Pritzker Has No Authority To Issue School Mask Mandate: Lawsuit

CARLYLE, IL — Gov. J.B. Pritzker doesn't have the authority to enforce last week's statewide mask mandate for schools, according to a lawsuit filed by a downstate lawyer and Illinois Appellate Court candidate who has a history of challenging the governor's ability to invoke emergency powers related to the COVID-19 pandemic.

Thomas DeVore, whose practice is in Litchfield, is suing the governor and Illinois State Board of Education Director Carmen I. Alaya on behalf of Jeremy Pate, a parent in the Breese School District No. 12.

DeVore filed the lawsuit in the Clinton County Courthouse, alleging the governor doesn't have the authority to control local school boards' decisions on masking. While not citing a specific violation, the 43-page complaint states Pritzker is improperly citing the Illinois Emergency Management Agency Act, or IEMMA, for his emergency orders throughout the pandemic. The IEMMA awards the governor special powers in the event of an unprecedented disaster.

Breese District No. 12, the lawsuit states, houses prekindergarten to eighth grade students. Prior to Pritzker's Aug. 4 order to make wearing a face covering mandatory for all students, teachers and staff, District No. 12 followed the Centers for Disease Control and Prevention's guidance which recommends masking, but ultimately leaves the decision to the individual.

Until the Illinois State Board of Education, or ISBE, updates its guidelines to align with Pritzker's mandate, DeVore alleges, school boards do not have to require masks be worn for the upcoming school year. Even then, he says local boards could have an argument for defying those guidelines.

"The question before the Court for the first time is whether the legislative branch of government has authorized Pritzker to create law which usurps the local authority of Illinois school boards during a time of a public health emergency," the lawsuit states.

This isn't the first time DeVore's sought to challenge various state governing bodies. Earlier in the year, DeVore sued the Illinois High School Association for enforcing masking while students played sports. He also represented Illinois governor hopeful Darren Bailey in another lawsuit against Pritzker's early pandemic "stay-at-home order," among other restaurant owners.

DeVore has yet to win a court case relating to the COVID-19 pandemic. When defending metrics used for closing indoor dining in October, Pritzker referenced several of DeVore's cases, calling lawyers who help businesses skirt pandemic precautions liars.

"We can't stop attorneys from being snake-oil salesmen and trying to convince people to take them on as an attorney," he said. "These folks've been in business since time immemorial, and I guess they'll keep doing what they do. The reality is, we're going to beat them in court — we already have."

Though DeVore said in an earlier interview he doesn't file lawsuits to win.

"This isn't about winning lawsuits. If I want to win lawsuits ... and that's the goal and not to protect people, I'll go into the federal court. It'd be a lot easier," he said.

DeVore announced he was seeking a seat on the state's appellate court in late July. Prior to his announcement, Pritzker said the lawyer offered a "bounty" for photos of him out celebrating Thanksgiving at the height of the pandemic, even bothering his children.

The lawyer referenced these images in the lawsuit, stating that the governor doesn't follow the restrictions he put in place.

"While this federal guidance is not binding authority on any party involved, It bears mentioning to the Court that Pritzker constantly gaslights the public by stating he's following the facts and science until times like this," DeVore wrote. "When local governing bodies exercise their own informed discretion consistent with the facts and science of the federal government, but seemingly in a manner of which he disagrees."

A current bill in the Illinois House would provide clearer language on exactly how much power local school boards have against larger governing bodies like ISBE and the Illinois Department of Public Health. While DeVore cited the proposed bill, officials from the Illinois Education Association still publicly supported Pritzker's mask mandate.

A spokesperson from Pritzker's office did not immediately respond to a request for comment on the lawsuit. When announcing the masking mandate, which also included vaccination requirements for some state workers, he said the state has the authority to strip a school of its accreditation if they don't comply with the order.

"We have the legal authority to enforce this, and we will if necessary," he said. "What we think is going to happen is that schools will follow this [and] do the right thing."