Meeting in special session Monday night, members of the Community Unit School District 7 Board of Education voted unanimously Monday night to rescind its long-standing policy requiring students and staff to wear face coverings on campus.
The action comes just days after Sangamon County Circuit Judge Raylene Grischow signed a 29-page temporary restraining order on Friday negating the authority of Gov. JB Pritzker and the Illinois Department of Public Health to impose an emergency executive order requiring masking in response to the ongoing COVID-19 pandemic for more than 30 days. The current executive order to require masks has been in effect for about 22 months.
The lawsuit originally was filed in Macoupin County Circuit Court by Greenville attorney Thomas DeVore on behalf of parents from more than 145 school districts throughout Illinois. Macoupin County school districts included as defendants are Carlinville, North Mac, Southwestern and Staunton.
The decision also runs counter to Supt. Shane Owsley’s recommendation to keep the local school district’s masking mandate in place pending the outcome of an appeal filed by the Pritzker administration on Monday. Owsley said a decision is expected for the Fourth Circuit Court of Appeals by Feb. 17 and could come as early as Feb. 11. At this juncture, the Appellate Court could uphold Judge Grishchow’s restraining order, overturn her order or issue a stay, which essentially would delay enforcement of her order until the Appellate Court makes a final determination.
The language of the motion approved Monday night calls for rescinding CUSD 7’s mask mandate pending the Appellate Court either issuing a stay or reaching a decision overturning the lower court.
Judge Grischow’s decision on Friday forced school districts statewide into a weekend frenzy to interpret the ruling and ponder how to deal with it on Monday.
“I spent six or seven hours on the phone with attorneys,” Owsley said, “and it really comes down to who you talk to.” Owsley talked to outside attorneys and attorneys retained by the school district. Answering a question from board member Becky Hatlee, he said even the district’s own attorneys were mixed in their opinion of how the district should proceed. “My fear is that if we vote to go mask optional tonight and the temporary restraining order is overturned, then we’re going to have to go back and tell parents that wearing a mask is no longer optional. Once the toothpaste is out of the tube, it’s really hard to get it back in.”
Owsley also worried that if the Appellate Court upholds the state government’s executive order to require masking and the school continues to allow an optional masking policy, it could raise serious tort immunity issues for the school district. Under tort immunity, the district is obligated to avoid putting students or staff members in harm’s way. If the Appellate Court upholds the executive order, the district could then become liable for COVID-related disabilities or deaths among students or staff if it chooses to continue an optional masking policy.
Teacher’s union president Michelle Smith said she polled union members via email at the request of Supt. Owsley and Board President Mark Hayes. Two-thirds of the 84 respondents said they had no objection to a mask optional policy if the school board decided to end the district’s mandatory masking policy. The remaining one-third preferred to continue mandatory masking.
Apart from those preferences, Smith said some teachers had specific questions about procedures.
“Our understanding was that we were supposed to let students not wear a mask on Monday if they so chose,” Smith said. Some teachers apparently worried about whether or not they could be held personally liable under those circumstances for illnesses among students in their classrooms. Smith said some elementary students arrived Monday morning without masks but asked for masks to be provided, prompting some teachers to worry whether or not they were violating parental preferences by giving the child a mask.
From her email survey, Smith said some teachers had questions about whether or not the district would return to remote learning if COVID cases increase dramatically, noting that the universal preference of district teachers is for in-person instruction. A handful of teachers with underlying health concerns asked about their options if the school were to adopt an optional masking policy.
“If there was a vote tonight to go maskless, what would the union response be?” asked board member Weye Schmidt. “If we vote to go mask optional tonight, are we going to hear from the union tomorrow?”
“No, as long as other mitigations are in place, we will follow the directive of the board and board policy,” Smith said. A change in the policy would not require renegotiation of the teacher’s contract but teachers want assurances that other procedural mitigations, such as frequent and thorough classroom cleaning, will continue.
Building principals reported that most students arrived Monday morning with masks but as the day progressed, many of them removed their masks.
“Three students arrived without a mask,” said High School Principal Jill Rosentreter. “They were offered masks and they politely said, ‘No, thank you.’ By fifth period, which is the period right after lunch, I’d said 50 percent of our students were not wearing masks.”
