On August 4, 2021, Illinois Governor Pritzker issued his 85th COVID-related executive order, mandating face masks for all Pre-K through 12th grade schools throughout Illinois, both private and public. This new mandate, applicable to students, teachers, and other School personnel, has raised many questions and objections. For instance, is this new government mandate legally enforceable? Should it be followed regardless of its potential legal invalidity, particularly given the fluidity of medical, legal, and other important considerations? Could any mask exemptions apply, such as based on a student’s or staff member’s health condition or right of conscience objection? This article navigates through these challenging questions, with potentially available options and related recommendations.
Illinois Governmental Backdrop to the Current School Mask Mandate
Under the Illinois Emergency Management Agency Act (“Act”), Gov. Pritzker has been issuing statewide executive orders since March 2020 related to the COVID-19 pandemic. The Act authorizes the governor’s exercise of extensive powers for up to thirty (30) days in a public health emergency. Governor Pritzker’s ongoing assertions of emergency authority are predicated on the Governor’s characterization of the COVID-19 pandemic as a continuing “Disaster” defined in Section 4 of the Act, and its related health and safety risks.
To date, the Illinois legislature has not acted to pass laws that would substitute for Governor Pritzker’s August 4 executive order, i.e., to legislatively impose a mask mandate on schools. Notably, counties and municipalities may impose their own mask mandate affecting school operations.
The federal Centers for Disease Control and Prevention (CDC) has significantly influenced Governor Pritzker and Illinois state agencies through its regularly published guidelines. On August 5, 2021, the CDC published guidance for schools as follows: “Due to the circulating and highly contagious Delta variant, CDC recommends universal indoor masking by all students (age 2 and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status.” Such guidance includes other recommendations such as social distancing, testing, and cleaning. (See CDC’s Guidance for COVID-19 Prevention in K-12 Schools).
The impact of the CDC’s guidance on Illinois’ policy is evident in the Governor’s and Illinois agencies’ express references to it in promulgating orders and requirements. More specifically, the Illinois Department of Public Health’s (IDPH) “School Guidance FAQs” affirms the CDC’s guidance in favor of school masking and references Gov. Pritzker’s August 4 executive order too. As addressed extensively below, the Illinois State Board of Education (ISBE) is insisting on school-wide masking – or face severe penalties for noncompliance.
Legal Challenges to Governor Pritzker’s Authority
Numerous Illinois lawsuits have been filed challenging the Governor’s authority to impose such orders in connection with the COVID-19 pandemic, the pandemic’s very serious health considerations notwithstanding. To date, most claims have been dismissed by Illinois courts, either for failure to plead facts with sufficient specificity or generally in deference to the Governor’s broad powers under the Act and within the pandemic’s context.
On August 9, 2021, a new lawsuit challenging Governor Pritzker’s authority to issue a school mask mandate was filed, asserting among other things that the Governor’s emergency powers under the Act do not extend to school districts and that school-wide mask mandates are not otherwise warranted based on available scientific data and infection statistics. The complaint was filed by a Clinton County, Illinois public school parent, and a hearing is scheduled for August 17, 2021.
Notably states’ views on mandatory student masking vary widely. For instance, the Kentucky Attorney General just filed a lawsuit challenging the Kentucky Governor’s state-wide mask mandate, both as unconstitutional and not supported by the evidence. Similar lawsuits have reportedly been filed in other states.
Enforceability Questions – A Moving Target?
Legal developments in this pivotal area continue to evolve rapidly, accompanying the daily-changing data on infection rates, vaccinations, hospitalizations, treatments, etc. Additionally, the CDC and other government agencies continue to change their requirements, “guidance,” and other directions. All such changes make it extremely challenging for responsible citizens, particularly leaders of schools and other nonprofits to lead wisely and with due attention to legal compliance, risk management, individual objections.
Focusing on the CDC’s guidelines, the guidelines arguably represent the government’s view of scientific best practices, but they are not legal requirements such that citizens or organizations are legally obligated to follow them. The same holds true for the IDPH – it has officially issued only “guidance.”
However, ISBE’s recent action in this area may significantly impact schools. On August 12, 2021, ISBE acted to summarily revoke the recognition of a Chicago-area Christian school for announcing a mask-optional approach. Per the ISBE, the school failed to “affirm that [the school] will comply with the universal masking requirements set forth in” Governor Pritzker’s executive order mandating masking indoors in schools. The ISBE’s proposed revocation reportedly included the following threats: (1) voiding the ISBE accreditation of any 2022 graduating seniors’ diplomas; (2) blocking the subject school’s eligibility for scholastic athletic competition; and (3) blocking eligibilities and access to state funding mechanisms. Private schools should be mindful of this recent heavy-fisted demonstration of government power and this agency’s willingness to stringently (and quickly) enforce the order. It is no understatement to conclude that the ISBE is seeking to send a strong message to other schools considering a mask-optional approach.
