Legislative panel suspends COVID-19 rules for schools

SPRINGFIELD - A legislative panel on Tuesday voted to suspend the latest version of COVID-19 mitigations for public schools, which include requiring face masks, saying in part that those rules are still being litigated in a state appellate court.

The move exacerbates a confusing situation for school districts that have diverged on whether to require face coverings since Feb. 4 when a downstate judge presiding over lawsuits regarding Gov. J.B. Pritzker's mask mandate issued a temporary restraining order.

The Fourth District Court of Appeals is expected to rule on the order this week.

Suburban Republican senators said the panel's vote is a victory for school districts, particularly those not named in the lawsuits because it lets them make their own decisions.

"In his quest for power at all costs, the governor attempted to go above the judicial system to continue to require masks in schools, a move that even his Democrat allies in the legislature wouldn't support," Senate Republican Leader Dan McConchie, of Hawthorn Woods, said in a statement. "Even they agree he has gone too far."

However, "the executive order is still in place," Pritzker spokeswoman Jordan Abudayyeh said. "This was a procedural move on the rule that is currently subject of litigation and the members wanted to wait and see what the appellate court said about the rule."

The Joint Committee on Administrative Rules voted 9-0, with two members voting "present," to object to the Pritzker administration emergency rules and suspend them from going into effect. Republicans were joined by some Democrats in the vote.

The Illinois Department of Public Health filed the emergency rules late Monday, renewing ones that officially expired on Sunday.

"As a courtesy, we offered the Illinois Department of Public Health and the Pritzker administration the opportunity to withdraw their rule pending a decision by the appellate court," Republican Sen. Don DeWitte of St. Charles said. "Instead, they chose to double down. They made a poor decision, and today they lost."

Those rules included requirements that all students, employees and visitors wear face coverings while indoors on school property, that employees either be vaccinated or submit to regular testing, and that schools exclude any student or employee from school property or events if they have tested positive or were in close contact with someone else who had either a confirmed or probable case of COVID-19 for a certain period.

Among other things, Judge Raylene Grischow said in her opinion that there was no need for emergency rule-making because COVID-19 had at that time been around for more than a year and a half, and that the agency should have gone through the regular rule-making process, which allows for public comment.

She also said the rule on excluding students and employees from schools amounted to a kind of "quarantine" and that school districts were prohibited under state law from issuing such a quarantine without an order by a court or local health department.

The Joint Committee on Administrative Rules is a 12-member panel divided evenly between the House and Senate, and between Democrats and Republicans. It is authorized to review agency rulemakings to determine whether they are consistent with state law and legislative intent. At least eight votes are required to block an agency rule from taking effect.

Sen. Sue Rezin, a Morris Republican, offered the motion to block the latest rules, which stated in part that the state health department "has not taken steps to make this rule known to the parties directly affected by it," and that it was unclear whether the rules would apply statewide or only to those districts that are not parties in the lawsuit.

"We're currently in a situation where the TRO says this rule is not enforceable," Rep. Michael Halpin, a Rock Island Democrat, said in voting for the motion to suspend the rule. "It's possible, if not probable, that this might change on appeal, but as we now sit here, for that reason, I'll vote yes."

During discussion on the rules, Rep. Keith Wheeler, an Oswego Republican and a co-chair of the committee, asked the health department whether it would have been better, given the pending court case, for the agency to have issued "guidance" rather than formal rules.

"I've appeared before this body numerous times and heard a lot of lectures about departments issuing guidance that looks like rule-making," agency chief of staff Justin DeWitt said. "That's really the effort here, is to not be creating rules by issuing guidance or something else."

The vote by the rules committee means that, for the time being, there is no state mandate on mitigation measures for public or private K-12 schools.

Pritzker's administration, however, continues to encourage masking in schools.

"The administration understands that members of the Joint Committee on Administrative Rules are awaiting a ruling from the appellate court on this issue," Abudayyeh said in an email statement.

"As doctors have said time and again, masks are the best way to preserve in-person learning and keep children and staff safe," she added. "We look forward to continuing to work with members of the General Assembly, school districts, parents, communities and all stakeholders to use the tools we have to keep in-person learning. In the meantime, the administration urges all schools and parents to encourage mask-wearing to keep everyone in their schools and communities safe."

Republicans, however, said the agency's action showed a lack of respect for the judicial branch, and they criticized Pritzker for not working with lawmakers on mitigation strategies.

• Daily Herald Staff Writer Marni Pyke contributed to this report.