Appeals court denies Governor Pritzker his school mask mandate
Three appellate justices declined Gov. Pritzker's appeal to continue requiring masks in Illinois schools. They issued their decision just before the deadline, at midnight on Feb. 18, 2022. The appeals decision finally clarifies that local school districts are allowed to set their own COVID mitigation policies.
The Illinois Department of Public Health renewed their emergency rules for schools earlier this week, even after a Sangamon County judge had struck them down on Feb. 4. But a legislative panel voted to block the rules from taking effect, especially since the appellate court was expected to issue a decision before Feb. 18.
In other news, nine Republican legislators were removed from the floor of the Illinois House of Representatives for refusing to follow that body's self-imposed mask rule.
According to the Sangamon County judge who issued the temporary restraining order (TRO), school districts could have set their own mask rules before the governor issued his mandate but she didn't think any had done so. So she wrote that "no school district had policies in effect that predated COVID-19 and the governor's mandate."
However, Hononegah and Rockton school districts, if not others, say they had set their mask policies earlier in August, before the governor issued his statewide mask mandate on Aug. 26, 2021. In an Aug. 4 order, Gov. Pritziker had told schools to "follow the joint guidance issued by ISBE and IDPH" to require masks, and that was the guidance that the Sangamon County judge's order [PDF] had deemed "null and void" as a binding requirement.
Despite the legislative panel's decision and the judge's temporary restraining order, Gov. J.B. Pritzker insisted at a news conference Wednesday, “The executive order requiring masks is still in place. School districts that aren't part of the lawsuit should follow the executive order.” Attorneys and educators on all sides have been confused about whether or not that's true.
Justice John W. Turner of the Illinois 4th District Appellate Court disagreed with the governor's interpretation. In his decision, he wrote, "Held: Appeal is dismissed as moot [not relevant]." He confirmed that the legislative panel's decision is in effect, so the emergency rules aren't. If so, there are no rules left for the temporary restraining order (TRO) to restrain. And despite the TRO, Judge Turner wrote, "it does not appear" that school districts are legally restrained by it anyway. He also wrote, "Given the changing nature of the COVID-19 pandemic... it is not clear these same rules would likely be reinstated." Justice Thomas Harris agreed with Justice Turner.
Justice Lisa Holder White partly agreed with Justice Turner's opinion, but not completely. She did agree that without emergency rules in effect, there is no need to rule on them. But she disagreed that it's clear yet whether "the circuit court properly enjoined [blocked] enforcement of the Governor’s executive orders." Did the Governor, as he claims, have the legal right under the Illinois Emergency Management Act to set rules about "masking, exclusion, and testing" in schools? Or didn't he? Justice Lisa Holder White believes that question hasn't been settled in court yet.
Jordan Abudayyeh, press secretary for Gov. JB Pritzker, said in a statement released Friday morning that "the Governor is disappointed in the appellate court’s decision and concerned for the health of those in schools – particularly vulnerable children and adults – and the ability to continue in-person learning.
"The administration is working with the attorney general to request an expedited review of this decision from the Supreme Court. 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."
You can download the complete appellate ruling [PDF] below.
Hononegah Superintendent Michael J. Dugan sent this email to district families Friday morning:
The Appellate Court for the 4th District ruled just prior to midnight on February 17, 2022, on the appeal of the Temporary Restraining Order issued by Judge Grischow on February 4 in both the student and employment cases before the Sangamon County Circuit Court.
In short, the Court denied the appeal as moot, because the Joint Commission on Administrative Rules ("JCAR") did not extend the emergency rule implementing Executive Order 24 (which provided the Illinois Department of Public Health intended authority to implement rules to effectuate the order). The Court included this line: "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. Thus, it does not appear the school districts are temporarily restrained from acting by the court’s TRO." Austin v. Pritzker, 2022 IL App (4th) 220090-U, para. 13.
Hononegah will maintain our current status of Staff and Student masking as highly recommended. Hononegah will review this ruling with our legal team and provide more information as it becomes available. We continue to thank our students, staff and families for their patience, understanding and respect for individual decisions during this period of transition.
Please contact me individually with any questions you may have.
Michael J. Dugan
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