Parents Protest Mask Mandate, But Board Told Ending It Is Illegal

WILMETTE, IL — A couple dozen demonstrators gathered Monday morning at Wilmette Village Hall to call for an end to the indoor mask mandate at Wilmette School District 39.

The protest coincided with a District 39 board meeting where district officials were advised that dropping the mandate and switching to a mask-optional policy would constitute a violation of the law that would subject the district to potential legal liability.

Superintendent Kari Cremascoli told the board that Gov. J.B. Pritzker's September 2021 executive order mandating universal indoor masking and weekly testing for unvaccinated school employees remains in effect.

"I, as the superintendent, cannot recommend that the board act in conflict with the law, nor can our legal counsel recommend that," Cremascoli said Monday.

Unlike Glencoe School District 35 and Winnetka School District 36, a pair of neighboring New Trier Township High School feeder districts, District 39 was not one of the approximately 170 districts named as defendants in Austin v. Pritzker or any of the other legal challenges to the governor's use of executive authority.

"Despite the many legal interpretations to the contrary, and we know that there are many, the reality is that the recent court ruling simply does not apply to our district," Cremascoli said at Monday's board meeting.

"Because we are not named parties in the lawsuit, the ruling has no direct legal impact on our district. We remain under the rule of the executive order," the superintendent continued. "Furthermore, IDPH and CDC continue to recommend indoor masking in schools. Therefore, I also do not have the authority from the board to issue or recommend a change in practice with regard to the mask mandate and universal masking."

While no parents of District 39 students joined on to the challenge to the mask mandate spearheaded by downstate attorney and appellate court candidate Tom Devore, families of students in District 35 and District 36 did sign up to be plaintiffs. Both those districts adopted mask-optional policies in response.

Dana Crumley, general counsel to K-12 schools at the law firm Franczak, explained that Sangamon County Circuit Judge Raylene Grischow's Feb. 4 order granting a temporary restraining order to parents challenging school mask mandates.

"The judge is saying that the students need procedural due process before they're required to wear masks. She's not making any ruling — and she says this in several places throughout the decision — about whether to be without a mask is a substantive due process right," Crumley said. "She totally acknowledges that the Illinois Department of Public Health under certain circumstances can require us all to be masks, but that there has to be a due process procedure in place for that masking. So because the order is not applicable to you, you cannot use the order to make decisions right now."

Illinois Attorney General Kwame Raoul has filed an appeal to Grischow's order, and appellate court ruling in the case could come by the end of the week. While the district cannot legally rely on a lower court ruling like Grischow's as precedent, an appellate ruling in its favor could be used as a legal defense in the future.

Chief School Business Officer Corey Bultemeier said the district is not insured against coronavirus-related costs, so it would have to cover its own attorneys' fees if it were sued over its COVID-19 policies.

Crumley, the district's attorney, said failure to follow the governor's existing executive orders could limit the board's liability protections.

"When the employees and the public officials are acting within the scope of their authority and their duties under the school code, they have indemnification from their action," she said. "But when you are acting outside your duties, which I do think violating an order that applies to you would likely be considered something that is outside your duty, you may not be indemnified or may jeopardize your insurance liability coverage."

About 30 demonstrators showed at the protest prior to the board meeting, although only about 10 of them were District 39 parents, according to multiple reports. Some brought their children along. Among them was 4th grade student Grace Williams.

"I would like to see my friends smile," Williams told WLS-TV, "'cause, like, a lot of this has made a lot of people sad."

Several attendees at the protest were among the nearly 20 residents who advocated a move to a mask-optional environment during the period of Monday's District 39 board meeting reserved for comments from the public.

Anna Hedges, the mother of a McKenzie Elementary School student, said it was unnecessary to continue to require kids to keep their faces covered at all times to protect against a disease that has only a 0.02 percent death rate for children.

"It has been almost two years. My child has never seen his teacher's face, never been able to watch her speak as he learns phonic skills crucial for reading. He's never seen the smiles of his peers as they laugh together the playground," Hedges said. "To those that say, 'It's such a small thing, is it too much to ask to wear a mask if there is even the tiniest chance it may protect someone or help someone feel safe?' My answer is: it's not a small thing. These masks affect my child's ability to understand and learn from teacher, they affect his ability to make social connections."

Hedges noted that families have for months had the opportunity to protect themselves by getting vaccinated or using medical-grade masks, whose protection against infection COVID-19 has been shown to be much better than the cloth masks being worn by most of the school board.

"It's become more and more accepted that cloth face coverings do little to prevent the spread of COVID, at the same time, high-quality, well-fitting respirators have become widely available and have been shown to offer much more protection to the wearer," she added. "The burden of protection has now shifted to the individual. The old mantra of 'my mask protects you and your mask protects me' is obsolete. It's time to unmask our kids and allow them a normal childhood."

As of Monday afternoon, an online petition calling on the board and superintendent had garnered more than 500 signatures.

District 39 officials plan to present a plan for moving to a "Reduced Mitigation Plan" at its Feb. 22 meeting, which could be implemented as soon as guidance from state public health officials changes or authority for school safety is given back to local school boards by a court or the the governor.

Board member Lisa Schneider Fabes, who last week drew fierce criticism from the Chicago Teacher's Union for her support of a leadership challenge, expressed discomfort with the idea that the board was going to be willfully violating the law.

"And then when does it stop? We're a country of laws, and there are processes and procedures that we take when we want to change the law," Schneider Fabes said at Monday's special board meeting.

"I don't know if this is the first time our school board has thought about breaking the law, but I just want to say personally, this just makes me feel uncomfortable about the precedent-setting nature of the statement, putting aside what it is we're talking about," she added. "It could be any topic."

Related:

• Mask Mandates Lifted At Winnetka, Glencoe Elementary Schools

• School Mask Ruling 'Cultivates Chaos,' Gov. JB Pritzker Says

• Judge Blocks School Mask Mandate, Voids COVID-19 Emergency Orders

This article originally appeared on the Wilmette-Kenilworth Patch