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Court Dismisses Pritzker's Appeal Of School Mask Mandate Ruling; Governor Will Take Case To Illinois Supreme Court

By Tara Molina and Marissa Parra

CHICAGO (CBS)-- Gov. JB Pritzker's office will ask the Illinois Supreme Court to reinstate his statewide school mask mandate, after an Illinois Appellate Court panel dismissed his bid to overturn a temporary restraining order issued by a lower court.

The 4th District of the Illinois Appellate Court late Thursday night ruled the Pritzker's request to stop the restraining order was moot after a legislative committee this week rejected the Illinois Department of Public Health's attempt to renew the governor's emergency rules that require masks in schools.

"An issue is moot where an actual controversy no longer exists between the parties or where events have occurred that make it impossible for the court to grant effective relief," court documents said.

Pritzker's office said he plans to take his appeal to the Illinois Supreme Court.

"The Governor is disappointed in the appellate court's decision and concerned for the health of those in schools – particularly vulnerable children and adults – and the ability to continue in-person learning. The administration is working with the Attorney General to request an expedited review of this decision from the Supreme Court. In the meantime, the Governor urges everyone to continue following the doctors' advice to wear masks so students can remain safely learning in classrooms, and is encouraged that the court made it clear that school districts can continue to keep their own mitigations in place," spokeswoman Jordan Abudayyeh said in an email.

The Illinois Attorney General's office also issued a statement, criticizing the ruling for focusing on a "single technical rule" when it comes to the public health rulemaking process and arguing that the rule does not actually affect the governor's authority to order a mask mandate for schools or other COVID-19 mitigations.

"While the Appellate Court's ruling does not affect the enforceability of the governor's executive orders, the decision does fundamentally misapply important principles of Illinois law related to the issuance of temporary restraining orders, such as the order issued by the trial court. Attorney General (Kwame) Raoul intends to immediately ask the Illinois Supreme Court to address these significant legal errors and preserve the integrity of the rule of law in Illinois," the statement said in part. "The COVID-19 pandemic is not over, and the Attorney General is committed to defending the governor's actions to mitigate the spread of a virus that has resulted in more than 32,000 deaths in Illinois alone, and to protecting the health and safety of all Illinois residents."

CBS 2 Legal Analyst Irv Miller said Pritzker also could have sought to issue a new school mask mandate, and tried to get it through the legislative rules committee that blocked his renewal of the previous mandate, but taking the case to the state's highest court is "by far the quickest way to do it."

"It's filing paperwork with the Illinois Supreme Court, which I guarantee you the Illinois Attorney General's Office has already prepared in anticipation of this ruling. I think it'll be filed today," Miller said. "The Illinois Supreme Court, being the final highest court in the state of Illinois, they can do whatever they want to do. If they want to have the governor's order for masks take place, they can issue a quick order. If they want to consider the issue, they can do that. But the bottom line is parents are in limbo right now. Some school districts are saying masks are required, some are saying it's up to parents. Everyone in the state is in limbo."

Miller said the appeals did not rule on whether Pritzker had the authority to issue his statewide school mask mandate, instead finding that because a bipartisan oversight panel in charge of reviewing rules created by state agencies "objected to and suspended" the Illinois Department of Public Health's renewal of the mandate, those rules are already "null and void" and no longer in effect, making the governor's appeal of the restraining order moot.

"We're back to square one. This appellate court did not address the issue of does the governor have the authority to order schools to require masks to schools," Miller said. "They didn't address it, they just said, 'Hey, listen, we don't think this is a controversy anymore,' because of what's happened in the last couple weeks, so we're just going to say this judge's order is going to stand, and it's up to each individual school district to come up with their own rules, own decisions. There's nothing statewide. District by district will make the rules."

The issue has parents divided in districts across the state, as many have demanded schools go mask-optional. It has flared up in particular since Sangamon County Judge Raylene Grischow issued a temporary restraining order that questioned the governor's legal authority to require masks in schools and halted the mask mandate - which in turn prompted Pritzker's appeal.

Some districts have continued to require masks for all students and staff, while others have done away with masking rules.

As CBS 2's Tara Molina reported Friday afternoon, the superintendent of Glenbard Township High School District 87 in the western suburbs announced starting Tuesday, masks will be optional for students and staff at its four high schools.

"Given the ongoing inconsistencies, confusion, and delays regarding clear direction, we are moving forward with a mask optional approach for all students and staff, effective Tuesday, Feb. 22," Glenbard District 87 Supt. David Larson wrote.

