SPRINGFIELD – A legislative panel on Tuesday voted to suspend the latest version of COVID-19 mitigations for public schools, saying in part that those rules are still being litigated in a state appellate court.
The Joint Committee on Administrative rules voted 9-0, with two members voting “present,” to object to the rules and suspend them from going into effect.
The Illinois Department of Public Health filed the emergency rules late Monday, renewing the emergency rules it had filed in September. The September rules officially expired on Sunday, Feb. 13, because emergency rules cannot stay in place more than 150 days.
However, a Sangamon County judge last week issued a temporary restraining order halting enforcement of those September rules in the 170 school districts that were parties in the lawsuit.
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 rulemaking 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 rulemaking 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.
That case is now on appeal in the 4th District Court of Appeals.
JCAR is a 12-member committee 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, R-Morris, offered the motion to block the latest rules, which stated in part that IDPH “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, D-Rock Island, 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, R-Oswego, a co-chair of the committee, asked IDPH 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 rulemaking,” IDPH 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 JCAR means that, for the time being, there is no state mandate on mitigation measures for public or private K-12 schools.
Gov. JB 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,” Pritzker’s press secretary Jordan 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.
“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.”