Chicago Public Schools to continue universal masking despite judge’s ruling against mandate

A downstate judge temporarily halted school mask mandates, saying the governor had exceeded his authority. CPS says masks should be worn.

Masking is universal at Illinois public schools under a state mandate. A temporary restraining order makes it optional in nearly 170 districts, including Chicago Public Schools. Manuel Martinez / WBEZ
Masking is universal at Illinois public schools under a state mandate. A temporary restraining order makes it optional in nearly 170 districts, including Chicago Public Schools. Manuel Martinez / WBEZ

Chicago Public Schools to continue universal masking despite judge’s ruling against mandate

A downstate judge temporarily halted school mask mandates, saying the governor had exceeded his authority. CPS says masks should be worn.

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The state’s largest school district on Saturday said it would continue a mask mandate in its schools, along with staff vaccination and testing requirements, despite a ruling Friday by a downstate judge that Gov. JB Pritzker had exceeded his authority in imposing COVID-19 mandates in schools.

“Masking and vaccination have been key parts of keeping the virus transmission low in our classrooms this school year and successfully allowed our faculty and students to safely teach and learn in person, ” Chicago Public Schools said in a statement. “We will stay the course.”

The Chicago Teachers Union said immediately after the ruling that its agreement with the school district guarantees masking.

Meanwhile, other local school districts affected by Friday’s ruling are changing policies starting on Monday. 

In two large Arlington Heights-based districts serving 17,000 students in the northwest suburbs, officials say masks will be optional but encouraged. Close contacts of a COVID-19 case will no longer be excluded from school unless directed by a local health department. Contact tracing at the elementary schools also will stop and unvaccinated staff no longer have to do weekly testing while the temporary restraining order imposed by the judge is in place.

CPS’ announcement came as the Illinois attorney general moved to prevent a potentially devastating setback to the governor’s efforts to slow the spread of the virus in schools. The attorney general filed a motion to stop Friday’s ruling, which put a halt to masking and other COVID-19 mandates in nearly 170 school districts, and is seeking an immediate appeal. 

In Friday’s ruling, Sangamon County Judge Raylene Grischow temporarily blocked some students and staff in nearly 170 school districts from requiring masks and regular COVID testing for staff who are unvaccinated. Also, students and staff who are deemed close contact of someone infected with COVID-19 will no longer be told to stay home without due process. Several school districts in the suburbs are affected, including the Arlington Heights districts, High School District 214 and School District 25, Barrington District 220 and Mount Prospect 57.

The downstate lawyer representing the plaintiffs, Thomas DeVore, said Grischow’s ruling underscored how Pritzker had abused his authority.

“This is not about a mask, a vaccine or an exclusion and whether those policies in and of themselves are good or bad, which is what the governor always wants to talk about. It’s about whether the law, as it’s written, allows him or his agencies or the school districts the authority to do those things,” DeVore said. “And she unequivocally said that they do not, and that if the legislature thinks that they should be, well, they can pass a law that makes it.”

The ruling technically only affects students and staff in the schools that filed the lawsuit because the judge denied class certification. However, as a practical matter, it will be difficult for schools to selectively enforce or not enforce COVID-19 mandates.

DeVore also said every district in Illinois should carefully heed the main emphasis of her opinion, which said these COVID-19 mitigation mandates can’t be imposed without affording due process.

”Even if your child … is not specifically listed as a plaintiff, the judge said that this is all illegal conduct,” DeVore said. “And so if [other districts] want to try to make children that aren’t named in this case wear a mask, they’re breaking the law, according to this judge, and there could be consequences for that at some point in time down the road.”

The judge’s temporary order is one step as the judge moves toward issuing a final ruling. Grischow in Friday’s ruling already deemed the governor’s emergency rules related to masking, vaccinations, testing and quarantining for all school districts “null and void.”

“The plaintiffs have due process rights under the law which provide them a meaningful opportunity to object to any such mitigations being levied against them and it is these due process rights which are being continually violated,” Grischow wrote.

The judge agreed with the arguments that the governor had overstepped authority granted to him by the Legislature by delegating authority to the State Board of Education and local school districts, and to the idea that students and teachers were being required to mask, test and quarantine without due process rights. 

Grischow said school districts were being forced to comply with guidance “without any compliance with rulemaking. This type of evil is exactly what the law was intended to constrain.”

The suit was filed by a group of parents represented by DeVore, who has filed other lawsuits challenging the state’s COVID-19 mitigation measures.

DeVore argues that school districts don’t have authority to require vaccinations or masks unless a public health department has issued a quarantine order.

Attorney General Kwame Raoul’s office is defending the school districts.

“The court’s misguided decision is wrong on the law, demonstrates a misunderstanding of Illinois emergency injunction proceedings and has no relation to the record that was before the court,” Raoul said in a statement on Friday.

The state’s two major teachers union condemned the ruling, and Pritzker said the decision “prioritizes a relatively small group of plaintiffs who refuse to follow widely-accepted science over the rights of other students, faculty and staff to enter schools without the fear of contracting a virus that has claimed the lives of more than 31,000 Illinois residents.”

Pritzker said it may force more schools to go remote. He said his administration will keep working to ensure the safety of residents.

“This shows yet again that the mask mandate and school exclusion protocols are essential tools to keep schools open and everyone safe,” Pritzker said in a statement.

Prior to the decision, CPS had said it would “strongly encourage” all students and staff to continue wearing masks in the event of a temporary restraining order. But it went further on Saturday.

“The court’s current ruling does not prohibit CPS from exercising its authority to continue its COVID-19 mitigation policies and procedures,” CPS said in a statement.

Many suburban school systems on Sunday were still formulating a response to Friday night’s ruling. Some parents have been demanding that masks be made optional in schools, arguing that they make it difficult for their children to learn, hinder their social development and violate their liberties.

Heather Dusek, a mother of two in northwest suburban Barrington, said she makes her two young children wear masks in school, but nowhere else. She believes masks cause more harm than good and thinks families should choose what’s right for their children.

“I’m very much against them, but with the schools… I’m sensitive to other people’s point of view, which is where I’m more [about] choice as opposed to ‘let’s round up the masks and burn them,’ although part of me would like to,” she said with a laugh. 

The Barrington district, which was named in the lawsuit, said it would strongly encourage masks but not require them. It also will stop contact tracing and excluding close contacts.

But the legal defeat for Pritzker sounded alarm bells for some parents who are eager to see masking, vaccination and testing requirements stay in place in their districts.

“What this is effectively doing is taking away that layer of mitigation that has been so helpful in the schools,” said Warrenville parent Jessica Banascek, who has two teen-aged children attending Wheaton Warrenville Unit District 200 in west suburban DuPage County who have remained COVID-free.

“School spread hasn’t been as extreme because we’ve been wearing masks. Now, with taking that away, we’re opening it up to more explosive spread,” she said Saturday afternoon, noting the district so far had only told parents they were reviewing the court’s decision and hadn’t announced changes.

Banascek insisted the arguments being advanced by plaintiffs in the litigation don’t represent her views, and she ridiculed the idea that their rights were somehow being infringed upon by mandates designed to keep people safe from the virus.

“By not wearing a mask, you’re putting other people at risk,” she said.

Susie An covers education for WBEZ. Follow her on Twitter @WBEZeducation and @soosieon.

Dave McKinney covers Illinois politics and government for WBEZ. Follow him on Twitter @davemckinney.

WBEZ’s Caroline Kubzansky contributed reporting to this story