Editorial: Why every school district in Illinois didn't drop their mask mandates

When a judge makes a decision, that's supposed to settle things. That doesn't seem to have happened this week on the subject of masks in schools.

Instead, frustrated Illinois school districts have been trying to interpret what Judge Grischow's determination actually determined. They don't want to get sued, if they can help it, and so superintendents spent the weekend on the phone with their attorneys - and their union leaders.

In Chicago, the mayor immediately announced that they had already promised the teachers union they would require masks. Judge Grischow said in her decision that her ruling wouldn't override collective bargaining agreements.

Before the judge announced her decision on 4:45 p.m. on Friday, Feb. 4, 2022, Hononegah Superintendent Michael Dugan confidently told parents on Jan. 25, "We anticipate that the judge will make one of the following determinations regarding facemasks," and listed five possible options.

Those five possibilities, logically, were:

1. make masks optional only for the plaintiffs
2. make masks optional only for their school districts
3. make masks optional for everyone in Illinois
4. let each district decide (which they did before the Governor issued his executive order)
5. let Gov. Pritzker decide (in other words, to let his order stand and not change anything).

Unfortunately, of the five possibilities inferred by Superintendent Dugan, Judge Grischow didn't specify which possibility was supposed to become reality. At various points in her ruling, she seemed to support four of them, and they're mostly mutually exclusive

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Okay, it's clear from her temporary restraining order that masks are now optional at least for the named plaintiffs (whose names are all Meiborg, so far, around here, but other local families want to join the lawsuit). Or are they optional for the entire school district which a plaintiff's child attends? (That would be Hononegah and Prairie Hill, who have made masks optional for their entire school districts, not just for the Meiborg children, whether or not the ruling requires that. Kinnikinnick and Rockton School Districts have decided it doesn't.)

So that's a point for Possibility #1 or Possibility #2. But which one? How many people does the temporary restraining order benefit?

Judge Grischow's ruling says, "Defendants are temporarily restrained from" "ordering school districts" to require masks or exclude students. So here she seems to be talking to Gov. Pritzker or the Illinois Department of Public Health (IDPH) and the Illinois State Board of Education (ISBE), who often tell school districts what to do.

So that's a point for Possibility #4 (I think). Don't tell school districts what to do. And it would be a point for Possibility #2 and #3, except...

Except that the actual defendants include school districts, not just state officials, and the judge doesn't specifically say what she's telling school districts not to do. Unless she means that school districts must stop ordering school districts to do things (temporarily). But I don't think that's what Judge Grischow means, because she's been to law school and wouldn't spout nonsense.

It would be a point for Possibility #2 and/or #3 if she had said, "School districts are temporarily restrained from requiring the use of masks for students and teachers who occupy their buildings," etc. But she didn't say that.

Judge Grischow says, more than once, that in a separate ruling she denied "class certification," so her temporary restraining order doesn't apply statewide. Class certification means that her decision would benefit a whole class of people, such as "all Hononegah students" or "all Illinois children" and not just plaintiffs named Meiborg.

So that's a point against Possibility #3 and also against Possibility #5. Judge Grischow says the temporary restraining order doesn't apply to everyone. And the reason she voided ISBE's and IDPH's rule changes was because she wants Gov. Pritzker and those alphabetic state agencies to stop practicing, in her own words, "this type of evil."

But then Judge Grischow says that since the ISBE and IDPH rule changes are null and void, "any non-named Plaintiffs and School Districts throughout this State may govern themselves accordingly." So now everybody is allowed to do something about masks. But she doesn't say what.

Maybe that means Possibility #3 after all. Nobody should have to wear masks if they don't want to. Most of the mask-optional advocates think that's what the ruling means.

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Attorney Thomas DeVore, who argued the case against the schools, is a champion of Possibility #3, of course. He says any district that still requires masks now is in danger of getting sued, and he offers to do the suing.

On the other hand, DeVore, like the proponents of Possibility #1, says the temporary restraining order only applies to the named plaintiffs - the families who are his clients. (Not that null void alphabetic thing - that applies to everyone.) But DeVore is sorry for anybody who gave money to support the litigation and thought the donation made them his clients in a class action lawsuit. He says it did not. The judge declined to make this a class action lawsuit.

As a result, Gov. Pritzker has called DeVore a "grifter," probably thinking DeVore has been taking money from non-clients but not representing them. DeVore is hoping to streamline the process of being added as a plaintiff in the lawsuit.

Judge Grischow does say that she deems "null and void" the rule changes made by the Illinois Department of Public Health (IDPH) and the Illinois State Board of Education (ISBE) on September 17, 2021 to accommodate the Governor's mandate. So districts can't say their policies, going forward, are based on those rule changes.

That may be a point for possibility #4 too. Maybe she means that school districts can ignore these state rule changes and make up their own rules.

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Judge Grischow's opinion says, "This Court finds the policies of each School District will have to be addressed on a case by a case basis, be subject to school district's policies that were presented to the school board at a public meeting and subject to public comment, as well as the Open Meetings Act."

That's definitely a point for Possibility #4 - but not so fast. Judge Grischow also says the Legislature intended school districts to make health decisions in conjunction with IDPH.

Are you following all this? Is it any surprise that some school districts are relaxing their mask rules, while others are insisting on following them?

None of the information or opinions contained in this article should be construed as current legal or medical advice, since I am neither a lawyer, judge, doctor, or pharmacist. However, I used to contribute to America: History and Life (AHL) and Historical Abstracts (HA), so I may be able to give advice about the past, depending on which century.