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Illinois court says students can continue to go maskless in some school districts

Children and staff wear masks inside a classroom.
Laurel Chor for NPR
Children and staff wear masks inside a classroom.

Students in about 170 Illinois school districts can continue to go mask optional and reject other COVID mitigations, a state appellate court ruled late Thursday evening, affirming a temporary order issued by a Springfield judge earlier this month that has upended the governor’s COVID-19 mandates in schools.

The ruling likely opens the door for more school districts that aren’t directly affected by the order to reject the state’s COVID school rules. Already, a growing group of school districts have gone mask optional even though the governor’s office insists its COVID-19 mandates remain in effect.

In affirming the temporary ruling, the Fourth District Appellate Court noted a legislative committee this week objected to renewing school masking rules by the Illinois Department of Health.

“We dismiss defendant’s appeal because the expiration of the emergency rules renders this appeal moot,” the court wrote in its decision.

The court also wrote that it is not clear the rules would be reinstated “given the changing nature of the COVID-19 pandemic — which affects the State defendants’ response to the pandemic.”

However, the court noted the lower court’s order does not restrict schools from deciding for themselves whether to require masks or other COVID mitigations.

Thomas DeVore, the attorney for families and teachers that sued, said his clients are happy with the appellate court’s decision. He said other families around the state are looking to the lawsuit for guidance. He argued that the appellate court ruled the governor’s executive orders on masking and other COVID mandates unenforceable.

“They said that executive order in a vacuum, doesn't do anything,” DeVore said of the appellate court’s decision. “That really is the appellate court saying ‘Your executive power that you're telling everybody you have — you don't have it.’”

The governor’s office did not immediately respond to a request for comment.

The ruling comes almost two weeks after Sangamon County Circuit Court Judge Raylene Grischow put a temporary hold on COVID mitigations in about 170 school districts where parents and school staff are suing to challenge mask mandates, regular testing for unvaccinated staff and quarantine rules at schools imposed by the governor. Illinois Attorney General Kwame Raoul filed the appeal last week as well as a motion to stop the temporary restraining order.

Thursday's ruling only pertains to the temporary hold and does not settle the underlying lawsuit.

It’s been a disruptive couple of weeks for some schools. Some public school districts and Catholic school systems that weren’t named in the lawsuit decided to make masks optional. And districts named in the lawsuit took differing approaches to the judge’s order.

Chicago Public Schools and Elgin U-46 continue to require masks except for students who are part of the lawsuit. Other districts like Mount Prospect School District 57 chose to make masks optional. Some students staged walkouts, and groups of parents protested outside of schools calling for an end to the requirement. Fremont School District 79 switched to remote learning to avoid disruptions on Monday.

Students in the state’s largest high school district, District 214 in the northwest suburbs, were allowed to go mask optional after Judge Grischow issued her restraining order. At one district school, John Hersey High School in Arlington Heights, opinions among students are mixed on what the school’s policy should be. Most students were not wearing masks at dismissal earlier this week.

“I have not been wearing a mask ever since the mandates have been lifted, and it's a lot better without masks,” said Jackie Baker, a 16-year-old student.

Other students feel it’s too soon to do away with the mask requirements. Lily Miller, 16, waited outside her school wearing a KN95 mask. “Everyday, less people wear masks, and it makes me a little nervous because my grandma is sick at the moment,” she said. “I don't want to get her sick.”

On Tuesday, the legislative committee voted against an emergency rule that would have required schools to continue mask mandates and other COVID mitigations. Republicans criticized Gov. JB Pritzker for trying to go around the judicial system, while some Democrats on the panel, known as the Joint Committee on Administrative Rules (JCAR), voted to block the rule because of the ongoing litigation. After the vote, Pritzker argued his school mask mandate remained in effect.

In a filing to the appellate court on Wednesday, the attorney general’s office argued that JCAR’s action only related to IDPH’s renewal of emergency rule rather than the governor’s executive order. Therefore, the vote has little impact on the appeal. But the plaintiffs disagreed, saying that the JCAR vote weakened the state’s defense for imposing COVID mitigations in schools.

Following the JCAR vote, some school districts switched to mask optional, including Maine Township High School District 207 and Park Ridge-Niles District 64. On Tuesday, the District 207 school board decided to drop the mask required because of JCAR’s decision and, it said, because COVID-19 rates have dropped in the area. Last week, a group of students staged a walkout at Maine South High School because it required masks.

Northwestern University Law Professor Nadav Shoked said the original ruling wasn’t clear about exactly who was subject to the order.

Pritzker has taken the restraining order to only apply to the 168 school districts that are defendants in the case. But Republicans and other people who oppose masks have said it means the whole state is no longer under a mandate. Shoked said both sides have an argument.

“It's not clear whether [the order] applies throughout the land or just in a specific court,” he said.

Beyond that, Shoked said neither the governor nor the plaintiffs are making “ludicrous” arguments in the appeal.

“Those grand terms of our political debates about freedom versus government, that's really not been [Grischow’s] position,” Shoked said.

Rather, he said, Grischow’s justification in assigning the restraining order is grounded in her reading of the Illinois Department of Public Health Act and other statutes.

Specifically, Grischow argued that Pritzker’s executive orders overstepped his authority and the IDPH did not delegate its authority correctly because it authorized school districts, not local health departments, to enforce masking, testing and vaccination rules.

The attorney general called the opinion a misreading of the law and said the governor said the restraining order is sowing confusion and discord in schools.

But Shoked also said he’s more inclined to agree with Pritzker’s interpretation of the situation.

Grischow argued the pandemic has gone on long enough for the legislature to enact rules to contain it. Shoked said he could understand the governor’s argument that the evolving pandemic necessitated the series of executive orders that have defined Illinois’ response to the virus.

“Yes, it's true that we've had a pandemic for two years now,” he said. “But it's also true that our knowledge about it, and about what are the next mitigation measures, keeps changing.”

Shoked said the governor’s odds of success would improve on appeal. He observed that the higher up you get in the Illinois legal system, the likelier the outcome is to favor the state.

“Both in Illinois and other states … the government tends to win,” he said. “As you go higher … It’s still not a slam dunk, but it still means that probably likelier than not that they win, but not by much.”

Anna Savchenko contributed reporting to this story.

As a reporter for WBEZ's news desk, Susie produces content for daily newscasts and WBEZ's website. She also anchors, occasionally, delivering news on WBEZ. She directed WBEZ's Schools on the Line monthly call-in show. Her work has also been heard on NPR, CBC and BBC. Susie joined WBEZ as a news desk intern in September 2007. Prior to joining WBEZ, Susie worked at the Peoria Journal Star newspaper and worked as an acquisitions editor for Publications International,Ltd.
Caroline Kubzansky is a Statehouse reporter. She can be reached at ckubzansky@wbez.org.