Chicago Public Schools tells Judge that Authority to Require Masks comes from State Dress Code Statute
Hate to say I told you so...
Yesterday a judge granted a temporary restraining order (TRO) to six teachers in Chicago Public Schools who filed suit against Covid testing and vaccination-proof requirements. Judge Raylene Grischow - the same judge who issued the TRO in the student masking and quarantine facet of the same case - issued the order in agreement with the plaintiffs’ claim that the IDPH Act does not give either the Governor nor the school board authority to mandate proof of vaccination and weekly testing for unvaccinated teachers.
But the most interesting part of the ruling to me wasn’t about testing or vaccination. At the bottom of page 9 and top of page 10, Grischow references sections of the Illinois school code that the CPS lawyers invoked in their defense.
Do you see what I see? Apparently, CPS was invoking the school uniform & dress code statute, in defense of their authority to require masks.
Grischow doesn’t address that claim specifically; rather, she says neither that statute nor the others cited give the CPS the independent authority to do things in the name of managing public health. Managing public health is the role of the health department, not a school board.
I’ve long contended that the dress code statute is the only law that would permit a school board to tell students they have to wear masks. (See post below.)
In the school environment, if students must (or can’t) wear something on their bodies, it’s a part of dress code. What CPS - and no doubt the Governor - also know is that the dress code statute permits religious objections.
The text of the law is crystal clear about process. Take a look:
A student whose parents or legal guardians object on religious grounds to the student's compliance with an applicable school uniform or dress code policy shall not be required to comply with that policy if the student's parents or legal guardians present to the school board a signed statement of objection detailing the grounds for the objection. This Section applies to school boards of all districts, including special charter districts and districts organized under Article 34. If a school board does not comply with the requirements and prohibitions set forth in this Section, the school district is subject to the penalty imposed pursuant to subsection (a) of Section 2-3.25.
If parents object on religious grounds either to what a school requires students to wear or prohibits students from wearing, then all the parents must do is submit a signed statement of their objections to the board. The board does not get to approve or disapprove. They only get notice.
A friend of mine who is a CPS parent filed a religious objection to masking on behalf of her daughter earlier this year, citing that statute. She was denied, with administrators insisting the law didn’t apply in a public health emergency. Yet none of JB Pritzker’s legally-specious executive orders suspended the school dress code statute, or said “no religious to objections to masking permitted.” In fact, both the text of the Governor’s May 2021 “bridge phase” order and an FAQ on IDPH’s site admitted that the free exercise of religion was exempt from masking requirements. In other words, the First Amendment of the U.S. Constitution is still in force.
So, CPS lawyers now insisting that students can be made to wear masks under the same statute my friend was told didn’t apply is frustrating.
FYI, a lawyer representing Glenview 34 during January’s proceedings, also made the dress code argument.
“[Y]our honor, school boards are expressly authorized in section 10-22.25b to adopt uniform and dress code policies for students to quote ‘prevent endangerment of student health or safety.’ That's what a mask is. It's part of the dress code. So, if your honor strikes the governor's executive orders and decides that the state does not have the authority to issue the mandates that it has issued, I urge your honor on behalf of my client - and on behalf of school districts across the state - that the authority of school boards that is inherent in the school code that does not contradict the express authority that I just outlined.”
Maybe these lawyers are reading my Substack and gaining late-in-the-game epiphanies? More likely, they’ve known about this statute all along are were hoping they didn’t have to deal with it until the Boards they represent became desperate.
It’s Not Over…
The fight for mask choice in Illinois schools isn’t over.
Here’s what parents and school board members need to grasp. There are only two ways that our laws define a mask that are applicable to schools:
1) as a medical device, and
2) as a piece of clothing.
If it’s a medical device, multiple judges in different counties have agreed only the state or county health department can issue a mask order to an individual or group of people. It’s also subject to the individual’s objection and due process rights, not just under the IDPH Act but also the Healthcare Right of Conscience Act.
If it’s clothing and/or a dress requirement, it should go through the proper board policy-adoption process, but is subject to religious objections regardless.