In the midst of declining infection rates and increasing debate over mask and vaccine mandates, on February 7, 2022, Sangamon County Circuit Court Judge Raylene DeWitte Grischow temporarily enjoined COVID-19 mitigation measure mandates that had been imposed by order of Governor Pritzker and related administrative agency rules, affecting nearly 170 school districts. Echoing the concern expressed by the Eleventh Circuit, in its December 2021 Georgia v. Biden opinion, that all branches of government act within the bounds of their authority under the Constitution, Judge Grischow rejected the state of Illinois’ argument that the mandates were a valid exercise of the governor’s authority under the Illinois Emergency Management Agency Act (IEMAA). The judge acted in response to a lawsuit brought by a group of students and teachers against the Illinois governor, the Illinois Department of Public Health (IDPH), and various other state agencies, as well as nearly 170 Illinois school districts.

The court agreed with the plaintiffs that the Illinois Department of Public Health Act (IDPHA) requires individual due process hearings before mask and vaccination/testing requirements can be imposed on students and teachers without their consent.  The TRO also restrains school districts from enforcing the governor’s executive order to deny entry for a period of time to students and teachers who have been in close contact with confirmed or probable COVID-19 cases if they refuse to produce a negative COVID-19 test prior to returning to school. 

The Court’s Analysis of Illinois Statutes Regarding Public Health and Emergency Powers

The court found that the plaintiffs were likely to succeed on the merits of their claim that the IDPHA controls matters of masking, quarantine, isolation, and vaccination or testing policies implemented by Illinois school districts.

The plaintiffs argued that Governor Pritzker lacked executive authority to require state agencies to promulgate emergency rules without legislative authorization or that exceed the Legislature’s intent. They made three primary arguments:

• First, that students and teachers cannot be required to wear masks while in school buildings or be excluded from school premises after close contact exposure to COVID-19, absent consent or a full evidentiary hearing and court order entered pursuant to the procedures contained in Section 2 of the Illinois Department of Public Health Act.  Doing so, the court said, would constitute “quarantine” or “modified quarantine” under the IDPHA;
• Second, that unvaccinated teachers cannot be required to undergo weekly testing absent compliance with the statutory hearing procedure because doing so would constitute “testing” under the IDPHA; and
• Third, that as issued and implemented, the emergency rules violated the due process rights of students and teachers because they were not afforded the opportunity to consent or object to the mandates.

In response, the state argued that because the COVID-19 pandemic was “fluid,” it was within the agencies’ discretion to assist the governor and protect the public health and safety.  Specifically, they argued:

• First, that under the Illinois Communicable Disease Report Act (specifically Section (m) of 20 ILCS 2305/2) authority regarding emergencies in the state of Illinois is provided by the emergency management agency act, IEMAA. Since the state public health department, IDPH, did not issue a vaccine mandate for school personnel or mask mandate for school personnel, such mandates were a valid exercise of the governor's authority;
• Second, that the governor has unlimited authority to do whatever is necessary to protect the public health.

In its ruling, the court acknowledged that the governor has broad power, but not absolute power. It concluded that the governor and his executive branch agencies do not have unilateral authority to issue such mask and vaccine/testing mandates for public education institutions. The court reasoned that because masks, vaccines and testing are all forms of “quarantine” as defined by the IDPHA, they are procedures “intended to limit disease transmission.”  Those quarantines can only be enforced by the state’s Department of Public Health or local health departments after a hearing in accordance with the IDPHA. Therefore, Judge Grischow held, students and staff had been denied due process rights by being made subject to Governor Pritzker’s executive orders without their consent.  

The court rejected the state’s argument that Governor Pritzker has unlimited authority to do whatever is necessary to protect public health, finding that the Legislature did not intend for the governor’s powers to be absolute. Rather, it was the Legislature’s intention for the governor and IDPH to work together to come up with a framework to address health-related emergencies.

The court further held that the IDPH is limited by law to delegating its authority only to certified local health departments.  It has not been authorized by the Legislature to delegate its authority to any other body of government, including school districts. Thus, the court entered a TRO in favor of the plaintiffs that effectively voided all school-related mask mandates and vaccine/testing mandates in the school districts at issue across Illinois.

Can Local School Districts Implement Their Own Mask Mandates?

Notwithstanding the TRO, the court agreed with the defendant school districts that, subject to the Illinois School Code, they have independent authority to adopt and enforce necessary rules for the management and government of the public schools in their district. However, any policies implemented by the defendant school districts must be evaluated on a case-by-case basis and be presented to the school board at a public meeting and subject to public comment pursuant to the Open Meetings Act. Therefore, while school districts have the independent authority to issue their own mask mandates and/or vaccination or testing policies at the local level, they must follow the necessary due process procedures outlined by the Illinois School Board of Education as well as all other procedures required under Illinois law.

What Happens Next?

The office of the Illinois attorney general is seeking an expedited appeal from the Fourth District Illinois Appellate Court, arguing that the COVID-19 mitigation measures mandated in schools by the executive orders are essential to keep people safe. The state’s two major teachers’ unions have heavily criticized the ruling in statements made over the weekend. In the meantime, many local public boards of education are meeting to discuss implementation of mask mandates and vaccination/testing policies.

It is worth noting that the court’s order does not apply to local businesses across Illinois, where an indoor mask mandate remains in effect. The judge’s ruling applies only to school districts and those public educational settings.  Further, Governor Pritzker announced on February 9, 2022 that he would start rolling back the statewide indoor mask mandate in certain indoor public settings. However, the expedited appeal of Judge Grischow’s ruling continues.