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First Lawsuit Filed Over Pritzker's School Mask Mandate

A KN95 mask and a surgical mask.
A KN95 mask and a surgical mask.

Prolific anti-COVID mitigation attorney Tom DeVore on Monday filed suit over Gov. JB Pritzker’s mandate requiring all students, faculty and staff at Illinois schools wear masks in the face of the coronavirus’ more contagious Delta variant spreading across the state.

DeVore filed the suit on behalf of a father of a student in Breese School District 12 in Clinton County, about 40 miles east of St. Louis. The complaint, filed in local district court, alleges Pritzker overstepped his authority in signing an executive order last week mandating masks in all preschools, elementary and secondary schools in Illinois.

“While Pritzker will spill gallons on ink on the history of the COVID pandemic and how his administration has worked to keep people ‘safe,’ none of this obfuscation is relevant to the precise question of what is the extent of his delegated power by the legislature under the [Illinois Emergency Management Agency Act],” DeVote wrote in the 11-page complaint.

DeVore rose to prominence among conservatives last year for filing numerous lawsuits against Pritzker’s administration for COVID mitigations, most famously a suit that freed just one person — State Sen. Darren Bailey (R-Xenia) — from the governor’s stay-at-home orders. He’s now running for a seat on the state’s Fourth District Appellate Court, while Bailey is vying to unseat Pritzker in next year’s gubernatorial race.

Unlike most of the suits filed by DeVore and others in the last 18 months, Monday’s lawsuit does not challenge Pritzker’s ability to issue continuous disaster declarations beyond the 30-day period provided for in the Illinois Emergency Management Agency Act, or IEMAA. While the courts have settled that question in Pritzker’s favor, DeVore’s suit over the school mask mandate alleges the IEMAA doesn’t allow a governor to usurp the authority of school districts.

The IEMAA is largely silent on its applicability to school districts. The word “school” is only mentioned five times, but in conjunction with the state’s earthquake awareness program, as well as grants “for safety and security improvements.” The law constantly refers to coordination with smaller units of local government like municipalities and counties, but the definition of “political subdivision” within the statute doesn’t include school districts.

Despite the IEMAA’s silence on school districts, DeVore’s suit points to the legislature’s creation of the Illinois School Code and the invention of local school districts themselves as evidence enough that local school boards are the only entity with the authority to “adopt and enforce all necessary rules for the management and governance of the public schools of their district.”

The complaint points to a bill pending in the General Assembly that would 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 bill, HB 2789, passed the Illinois House on party lines in April, but never received a vote on the Senate floor this spring before the legislature adjourned. The legislation remains the subject of advocacy and outrage in parent Facebook groups against masking in schools.

The complaint alleges Pritzker’s executive order implementing a school mask mandate is substantively similar to that bill, and therefore is tantamount to the governor unilaterally crafting law.

“One can only presume Pritzker is dissatisfied the legislature chose not to empower IDPH and ISBE with this authority, so he took it upon himself to pilfer the power of the legislature and for all intents and purposes made HB 2789 a law on his own,” the suit said.

DeVore claims it would take “significant mental gymnastics” to apply his powers under the IEMAA to local schools, and implored the court to intervene or risk a constitutional crisis.

“If such 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,” the suit said.

A spokesperson for Pritzker’s office could not be reached for comment Monday evening.

The lawsuit begins with laying out current COVID-19 statistics in Illinois, including a calculation that the survival rate for children and young adults up to age 20 who contract the virus is 99.9973%, citing 20 COVID deaths in that cohort in Illinois since the pandemic began. However, the more contagious Delta variant currently spreading has proven to infect children at higher rates that previous strains of COVID, and children with COVID have ended up hospitalized more frequently in recent weeks than at any time since the outbreak began.

Early in July, the Centers for Disease Control released guidance for schools, which only recommended masks for unvaccinated individuals. Only children 12 and over are currently eligible for COVID vaccines. Soon after the Pritzker administration adopted the suggestions, school boards across the state took the CDC's advice and applied it in many different ways; some mandating masks regardless of vaccination status, some requiring masks only for certain grades and some eschewing masks altogether.

But on July 27, the CDC reversed its guidance, recommending masking in schools, even for for fully vaccinated people, as the Delta variant rises and new studies were published about the possibility of rare breakthrough infections due to the strain's mutation. Pritzker's administration quickly adopted the new guidelines.

A few days later, however, District 12 in Breese — a pre-K through 8th grade district — announced it was going mask-optional for the upcoming school year. Five days later, Pritzker's statewide school mask mandate undid that decision, including for the child of the plaintiff in DeVore's case. In a letter attached as an exhibit to the lawsuit, District 12 Superintendent Travis Schmale wrote to parents last week, empathizing with frustration borne of "constant changes."

"We feel our original masking policy would have been appropriate as it allowed everyone to make their own decisions," Schmale wrote. "However, this is no longer a policy at this time."

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