[Bumped up to Monday for visibility and comments opened for discussion.]

* Center Square…

Students attending one of the 145 schools across Illinois who are part of a sweeping lawsuit won’t have to wear a mask if they don’t want to, unless they’re given due process. Same goes for certain school staff who don’t want to take weekly COVID-19 tests for not being vaccinated. They must also have due process.

In a 30-page ruling late Friday, Sangamon County Circuit Court Judge Raylene Grischow “deemed null and void” the governor’s emergency rules through the Illinois Department of Public Health concerning COVID-19 mitigations for schools.

“The arbitrary method as to contact tracing and masking in general continue to raise fair questions as to the legality of the Executive Orders in light of violations of healthy children’s substantive due process rights,” Grischow wrote. “Statutory rights have attempted to be bypassed through the issuance of Executive Orders and Emergency Rules … This type of evil is exactly what the law was intended to constrain.”

Schools impacted by litigation brought by more than 700 parents and dozens of school staff are temporarily restrained from enforcing Gov. J.B. Pritzker’s COVID-19 mask and vaccine mandates.

Pritzker’s mandates for masks and exclusion policies in schools and vaccines or testing for teachers have been in place since last fall.

* The full “evil” quote…

The Illinois General Assembly had foresight when it created certain provisions limiting the authority of administrative agencies. When the Legislature created our laws, they did so knowing individuals have a fundamental right to due process when one’s liberty and freedom is taken away by forcing them to do something not otherwise required of all other citizens. Illinois law prohibits ISBE from making policies affecting school districts which have the effect of rules without following the procedures of the IAPA. Absent this statutory provision, ISBE would be able to on impulse, and depending on who held the Executive Branch, mandate whatever it felt necessary in the most arbitrary and capricious manner without having to follow any due process under the IAPA. As for the matters at hand, it is clear IDPH/ISBE were attempting to force local school districts to comply with this guidance without any compliance with rulemaking. This type of evil is exactly what the law was intended to constrain.

Moreover, the Joint Guidance is attempting to cloak the local school districts with the authority to mandate masks and require vaccination or testing without compliance with any due process under the IDPH Act. The Court has already ruled masks are a device intended to stop the spread of an infectious/contagious disease, and thus are a type of quarantine, and vaccination and testing are specifically covered under the IDPH Act, and as such any attempt to circumvent the statutory due process rights of the Plaintiffs by this Joint Guidance is void. Under no circumstances can guidance be issued which violates a statute. […]

The Court is told by the Defendants, should this Court grant relief to the Plaintiffs, the students in the districts, and the public as a whole, will be harmed by the further spread of COVID. While the Defendants offer no direct evidence of such a proposition, attached to their pleadings were affidavits of medical professionals who opined that masking, vaccination or testing, and other mitigations are the best chance of controlling the spread of COVID. It is worth noting the Plaintiffs do not seek any order of this Court dismantling masking, vaccination or testing policies in their totality. Only that due process under the law be afforded to them should they choose to object to being quarantined, which by definition includes masks, as well as being subjected to vaccination or testing. These Plaintiffs are not asking for anything other than what the Legislature said they were entitled. […]

Given the Legislature has changed the law and has chosen not change these relevant provisions, this Court must conclude the laws which have long been in place to protect the competing interests of individual liberty and public health satisfactorily balance these interest in the eyes of the Legislative branch of government. While the Defendants would seemingly ask this Court to second guess the Legislature’s adopted measures to prevent the spread of an infectious disease, which measures include due process of law, it will not do so.

* Quarantine…

Section 690 of Title 77 of the Illinois Administrative Code has been around since 1977. All State actors and citizens have operated under those set standards up to and including a time period when our State (and Nation) was faced with another highly contagious disease. In 2014, Ebola reared its ugly head and caused a number of public health challenges. As a result, the IDPH passed Emergency Rules that added new definitions for “quarantine, modified” and “quarantine, isolated” and amended the definitions of quarantine and isolation to include those new concepts. The IDPH, at that time, believed exclusion from school, due to a highly infectious or contagious disease (such as Ebola), was a form of quarantine, subject to the due process procedures as found in the IDPH Act. Those emergency amendments noted that IDPH and local health departments needed to have clear authority to monitor and restrict persons who were potentially at risk.

Since 2014 and prior to the recent 2021 Emergency Rules, tests and vaccines were also considered a form of “modified quarantine” because they were a procedures “intended to limit disease transmission.” Under the IDPH Act, individuals had the right to object to these procedures. If they objected, they were afforded due process of law. Likewise, “exclusion from school” was also a form of “modified quarantine” because it was considered a partial limitation on freedom of movement for those who may have been exposed to a contagious disease. At no time did the 2014 emergency amendments take away a person’s due process rights.