Larson also issued the following statement to CBS 2 :

"Our attorney advised us that the current legal environment supports making a change in the enforcement of the Illinois Department of Public Health emergency rules regarding masks.

"We respect and understand the varied opinions regarding masks. We will honor individuals' personal decisions about whether to wear a mask at school. The majority of the limited response we have received has been positive.

We will move to mask optional on Feb. 22.We will await any further court rulings and review them as they are released."

Chicago Public Schools announced Friday, COVID safety measures will stay in effect. CPS released the following statement:

"Chicago Public Schools (CPS) stands by our proven COVID-19 safety mitigation measures and is pleased the Appellate Court has confirmed that the Temporary Restraining Order does not prohibit school districts from independently requiring masks, vaccinations for staff, and requiring individuals who have tested positive or have been exposed to COVID-19 to learn/work from home. Our schools will continue to enforce these policies, including mandated universal masking. These safety measures are what have allowed us to provide our students with the in-person learning environment they need throughout this school year. We will continue to follow these protocols until such time as our public health partners advise us that restrictions can be safely lifted.

We are encouraged to see COVID-19 cases dropping, and we remain optimistic about what this will mean for our school communities in the future. Our top priority remains the safety and stability of CPS students, staff, and families."

Others are making decisions for next week - or have already gone mask-optional, like Park Ridge-Niles District 64. We reached more than a dozen districts in reporting this story Friday. Many of those districts have already been platforms for protests over the issue in the months leading up to all this.

Hinsdale Township High School District 86 announced late Friday that it is also going mask-optional effective Monday.

In Elgin School District U-46 - which includes more than 55 schools in Kane, DuPage, and Cook counties – masks will be strongly recommended starting Wednesday, but will only be mandated if the positivity rate is 8 percent or higher. That is not currently the case.

Masks will also be required at individual U-46 schools where the positivity rate is considered substantial.

Warren Township High School in Gurnee said it is getting guidance from its legal counsel and will post it online.

CBS 2 also contacted Fremont School District 79 in Mundelein, Wilmette Public Schools District 39, Mundelein High School, Maercker School District 60 in the western suburbs, Lyle Elementary School in Bridgeview, Stevenson High School in Lincolnshire, Algonquin School District 300, Deerfield Public Schools District 109, Township High School District 113 in the north suburbs, and Kaneland Community Unit School District 302 based in Maple Park. We had not heard back from these districts as of late Friday.

"You may have districts within a couple miles of each other all coming up with different answers," Miller said.

So how could the Supreme Court ask by Gov. Pritzker and Attorney General Raoul change any of those policies and plans?

"Until we hear from the Illinois Supreme Court, the school districts don't know what's going to go on with the law - so they have to make their own decisions," Miller said. "Do we still insist on masks or say, 'Hey it's up to the kids and the parents?'"

But Miller said we could hear from the Supreme Court soon.

"They could make a decision without hearing any arguments. They could say: 'This is an emergency situation. We're going put everything on hold, and we are going to put the governor's order back in effect until we can decide the merits of the case.'"

Miller said if we see that happen with the Supreme Court, all of the districts making masking optional will be forced to revisit that decision.

Meanwhile, the Illinois Education Association issued a statement noting that it appreciated the "clarity" of the appellate ruling – given that the earlier order by Judge Grischow was unclear as to what it even meant, that is, whether it applied to all Illinois school districts, or only those who were parties to the lawsuit that led to the ruling.

The IEA said Judge Grischow's Feb. 4 ruling sent schools into "chaos."

"These past few weeks have been tumultuous in schools around the state. They have been described by some as the worst time in our teachers' and education employees' careers. They're getting angry emails, having to comfort scared students and are working to help calm other students who are dealing with the trauma that this pandemic has caused," the IEA said. "Schools are supposed to be students' safe haven. That's not what we've been seeing at many of our schools recently. We know school board meetings have been canceled and schools have shut down because of threats and protests. This has to stop."

The IEA also said COVID-19 mitigations are there for the purpose of public health, not politics.

"As the weather gets warmer and as hospitalizations continue to decline, we are hopeful that school districts will adhere to their duty to bargain in good faith with local associations over health and safety issues, including mitigation efforts, and remind all that any existing collective bargaining agreements or memoranda of understanding around these issues remain intact," the union said.

EMERGENCY COMPONENT - LOCAL

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