(Editor's note: This article was published first at Illinois Policy Institute).
Illinois’ two largest teachers union just made it clear they want one state politician deciding whether every Illinois school student should be wearing a mask, regardless of local conditions, parents’ preferences, the harms or the need.
Both the Illinois Federation of Teachers and the Illinois Education Association asked to file legal arguments trying to help Gov. J.B. Pritzker persuade an appellate court to keep Pritzker’s statewide school mask mandate in place. The effort failed, and the Illinois Fourth Circuit Appellate Court rejected Pritzker’s appeal late Feb. 17.
The unions’ legal brief was filed Feb. 7 in response to Sangamon County Circuit Judge Raylene Grischow’s temporary restraining order. Her order voided certain Illinois Department of Public Health and Illinois State Board of Education emergency rules and temporarily halted enforcement of Pritzker’s executive orders mandating masks in schools, weekly testing of unvaccinated school employees and quarantining of students and teachers who are close contacts of confirmed or probable COVID-19 cases. The unions’ brief repeatedly referred to “due process” and “right” with scare quotes, then argued against giving school mask objectors those same due process rights because they would disrupt pandemic mitigation measures.
The crux of the teachers unions’ argument was the state has broad police powers when it comes to matters of public health. Teachers’ rights to work with COVID-19 mitigation procedures in place and the public health benefits that derive from those outweigh the other side’s rights to due process under Illinois statutes, the unions claimed.
While a state has police powers to safeguard public health, those powers do not let public officials to do whatever they want. Police powers are still limited by the law.
According to Grischow’s order, Illinois law designates the IDPH the “supreme authority” in matters of quarantine and isolation, not the governor. She determined IDPH must follow the required procedures under the Illinois Department of Public Health Act to comply with due process requirements. Grishchow noted in her order the plaintiffs were explicitly not seeking to dismantle statutes related to masking, vaccination, testing or exclusion policies, but only that they be given their rights of due process as guaranteed by Illinois law.
The unions’ brief claimed the judge’s order will endanger in-person classes and questioned a court’s ability to make judgments on scientific matters or evaluate policy tradeoffs. They made that argument just a month after judgments on scientific matters and policy were forced on Chicago schools by the Chicago Teachers Union when it walked out on students for five days to get its preferred mitigations in place. CTU pushed for remote schooling despite public health authorities affirming the safety of in-person classes.
Illinois would be one of only 11 states with a statewide school mask mandate if the teachers unions got their way, according to the New York Times. But while Pritzker announced Illinois will lift the general statewide indoor mask mandate Feb. 28, he did not say when it would be lifted for school children.
Even so, because of Grischow’s order and pending litigation, over 550 Illinois school districts have gone “fully masks optional,” according to the plaintiffs’ attorney.
The order teachers unions sought to reverse is temporary, and it is likely Pritzker will elevate his fight to the Illinois Supreme Court. Even then, the merits of the case have not been addressed, and litigation can take months and even years. To give parents and students certainty about restrictions governing their schools, the state should limit emergency powers through legislation passed by the Illinois General Assembly.
Several states have been moving to limit executive powers since the perils of their overuse were shown during the COVID-19 pandemic. Illinois lawmakers have seen what happens when one person decides for an entire state, and should act before it happens again.