As for Governor Pritzker’s Executive Order No. 85 (and other COVID-related Executive Orders), vigorous debate continues to whether his actions amount to an illegal overreach of his emergency powers. As a practical matter, however, in view of the ISBE’s recent hammer swing, the general alignment of Illinois agencies with the Governor, and the widespread court dismissals in Illinois in related litigation (at least thus far), school leaders need to carefully consider potential legal risks arising from failures to follow these orders in its general operations.
Submitting to Caesar
In some religious traditions, submission to government authorities is theologically compelled. But how does that play out for schools, given the uncertainty as to the legal validity of the Illinois Governor’s mask mandate? Does failure to comply fully equate to civil disobedience? Perhaps, given the complicated mix of factors such as ISBE’s strong stand, the plethora of litigation challenges, and possible state executive overreach. Ultimately such questions may turn on a school’s particular doctrinal positions on civil disobedience. Consequently, such question may be best addressed through attentiveness to further litigation developments, perhaps with an interim position for now and then a final decision later, while religious schools wrestle with these important questions.
Note however, that with respect to potential First Amendment freedom of religion rights, school mask policies that are anchored in a religious organization’s sincerely held religious beliefs are generally more legally defensible as asserted constitutional rights. Accordingly, it may be helpful to document applicable religious grounds for a school’s position that is inconsistent with the Governor’s edict, such as a mask-optional or no-mask approach. The challenge for a different policy based on a religious objection is the need for consensus on exactly which theological principles and scriptural bases support a school’s views on this issue. Because of the diversity of opinion on this issue, consensus on ideas and Biblical texts may be hard to achieve. As a practical and legal consideration, a school will generally do well to state theological and biblical grounds for its policies. Additionally, unity among leaders and other stakeholders on these points may prove to be a critical priority.
Consider the Risks
Despite the uncertain legal validity of Governor Pritzker’s school mask order and the non-binding nature of “guidance” from the CDC, a school faces legal risk by not complying with the Governor’s directives based on the ISBE’s strong enforcement posture and the possibility of aggressive tort-based claims. For example, if a school were to adopt a mask-optional policy and is later sued for negligence by a student who became ill with COVID-19, a plaintiff's attorney would likely argue that (1) in view of the Governor’s order, CDC guidance, and Illinois agency positions on COVID-19, the school was on notice the possibility of harm, (2) despite such notice, the school failed to take reasonable steps to safeguard its students, as evidenced by its noncompliance on mask mandates, (3) such failure to comply with widely-promulgated requirements was prima facie negligence, and (4) that a student (or student’s family member) was harmed by the school’s failure to comply.
Any religious liberty-based defense likely would not carry the day in such a personal injury lawsuit. Rather, the question would be whether the school acted negligently in not requiring school-wide mask adherence. Of course, additional evidence may be quite relevant to the questions of causation and damages, such as whether the school undertook other safety measures, whether masks are efficacious, and whether the student got sick from an unmasked person participating in the school program or from other causes (and such fact may be of varying difficulty to prove).
It could be quite helpful too to join with other schools that choose to follow a different approach such as mask-optional and thereby demonstrate the objective reasonableness of such approach. But given the ISBE’s current absolutist stance, that argument may be for another day.
Additional risk management considerations are implicated for individual directors, officers, and other leaders with significant responsibilities. A key legal question for determining volunteer leaders’ potential personal liability is whether they acted with “gross negligence” (i.e., “wanton disregard”) or “intentional misconduct,” in relation to a personal injury claim. Whether noncompliance with a mask mandate rises to such a level or not will likely be a question of fact for the judge or jury – and likely a complicated question, given issues of legality on both sides of the matter. And whether a school’s insurance company would provide coverage, including legal defense, is an open question. Some policies expressly exclude coverage for directors, officers, and leaders as insured persons when they undertake illegal actions. Consider further that paid leaders could potentially face personal liability based on a lower “ordinary negligence” standard. Generally speaking, however, a school’s corporate status should provide at least a baseline level of protection against any potential personal liability (as with any personal injury claim).
What to Do?
Based on the foregoing, schools should undertake a very careful and measured evaluation of all current considerations - legal, medical, practical, theological, financial, insurance-related, relational, and perhaps more. In doing so, a school’s leadership should take certain actions and keep the following points in mind.
As stated above, this area continues to evolve both medically and legally. COVID numbers go up, then go down, and they keep changing. The Delta variant is widely expected to move quickly through various populations, but perhaps not. And then there are vaccination developments! Given this fluidity, a school may not want to commit to any specific course of action for the entire school year, or even the rest of 2021. Rather, it may be best (and more prudent) to inform students, parents, and staff that (a) the school will adhere to its chosen approach for now, and (b) such approach is subject to change based on further legal, scientific, infection, and treatment developments as well as further careful application of the school’s sincerely held religious beliefs in continually changing circumstances.
Count the legal costs.
Also as stated above, it is possible that a school (and its leaders) may be sued, such as if a student contracts COVID-19 and then brings a negligence action against the school. To be clear, it’s one thing to believe the Governor’s order is illegal, it’s another thing to take actions to avoid potential adverse consequences to the school if the government decides to aggressively enforce its order.
