"Just Recommendations"

Lies & half-truths from the Illinois AG's office

One thing I did not expect while watching yesterday’s hearing in Austin v. Board of Education was the Illinois state’s attorney to contradict everything the Illinois Department of Public Health and Illinois State Board of Education told schools in the 2021-2022 academic year. ICYMI, the purpose of yesterday’s hearing was to address a motion to add new plaintiffs, and a motion (by the State and numerous school districts) to dismiss. Judge Raylene Grischow granted the request to add new plaintiffs, but did not issue a decision about the motion to dismiss.

Lawyers representing districts made some bold and ridiculous claims throughout the proceedings - one even admitted she doesn’t know if Illinois has a statute that permits schools to keep sick kids from coming to school. 🙄 But it was the lawyer representing IDPH who made the most astounding statements.

Here’s the transcript of Darren Kinkead, state’s AG office, talking about the joint “guidance” document.

There’s one final issue that I want to raise, and that is the question of the new [IDPH & ISBE] “guidance” – operative word “guidance” -- just recommendations and suggestions from the state, that may or may not be implemented by the school districts going forward.

I think it’s clear, if you read it (and it’s attached to various documents that we filed in this case, also available on the Internet, and you can take judicial notice of that). I think it’s clear if you read that guidance that it’s not binding on anyone at all.

If you, school district, don’t want to follow it, you don’t have to. If you, school district, conclude that you can’t follow it, because you don’t have authority to, you don’t have to. It’s – from the state’s perspective – purely recommendations. We think this would be a good idea, but if you disagree with us, that’s fine. You can do it your own way. And there’s nothing unusual about that at all, your honor. It happens all the time.

I went to a little diner near my house the other day – one of those old school, hole-in-the-wall type of places. On the menu, the big menu that I got with all the burgers you can order, down at the bottom in big red letters, it says, “IDPH recommends that you do not consume meat that has been not fully cooked at a certain temperature,” right? It all printed on the menu. I saw it. And I thought, “That’s funny, because that’s exactly what we’re dealing with in this case.” It’s just recommendations. There are people in that diner, and all over the state, ordering their burgers cooked however they want. And just because IDPH thinks that you should do it a different way, that doesn’t mean that you’ve been injured in any way. You can still get exactly what you want. And that’s the issue here.

The new guidance from the state, no one would have the standing to challenge the state with respect to that guidance, because no one would say that that guidance injures them in any way. No one actually is compelled to follow it. It’s purely advisory.

So, again, whether the school districts implement it or not, that’s up to them. And whether there’s a case or controversy with respect to their authority, that’s separate. But there’s no case or controversy with respect to the state – pertaining to the new guidance or to the old guidance.

As Mr. DeVore said, it’s over. “It’s morning again in America.”¹ So, we’re done with this, from a state perspective, at least.

And for that reason, the case is moot. He admitted none of the exceptions can apply, and it should be dismissed as to our clients

I’ve followed this case, and the Illinois schools Covid Mitigation Saga, from the second J.B. Pritzker foolishly shut down in-person learning. Mr. Kinkead speech is striking not only for what he says about the present, but also for what he implies about the past.

Lies About the Present

I’ll start with the present, and give Mr. Kinkead the benefit of the doubt. He is correct that the “new” guidance issued from IDPH/ISBE is not legally binding or enforceable. He’s incorrect, however, that it’s written in clear terms or has been proactively pitched to schools as only recommendations. The Decision Tree alone is a convoluted hot mess with no basis in the truth about covid-19’s very low risk of severe outcomes for kids, let alone the fact that covid-19 has not increased the state’s pediatric respiratory disease death burden.²

Kinkead’s menu analogy is laughable, given that almost nothing about what schools have been told the past two years has been akin to a health department warning about eating undercooked cooked meat. On the contrary, Governor Pritzker was relentless in his mask-tyranny, calling those who didn’t want to mask “the enemy” and stomping his feet about schools that didn’t require masks would not only close themselves, but close small businesses. If the health department told restaurants they were not allowed to serve anything less than well-done meat, under threat of fines or other penalties that would be better metaphor for what’s occurred under Pritzker’s reign.³

Gracia Livie @gracialivie

The 10, 6 and 2 year old pictured are holding @GovPritzker back 😂. Their bares faces will close down businesses & shut down schools. Beware, Illinois. (The 8 year old in the family was more interested in shooting hoops outside 🏀) thanks @chicagotribune for covering our case.

How Mr. Kinkead can imply that state guidance - now or then - if practiced, doesn’t/didn’t injure children and families is beyond me. The Regime will never admit the harms of masking on development, community, relationships, motivation, self-concept, and learning. They should at least recognize that - after school closures - using illegal quarantine directives to force healthy children to stay home from school for 5-14 days at a time is the single most detrimental act against kids this state has ever committed. The damages are incalculable — and will only get easier over time to prove in a court of law, as the evidence of destruction continues to mount.