On September 17, 2021, under the guise of an emergency, the Emergency Rules deleted or modified these terms and definitions. Subsection (d) was added pertaining to schools and added a new provision which delegated authority to the local school districts to require vaccination, masking, and testing of school personnel, in addition to masking for all students regardless of vaccine status, exclusion from school, and testing for unvaccinated, healthy students who were deemed “close contacts” by the school. The question before this Court is whether the Governor, under his executive authority, can require his agencies to promulgate emergency rules that go beyond what the Legislature intended or without utilizing the legislative branch of government.

* Order…

1) The IDPH Emergency Rules enacted on September 17, 2021 changing sections 690.10 (Definitions); 690.361(d) (Schools), 690.1380 (Physical Examination; Testing and Collection of Laboratory Specimens), and 690.1385 (Vaccinations, Medications, or Other Treatments) of Title 77 of the Illinois Administrative Code is deemed null and void;

2) ISBE Emergency Rule enacted on September 17, 2021, Part 6, Mandatory Vaccinations for School Personnel is deemed null and void;4

3) Defendants are temporarily restrained from:

a. Enforcement of EO18, EO24, EO25 as they pertain to the issue before the Court and the Emergency Rules issued by the IDPH and ISBE;

b. Ordering school districts require the use of masks for students and teachers who occupy their buildings, if they object, except during the terms of lawful order of quarantine issued from their respective health department, in accordance with the IDPH Act;

c. Ordering school districts to require persons who are both unvaccinated and work in Illinois schools to provide weekly negative results of an approved COVID-19 test or be vaccinated if they object in order to occupy the school building without first providing them due process of law; and

d. Ordering school districts to refuse admittance to their buildings for teachers and students for specified periods of time if the teacher or student is deemed a “close contact” of a confirmed probable COVID-19 case without providing due process to that individual if they object, unless the local health department has deemed the individual a close contact after following the procedures outlined in 20 ILCS 2305 and 77 Ill. Adm. Code 690.1330.

4) This temporary restraining order shall remain in full force and effect pending trial on the merits unless sooner modified or dissolved.

[Footnote] Although this Court denied Plaintiffs’ request for Class Certification in Case No: 2021 -CH-500002, this Court has declared IDPH’s Emergency Rules void. Any non-named Plaintiffs and School Districts throughout this State may govern themselves accordingly.

So, the judge believes that her TRO applies statewide?

*** UPDATE 1 *** Press release…

Governor Pritzker has asked the Illinois Attorney General’s office for an immediate appeal of Judge Grischow’s decision to restrain the State from enforcing the safety measures aimed at protecting teachers, school personnel, students and communities from COVID-19.

The Attorney General is seeking an expedited appeal from the Fourth District Illinois Appellate Court.

“The grave consequence of this misguided decision is that schools in these districts no longer have sufficient tools to keep students and staff safe while COVID-19 continues to threaten our communities – and this may force schools to go remote,” said Governor JB Pritzker. “This shows yet again that the mask mandate and school exclusion protocols are essential tools to keep schools open and everyone safe. As we have from the beginning of the pandemic, the administration will keep working to ensure every Illinoisan has the tools needed to keep themselves and their loved ones safe.”

“We remain committed to defending Gov. Pritzker’s actions to mitigate the spread of COVID-19 and will appeal this decision in the Illinois Appellate Court for the 4th District in Springfield,” said Attorney General Kwame Raoul. “This decision sends the message that all students do not have the same right to safely access schools and classrooms in Illinois, particularly if they have disabilities or other health concerns. 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. It 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 – or taking that virus home to their loved ones.”

Since the beginning of the COVID-19 pandemic, the Pritzker administration has implemented mitigations and programming to protect the health and safety of students, teachers, and staff in schools. To facilitate safe in-person learning, the administration has provided schools across the state with 3.8 million masks for students, teachers, and staff as of January 12th. The State has completed over 2 million COVID-19 tests in schools through the SHIELD program and sent more than a million rapid tests into schools outside of the City of Chicago. Recently, the State provided 350,000 rapid tests to Chicago Public Schools to facilitate a return to in person learning.

To increase access to the lifesaving COVID-19 vaccination, the State has held 1,767 on-site vaccination clinics in schools and day camps with an additional 470 clinics already scheduled. Vaccinations, boosters, mask-wearing and testing are the key to keeping schools open and to maintaining safety standards for staff and students alike.

