Bill giving state new powers to shut down private and public schools advances in General Assembly

HB 2789 could threaten in-person instruction at public and private schools while the COVID-19 emergency order – or any other emergency order – persists.

House Bill 2789, legislation that would give the state more authority over private and public schools, passed out of committee on May 27. State senators could vote on this amendment as soon as May 28, and afterward House lawmakers would have to vote to pass the bill by May 31. If HB 2789 passes the Senate and the House, it moves to the governor’s desk to be signed into law.

HB 2789 could threaten in-person instruction at public and private schools while the COVID-19 emergency order – or any other emergency order – persists.

The bill could also encourage a flurry of complaints against schools for perceived infractions of health rules, provides for drastic penalties against schools and teachers, and expands state officials’ involvement in the operations of private schools. The potential for government overreach had generated over 16,000 opponents and only 70 supporters ahead of a Senate hearing May 27.

Senate Amendment 1 to Illinois House Bill 2789 was filed May 20 and would require all Illinois public and nonpublic schools to comply with health regulations established by the Illinois Department of Public Health, allow multiple complaints to be filed for alleged violations, and permit the Illinois State Board of Education to impose severe penalties for noncompliance. The provisions in this new legislation would apply only when an emergency declaration by the governor is in effect, as has been the case for over a year in Illinois.

The Senate amendment alters a bill pushed by Illinois’ largest teachers’ unions. The version of House Bill 2789 that passed the Illinois House of Representatives in April would have required the Illinois Department of Public Health to promulgate rules governing all in-person instruction for Illinois public and nonpublic schools at all times, rather than only during governor-declared emergencies.

With in-person schooling having been conducted safely in schools across the country, including in Illinois, and Illinois’ new cases and hospitalizations having dropped dramatically amid increasing levels of vaccination, the need for such legislation is doubtful. And the Illinois Education Association’s and Illinois Federation of Teachers’ pushing it has raised eyebrows.

IEA and IFT, their national organizations, and many of their local affiliates resisted in-person schooling plans during the past year despite multiple studies showing schools were not significant contributors to the spread of COVID-19 and in-person instruction could be done safely. Moreover, organizations and public leaders allied with teachers unions as well as unions themselves have even worked to get nonpublic schools to be forced to close during the 2020-2021 school year.

HB 2789 appears designed to make it needlessly difficult for schools to operate in person, and to provide a way to shut down competition that might make teachers unions look bad for thwarting the return to classrooms.

Here’s what Senate Amendment 1 would do

Imposes a duty to comply with IDPH health rules

• Requires all nonpublic and public schools and school districts to comply with any health rules issued by IDPH when a disaster has been declared by the governor pursuant to the Illinois Emergency Management Agency Act.
• Prohibits school boards from passing any resolutions opposing requirements established by the IDPH.

Complaints can be filed with multiple agencies and institutions

• Establishes multiple paths for people to file complaints against nonpublic and public schools. Complaints against a nonpublic school can be filed against the school itself as well as with the regional superintendent of schools. An appeal of a finding issued by a regional superintendent can also be filed with the ISBE.
• Complaints against a public school district can be filed with the school district itself, with the regional superintendent of schools, or directly with ISBE in the case of Chicago Public Schools. Complaints can also be filed with ISBE on appeal after review by the regional superintendent.

Imposes duty to investigate complaints

• Imposes duties on all nonpublic schools to investigate complaints of noncompliance with public health requirements.
• Requires the regional superintendent of schools to investigate complaints of noncompliance at nonpublic schools and public school districts.
• ISBE must investigate complaints of noncompliance when there is an appeal of a regional superintendent’s decision, or when a complaint is filed directly with ISBE.

