Pritzker to take school mask case to Illinois Supreme Court after ruling leaves masking up to local districts

Brian Cassella/Chicago Tribune/TNS

CHICAGO — Illinois Gov. J.B. Pritzker said he will ask the Illinois Supreme Court to step in after his administration lost an attempt to keep statewide masking and other COVID-19 mitigation measures at schools in place, as more than 500 Illinois districts pivot to mask optional policies.

The ruling late Thursday dismissing Pritzker’s appeal from a midlevel appellate court effectively means Illinois school districts no longer must require students and staff to mask up, though the decision leaves room for school systems to implement their own COVID-19 safety rules.

A spokeswoman for Pritzker said Friday the governor’s office is working with the attorney general’s office to request an expedited review of the appellate ruling by the state’s highest court.

”In the meantime, the governor urges everyone to continue following the doctors’ advice to wear masks so students can remain safely learning in classrooms, and is encouraged that the court made it clear that school districts can continue to keep their own mitigations in place,” spokeswoman Jordan Abudayyeh said.

The anxiously awaited ruling from the 4th District Appellate Court in Springfield came after weeks of chaos and confusion at Illinois schools resulting from a Sangamon County judge’s ruling that temporarily halted the governor’s executive orders over rules including mandatory masking.

The dismissal of Pritzker’s appeal of that ruling arrives just days after a bipartisan panel of Illinois lawmakers voted down a bid from the Illinois Department of Public Health to renew its virus mitigation requirements, including mandatory masking, at schools.

The appeals court justices cited that recent development in Springfield, writing that because the legislative rules committee “objected to and suspended” the mandates’ renewal, “none of the rules found by the circuit court to be null and void are currently in effect.”

Attorney Tom DeVore, who represented Illinois parents in the lawsuit, said the appellate court “did a satisfactory job answering the questions that needed to be answered.”

“These cases are not going to go away, and we need to make sure this is not going to happen again,” he said.

It wasn’t immediately clear what impact the ruling would have in districts including Chicago Public Schools, which has kept its mask rule in place, as is set forth in its safety agreement with the Chicago Teachers Union.

But in a Friday statement, CPS officials said the district “stands by our proven COVID-19 safety mitigation measures and is pleased the Appellate Court has confirmed that the Temporary Restraining Order does not prohibit school districts from independently requiring masks, vaccinations for staff, and requiring individuals who have tested positive or have been exposed to COVID-19 to learn/work from home.”

“Our schools will continue to enforce these policies, including mandated universal masking. These safety measures are what have allowed us to provide our students with the in-person learning environment they need throughout this school year. We will continue to follow these protocols until such time as our public health partners advise us that restrictions can be safely lifted,” officials said, adding: “We are encouraged to see COVID-19 cases dropping, and we remain optimistic about what this will mean for our school communities in the future.”

Chicago Teachers Union President Jesse Sharkey agreed, saying, “Nothing changes in Chicago Public Schools, which has a mask mandate and other mitigation in place because of our union’s demand for safety.”

“The Chicago Teachers Union will continue to fight for safety and the right to recovery for all of our students and school communities,” Sharkey said.

The ruling states the language of the temporary restraining order issued by the lower court “in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19.”

Earlier this week, Pritzker maintained that the health department’s failed attempt to renew its rules for schools did not impact his executive order, which he said remains in effect, but the ruling late Thursday has called that into question.

The appellate court’s decision comes after Sangamon County Circuit Judge Raylene Grischow granted a request from attorney Tom DeVore earlier this month to temporarily halt the governor’s executive orders on masking and quarantining for schools, finding that the measures are beyond the governor’s authority and deprive students of due process.

Naperville resident Gracia Livie, a mother of four, and one of the plaintiffs in the lawsuit filed by parents, said she was overjoyed to get an email from attorney Tom DeVore at 2:30 a.m. Friday morning alerting her of the appellate court decision.

“This decision is a victory for the parents and kids of Illinois, proving that kids have the right to due process and mask choice,” said Livie, who has three children who attend Naperville School District 203, including a kindergartner with cerebral palsy who struggled with wearing a mask, which prompted Livie to push back on the governor’s mandate.

While District 203 recently shifted to a mask optional policy, Livie said even before the district’s mandate was lifted, her children were allowed to attend classes mask-free following Judge Grischow’s granting of the temporary restraining order on Feb. 4.

“Their week being the only ones unmasked was blessedly unremarkable, in that they were treated just the same as every other child,” Livie said.

While IDPH officials declined to comment earlier this week on what COVID-19 mitigation requirements remain in place at the more than 800 public schools districts and private schools in Illinois, officials at the Illinois Education Association, the state’s largest teachers union, said the ruling brings “clarity” to the unprecedented hardships facing educators in recent weeks.