*** UPDATE 2 *** IEA…

The Illinois Education Association (IEA) President Kathi Griffin released the following statement after a ruling by Sangamon County Judge Raylene Grischow on the temporary restraining order (TRO) that would prohibit enforcement of face masks, vaccination, and Covid testing mandates.

“This decision has the potential to shut our schools down, effectively closing our school buildings and perhaps being potent enough to stop in person learning altogether. We’ve been able to have students in classrooms all over the state for this school year and last and that’s because public health safety measures have been taken that follow the advice of scientists and health care professionals. Without those safety measures in place, we risk forcing thousands of teachers, education employees and students to be out sick or forced into quarantine.

The teacher and education employee shortage is at a crisis level. Schools are shutting down because they do not have enough healthy employees to safely hold classes even though staff continue to give up their plan time and lunches to cover classes. The science is there: masking, along with vaccines, testing, social distancing and quarantining, are the best ways to protect against the virus. Removing any of these protections would be detrimental to our students and staff safety and will almost certainly force schools across the state to close because of a staffing shortage. Omicron is proof to us that though we may be done with the virus, the virus is not done with us.

Keeping students in the classroom is so important, but only if the environment is safe. The judge’s ruling today calls into question the safety of schools across the state and we will support all efforts to stop its immediate implementation while state and district defendants pursue an appeal. Keeping learning and working conditions safe inside schools is imperative to keep our communities safe and our school buildings open for in person learning. ”

* IFT…

Illinois Federation of Teachers (IFT) President Dan Montgomery issued this statement today following the ruling by Sangamon County Judge Raylene Grischow on the temporary restraining order (TRO) that would prohibit enforcement of face masks, vaccination, and Covid testing mandates.

“The Illinois Federation of Teachers is greatly distressed at the judge’s temporary restraining order (TRO) in this case. Hundreds of thousands of students, teachers, and staff across Illinois are doing their best to remain healthy and keep schools open. We believe what the judge ordered today is legally faulty and a threat to public health and, most importantly, a threat to keeping Illinois schools open for in-person learning. Our children and their families need certainty and some normalcy at school, not legal wrangling managed by a small minority of citizens.

“We urge the judge to stay her ruling and the state to appeal it as soon as possible. In the meantime, we will continue to advise our members on how to remain safe and healthy at work. We insist that school districts statewide abide by existing agreements on health and safety. In fact, the safety mitigations encompassed by the State’s guidance, as well as vaccinations for children and adults, are the best ways to keep schools open and everyone healthy. And we will stand with our local unions to protect our members and the students they serve.”

* CTU…

This ruling also states that collectively bargained agreements are still enforceable. Our January 2022 agreement with Chicago Public Schools, which guarantees masking, will keep schools open and safe.

CTU members made real sacrifices in January to bargain for an enforceable safety agreement with Mayor Lightfoot’s CPS team, and today that agreement guarantees masking and other critical protections that will allow us to protect our school communities.

While responsible school districts and community groups prepare to challenge this decision on appeal, we expect the mayor and CPS to act responsibly and uphold our agreement to require masks — providing KN95 masks for every adult and child in our schools. This is what the overwhelming majority of Chicago parents and families support.

We should not have to fight every inch for basic protection, but such are the times in which we live, where the few can trump the safety of the many. So we will continue to fight for the right to recovery for all of our students and school communities.

*** UPDATE 3 *** Let’s look at some coverage. Tribune…

The judge’s ruling means that any school district that attempts to enforce the mask requirement against any student whose parents joined the lawsuit would be held in contempt of court, according to DeVore, who said parents who want the ruling to apply to their children can join the lawsuit.

DeVore, an outspoken critic of Pritzker’s handling of the COVID-19 pandemic, has long argued that the school mask mandate and other mitigation strategies the governor has declared by executive order could not be enforced unless they were formally approved by the General Assembly.

“I don’t pretend to understand the political complexities at Chicago Public Schools, but I do know the law can’t be disregarded, and you’ve got a judge who upheld the law as it’s written,” DeVore said shortly after Judge Grischow issued the ruling.

CPS officials were not immediately available for comment Friday.

But in a recent parent message, CPS CEO Pedro Martinez said if the temporary restraining order was granted, it “would require that CPS stop the enforcement of certain current health and safety protocols, including the wearing of masks.”

* WICS…

DeVore had this to say on Grischow’s ruling:

“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.”

