Lawsuit Seeks to Strike School Mask Mandate

Backpacks, pencils, books and now a new addition to the back-to-school shopping list: a mask.

For the first time since the COVID-19 pandemic hit, Illinois is requiring students to attend class in-person for the 2021-22 school year, with rare exceptions for medically vulnerable children.

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When they return to their classrooms, students and staff will have to wear face coverings, per an executive order issued last week by Gov. J.B. Pritzker.

A lawsuit filed this week in Clinton County on behalf of a parent, Jeremy Pate, whose child goes to school at Breese District #12, seeks to strike down that mask mandate.

According to attorney Thomas DeVore, Pritzker exceeded his authority in issuing the order.

DeVore said there was a bill before the General Assembly that would have given the administration the ability to take this sort of action, but it did not pass.

“One can only presume Pritzker is dissatisfied the legislature chose not to empower IDPH (the Illinois Department of Public Health) and ISBE (the Illinois State Board of Education) with this authority, so he took it upon himself to pilfer the power of the legislature,” the lawsuit reads. “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 laws, rules and regulations as his or her pleasure.”

See: ISBE COVID-19 Guidelines

The parents fighting the state mask mandate are furious over the governor usurping local control, he said.

In the case of Breese, for example, DeVore said the district voted to recommend masks but not require them.

“They believe the governor is acting in a tyrannical manner and technically speaking, I’m not trying to give fluff here, there is some truth to that. Trying to rule this state by executive fiat,” DeVore said. “That’s not the way we’re meant to govern.”

A similar fight over masking is playing out in other states, including Texas and Florida, whose governors are taking the opposite tact: using their executive powers to threaten punishment against schools that mandate masks.

DeVore, who is running for judge in next year’s election, said he is opposed to those efforts too, based on legal principles.

Asked about the lawsuit Tuesday, Pritzker did not directly address any of the legal arguments.

He said he issued the executive order to ensure the safety of students, school staff and the wider community, especially with the more transmissible delta variant – and the number of COVID-19 cases — on the rise.

“School districts have been enforcing dress codes for many, many years,” Pritzker said when how schools can ensure compliance with the mandate. “And so they’re expected to do the same thing they’ve been doing literally for decades and I expect that people will do the right thing nonetheless and not put their school district in the difficult situation of having to tell somebody ‘follow the rules.’”

Dr. Taylor Heald-Sargent is a mother of two young children and a pediatric infectious disease expert at Lurie Children’s Hospital.

She said that as students return to the classroom, it’s incumbent upon schools to take steps to mitigate the spread of COVID-19, especially to protect those younger than 12 who are not yet eligible to be vaccinated.

“We have to do everything we can to minimize risk of infection and we know from the science that we learned last year that masking is the best line of defense,” she said.

Follow Amanda Vinicky on Twitter: @AmandaVinicky

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