Masks will be back on the list of required accessories for many Illinoisans for the foreseeable future, under new orders issued by Gov. JB Pritzker in the name of fighting COVID-19.
However, courtrooms in Illinois could soon again be home to yet more legal battles over the limits on the governor’s authority to continue to unilaterally impose restrictions on the lives of Illinoisans, using emergency powers he has wielded for more than a year and a half.
Many of those battles, initially, will likely center on the authority of the governor, through the Illinois State Board of Education, to impose potentially draconian and unprecedented sanctions on schools that decline to abide by the dictates of his mandates.
Austin Davies
| Justia.com
Already, at least two such lawsuits have been filed. In downstate Clinton County, a father of a child enrolled in a public school district there asserts Pritzker overstepped the bounds of his authority in implementing a statewide mask mandate in schools.
A similar lawsuit was filed in Cook County Circuit Court by Rob Cruz, a school board member in suburban Oak Lawn.
However, more actions could be brewing beneath the surface.
“School districts, funded by non-profit groups, are currently preparing for litigation against ISBE for their unlawful actions,” said attorney Austin Davies, of Midwest Legal Care, of Rockford.
Davies said he is not currently involved in any litigation against the state, but is aware of challenges that could be forthcoming soon.
The challenges will likely center on similar claims to those laid out in the already pending lawsuits, concerning accusations the Pritzker administration had no authority to compel all public and private schools to fall in line with its mandates.
After Pritzker instituted the school mask mandate, his administration and the ISBE immediately moved to threaten any school in the state that should resist, whether public or private, with unprecedented consequences. These could include loss of state recognition, which would jeopardize state funding to those schools, and the refusal to recognize diplomas awarded to students graduating high school, as well as denying students the ability to compete in official high school sports tournaments and other inter-scholastic extracurricular pursuits.
Pritzker reiterated those threats at a press conference earlier this week.
To date, more than 50 public school districts and private schools have been placed on probation by the ISBE for the decision of their leadership to initially state their intent to not comply with Pritzker’s demand to compel all students, staff and visitors to wear facemasks while in school buildings.
Many of those districts and schools have buckled under the weight of the threat.
In downstate Eureka, for instance, Bob Bardwell, superintendent of Community Unit School District 140, was among several public school officials to address the State Board of Education earlier in August, to express opposition to the “problem of top-down leadership and government overreach” manifested in the imposition of the mask mandate.
While the District 140 board had voted to resist the mask mandate in Eureka schools, Bardwell and the District 140 board said they believed it was in the best interests of Eureka students to give in, for now, given the potentially ruinous penalties threatened by Pritzker.
In a statement published to the District 140 website, Bardwell said the district did not believe it wise to simply “ignore” the mandate. But he urged parents to continue to “fight,” through “political individual action.”
“Behind the scenes we are already working to develop a coalition of like-minded districts to advocate for local control and fight for what we believe is government overreach. And we willcontinue to do so,” Bardwell wrote.
“Local decision making is necessary. And I promise you we are going to continue to fight for it through the proper channels.”
Chad Leman, president of the District 140 school board, did not reply to questions submitted by the Cook County Record.
However, in a statement posted to the district website, Leman and the District 140 board said the school board is continuing to “research and explore what our legal options are as it relates to adherence to these mandates.”
“As a Board, we have asked ourselves where we will finally draw the line. As we have seen test scores drop dramatically this past year, and our students’ anxiety levels go up, we must honestly assess if the cure has been worse than the illness,” the District 140 board wrote.
“The challenge for us is that drawing that line has a price, and the price could be steep.”
District 140 has not yet joined its name to any lawsuits against Pritzker.
But should they or other districts find themselves in court, the state will need to establish a legal basis for the actions of Pritzker and the ISBE against local public and private schools.
Davies and Joseph A. Morris, an attorney with the firm of Morris & De La Rosa, of Chicago, said the state could face battle on that front in court.
The Pritzker administration has again pointed to the governor’s emergency powers under the Illinois Emergency Management Agency Act. That law has been interpreted by courts to give the governor broad, sweeping powers to impose restrictions on wide swaths of the state’s economy and society to preserve public health, should the governor proclaim a disaster.
While the law appears to limit the governor to a 30-day period in which to wield those powers, the governor and courts have interpreted the law to allow him to essentially redeclare a continuing “disaster” every 30 days, should the governor in his own discretion determine the disaster continues.
Pritzker has issued 19 such monthly disaster declarations since March 2020.
In justifying the school mask mandate, Pritzker has also pointed to guidance from the Centers for Disease Control and Prevention (CDC), which recommend students, teachers and everyone else in schools be masked, to mitigate the spread of COVID-19.
Morris, who is also chairman of the free market think tank Heartland Institute, said the Pritzker administration, however, must account for the governor’s decision to issue his school mask mandate before the CDC changed its guidance to recommend such school mask mandates.
Davies also noted the State Board of Education has yet to publicly identify the state law or other authority that gives it the power to simply strip state recognition from any school that resists a Pritzker executive mandate.
And Davies noted state lawmakers are considering legislation written expressly to change Illinois state law, to give the ISBE the very powers Pritzker has claimed he and the State Board already possess.
“The legislature, the governor and ISBE know that they do not have the authority to revoke school recognition if the local school board decides not to require masking,” Davies said.
Morris said the threats handed down to any schools who resist those mandates demonstrate the mandates may be less about public health than about cementing state control over education.
“Pavlovian obedience, rather than thought, seems to be what the State Board of Education expects of school boards and parents,” Morris said, in written statements provided to the Cook County Record.
Further, Morris said, he believes the mandates are also coming at the urging of teachers unions, who are some of the strongest political allies and supporters of Pritzker and Pritzker’s Democratic Party.
“The union favors the most stringent mandates possible,” Morris wrote. “It piously pretends that its concern is student and teacher health and safety pure and simple.
“But the union knows that the more stringent the mandates, the less likely parents, students, and school administrations will be willing and able to comply with them.”
Further, by threatening private schools with loss of state recognition, Morris said Pritzker’s mandates are being used to help the state gain control of those schools, and reduce the chances parents will simply choose to enroll their students in private schools, to escape the mandates, often demanded by the teachers unions that often dominate public schools.
“The Pritzker mandates should be seen, in important part, as a sop to the public sector unions on whom his political career depends,” Morris wrote.