“The Governor, IDPH, and ISBE all attempted to remove the judiciary from oversight in matters related to all forms of “quarantine” through the issuance of the Executive Orders and Emergency Rules in question, which fail to maintain the separate branches of government clearly intended by the Legislature in the implementation of the IDPH Act!” […]

Jacksonville School District #117 Superintendent Steve Ptacek alerted families to the ruling via social media Friday night. Jacksonville is one of the districts named in the lawsuit. […]

“I just received notification that the defendants have filed a “Stay” of the TRO and this will be heard over the weekend. Therefore, we have no clue what the legal ruling will be before Monday morning. It is going to be a long, interesting weekend,” Ptacek wrote.

*** UPDATE 4 *** The state filed an emergency motion to stay the TRO last night…

First, the Court should stay its TRO because the anticipated duration of the stay pending appeal is short, and will not prejudice any party. Under Ill. S. Ct. R. 307, briefing an appeal of a temporary restraining order must be completed within four business days of the issuance of the order being appealed, and the Appellate Court will rule on that appeal within five business days thereafter. Accordingly, any appeal will be resolved within two weeks. A stay for such a short period will not prejudice Plaintiffs. Indeed, given that Plaintiffs waited months after filing this case to pursue a TRO, they can hardly claim that a two week stay will cause them undue prejudice or harm.

Second, the Court should stay its TRO because the record in the form of declarations of public health experts, Dr. Susan Bleasdale and Dr. Allison Arwady, unrebutted by any evidence presented by Plaintiffs, is that the Court’s TRO is likely to (a) disrupt the ability of schools to continue in-person instruction, and (b) cause an increase in sickness, and possibly death. … Conversely, Plaintiffs face the minimal inconvenience associated with wearing a mask, or the possibility of a brief exclusion from school premises during the pendency of an appeal.

Third, the State Parties incorporate by reference their arguments in opposition to Plaintiffs’ motions for emergency relief. From those submissions, and from the record in its entirety, Plaintiffs have not met their burden of showing a right in need of protection, a likelihood of success on the merits, irreparable harm, no adequate remedy at law, and that the balance of harms favors the issuance of an injunction to a degree sufficient to suggest that a stay pending appeal would be inappropriate.

*** UPDATE 5 *** CPS…

Chicago Public Schools (CPS) has made the health, safety, and well being of our students and staff a top priority since the onset of the pandemic. The court’s current ruling does not prohibit CPS from exercising its authority to continue its COVID-19 mitigation policies and procedures, including universal masking by students and staff and vaccination and testing requirements for staff members. We are confident that 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. Our caseload is declining and the number of vaccinated students and staff continues to increase. We will stay the course.

Background

Nearly 53 percent of CPS students across the District ages 12 and up are now fully vaccinated.
Almost 1 in 3 students, ages 5 - 11, have received at least one vaccine dose.
More than 91 percent of CPS staff members are fully vaccinated.

* IPHA…

The following statement is attributable to Tom Hughes, Executive Director of the Illinois Public Health Association (IPHA), in response to the Seventh Judicial Circuit Court ruling regarding COVID-19 vaccination and masking expectations in Illinois schools:

“Everyone is vulnerable to the damaging effects of COVID-19 and every bit of protection helps. While people are growing weary of the pandemic, the threat remains real for communities across Illinois who are still facing substantial transmission, causing far-reaching challenges to our most vital health resources.

Vaccination and well-fitting masks are proven and critical tools to reduce the spread of COVID-19. With these essential public health practices in place, we are helping protect the most vulnerable around us, while allowing our schools to operate safely.

As coordinators of the Pandemic Health Navigator Program, IPHA continues to partner with community leaders to promote health and safety measures, such as mask wearing, quarantining, and vaccination. We will also continue educating residents so they can make informed decisions about vaccination.”

*** UPDATE 6 *** SJ-R…

The attorney at the center of the school mask mandate case in which a 7th Judicial Circuit Court judge Friday granted a temporary restraining order against Gov. JB Pritzker’s executive order said school districts like Springfield’s are “on notice” about enforcing such policies.

“To the extent that the Springfield school district wants to continue forcing these mask and vaccination policies, they’re doing it at their own peril because the judge has said it’s illegal,” said attorney Thomas DeVore of Greenville, who represented the plaintiffs in several cases against the state. “If they wanted to continue in their illegal behavior, even if there’s no injunction stopping them, they’re exposing themselves to significant financial liability.” […]

Absent any further legal rulings over the weekend, DeVore said if a student showed up to school in Springfield without a mask on, “that school district has a decision to make. Are we going to continue to enforce this and say put your mask on knowing that the judge says they don’t have the authority to do so?

