Since Governor Pritzker issued Executive Order 2021-18 on August 4, 2021, mandating that masks be worn by everyone in P-12 schools regardless of vaccination status, there have been multiple lawsuits challenging his authority to impose such restrictions on schools. Additionally, there have been developments regarding ISBE’s and IHSA’s enforcement of the mandate, and most recently, a new vaccination mandate for school employees.
Litigation
(Note that the status of some of these cases is changing by the day and hour. This overview is merely intended to provide a snapshot in time.)
Although there were numerous lawsuits in 2020-2021, in which the Governor’s authority and the authority of ISBE and IDPH were upheld, the first lawsuit of the 2021-2022 school year challenging Governor Pritzker’s authority was filed on August 9, 2021, in Clinton County Circuit Court on behalf of the father of a student in Breese School District No. 12. The lawsuit sought a declaration from the court that the Governor does not have the authority to require local school boards to enforce the mask mandate pursuant to the Illinois Emergency Management Agency Act (“IEMAA”). Additionally, it sought a declaration that ISBE may not take action against the State recognition status of school districts for failure to adhere to the mask mandate. The Governor filed a motion to transfer the case to Sangamon County on August 17, but a hearing has not yet been scheduled.
On the same day as the lawsuit in Clinton County, another lawsuit was filed by a parent in McHenry County Circuit Court, again seeking a declaration that the Governor’s Executive Order exceeds his authority under the IEMAA and the Illinois Constitution. On August 10, the plaintiff requested that the court enter a temporary restraining order (“TRO”) against the Governor to keep him from enforcing the mask mandate. On August 11, the Governor filed a motion to transfer the case to Sangamon County, which was granted on August 12. (These cases have routinely been transferred to Sangamon County over the past year pursuant to an Illinois Supreme Court order.) On August 25, the Sangamon County Circuit Court denied the plaintiff’s motion for a TRO, effectively upholding the Governor’s mask mandate, at least for the time being.
On August 19, 2021, a parent and school board member in Cook County sued the Governor, claiming that the Executive Order exceeded the Governor’s authority. The parent seeks an injunction to prevent enforcement of the mask mandate. Because the board member filed the lawsuit without the approval of other board members, the school district asked the court to remove its name from the lawsuit. On August 23, 2021, the Governor filed a motion to transfer the case to Sangamon County Circuit Court. That motion is still awaiting a hearing.
There also have been lawsuits challenging mitigation measures beyond masks. On August 25, 2021, a parent sued a school district in Clinton County Circuit Court, seeking a TRO and preliminary injunction to prevent the district from excluding students identified as a close contact without a valid quarantine order from the local health department. The Court granted the TRO on August 30, 2021, and another hearing is set for the case is scheduled for late September. Due to a large COVID-19 outbreak in that district, it chose to go to an adaptive pause after receiving the order.
On August 30, 2021, another lawsuit was filed in Macoupin County Circuit Court, challenging the exclusion of students from school who are close contacts without a valid quarantine order from the local health department. A TRO hearing was held on August 31, and the court has taken the matter under advisement. A ruling on the TRO is expected today.
Also on August 30, 2021, a similar lawsuit was filed by parents in Adams County Circuit Court, challenging the exclusion of students who are close contacts.
Enforcement
On the ISBE enforcement front, the State Superintendent sent a letter on August 11 addressed to all Illinois superintendents, stating that the mask mandate promulgated by the Executive Order has the force of law, warning that defying the mask mandate would threaten a district’s State recognition status. As of the date of this publication, close to 50 public school districts had been placed on probationary status, with 13 of those districts having their recognition restored after deciding to comply with the mandate. Additionally, 14 nonpublic schools had their recognition status immediately revoked for failure to comply, with 6 of those schools having their recognition reinstated after deciding to comply.
Non-compliance with the mask mandate also has led to news on the sports front. At its August 23, 2021 meeting, the IHSA announced that IHSA schools will not be allowed to participate in playoffs for a sport if the district remains on the probationary list on the date of seeding for that sport even if the 60-day period for probation has not expired.
Employee Vaccination Requirement
And last, but not least, was the Governor’s Executive Order on employee vaccinations. That EO, which was posted August 26, 2021, is summarized here. We anticipate emergency rules and/or updated guidance from ISBE and/or the IDPH any day.
Please contact Jason Manning, Frazier Satterly, or any other Hodges Loizzi attorney with questions regarding these lawsuits and their impact on Illinois schools.
Source:
- Executive Order 2021-18
- Pate v. Pritzker, 2021MR72
- Murray v. Pritzker, 21 CH 000105
- Cruz v. Pritzker, 2021COMS000031
- Peters v. Carlyle CUSD #1, 2021CH7
- Brown, et al. v. North Mac CUSD #34, 2021MR89
- Hamby v. Quincy Public Schools
