Masks in schools: What’s next and what parents need to know

Mailee Smith

Senior Director of Labor Policy and Staff Attorney

Mailee Smith
February 17, 2022

Masks in schools: What’s next and what parents need to know

Judge Grischow’s Feb. 4 temporary restraining order isn’t the final result in the multiple cases challenging Gov. J.B. Pritzker’s emergency powers. The ultimate solution is providing permanent certainty by limiting those emergency powers through legislation.

On Feb. 4, Sangamon County Circuit Court Judge Raylene Grischow issued a temporary restraining order on Gov. J.B. Pritzker’s mask mandate. The TRO also covered mandates requiring weekly testing of unvaccinated school employees and the quarantining of students and teachers who are “close contacts” of confirmed or probable COVID-19 cases.

Since then, there’s been some confusion about the TRO and what happens next. What’s more, the Joint Committee on Administrative Rules (JCAR) of the Illinois General Assembly voted 9-0-2 on Feb. 15 against extending Pritzker’s emergency rules to enforce state mask, vaccine and testing mandates.

That caused the Fourth District Appellate Court, where the Pritzker administration has appealed the TRO, to direct the parties to file statements explaining how JCAR’s action affects the case.

Throughout the past two years, many parents have been concerned with the extent of the “emergency” powers and rules that have been issued unilaterally by the governor and his administration.

That concern isn’t unwarranted. Judge Grischow noted the state argued, “the Governor has unlimited authority to do whatever is necessary.”

Here’s what you need to know about the decision and what could be next.

The lawsuit: Judge Grischow’s TRO

The governor’s multiple executive orders mandating masks, testing and quarantines, as well as emergency rules of the Illinois Department of Health and State Board of Education, generated a spate of cases challenging the parameters of those mandates. Four of those cases were consolidated before Judge Grischow and resulted in the Feb. 4 TRO.

Judge Grischow highlighted the “serial” nature of Pritzker’s mandates early in her decision. Since the governor declared an emergency in March 2020, there had been 25 disaster proclamations and 99 executive orders related to COVID-19.

The plaintiffs’ principal theory is that, under Illinois law, students and teachers cannot be required to wear masks or be excluded from school premises for “close contact” without either 1) their consent and/or 2) a full evidentiary hearing and court order that are required under the Illinois Department of Public Health Act, i.e., due process.

As the judge noted, the plaintiffs were not seeking any order dismantling statutes related to masking, vaccination or testing policies – but only sought that their rights of due process as guaranteed by Illinois law be provided should they object to those requirements, which are deemed forms of “quarantine” under Illinois law.

Throughout the decision, the judge noted various proper avenues the government could have pursued in the past two years. The legislature could have enacted laws but it didn’t. IDPH and ISBE could have pursued proper protocols for making rules, but didn’t. In other words, the governor had multiple avenues he did not pursue, making executive orders and “emergency” rules suspect this long into the pandemic.

While not yet deciding the merits of the plaintiffs’ claims, the judge entered the TRO to preserve the pre-mandate status quo until the case is decided.

Specifically, the TRO prevents the state and defendant school districts from enforcing the mask mandate and forcing students or teachers to quarantine after “close contact.”

While framed as a restraining order on the defendants named in the case, the judge concluded that the emergency rules of the Illinois Department of Public Health and Illinois Board of Education are “null and void.” To that end, she noted, “Any non-named Plaintiffs and School Districts throughout this State may govern themselves accordingly.”

Since then, the plaintiffs’ attorney has stated over 550 school districts around the state have gone “fully masks optional” since the TRO was entered.

What happens next in the mask litigation

A temporary restraining order is exactly what it says it is: temporary. A TRO stops the government’s action while a case proceeds, ensuring rights are protected until a court’s final decision is made. In other words, the TRO is not Judge Grischow’s final ruling in the case.

What’s more, both the TRO and the final ruling can be appealed to an appellate court and ultimately the Illinois Supreme Court.

The Pritzker administration is appealing the TRO, with a decision from the appellate court yet to come. His administration filed a response on Feb. 16 arguing JCAR’s decision does not affect the appeal and the appellate court should reverse the TRO. The plaintiffs filed a response the same day, arguing the TRO should be upheld.

Whatever happens at that level, the losing party will likely appeal to the Illinois Supreme Court.

Similarly, Judge Grischow’s final decision on the merits of the case is yet to come, along with any appeals of that decision.

All told, litigation can take months – and sometimes years – before there is a final result.

The ultimate solution is limiting emergency powers through legislation

Litigation provides one check on a governor’s emergency powers, but the length of ongoing litigation brings uncertainty during an already divisive and emotionally driven time.

The ultimate solution is providing permanent certainty by limiting those emergency powers through legislation.

Several states have been moving to limit executive powers in the wake of widespread use of emergency executive orders in addressing the COVID-19 pandemic. State lawmakers could do the same thing.

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