With the recent ISBE decision to revoke a highly respected Illinois Christian school’s accreditation over this issue, the possibility of such aggressive enforcement seems much more likely. In such circumstances, litigation could be an option. While a favorable outcome cannot be guaranteed, it is possible that a public interest law firm could be available to assist a school on a pro bono basis.
Count the political and personal costs.
Potential enforcement actions by ISBE, discussed above, and other government entities will likely have far-reaching operational effects on a school as well as its students. Such considerations may be worth further evaluation and consequent steps, such as determining whether to comply with mask mandates for limited purposes as well as identifying applicable requirements for any government funding.
Count the relational costs.
Which way will a school’s masking approach cut with parents and students? What about donors? Staff? Other stakeholders? On the evening news? And what about among other schools? These are all important questions for leadership consideration, and none have easy answers, particularly as many strive for unity over divisiveness. Schools should further carefully consider their public messaging related to any adopted policies to ensure that the parents and the general public (and possibly the press) understand the school’s important mission, commitments to children, and the underlying beliefs that are driving the school’s decisions.
Allow for individualized exceptions.
Notwithstanding a school’s obligation to comply with government agency requirements, certain statutory or other lawful exceptions to an individual’s compliance may provide for flexibility in how a school handles requests from children, parents, and staff members to not wear the mandated masks. Two key types of exceptions are (1) medical exemptions, and (2) right of conscience objections. Both involve some degree of administrative burden and warrant additional documentation.
First, a medical exemption could be sought based on a variety of health reasons that make mask-wearing harmful to a person’s safety and health. Granting such exemption may well be in accordance with the federal Americans with Disability Act’s requirement (as well as comparable state and local laws) that “reasonable accommodation” be made for employees and others with disabilities. For example, a teacher who provides a medical certification that she gets migraines from wearing masks may legally qualify for a mask exemption as such a “reasonable accommodation.” Or a student with asthma or other respiratory conditions that preclude long-term mask wearing may similarly qualify for such legally warranted accommodation. For such exemptions, a school should be conscientious in requiring proper medical validation. In addition, it may be appropriate to consider whether and to what extent any remote work or virtual participation would be an alternative “reasonable accommodation.”
Second, a right of conscience objection for staff, parents, and children may be available as both a constitutional right and under state law. Most basically, the U.S. Supreme Court has recognized that fundamental constitutional liberty rights include “the rights to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, and to bodily integrity.” A right of conscience objection is based on a sincerely held set of moral convictions, with available constitutional protections against undue interference by the government regarding a person’s religious or other beliefs. Consistent with such broad constitutional protections, the Illinois Health Care Right of Conscience Act expressly protects a medical right of conscience in connection with health care services and care, which encompasses health-related instruction such as mask mandates. Based on such legal protections, a school may need to evaluate and decide right of conscience objections on as a case-by-case basis, as it should for medical exemptions.
Consider the goods.
It is unmistakably good to care for children, to educate them well, to provide for their safety, to inculcate values, and to help them to grow and to flourish as members of our society. How do schools achieve these goals considering COVID-19 and masks issues, especially with such sharply divergent views about mask efficacy, submission to government authorities, potential harm, and legal risks of potential liability claims? Focusing on health concerns for the whole child – mental, physical, and spiritual – may be abundantly important. This thoughtful approach raises important wholistic considerations that may be sorely lacking in our current highly polarized and politicized environment. The complex matrix of countervailing government requirements, however, may provide scant leeway.
Whatever a school leadership’s collective decision, it will inherently come with legal and practical risks that should be thoroughly evaluated and understood. As leaders face the new school year, they will do well to remain carefully attentive to further legal developments, relational dynamics, continued health and safety priorities, and individual objections to mask mandates.
 See 20 ILCS 3305. Specifically, Section 7 of the Act provides that “in the event of a disaster, as defined in Section 4, the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers . . . .” The Governor’s powers include taking possession of personal property such as cars, gas, equipment, and include authorization to “take possession of and for a limited period occupy and us any real estate necessary to accomplish those objectives,” to order evacuations, and to control disaster areas.
 For additional guidance on directors’ and officers’ applicable fiduciary duty of care, see our blog. For additional guidance regarding potential personal liability, see our Feburary 8, 2015 blog, and December 15, 2017 blog.
 Washington v. Glucksberg, 521 U.S. 702 (1997). See also Troxel v. Granville, 530 U.S. 57 (2000) (recognizing parents’ fundamental interest in their children’s care, custody and control).
 The Act provides as follows:
It is the public policy of the State of Illinois to respect and protect the right of conscience of all persons who refuse to obtain, receive or accept, or who are engaged in, the delivery of, arrangement for, or payment of health care services and medical care whether acting individually, corporately, or in association with other persons; and to prohibit all forms of discrimination, disqualification, coercion, disability or imposition of liability upon such persons or entities by reason of their refusing to act contrary to their conscience or conscientious convictions in refusing to obtain, receive, accept, deliver, pay for, or arrange for the payment of health care services and medical care.
745 ILCS 70/1.