Supreme Court issues order on school masking

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The same week the attorney general’s office filed several motions relating to school mask mandates in the Illinois Supreme Court, the highest court in the state returned a response.

While the Supreme Court’s order addresses multiple motions, each with a different decision attached, one thing is clear: Local schools do not appear to be immediately impacted by the ruling. In other words, mask-optional policies will continue throughout Illinois schools.

Friday afternoon, the Illinois Supreme Court issued an order denying the petition for leave to appeal a lower court’s decision to end mandatory masking in schools.

The issues are now once again in the Sangamon County Circuit Court’s hands.

However, the Supreme Court also vacated the lower court’s temporary restraining order, which was a ruling in Sangamon County that had deemed Gov. JB Pritzker’s school mask and vaccine mandates, and corresponding rules from other agencies, “null and void.”

The Supreme Court’s order stated that “when an appeal is rendered moot through happenstance, the judgments of the courts below are vacated.”

While that language could be interpreted as a matter of legal procedure, Pritzker sees the TRO being vacated as an indication of his office’s authority to issue mask requirements in schools.

“I’m gratified that the Supreme Court vacated the lower court’s restraining order, meaning that if a school mask mandate needs to go into effect in the future, we continue to have that authority,” Pritzker wrote in a press release.

He also offered insight as to what this means in conjunction with the CDC’s updated COVID guidance.

“I’m also extremely pleased to say that because the CDC has recommended that masks are needed only in areas of high transmission, the State of Illinois will move forward to remove our school mask mandate, effective Monday,” Pritzker continued. “We recommend that all school districts follow CDC guidance and will update our existing guidance in the coming days.”

Leading up to the Supreme Court’s decision was much movement through lower courts.

Late last Thursday night, the Fourth District Court of Appeals said it would not review a temporary restraining order issued Feb. 4 by Sangamon County Circuit Judge Raylene Grischow, calling the issue “moot” because the emergency rules issued earlier by the Illinois Department of Public Health have expired and a legislative panel in charge of reviewing such rules had declined to extend them.

But the appellate court also said individual school districts remain free to adopt their own mitigation policies, independent of any executive orders or state emergency rules.

“The administration is working with the attorney general to request an expedited review of this decision from the Supreme Court,” Pritzker’s press secretary Jordan Abudayyeh said Friday morning. “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.”

On Tuesday afternoon, the attorney general’s office filed the following motions in the Illinois Supreme Court: to reverse the appellate court’s dismissal of the appeal, vacate the TRO, to allow the appellate court to rule on the TRO appeal, meaning to state the issues are not “moot,” to expedite the process to appeal and to stay the TRO during the appeal. 

In the petition for leave to appeal, the attorney general asks that should the court not rule on the matter, it use its supervisory authority to vacate the TRO. 

In the time before the Supreme Court rules, the TRO is still in place, said Don Craven, a Springfield-based attorney and president of the Illinois Press Association.  

“This temporary restraining order should remain in full force and effect pending trial on the merits unless sooner modified or dissolved,” Grischow wrote in her order. 

There is no time stipulation on when trial proceedings must occur, should the case come to that, Craven said. 

Timeline of cases

On Feb. 4, Grischow issued a temporary restraining order blocking the enforcement of mask and vaccine mandates and the exclusion from school of people deemed close contacts with COVID-19 patients without giving those students and employees due process.

That order applied to the roughly 170 school districts who were named in the consolidated lawsuits. There are 852 public school districts in Illinois, plus numerous private school systems covered by the rules.

The cases were filed in various counties in September after the IDPH issued emergency rules mandating that masks be worn in school settings, that unvaccinated school staff would have to submit to regular testing, and that students and staff deemed to be “close contacts” with people infected by COVID be excluded from school buildings and events for a period of time.

Those emergency rules were issued in response to a series of Pritzker’s executive orders.

However, while the administration was appealing that decision, the emergency rules that IDPH had issued in September expired, and on Feb. 14, the legislative Joint Committee on Administrative Rules voted not to extend them, citing concerns about the restraining order and pending appeal.

“We’re currently in a situation where the TRO says this rule is not enforceable,” Rep. Michael Halpin (D-Rock Island), a JCAR member, said in voting for the motion to suspend the rule. “It’s possible, if not probable, that this might change on appeal, but as we now sit here, for that reason, I’ll vote yes.”

The Fourth District court, however, cited the JCAR action as its reason for not ruling in the appeal, saying underlying rules covered by the restraining order were no longer in place.

“Because the emergency rules voided by the TRO are no longer in effect, a controversy regarding the application of those rules no longer exists. Thus, the matter is moot,” the court wrote.

The opinion was written by Justice John W. Turner. Justice Thomas M. Harris concurred in the opinion while Justice Lisa Holder White concurred in part, but said the issues concerning Pritzker’s executive orders were not moot and the court should have ruled on them.

“As it stands, the majority’s decision leaves open the question of whether the circuit court properly enjoined the enforcement of the executive orders,” Holder White wrote.

Impact on other districts

It was unclear Friday exactly what, if any, state-issued mitigation mandates remain in place for schools in Illinois.

The Fourth District court’s opinion indicated that the Sangamon County restraining order also applied to the governor’s executive orders. But both Pritzker and Illinois Attorney General Kwame Raoul have said they believe the executive orders remain in place.

“While the appellate court’s ruling does not affect the enforceability of the governor’s executive orders, the decision does fundamentally misapply important principles of Illinois law related to the issuance of temporary restraining orders, such as the order issued by the trial court,” Raoul said.

Meanwhile, the court’s opinion also said individual districts that are not parties in the underlying lawsuit still have authority to adopt their own mitigation policies, independent of the governor’s executive orders or state agency emergency rules.

“We note the language of the TRO in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19,” the court said. “Thus, it does not appear the school districts are temporarily restrained from acting by the court’s TRO.”

After Grischow’s ruling, the Columbia, Waterloo and Valmeyer school districts – who were all named in the lawsuit attorney Thomas DeVore filed on behalf of parents – changed to a mask optional policy. All three also said they are no longer excluding individuals from school buildings who meet the definition of “close contact” should they be asymptomatic. 

As always, if  a student or teacher exhibits symptoms, they are encouraged to stay home. 

(Some information courtesy of Capitol News Illinois)

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