Perhaps the most intellectually dishonest thing Mr. Kinkead said was this:

If you, school district, conclude that you can’t follow it, because you don’t have authority to, you don’t have to.

INAL, but thanks to King J.B., I know Illinois laws and rules inside & out when it comes to what a public school can’t and can’t do to “manage” communicable diseases. For starters, an individual school board cannot keep a not-sick kid out of school, can’t implement a contract tracing program, can’t require a student to take a medical test, and can’t require students to stay out of school a certain number of days. As of this evening, IDPH/ISBE documents are still making schools think they can do these and other things, all in the name of keeping everyone “safe.” In other words, state guidance is still guiding school boards to exercise authority they don’t have.

…which begs the question: Don’t Prtizker’s agencies have a legal and ethical responsibility to give *guidance* that is not only consistent with, but crystal-clear about relevant laws and administrative rules?

Of course they do.

Yet Mr. Kinkead said the state thinks the guidance is a “good idea.” Guiding schools to the edge of a legal cliff is always a bad idea. Always. Why doesn’t a taxpayer-funded lawyer know that?⁴

Granted, the CDC changed its school guidance again today, which gives IDPH and ISBE an exit ramp from their misleading directives.

Half-Truth About the Past

Commenters on Twitter rightly noted that Mr. Kinkead didn’t limit his argument to the new guidance yesterday, by saying, “there’s no case or controversy with respect to the state – pertaining to the new guidance or to the old guidance.”

If I play devil’s advocate, I think Kinkead was still talking about the present, i.e., that there is no case or controversy for the state right now, because the old guidance is gone. (And the new guidance will now be old guidance with today’s CDC’s updates.) To the extent Kinkead was contending the guidance in effect when this case was filed in October 2021 was merely a set of recommendations, not a set of legally-enforceable requirements, he’s undermining the arguments the state made previously.

Who Can Forget?

No matter how we interpret Kinkead’s reference to the past, his attitude & argument yesterday is an affront not only to the thousands of parent plaintiffs in this case and in Illinois, but to the boards & administrators who were bullied by the State Superintendent, Governor, IDPH, and ISBE at the outset of the 2021-2022 school (if not sooner). Who can forget…

• Prtizker telling schools in July 2021 that they could made their own decisions about covid mitigations, before issuing a school mask mandate on August 4th, because some schools “weren’t doing the right thing”?

• Pritzker revoking recognition status for private and public schools that dared defy him?

• Pritzker going after reporter Amy Jacobsen for questioning his illegal mandate?

• Carmen Ayala’s threatening letter to Superintendents, casting the specter of lawsuits and loss of insurance if they didn’t obey the Governor’s commands?

  

  

• ISBE’s September 7, 2021 resolution, which falsely claimed state rules & laws allow schools to exclude heathy children from school?

• Collusion between Governor’s Office, ISBE, and IDPH staff to remove definitions from the communicable disease code, write new rules that directly conflicted with the DPH Act, and squash religious exemptions?

• JCAR’s failure to object to those illegally-filed, unlawful emergency rules?

• The Democrat-Dominated Illinois General Assembly passing a *doesn’t apply to covid* amendment to the Healthcare Right of Conscience Act (which Pritzker pushed)?

• IDPH leadership’s feigned ignorance of the communicable disease code? (Examples here and here.)

This year will hopefully be closer to normal for more Illinois schoolchildren than it has been since March 2020. But the case Tom DeVore brought on behalf of thousands of desperate parents, including many who knew and understood the law far better than their elected representatives, isn’t moot or worthy of being dismissed.

Judge Grischow should rule on the merits, reiterating the same points she made in her February 4, 2022 TRO. A decision for the plaintiffs is important next-step in holding appointed and elected officials accountable for what they “guided” schools to do to kids.

1. The AG’s office quoting Ronald Reagan while defending Governor J.B. Pritzker’s agency is ironic.

2. Interestingly, when I checked the 2021 for Illinois in June, the number of respiratory disease + covid deaths (underlying causes) totaled 48. Data for 2021 aren’t final until December 2022, but that’s a sizable revision downward, assuming I didn’t make an error in my June graph. UPDATE: The number is back to 48. There may have been some kind of update error in the database. I’ve revised the graph to reflect the change.

3. Funny enough, Mr. Kinkead was the state’s attorney in the Foxfire case.

4. Hopefully, Tom DeVore will defeat Kwame Raoul in November and get rid of Pritzker apologists like Mr. Kinkead.