Judge dismisses mask and exclusion lawsuit against most schools, state dismissed, saying cases are moot

(The Center Square) – Sangamon County Judge Raylene Grischow on Friday dismissed most defendants from a large lawsuit parents brought over mask and exclusion mandates. The attorney that brought the case intends to continue the challenge against the 34 remaining defendants.

The case was against about 145 Illinois school districts, Gov. J.B. Pritzker’s administration and the Illinois State Board of Education over COVID-19 mask and exclusion mandates. For most of the school districts, the Pritzker administration and the Illinois State Board of Education, the case is “moot,” Grischow said.

“The court allowed those school districts which filed sworn affidavits that no mask or exclusion policies were in place, and with no intention of implementing them, to be dismissed from the case,” plaintiffs’ attorney Thomas DeVore told The Center Square following the judge’s ruling. “Those districts which failed to file such an affidavit remain in the case.”

Parents of hundreds of school children were plaintiffs in the case and were seeking protection from mask and exclusion requirements without due process, a ruling against the state preventing it from implementing such rules and barring any enforcement by schools. The case was filed last fall when districts were enforcing Pritzker’s mask and exclusion executive orders without due process of local county health orders. Pritzker’s orders were issued in the spring of 2020 and modified over time.

Earlier this year, Grischow issued a temporary restraining order against school districts implementing Pritzker’s mandates without providing parents and students due process.

“The arbitrary method as to contact tracing and masking in general continue to raise fair questions as to the legality of the Executive Orders in light of violations of healthy children’s substantive due process rights,” Grischow wrote in the Feb. 4 order. “Statutory rights have attempted to be bypassed through the issuance of Executive Orders and Emergency Rules … This type of evil is exactly what the law was intended to constrain.”

Days later, a legislative body suspended the emergency rules. On appeal, the order was vacated and kicked back to the lower court in February. That was the same day the U.S. Centers for Disease Control and Prevention modified guidance for schools, which Pritzker said gave him the ability to lift the mandates.

With the case back in the circuit court, some of the school district defendants and the state were seeking the lawsuit to be dismissed as moot.

Darren Kinkead, with the Illinois attorney general’s office, compared new guidance issued in June with recommendations to not eat undercooked meat.

“No one actually is compelled to follow it,” Kinkead said Wednesday in court. “It is purely advisory. So again, whether the school districts implement it or not, that’s up to them.”

DeVore, who is also the Republican candidate for Illinois attorney general, argued against dismissal.

“The case is gone, school districts start doing all kinds of stuff,” DeVore said. “Are they going to adopt the CDC-slash-[Illinois Department of Public Health] guidance in some fashion? Are they going to do some hybrid of that, etcetera.”

Friday, Grischow said “Plaintiffs did not sustain their burden” pertaining to most of the defendants.

“Here, no relief can be granted as the school districts do not have any policies that mandate masks or exclusion from school due to being a close contact,” she wrote. “The State Parties are not mandating mask mandates or exclusion policies and the school districts are not implementing mask mandates and/or close contact exclusion policies, therefore plaintiffs’ claims are moot. The new joint guidance … that supersedes all prior COVID-19 guidance, is exactly that – guidance.”

While schools are encouraged to follow the guidance, Grischow said “there is no mandate.”

Grishow dismissed the case for most of the school districts, the Pritzker administration and ISBE.

“The Governor and his agencies were also dismissed after the Attorney General’s Office admitted to the judge the state’s guidance has always been nothing but recommendations,” DeVore said. “My clients and I will continue to pursue claims against the school districts which will not proclaim under oath to discontinue harmful mask and exclusion policies.”

DeVore also said he’ll be watching what districts that were dismissed do.

“Should any of these school districts being dismissed reinstate their policies, my clients and I will immediately drag the district back to Court,” DeVore said. “Judge Grischow’s ruling is based upon these commitments made by the school districts and the state parties. Today is a good day for my clients.”

DeVore said 111 districts were dismissed from the case with 34 remaining.