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DeVore files first lawsuit over Illinois school mask mandate

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SPRINGFIELD, Ill. - An attorney who gained statewide popularity for helping a downstate lawmaker battle Gov. JB Pritzker during the COVID-19 pandemic is back in court. This time, Tom DeVore filed a lawsuit against Pritzker's new school mask mandate on behalf of a parent in Clinton County.

The governor announced his executive order for schools amid the recent surge of the Delta variant in Illinois. All students, teachers, and staff are required to wear masks inside schools this fall. Many school districts previously voted to allow everyone to return to classes without masks. However, most are quickly changing that position to follow Pritzker's order.

DeVore's client has a student in Breese District 12. That district passed a policy aligned with the CDC guidance for a mask recommendation on July 30. Now, the district has Pritzker's policy in place. DeVore claims Pritzker has no authority to create substantive law which usurps the authority of local school boards.

"While Pritzker will spill gallons of ink on the history of the COVID pandemic and how his administration has worked to keep people 'safe,' none of this obfuscation is relevant to the precise question of what is the extent of his delegated power by the legislature under the IEMAA," DeVore wrote in the complaint.

Pritzker's Executive Order says school districts must follow guidance issued by the Illinois State Board of Education and the Illinois Department of Public Health. DeVore notes lawmakers give local school boards the authority to adopt and enforce all rules for their districts. He also notes that school boards have the authority to make temporary measures to prevent spread of infectious diseases.

DeVore: "Only the legislature has such authority"

He later notes the General Assembly is considering a proposal that could suspend that authority and compel school boards to comply with requirements issued by IDPH. House Bill 2789 also prohibits districts from passing their own resolutions that contradict IDPH requirements during an emergency. The same proposal could allow ISBE to revoke the recognition of school districts for failing to follow the public health requirements.

House Bill 2789 passed out of the House on a partisan vote this spring. Yet, it never moved out of the Senate. DeVore notes the Pritzker administration already told districts they have this power.

"Pritzker contends he currently has the authority under the IEMAA to vest authority in IDPH and ISBE to create these guidelines and to compel local school districts to comply," DeVore wrote. "Only the legislature has such authority to vest new power in these administrative bodies, and to take power away from local school boards, and it's clear by their actions they have not yet done so."

Accusing the governor of acting alone

DeVore assumes Pritzker is "dissatisfied" lawmakers didn't pass the measure to give IDPH and ISBE that authority. He accuses the governor of creating the Executive Order to create that power on his own.

The suit asks the court to declare that Pritzker has no authority to compel school districts to follow the guidance. It also asks for a declaration that ISBE has no authority to revoke, suspend, or penalize the recognition status of school districts for failing to follow the mandate. DeVore also asked that his client receives reimbursement for costs incurred for the legal matter.

The lawsuit is set for a hearing at 11 AM on August 17 at the Clinton County Courthouse in Carlyle.

Of course, DeVore has other plans this fall. After gaining notoriety for representing Republican Darren Bailey in courts across Illinois, DeVore hopes to become a judge. The Southern Illinois native hopes to have a seat on the Fourth District Appellate Court. He also happens to have a popular challenger in that race, Judge Mike McHaney. That happens to be the same judge who sided with Bailey and Devore while blasting Pritzker's COVID-19 executive powers last year.

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Mike Miletich

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