UPDATE on Austin v. Board of Education

For some districts, the Illinois school mask/close contact exclusion case is "over," but the issues remain.

Update on the Illinois school masking/exclusion case, via Tom DeVore’s campaign:

Last week, Judge Raylene Grischow dismissed 110 defendants from the parent-led lawsuit concerning mask and exclusion mandates. Tom Devore, the attorney representing the parents in the case, will continue the challenge against the 35 remaining defendants.

As many of you know, the initial case was brought against 145 Illinois school districts, the Pritzker administration, and the Illinois State Board of Education over COVID-19 mask and exclusion mandates. Grischow’s ruling means that, for most of the school districts, the case is moot after the Attorney General’s Office admitted to the judge the state’s guidance has always been nothing but recommendations.

As Tom wrote in an email to his clients following the ruling, “I will continue to pursue claims against the school district which will not proclaim under oath to discontinue harmful mask and exclusion policies. Should any of the school districts being dismissed reinstate their policies, I will immediately drag the district back to Court.”

On one hand, Grischow’s decision to grant 110 districts’ motions to dismiss is a win, because it means those districts have said they aren’t requiring all students to wear a mask in order to be in school. The state’s attorney admitted in last week’s hearing that IDPH/ISBE “guidance” is only recommendations, not legally binding.

On the other hand, the ruling leaves Illinois parents with no final answer as to the legality of Governor Pritzker executive orders and emergency rules. Last February, in a 4-2 decision, the Illinois Supreme Court said Prtizker’s appeal of Judge Grischow’s TRO was moot, because JCAR rejected IDPH’s attempt to refile the emergency rules after they expired. No emergency rules = nothing to restrain.

In his dissent, Justice Michael Burke (joined by David Overstreet) said there were still questions about “the validity and enforceability of the Governor’s executive orders themselves” that needed to be resolved.

I agree.

My view is that JCAR failed in fall 2021 by not objecting to the illegal emergency rules when they should have. Judge Grischow’s February 4th ruling effectively called out the legislators’ fumble (without naming the committee) with a scathing analysis of how unlawful the rules were.

IMO, a Illinois Supreme Court ruling that concurs would lay the foundation for all manner of lawsuits against the Pritzker administration, and possibly against schools boards, who forced thousands of healthy children out of school and made them cover their faces in order to be there. Those actions were not harmless and did nothing to keep children from contracting covid.

For their part, superintendents of the 110 districts who filed motions to dismiss submitted affidavits that say they have no required masking or close contact exclusion policies in place, and don’t plan to have such policies in the future.

Thanks to @SRLucie92’s legwork, I can show two of these affidavits. The first is from Jeff Schuler, Superintendent of CUSD 200 Wheaton-Warrenville, signed May 3, 2022.

While it’s true that CUSD 200 didn’t have a “universal” masking policy in place after the TRO, the district was still telling students who tested positive for covid that they had to wear a mask in school after coming back from being out for five days. Students that didn’t want to mask were told they had to be home for 10 days. So, CUSD 200 was still not following the law. This year’s covid policies do not mention masks.

The second example affidavit is from Tony Sanders, Superintendent of U-46 Elgin, signed July 7, 2022. Sanders said the District was mask-optional for summer school and wasn’t excluding close contacts.

Sanders also said, “The Board has no current plans to require masks or the exclusion of close contacts for the 2022-2023 school year.”

No current plans in July, maybe, but here’s U-46’s policy as of 8/8/22:

So, if a child has a cough or stuffy nose, Tony Sanders says he/she has to be out of school for 10 days, because it’s a covid symptom. If you can prove it’s not covid - and you’ve been fever/vomit/diarrhea free for 24 hours - you can come back. If it is covid, you have to be out for five days, and can return on the 6th day, but only if you can wear a mask. Otherwise, you have to stay home.

Huh?

This nonsensical policy isn’t lawful in Illinois, where individual school boards do not have authority to

• require a student to take a medical test,

• order a student who has tested positive covid-19 to stay home for 5 or 10 days,

• require students to mask a wear in order to be in school.

Unfortunately, it may take another lawsuit to stop both U-46 and other districts from overstepping their bounds again. Sanders told ABC7 news this week that, working with the local health departments, “We have the ability to return to requiring masks…if the health department tells us that we need to…mask up all the students, then certainly we’re going to do that, based on their guidance.”

So, thanks to both bad legal counsel and horrible leadership from ISBE and the Pritzker administration, Mr. Sanders is still confused.

The covid nightmare for all Illinois schoolchildren will be over when every school is doing what they did before March 2020 (illustrated below) and understands what it can and can’t do under the law.