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Mask mandate battle comes to Chicago as big picture legal questions remain unresolved

Mario Proctor - Evanston Township High School
Anna Savchenko | WBEZ
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WBEZ
Mario Proctor is a freshman at Evanston Township High School, which went mask optional for the first time on Monday. Chicago Public Schools is among only a handful of district still requiring masks and is now facing a lawsuit.

The battle over masking in schools is far from over.

The hotly contested issue is now shifting to the state’s largest district — Chicago Public Schools, which remains the largest of only a handful of districts still requiring masks. Illinois lifted its mask mandate for schools on Monday, and most districts throughout Illinois have already pivoted to mask-optional policies.

The downstate attorney leading the charge against the mask mandate across the state is now seeking to block universal masking in CPS. The temporary restraining order request he filed on Monday applies to just three families, but could ultimately have broader implications for the district's mask mandate. A hearing before Sangamon County Judge Raylene Grischow, the same judge who ruled earlier this month on other school mask mandate lawsuits, is set for March 10.

The case could grow beyond three families because no court has yet answered core legal questions: Does the governor have the authority to impose a mandate and under what circumstances? These questions will undoubtedly be raised in lawsuits again if Gov. JB Pritzker reimposes a new school mask mandate to counter another pandemic surge.

In a series of legal actions and appeals this month regarding the state’s mask mandate, the courts never issued a final ruling on the central question of whether the governor has the authority to issue executive orders mandating masking, the testing of unvaccinated teachers and quarantine requirements. The courts also never fully resolved the claim that masking and other COVID-19 mitigation rules violated due process rights for students and teachers, as the plaintiffs argued.

In blocking COVID-19 restrictions in nearly 170 school districts on Feb. 4, Judge Grischow made her views clear. She argued that the governor had exceeded his authority in imposing the mask mandate and other COVID rules, and that due process rights for teachers and students had been violated with masking, quarantine and testing rules. She declared the emergency rules for carrying out the masking and other COVID mandates void.

But the case before her only involved a request for a restraining order. She did not issue a ruling on the merits of the lawsuit. That order was affirmed by an appellate court after a bipartisan legislative committee didn’t renew emergency rules from the Illinois Department of Public Health for implementing the mandates. The Illinois Supreme Court denied the state’s appeal last week, sending the lawsuit challenging the mandate back to the lower court.

The court also vacated the restraining order blocking the mask mandate. Pritzker says this move preserves his authority to reinstate a mask mandate if necessary at a later date.

Tom DeVore is the lawyer representing the CPS families in the most recent case. He is also behind the four other lawsuits that were consolidated and led to Grischow’s Feb. 4 restraining order, which ultimately led to the toppling of the mask mandate across the state. At least 94% of all Illinois school districts are now mask optional, according to the Illinois Association of School Administrators. Most of the districts still mandating masks are in Cook County.

DeVore says that the legal questions were settled after the Supreme Court denied the state’s appeal. He maintains that the governor lacks the authority to impose COVID mandates in schools and says the mandates violate due process rights in all school districts, including CPS.

CPS is continuing its mandate, with the Chicago Teachers Union pointing to the safety agreement negotiated in January that requires universal masking. Judge Grischow noted in her Feb. 4 order blocking the mask mandate that collective bargaining agreements are still enforceable.

DeVore says the union contract should not supersede the rights of students.

“The Chicago Public School system cannot have a binding collective bargaining agreement that takes away the rights of these children,” said DeVore, who recently announced he is running as a Republican for Illinois Attorney General.

CPS leaders didn’t respond to a request for comment on DeVore’s legal action, but last week the Chicago Board of Education passed a resolution affirming masking and other coronavirus related rules. CPS CEO Pedro Martinez and other school leaders say they hope to go mask optional, perhaps even this school year, but said the school district doesn't want to jeopardize progress by unmasking too quickly.

Pritzker and Attorney General Kwame Raoul assert that the governor’s authority to impose COVID-19 mandates is legal under the Illinois Emergency Management Act. They say Grischow’s restraining order was based on a misreading of the Illinois Department of Public Health Act and its rules around quarantine and due process.

They have called on the courts to offer clarity. In a filing with the Illinois Supreme Court on Feb. 22, Raoul cited a 2020 ruling by the Second District Appellate Court upholding Pritzker’s indoor mask mandate for bars and restaurants.

He argued that the 2020 ruling conflicts with the order blocking mask mandates imposed by Circuit Court Judge Grischow. In the filing, Raoul argued that “the circuit court’s order has infused confusion into an area of the law that was settled and holds the Governor to a standard not required by statute.”

Raoul then urged the court to rule on the merits of the suit against the mask mandate.

“So long as this and other questions presented by this case remain unresolved, State defendants will face uncertainty about the scope of their authority to protect the public from the ongoing pandemic,” the filing read. “The public will continue receiving mixed messages about the legality of the Governor’s [executive orders] and the state agencies’ emergency rules.”

Supreme Court Justice Michael J. Burke, in a dissent in the court’s ruling last week, also raised this issue, saying that Grischow’s restraining order “can be read as applying to the validity and enforceability of the Governor’s executive orders themselves, and this is an important issue that should be resolved by this court.”

Northwestern University law professor Nadav Shoked said that the lifting of the mask mandates, at least for now, means the chances are slim that these legal questions get resolved before the next wave.

“In all likelihood that litigation is now over,” he said. “Theoretically, they can spring back to life, if the governor ever comes up with this new executive order again, but until then a court is highly unlikely to touch this case.”

He said future battles over masking in schools — like the one CPS is now facing — will probably play out as this month’s school lawsuits did until the core legal questions are answered. But, he said, the Supreme Court’s move to vacate Grischow’s temporary restraining order is a clear signal that “these cases do not merit a TRO.”

Shoked dismissed as “ludicrous” DeVore’s argument that the Supreme Court’s denial of the state’s appeal undermined Pritzker’s executive authority. He emphasized that the majority of the legal action so far hasn’t dealt with the merits of questions over due process and the governor’s relationship to the state’s public health and emergency management agencies.

“The decision was part of the preliminary process,” he said. “It was not a decision of the substance.”

Caroline Kubzansky covers state government for WBEZ. Follow her @CKubzansky.

Kate Grossman is the WBEZ’s Education editor. Follow her @KateGrossman1. 

Caroline Kubzansky is a Statehouse reporter. She can be reached at ckubzansky@wbez.org.