Updated February 18, 2022
On Thursday, February 17, an Appellate Court was asked to decide if Judge Grischow abused her discretion in finding the Plaintiffs (students/teachers) had in fact raised a likelihood of success on the merits that the emergency IDPH rule was procedurally and substantively invalid.
The Court found the issue moot, meaning that the court decided that it did not have an actual dispute to resolve anymore. This is due to a ruling on February 15 by the Joint Committee of Administrative Rules (JCAR) to not renew IDPH emergency rules affecting this appeal. In effect, the Appellate ruling dismissed the governor’s appeal to keep mask requirements in place for schools.
The ruling from the Illinois Fourth District Appellate Court can be found online.
Given these recent developments with JCAR and the Appellate Court ruling, it may no longer be tenable to enforce the Governor’s mitigations such as masking in schools. Boards of education should continue to consult with the board attorney based upon local conditions.
Boards are focused on the academic recovery and mental health supports necessary for students and staff. Local boards are best positioned to make decisions regarding the health and welfare of their students, in consultation with local health officials and legal counsel.
February 7, 2022
On Friday, February 4, Judge Raylene Grischow issued a Temporary Restraining Order (TRO) against all defendants — including the named school districts, ISBE, IDPH, and Governor JB Pritzker — in both the student and employment cases before the Sangamon County Circuit Court.
Click here to read the TRO. TROs expire in 30 days but in this case, it is unlikely that 30 days will pass before the Appellate Court weighs in on the TRO.
Procedural Information and Expected Timelines
After the TRO was issued on February 4, the State, represented by the Illinois Attorney General’s Office, immediately filed with the Sangamon County Circuit Court seeking a stay of the TRO. The State also filed what is called an “interlocutory appeal.” This type of appeal is a fast appeal process that happens when there are still issues in the case to decide. The Circuit Court Judge denied the State’s request for a stay on Monday, February 7 around 10 a.m., holding the appeal filed by the State eliminates that Court’s jurisdiction to consider a stay. The State has also asked the Appellate Court to stay the TRO. That decision should come soon. There may still be a few defendant school districts that file appeals before their deadline.
Illinois Supreme Court Rules require these types of appeals to be filed within two business days from Friday, February 4, which means the deadlines for any appeals are Tuesday, February 8. Then, responses to the appeals by the Plaintiffs must be filed within two business days, which means their deadline is Thursday, February 10. Then, the Appellate Court has five business days to issue a decision, which means it could decide the appeal as early as Friday, February 11 to as late as Thursday, February 17.
When the Appellate Court issues its decision on the TRO, its ruling will technically not be binding on all Illinois districts because it will not be a final decision on the underlying legal issues in the lawsuits. However, the TRO ruling will be a good indication of how the Appellate Court may rule if it later does issue a final decision on the merits of these cases. If the Appellate Court later issues such a final decision, it may be binding across the State, unless (or until) another appellate court or the Illinois Supreme Court issues a contrary opinion.
What are the options being considered during the appeal?
There are generally two options on appeal: The TRO could be set aside, or it will be kept in place until further hearings or a decision from the circuit court on whether a more permanent order on the issue should be entered (this is called a permanent injunction). Also important to remember is that injunctions do not address the actual merits of the lawsuit; this lawsuit has not been litigated on the merits by the trial court – only the TRO issue has been decided so far.
What are the implications of the TRO and impending appellate decision on my district?
The impact to your individual district depends upon whether your district was a named defendant and educates or employs named plaintiffs; however, the impact upon non-party school districts must also be carefully analyzed by the board attorney. It is very important that your superintendent and board president work collaboratively with the board attorney in the coming weeks. It is also very important that the board follows the Open Meetings Act, again with the board attorney’s legal advice.
What can my board do right now?
Rely upon your board attorney for advice that aligns to your local district’s circumstances. It is critical that boards work collaboratively with their superintendents and legal counsel during this unprecedented and fluid time.
Second, remember that the pandemic and its challenges remain unprecedented. The big takeaways for boards during this time are:
Be clear with your superintendent where the board stands on the options that board attorneys present as available to the district;
Engage your community and all stakeholders, including unions;
Provide clear messaging to stakeholders including that this situation is fluid and has the potential to quickly change; and
Minimize disruption and maximize educational opportunities for all students.