“That’s the spot these school districts are at. I think children and parents are well within their rights to say it doesn’t matter that this case doesn’t directly involve me. The judge says as a whole, none of you have this authority. So my kid’s walking in, and if you’re going to try to force him to wear a mask merely because they’re not on this case, I’m letting you know right now I’m going to sue you. They could.”

*** UPDATE 7 *** Edwardsville superintendent…

Dear District #7 staff,

On Friday, January 4, 2022, Judge Grischow issued a ruling which granted a temporary restraining order (TRO) in the litigation in which Edwardsville was a defendant. An appeal related to this case has already been filed, and future decisions will likely have an impact on the District #7 community.

As a result, District #7 will be taking the following steps beginning on Monday, February 7:

The individuals named as plaintiffs in the litigation will be able to attend school unmasked and will not be excluded as close contacts.

Each of the individuals/families will receive correspondence from their building principal prior to the start of school on Monday.

· Masks will continue to be required for all students and staff unless an individual has been impacted by court ruling or has an approved medical exemption for masking;

· Beginning immediately, we have secured KN95 masks for any staff member who wishes to have one. If you would like to have a KN95 mask, you may pick one up from the school office.

· Masking will continue to be required during Kid Zone (not for named plaintiffs), for athletic events (not for named plaintiffs), andon buses. The federal law still requires masks on buses. The court decision does not change this, and students who ride buses will still be required to wear masks.

· We will continue to implement other mitigating strategies in all our schools, including opportunities for vaccinations, social distancing to the greatest extent possible, district-wide testing, incorporating fresh air into the school environment, and cleaning and sanitizing on a regular basis.

I know many of you may have questions which specifically relate to your situation, your classroom, or other areas within District #7.

* Meanwhile, from the BND…

Highland, Waterloo and Red Bud students will not be required to wear masks when they return to classes on Monday. School leaders say they are following a temporary restraining order issued by a judge on Friday regarding mask and vaccine mandates.

Highland School District 5 Superintendent Mike Sutton said in a statement on Saturday that legal advice indicates that District 5 is “clearly instructed” to not enforce Gov. J.B. Pritzker’s executive orders requiring masks, quarantines when individuals do not have symptoms, and vaccine and testing mandates for employees.

“I am confident in saying that the district will not be enforcing the mask requirement and identifying close contacts for purposes of quarantine starting Monday morning per the judge’s ruling,” Sutton said in the statement posted on the district’s website.

* Carterville schools…

Dear Students and Parents,

Due to a written ruling from Judge Raylene Grischow of Sangamon County, Illinois on Friday, February 4th, Governor Pritzker’s executive orders and IDPH/ISBE requirements regarding masking, testing, and tracing are “null and void.” Masks are no longer required in our schools; however, masks are still recommended to be worn inside the schools as well as the continuance of all other layered mitigations in accordance with our Return to Learning Plan. Federal Transportation guidelines still require masks to be worn while on school transportation.

Students who test positive for COVID-19 will still have to isolate and we still want anyone that is sick to stay home. Close contacts of students and staff will not need to continue to quarantine unless directed by the local health department.

Keep in mind, this entire change of status is the result of a Temporary Restraining Order (TRO) and has already been appealed by the Governor’s Office to the Fourth Appellate Court of Illinois for a decision. We will keep you apprised as the fluid situation continues to evolve.

Free testing and masks will still be available for those that are interested.

Respectfully,
Keith Liddell
Superintendent

*** UPDATE 8 *** The state has filed a notice of appeal…

PLEASE TAKE NOTICE that Defendants Jay Robert Pritzker, Illinois State Board of Education, Dr. Carmen I. Ayaka, Illinois Department of Public Health, and Dr. Ngozi Ezike, by their attorney, Kwame Raoul, Attorney General of the State of Illinois, hereby appeal to the Illinois Appellate Court, Fourth Judicial District, based on Illinois Supreme Court Rule 307(d), from the interlocutory order entered by the Honorable Judge Raylene Grishow of the Circuit Court for the Seventh Judicial Circuit, Sangamon County, Illinois, on February 4, 2022, which granted plaintiffs’ motion for a temporary restraining order. […]

By this appeal, Defendants Jay Robert Pritzker, Illinois State Board of Education, Dr. Carmen I. Ayaka, Illinois Department of Public Health, and Dr. Ngozi Ezike respectfully request that the appellate court reverse and vacate the circuit court’s order, dissolve the temporary restraining order, and grant any other appropriate relief.