School districts across Illinois are rejecting the governor’s mask mandate after the requirement suffered another legal blow late Thursday when a state appellate court decided to continue an order halting the mandate and other COVID-19 mitigations in nearly 170 school districts.
The Illinois Association of School Administrators on Friday said about 700 districts it has reached so far have a mask optional policy or will transition to one soon. Illinois has about 850 districts. The IASA says some districts in Cook County, including Chicago Public Schools, appear to be among the minority still requiring masks.
John Burkey, the executive director of Illinois’ Large Unit District Association, said the court’s ruling only adds to the sense that the school mask mandate in Illinois is on the way out.
The court’s move means “our schools are less looking at it as a state mandate,” he said.
Gov. JB Pritzker announced plans to lift a statewide indoor mask mandate on Feb. 28, but not for schools. Governors in other Democratic states in recent days have announced plans to make masks optional in schools.
Northwestern University Law Professor Nadav Shoked said the court ruling means individual districts are now in the driver’s seat.
“School districts are at liberty to decide that they’re going to mandate the masks,” he said. “So in that sense, the decision has been pushed down.”
While the governor’s executive order on wearing masks still stands, Shoked said the order on its own will have a negligible impact on a school that goes mask optional.
“If the school district decides not to have the mandate … they’re also probably standing on firm legal grounds,” he said.
Pritzker said he was “disappointed” in Thursday’s ruling. He said he is working with the attorney general to request an expedited review from the Illinois Supreme Court. Shoked noted that Pritzker’s odds of success would likely improve as he moves up higher in the Illinois court system.
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, notably, 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 pleased. He said that the appellate court called 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.’”
In a statement, Pritzker said he was concerned about the ability to continue in-person learning. He said he was encouraged that “the court made it clear that school districts can continue to keep their own mitigations in place.”
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. Many public school districts and Catholic school systems that weren’t named in the lawsuit decided to make masks optional and some others also halted other COVID mitigations. And districts named in the lawsuit took differing approaches to the judge’s order.
Chicago Public Schools continues to require masks, quarantine and testing for unvaccinated staff except for those who are part of the lawsuit. CPS affirmed that decision Friday morning, saying “these safety measures are what have allowed us to provide our students with the in-person learning environment they need throughout this school year.”
Starting next week, U-46 in Elgin will continue to require masks but only if all three of the counties where its schools are located are at an 8% or higher COVID-19 positivity rate as defined by the Illinois Department of Public Health.
Other districts named in the lawsuit like Mount Prospect School District 57 have chosen 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, most students were not wearing masks at dismissal earlier this week.
But some students feel it’s too soon to do away with the mask requirements. “Everyday, less people wear masks, and it makes me a little nervous because my grandma is sick at the moment,” said Lily Miller, 16, who waited outside her school wearing a KN95 mask. “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.
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.
School districts across the state are newly considering mask optional policies. Supt. Mike Lubelfeld in north suburban Highland Park said with the appellate court’s decision, he’s proposing his school board approve a plan to go mask optional starting Wednesday. His district was not named in the original lawsuit.
“Now that that legal authority is gone, in addition to significantly falling COVID rates in our area, and in addition to some educational concerns, I’m very comfortable moving forward with this recommendation,” he said.
Lubelfeld thinks the mask mandate has worked well to keep students healthy and learning in-person all year.
“But at some point, we have to pivot, and we have to transition,” he said. “I think what’s going on now is people have a number of strong opinions, but also the data is teasing out that a requirement to wear masks all the time indoors may simply be overdoing it.”
Burkey of the Large Unit District Association stressed that his organization, which represents K-12 districts with more than 3,500 students, was not opposed to the mask mandate as it was re-implemented in September.
“[LUDA] felt all along that the health decisions are best made by health professionals in the IDPH,” he said. “If the county health department’s feel like masking was the best thing …. We were okay with that being a top down decision.”
For his organization, the bigger problem was how the restraining order created confusion over who was subject to the mask mandate and who was not. He said the uncertainty pushed more districts to take matters into their own hands.
“[The TRO] added to the ambiguity, but I think made our districts feel a little bit more empowered to do what was best for their community,” Burkey said.
Northwestern’s Shoked agreed that 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.”
Anna Savchenko contributed reporting to this story.