School Mask Restraining Order Appeal Is 'Moot,' Court Rules

ILLINOIS — A downstate appellate court ruled Friday morning that an emergency rule regarding a statewide mask mandate for schools has expired and that an appeal of a temporary restraining order issued that keeps schools from enforcing the mandate is “moot.”

But Gov. J.B. Pritzker has expressed his disappointment in the decision and vowed to continue the fight in Illinois' highest court, where he will seek to have his mask mandate reinstated.

A three-judge panel issued its decision early Friday morning, which now allows districts across Illinois the right to make their own decisions about how they will handle mask requirement.

Earlier this week, the state legislature’s Joint Committee on Administrative Rules allowed the Illinois Department of Public Health’s emergency rule regarding masks in school to expire, dealing a blow to Pritzker’s mandate that masks be required in the state’s public schools.

The state health department had renewed the emergency rules on Monday after the original emergency order was issued in September 2021. However, on Tuesday, the legislative committee objected and suspended the IDPH's renewal, allowing the emergency rules to expire, the court ruled Friday.

In response, Pritzker said Friday morning that he will appeal the appellate court's decision and will take the matter to the Illinois Supreme Court.

“The Governor is disappointed in the appellate court’s decision and concerned for the health of those in schools — particularly vulnerable children and adults — and the ability to continue in-person learning," a spokesperson for the governor said in a statement issued Friday morning. "The administration is working with the Attorney General to request an expedited review of this decision from the Supreme 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.”

Appellate Justice John Turner wrote Friday morning's decision on behalf of colleagues Justice Thomas Harris and Justice Lisa Holder White. Harris concurred with the decision; Holder White concurred with part of the decision and dissented in part.

Friday’s decision comes two weeks after a downstate judge issued the temporary restraining order. Pritzker criticized the decision of the Sangamon County judge who issued the temporary restraining order. Pritzker advised Illinois Attorney General Kwame Raoul to appeal the temporary restraining order, which was done on Feb. 7, before state health officials extended the emergency rules earlier this week.

In announcing that the state's statewide mask mandate will be lifted on Feb. 28, Pritzker said that schools would not be included in that order, saying schools needed more time. He said that a decision regarding schools would likely come within weeks.

"Doctors say that masks are the best way to preserve in-person learning and keep children and staff safe," Pritzker said Wednesday. "A majority of parents in the state of Illinois and across the country believe we need to keep a mask requirement in schools until it becomes safer."

While many districts have made masks optional, administrators said that a mask mandate requiring face coverings goes too far.

On Friday, the court stated that the language of the temporary restraining order in no way restricts districts from acting independently when it comes to creating provisions for dealing with COVID-19.

Like Pritzker, Raoul expressed disappointment in Friday's decision and said the decision "fundamentally misapplies" important principles of Illinois law.

"The Appellate Court’s failure to address the important legal issues in question has added to the confusion resulting from the circuit court’s decision prioritizing a relatively small group of plaintiffs who refuse to acknowledge science or the need for public health measures to protect vulnerable Illinois residents," Raoul said in a statement issued by his office.

“The Appellate Court’s ruling focuses exclusively on the emergency rulemaking process used by the Illinois Department of Public Health with respect to a single technical rule. That rule does not affect the executive orders issued by the governor under the Illinois Emergency Management Agency Act, including the governor’s executive order requiring the use of masks in school, the exclusion from school of persons exposed to COVID-19, and testing of unvaccinated school employees working on school premises."

Chicago Public Schools, which has kept its mask policy in place during the past few weeks when confusion has taken place around the state, said it will continue to enforce its policies. In a statement issued Friday morning, officials said CPS "stands by our proven COVID-19 mitigation measures." Officials said they appreciate the court's finding that the temporary restraining order does not restrict districts from making their own determination regarding masks.

The CPS statement continued, "These safety measures are what have allowed us to provide our students with the in-person learning environment they need throughout the school year. We will continue to follow these protocols until such time as our public health partners advise us that the restrictions can be safely lifted."

The court ruled that the existence of "an actual controversy" is a prerequisite for appellate jurisdiction and said that an issue becomes moot because when no actual controversy exists between the parties.

"We dismiss defendant's appeal because the expiration of the emergency rules renders this appeal moot," Friday’s order reads.

This article originally appeared on the Chicago Patch