What legal experts are saying about the school mask ruling

Many legal experts had just as many questions as parents and school officials after a Sangamon County judge issued a temporary restraining order late Friday that some believe bars schools from enforcing the state's indoor mask requirement.

“There is a lot of ambiguity in that order,” said Wendy Netter Epstein, professor and associate dean of research at DePaul University College of Law in Chicago. “There's a footnote at the end that makes it sound like it could potentially apply in a much broader way, but it's not clear if this judge has the authority to even do that.”

School district officials scrambled to issue new guidance on masks in the wake of the ruling. Some districts who were not among the 140 districts named as part of the original lawsuit did not change their stance, while others did. Some districts that were among the 140-plus districts named were only allowing the students who were listed as plaintiffs to go without masks indoors.

“The ruling is much broader than I would have expected,” said Nancy Krent, an adjunct professor specializing in education law at Chicago-Kent College of Law. “It's also very dismissive of the school district's own authority as a separate and independent government agency to determine what's best to protect the students in their care.”

Pritzker has vowed to fight the temporary restraining order, calling it “out of step with the vast majority of legal analyses” in Illinois and throughout the country.

Monday, Illinois Attorney General Kwame Raoul filed an appeal. The plaintiffs have two days to respond and the appellate court is expected to issue a ruling within five days of that.

“Any burden associated with masking, temporary exclusion, and testing are relatively slight when compared to the significant risks associated with lifting these mitigations, especially during a time when cases of COVID-19 remain high,” Raoul wrote in his appeal. “The balance of equities thus weigh heavily in favor of preserving the application of these important mitigation measures while this court decides state defendants' appeal from the circuit court's decision.”

There have been grumblings that indoor mask mandates would be lifted soon in Illinois schools. New Jersey officials announced this week that masks would no longer be required in schools there beginning in mid-March, signaling a move toward treating the virus as merely a part of daily life.

“This really is ridiculous,” said Amy Campbell, associate dean of law and health sciences at the University of Chicago School of Law.

“The timing of the ruling, to me, just puts a lot of confusion and stress on something that was maybe in the process of already winding down.”

Campbell said school officials should follow the advice of their attorneys when deciding how to handle this latest ruling on indoor masking.

“So long as this is not subject to any type of bargaining agreement,” Campbell added.

Epstein said school districts are being calculated in their decisions about masking.

“I think schools are acting in a conservative manner here that is risk adverse,” she said.

“I think there is a lot to question in the reasoning of this decision, and the fact it is so unclear has just exacerbated all the stress schools and teachers and students have faced in this pandemic.”

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