Middle School Principal Tara Cooper nearly 100 percent of sixth-grade students arrived with masks but by the end of the day nearly half of them had taken their masks off. Seventh-grade students, for the most part, wore masks during the day but among eighth-graders only about 10 percent of students continued to wear masks at the end of the day. “By the end of the day, our kids were pretty well unmasked,” she said.
Angela Turcol, Ben-Gil Elementary Teacher, said elementary students started the day wearing masks and continued to do so through most of the day. Some parents, however, contacted the school to ask the district to remove masks from their children.
All three principals agreed that the numbers they reported on Monday would probably be the norm if the board voted for an optional mask policy.
“I’d say students will be about 50/50,” Rosentreter commented, adding that the majority of staff members would be likely to continue wearing a mask.
“I fully understand there are people on both sides of this issue,” Owsley commented. “Whatever the board decides, I will do as I am directed. I just want to make sure I have given you all the options.”
Monday night’s meeting was moved to the middle school gymnasium, presumably in anticipation of a large crowd. Ultimately only 30 or so persons attended, including a contingent of unmasked parents who sat at the rear of the room. There were a few tense moments when Jamie Trumpy, a parent, engaged with the board moments before the board voted to rescind the district’s current mandatory masking policy.
Trumpy insisted the local district was required to end mandatory masking because of Friday’s court order.
Owsley pointed out CUSD 7 was not a defendant in the lawsuit, though page 25 of Judge Grischow’s order declares Pritzger’s executive order “null and void,” which would imply it is universally applicable.
“It’s been proven in court that the governor cannot issue an emergency order for more than 30 days,” Trumpy said, as he recorded video of the meeting on his cell phone. “As of Friday, it’s not legal for you to require masks. You guys are violating a court order.”
Schmidt asked if unmasked students would be removed from the classroom if the mask mandate were allowed to stand.
Trumpy responded that the district could not remove unmasked students, alleging it would violate the students’ due process rights under the 14th amendment. “The 14th amendment says they have a right to an education,” he asserted. He said the court ruled that masking amounts to a form of quarantine and that students cannot be quarantined without a court order.
“It does us no good to walk out the door tonight without making a decision,” Schmidt said, suggesting the district seemed to be leaning toward simply not enforcing the mask mandate while leaving the policy on the books. That course, he said, could put the district at more legal risk than going on record to make optional masking a policy. As an example, he said the district would be sued if it had an unenforced policy to provide crossing guards and a student was hit by a car at an unguarded crossing.
Schmidt moved to rescind the mask mandate and make masking optional until such time that the Appellate Court rules otherwise.
“The masks don’t work,” Trumpy declared. “If they work so well, the people who are still wearing them will be protected.”
President Hayes advised Trumpy that he failed to take advantage of a public comment period earlier in the meeting. Trumpy responded that he didn’t know what questions would be coming up.
“You’re hired by us,” Trumpy said. “You have to work for the people. At this point, you’re not. You’re wrapped up with the union. You’re not working for the students.”
Hayes asked for an officer to remove Trumpy from the room.
“You really want to do that!” Trumpy responded. “You want to remove me from a public meeting.” While an officer did come forward to observe, Trumpy remained in his seat and continued to comment on the proceedings.
Responding to Trumpy’s assessment of mask efficacy, board member Jack Burns said cloth masks like the one he was wearing were not intended to protect the individual but were thought to be effective in preventing germ transmission to others around him. N95 and KN95 masks like the one worn by board member Dennis Tiburzi, however, could be effective in protecting the wearer, Burns said.
“Absolutely, Mr. Burns,” Trumpy said. “The federal government has given you billions of dollars to buy masks like that. I’d like to know why that hasn’t been done. How much money did you get?”
Owsley said he could get an exact figure for Trumpy after the meeting and noted the district bought “thousands” of paper masks to supply students.
One mother among the spectators said her child was harassed for not wearing a mask. She said the child was told he or she could not ask a question because they were not masked. Owsley and Hayes both said bullying of unmasked students would not be tolerated. Owsley asked the mother to meet with him after the meeting.
Schmidt’s motion lingered several minutes without a second. Eventually, Hayes offered a second to bring the issue to a vote. During a roll call vote, all members voted “yes,” with several pondering a few seconds before casting their vote.
“No one knows whether the Appellate Court will overturn this,” Alepra commented. “If it’s overturned, does everyone realize the mask will go back on?”