“There has been much confusion over what Circuit Court Judge Raylene Grischow’s original ruling even meant. It appeared to apply only to those districts named in the original court cases, which would be about 150. But according to school administrators, there are at least 500 mask-recommended districts now in Illinois,” IEA President Kathi Griffin said in a Friday statement.

“These past few weeks have been tumultuous in schools around the state,” Griffin said. “They have been described by some as the worst time in our teachers’ and education employees’ careers. They’re getting angry emails, having to comfort scared students and are working to help calm other students who are dealing with the trauma that this pandemic has caused,” Griffin said.

“Schools are supposed to be students’ safe haven. That’s not what we’ve been seeing at many of our schools recently. We know school board meetings have been canceled and schools have shut down because of threats and protests. This has to stop,” she said, adding: “Mitigation efforts are not political. They are put in place to keep students and school staff from getting sick, or from bringing home COVID-19 to loved ones who may be susceptible.”

Dan Montgomery, president of the Illinois Federation of Teachers, which includes CPS, said in a Friday statement that the appellate court decision “makes one thing clear: school districts are free to implement their own safety measures around COVID-19.”

“Since the beginning of this pandemic, we have insisted that proper mitigations are in place to protect students, teachers and staff, and their families,” Montgomery said. “This was to reduce sickness and death and to keep schools open for in-person learning as much as possible. Today’s appellate court ruling does nothing to change that calculus.”

In the short term, the ruling might add to the confusion that surrounded the issue in recent weeks, with some districts abandoning mask mandates all together and going mask optional, and others keeping masking rules in effect.

The Chicago Board of Education, which oversees CPS, is poised to vote on a resolution at Wednesday’s monthly board meeting that would ratify district COVID-19 safety measures including universal masking of students and staff; testing for unvaccinated employees; and directing those who test positive or have been exposed to the virus to temporarily stay home.

Through the resolution, the board would also reaffirm CPS CEO Pedro Martinez’s authority to change district COVID-19 policies in consultation with public health officials “and other stakeholders,” which presumably include the teachers union.

Martinez is due in Sangamon County Court next Friday after two CPS parents who participated in DeVore’s lawsuit said their children were told this week to wear a mask or leave district property. DeVore argued Martinez and Mount Greenwood Elementary School Principal Catherine Reidy violated the temporary restraining order Grischow issued. The judge ordered Vernon Hills High School Athletic Director Brian McDonald to appear in court after a similar complaint was lodged against Community High School District 128.

Despite CPS staying the course, a soaring number of Illinois school districts are shifting to mask optional — a trend unfolding nationwide amid plummeting virus rates, and a public that has grown increasingly weary of the pandemic.

That includes Palatine-based Community Consolidated School District 15, which enrolls about 11,500 students at 19 schools.

“Due to the (legislative panel’s) decision not to renew the IDPH’s emergency rules, our local positivity rates and District-based metrics, and after thoughtful discussion and planning, we have decided to move to a Mask Recommended not Required teaching and learning environment as of Friday,” District 15 Superintendent Laurie Heinz said in a Thursday parent letter.

The rapid shift to mask optional is troubling for many parents, including Wheaton resident Erik Hjerpe, who said he is “frustrated and concerned that school boards and politicians, rather than public health experts, doctors and scientists, are making these decisions.”

“Given where we are today, many of us just want transparency from our districts,” said Hjerpe, who questioned why school districts are easing their virus mitigation efforts despite the Centers for Disease Control and Prevention, the IDPH, and the American Academy of Pediatrics continuing to recommend universal masking alongside other COVID-19 protocol for schools.

“For those who cannot safely be in the schools, what will be done to accommodate them?” Hjerpe said. “And of importance to all ... what will be done to heal fractured communities and restore civility so that the focus can again be on learning?”

GOP candidates running to oust the sitting governor quickly pounced on the ruling as an opportunity to hoist their notion of Pritzker’s leadership as “tyrannical” and “egomaniacal.”

“Pritzker is a failure, and I will continue fighting against his tyrannical mandates and empty threats,” State Sen. Darren Bailey of Xenia said in a tweeted statement. “It’s time to restore common sense to Springfield and opportunities to every Illinoisans (sic).”

Bull Valley businessman Gary Rabine echoed this, tweeting that Pritzker “knows better than parents how to raise their kids and better than the courts on how to apply the law.”

Also taking to Twitter was Petersburg cryptocurrency venture capitalist Jesse Sullivan, who said if he is elected governor, Sullivan will “put parents’ voices first” instead of listening to the “most extreme voices within the Chicago Teachers Union and in Washington D.C.”

In an emailed statement, Aurora Mayor Richard Irvin called the ruling a “win” for those who have been “victims of Pritzker’s unilateral control.”

A fifth GOP candidate, former state Sen. Paul Schimpf of Waterloo, said he was “grateful” for the appellate court’s ruling because it places the authority for such decisions “where it belongs — in the hands of parents and local school boards.”