temporary restraining order in that case.
CPS is represented by attorney William R. Pokorny, of Franczek P.C., of Chicago.