Clinton County dad suing Illinois Gov. J.B. Pritzker over school mask mandate
A Greenville attorney who has filed multiple lawsuits against Gov J.B. Pritzker since the first COVID-19 shutdowns in 2020 now contends that the governor’s office and the state board of education do not have the legal authority to enforce a universal mask mandate in schools this fall.
Attorneys Tom DeVore and Erik Hyam filed suit Monday in Clinton County Circuit Court on behalf of Jeremy Pate, the father of a student who attends Breese District 12 in Clinton County. The plaintiff argues that Pritzker does not have the legal authority to punish schools for not following guidance from state agencies.
DeVore and Pate could not immediately be reached for comment Tuesday night.
On Aug. 4, Pritzker announced that all Illinois students would have to wear masks inside schools this fall, regardless of vaccination status.
Initially, it looked as though local school districts would have far more control over what classrooms looked like this fall, at least compared to last year. In July, the Centers for Disease Control and Prevention initially recommended — but did not mandate — masks and emphasized the need for districts to make decisions based on local infection and hospitalization rates.
In the weeks since that first guidance for the 2021-2022 school year was released, however, COVID cases have started to climb again, as the highly contagious delta variant spread.
Most of the lawsuits filed by DeVore and others over the last 18 months challenged Pritzker’s ability to issue continuous disaster declarations beyond the 30 days provided for in the Illinois Emergency Management Agency Act, or IEMMA.
DeVore’s latest suit alleges that the language used in IEMMA does not cover school districts and that, in fact, school directors and boards of education are tasked with instituting any temporary measures in case of emergency, including the spread of an infectious disease.
HB 2789, a bill pending in the General Assembly, would explicitly compel school districts to follow Illinois Department of Public Health and Illinois State Board of Education guidelines during public health emergencies, and forbid them to adopt policies contrary to state guidelines.
That the bill exists, DeVore argues, shows that Pritzker does not currently have this authority over school districts.
Should the bill be passed, a school district failing to follow IDPH and ISBE guidance during a public health emergency could have their recognition status revoked, suspended, or otherwise penalized.
Though it passed in the Illinois House along party lines in April, HB 2789 did not receive a vote in the Senate before the legislature adjourned in the spring.
When Pritzker first announced the latest mask mandate for schools, he said that if schools didn’t comply, they could be held liable for any outbreaks. Several local school superintendents have repeated their concerns about insurance liability when sharing their return to learn plans.
Pritzker said that, eventually, the state could revoke recognition status for a school district that failed to comply, but added that would only happen “long after” other mitigations or efforts were made, and he didn’t expect it would come to that.
“Notwithstanding this bill is not yet law, Pritzker has threatened this very sanction should local school districts fail to follow IDPH and ISBE guidance,” the lawsuit complaint says. “ … If such an overreach is allowed to stand, the separation of powers will have been reduced to ashes and the executive will be allowed to disregard the legislature and create law, rules, and regulations at his or her pleasure.”
IEMAA defines “public health emergency” as the threat of illness that brings a high probability of a large number of deaths, long-term disabilities or widespread exposure.
In a past lawsuit from July 2020, DeVore has said that the COVID cases and deaths in five Illinois counties — Bond, Clinton, Sangamon, Richland and Edgar counties — did not constitute a public health emergency. At recent local school board meetings this summer and at a Madison County Board of Health meeting in July, DeVore repeated that argument in support of local control.
In this latest suit, he stops short of that assertion. However, he cites COVID cases and deaths for persons under the age of 20 to calculate the survival rate of that age group at 99.9973%, “should they even contract COVID.”
The suit asks the court to declare that Pritzker has no authority to compel local school boards to follow guidance and declare that ISBE has no authority to revoke, suspend or otherwise penalize the recognition status of a local school district.
This story was originally published August 11, 2021 at 6:00 AM.
