Illinois' top education leader has told local superintendents they do not have the authority to refuse to comply with Gov. J.B. Pritzker's universal masking mandate in schools for this fall.
"Noncompliance is not an option," state Superintendent of Education Carmen Ayala said in a letter. "I will not compromise the health and safety of students or staff, nor will I risk even one child's life."
Pritzker announced an executive order on Aug. 4 that requires all students, staff and visitors to wear masks indoors in all schools in Illinois, regardless of vaccination status. Earlier in the summer, the Centers for Disease Control and Prevention recommended that school districts make decisions about masks and other safety mitigations based on local COVID conditions.
As the delta variant started causing a surge in COVID cases and hospitalizations, though, the CDC walked back some of that guidance before Pritzker announced the mandate.
As of Wednesday, 10 states and Washington, D.C., have mask mandates for schools and eight states have banned school districts from requiring masks. Already, large districts in those states, including Texas and Florida, have announced their intent to defy their governors and require masks.
Mask requirements in schools have been contentious across the country, in Illinois and in the metro-east.
Before Pritzker's mandate, metro-east parents in Madison and St. Clair counties attended school board meetings, mostly to speak in favor of mask-optional policies. Since the mandate, some parents have been asking school boards to defy the governor's orders.
"The executive order has the force of the law," Ayala said in her letter. "I understand the pressure some school and district leaders may be facing from community members, and I will provide you with every support to understand, communicate, and comply with the order."
Ayala's letter came days after the first lawsuit was filed over Pritzker's school mask mandate.
Bond County attorney Tom DeVore filed on behalf of a Clinton County parent. He contends that the governor's office and the state board of education do not have the legal authority to enforce a universal mask mandate in schools this fall.
The legal argument in DeVore's latest suit differs from his myriad previous suits against Pritzker over COVID lockdowns and safety regulations.
Previously, lawsuits focused on whether Pritzker could declare back-to-back 30-day emergencies or whether the COVID conditions within a certain county constituted a public health emergency. The Illinois Emergency Management Agency Act defines "public health emergency" as the threat of illness that brings a high probability of a large number of deaths, long-term disabilities or widespread exposure.
In his latest filing, DeVore questions whether the governor is able to compel school districts to follow guidance or if that's the legislature's job. HB 2789, a bill pending in the General Assembly, would explicitly 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 the bill exists, DeVore argues, shows that school districts can't be forced to follow guidance at this time.
"This lawsuit deals with as important of an issue, but it's not clouded with all of that banter of the novel coronavirus," DeVore said in a phone interview Wednesday. "It doesn't matter when you're talking about how much power, how much authority, has the legislature given to the executive branch. ... No one would argue that the governor has full legislative power."
Ayala advises superintendents that defying the mask mandate could open their districts up to legal liability, potentially without any insurance.
Local school superintendents have said during board meetings that their insurance providers indicate that their coverage could be compromised if there's guidance they choose not to follow.
Additionally, Ayala said the state board of education would use its regulatory authority to ensure school districts protect students and staff.
"If school districts fail to do so, this risks state recognition," she wrote. " ... Failure to address the deficiencies would lead to nonrecognition, meaning total loss of access to state funding and loss of the school's ability to engage in any Illinois High School Association and Illinois Elementary School Association athletic competitions."
Removing a school district's recognition is not an immediate process. Districts have opportunities to remedy the deficiencies and submit corrective action plans.
"School districts have the moral and legal obligation to follow public health requirements and guidance to keep their students and staff safe," Ayala wrote. "Wearing a mask is simple, safe, and easy. I know it can be uncomfortable sometimes, but so are football helmets and seatbelts. Sometimes we have to bear a little discomfort for the sake of safety and because it's the law."