Provides for severe penalties when noncompliance is found

• ISBE may require nonpublic schools and public school districts to operate fully remotely if the health requirements established by IDPH are not followed.
• Requires ISBE to adopt rules to revoke recognition or registration of a nonpublic school and recognition of a public school district for noncompliance.
• Gives ISBE authority to sanction any educator or individual licensed under the School Code who implements any practice that contravenes any public health requirement established by IDPH in an emergency or disaster.

Implications of Amendment 1

Potential flood of unfounded complaints and burdensome investigations 

All Illinois public and private schools have had to comply with the COVID-19 guidelines issued by ISBE and IDPH during the pandemic. This new legislation, however, could result in numerous complaints and investigations for nonexistent violations or extremely minor infractions, which would make running a school an administrative nightmare. Given how contentious school reopenings were during the 2020-2021 school year, it is not hard to imagine disgruntled persons trying to make life difficult for administrators by filing complaints for spurious reasons. There is no penalty laid out in the amendment for filing a false complaint. The Chicago Tribune called out the Chicago Teachers Union in August 2020 as its allies tried to interfere with the reopening of Catholic schools in Chicago, and this proposed legislation could give anti-reopening forces a new way to try to shut down the competition.

Draconian penalties for noncompliance

Penalties against teachers

Giving ISBE the authority to sanction a teacher or take action against his or her license for implementing a “practice that is in contravention of any public health requirement” could cause significant stress among faculty and staff. What about a coach giving players a mask break during sports practice on a hot day? What if a kindergartener violates social distance guidelines and hugs a friend on the teacher’s watch? Would teachers be so worried about unwittingly running afoul of this provision that they feared teaching in person?

The specific penalty against a teacher is not set out in the proposed legislation, but the School Code refers to “suspension, revocation or other sanction” in the section on educator licensure. The reasons listed for sanctioning a teacher are generally for serious misconduct or lack of professionalism, including: abuse or neglect of a child, incompetency, failure to disclose on an employment application a conviction for a sex offense, and willful or negligent failure to report an instance of suspected child abuse or neglect. The threat of action against a teacher or his or her license – perhaps over a false complaint – could make teachers reluctant to return to the classroom and anxious about liability once they arrive.

Penalties against schools

Requiring a nonpublic school to operate fully remotely for as-yet-unspecified regulatory noncompliance would expand ISBE’s involvement in the operations of private and parochial schools. And revoking the recognition of a nonpublic school can have serious consequences, such as making that school ineligible for participation in the Invest in Kids Act tax credit scholarship program or for membership in the Illinois High School Association, which could affect participation in high school athletics. As of the 2019-2020 school year, nearly 700 Illinois nonpublic schools were recognized by ISBE, including nonsectarian schools and Islamic, Jewish, Catholic, Lutheran, and other Christian schools.

For context, other reasons for refusal to recognize a nonpublic school are failure to require criminal background checks for job applicants and to check the Statewide Sex Offender Database, as well as knowingly hiring persons convicted of sexual or physical abuse of a minor.

Revoking recognition of a public school or district can result in that district’s entire or partial loss of state funding, which could have disastrous repercussions for the school’s or district’s budget and ability to operate.

Interference in nonpublic schools

This legislation would insert Illinois state administrators into the affairs of private schools in new ways. The regional superintendent of schools has nothing to do with nonpublic schools under the provision of the School Code describing his or her duties. This amendment would change that and give the regional superintendent of schools the authority to receive complaints against nonpublic schools and the duty to investigate them. And ISBE is not currently in the business of investigating private schools for alleged infractions of health rules or deciding whether they should be ordered to conduct fully remote learning, but this bill could change that too.

Given the success of so many schools in conducting safe in-person learning this year and the science showing student transmission is minimal, as well as falling COVID-19 cases, positivity rates and hospitalization, there is no reason for this bill. That is, unless, as the Chicago Tribune stated, it is “to punish the pandemic success of private schools” and public schools that stayed open despite the preferences of teachers unions.

Take action

Show your opposition by calling your lawmaker and telling them to vote “NO” on HB 2789. Find your state senator here.