By Stephanie Malench
LATEST UPDATE: February 6, 2022 8:00 p.m.
On Friday, February 4, Sangamon County Judge Raylene Grischow issued a temporary restraining order and ruled in favor of the plaintiffs in two class action lawsuits- one opposing mask mandates for students in schools and the other mandating vaccinations or testing for all school staff. Grischow deemed the Governor’s emergency rules through the Illinois Department of Public Health concerning “null and void”.
At this point, the judgment is only for the 700 plaintiffs named in the 145 school districts. Students in the lawsuit will not have to wear a mask if they do not want to and staff will not have to take weekly tests if they choose not to vaccinate. Grischow did not choose to go for class certification, as that is always secondary, according to Ryan Cunningham, one of the leaders for Speak For Students that has been advocating for parent choice on masking students since last summer.
As part of the 30-page ruling issued on the first case regarding masks for students, Grischow wrote “The Court cannot find (nor did any party provide) any law enacted by the State Legislature that grants the IDPH the authority to delegate or transfer its duties and responsibilities to ISBE and local school districts. Even the IDPH cannot support that arguments based on 690.1315 of Title 77 which provides that “certified local health departments shall, in conjunction with the Department administer and enforce the standards set forth this Subpart, which include: 1) investigating any case or suspected case of a reportable communicable disease or condition; and 2) ‘instituting disease control…including testing…vaccinations…quarantine…’ This administrative rule further provides that the certified local health department,…'[i]n consultation with local health care providers,…schools, the local judicial system, and any other entity that the certified local health department considers necessary, the certified local health department shall establish plans, policies, and procedures for instituting and maintaining emergency measures necessary to prevent the spread of a dangerously contagious or infectious disease or contamination.’ 77 ILL. Admin. Code 690.1315(f) (emphasis added). Based on IDPH’s emergency passage, it is clear it violated its own administrative rules. Moreover, the Governor’s delegated authority regarding masks, identifying close contacts, testing and vaccines to another executive agency is beyond the scope of legislative authority”.
The Illinois Federation of Teachers (IFT) was first to go on record after the ruling expressing concern with how the ruling will impact students and staff remaining safe while continuing in-person learning.
IFT President Dan Montgomery responded to the ruling Friday evening “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.”
Governor Pritzker issued a press release later Friday evening calling for an immediate appeal of Judge Grischow’s decision by Illinois Attorney General’s Office to be held in the Fourth District Appellate Court.
Pritzker went on record saying, “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”.
The Appellate Court has 10 business days to make a decision. If they uphold the ruling, the ruling will apply to all students. If not, the students in the lawsuit will have to go back to wearing masks.
IEA President Kathi Griffin issued a statement on February 5, similarly stating “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. ”
Federal law still mandates masks on school buses for all students and staff.
Highland Superintendent Michael Sutton announced on the district’s website on February 5 that the district would not be enforcing the mask mandate. Sutton wrote “It seems clear to me that legal analysis points to the fact that Highland CUSD No. 5 is clearly instructed
to NOT enforce the executive orders requiring masks, enforcing quarantines when individuals do not have symptoms, and any vaccine/testing mandates (employees). There are several questions that cannot be answered at this time. We hope to provide more information as clarifications are made. 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. Masks will be encouraged, but not required! We have a few staff with specific health issues who may be in contact with their student’s parents to request certain mitigations when students are around them. These
conversations will not be requirements, only requests to consider such concerns. The most important issue moving forward is clear and consistent communication between teachers/administrators and students/parents. We will be working with these individuals to provide any additional mitigations possible to make sure our staff remain confident in their safety at work”.
Sutton encouraged parents whose children are at elevate risk to communicate with their child’s teacher and administrator, and although “we cannot address every concern, but we will do our best to make this a workable situation for everyone”. He concluded his letter saying “masks will be encouraged, but NOT required!”
On Sunday, February 6, Triad, Collinsville and Edwardsville made their announcements for masking when students return to school on Monday.
Triad Superintendent Leigh Lewis announced that ” beginning on Monday until further notice, masks will be strongly encouraged but not required within school buildings”.
Lewis stressed “While the number of positive COVID cases within our school has begun to go down, we continue to see cases in our buildings and understand that masks can help stop the spread. There may be specific concerns brought by staff and parents that cause a teacher to request that masks be worn at times when students are in close contact. We hope that students and parents will show empathy and respectfully consider these types of requests when asked”.
Collinsville Unit 10’s Superintendent Dr. Brad Skertich sent a letter out to parents on Sunday stating that the five families who are plaintiffs in the lawsuit “will no longer be required to wear masks or be excluded from school if they are determined to be a close contact to a positive case. The ruling does not apply to all students at this time”. The Return to Learn Plan will not be updated until after the appellate court’s decision.
Skertich concluded his statement by saying, “Earlier this year I shared with our families that during a difficult time in our personal or professional lives, when faced with a challenging situation, we have two choices: work together and make the most of a difficult situation or implode and fight amongst ourselves. Our kids are depending on us to not necessarily agree with each other, but find a way to maintain a consistent school schedule that allows them the opportunity to interact with their peers and teachers on a daily basis. I have no doubt our district will continue in this manner!”
Like Collinsville, the Edwardsville School District #7 is only allowing those families who are plaintiffs in the lawsuit to not wear masks. In his letter to parents, Superintendent Dr. Patrick Shelton outlined what families should expect.
“As a public school district, we have an obligation to protect the health, safety, and learning of every single student and staff member. While we believe in the importance of choice and parents making choices for their children, we also must trust in the information we are being provided by health experts and have an obligation to follow the guidance we are receiving to provide our students and staff with an environment in which they feel safe and can learn, grow, and thrive.
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.
Masking will continue to be required during Kid Zone (not for named plaintiffs), at athletic events (not for named plaintiffs), and on buses. The federal law still requires masks on buses. The court decision does not change this, and all 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.
Students refusing to wear a mask constitutes a rule violation and subjects the student to disciplinary action, just like any other school rule violation”.