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New push for ISBE to put mask enforcement through emergency rule process

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SPRINGFIELD, Ill. - Does the Illinois State Board of Education have the power to revoke a school's recognition status if they don't follow the current mask mandate? The highest committee of Illinois lawmakers called the authority into question Tuesday.

"There is a concern that policy outside of rule may exist and JCAR encourages ISBE to place all policy and guidance in rule," staff stated shortly before a vote.

The Joint Committee on Administrative Rules unanimously decided to have the board provide updated policy within 30 days. They also suggested ISBE expand and clarify the process for revoking school recognition status from schools defying the mask mandate. Only 10 of the 12 members of JCAR were present for the meeting.

Many describe Gov. JB Pritzker's executive order and ISBE's enforcement of the mask mandate as government overreach. Technically, the board should have filed rules for approval from this committee. However, their legal officer said ISBE doesn't plan on doing that.

Rep. Keith Wheeler (R-Oswego) said there's a clear difference between guidance and rule. He argued lawmakers need to have the ability to protect the public from "arbitrary application of guidance."

"That can be done and should be done by rule, not by executive order and not by guidance issued by an agency. Those are things that affect the general public," said Wheeler. "That goes before the legislature. That's the process we've chosen in this state."

ISBE relied on a court decision and executive order

Wheeler said Illinois needs to have a balance and separation of powers. Still, ISBE officials said they're complying with the executive order that required the board to issue joint guidance with the Department of Public Health.

However, JCAR members don't understand why the agencies didn't put the mask policy through the emergency rulemaking process. ISBE Deputy Legal Officer Kristen Kennedy said the board relies on a court decision from December 2020. She explained a Sangamon County judge presiding over the Hutsonville school district's suit found Pritzker's executive orders requiring schools to comply with public health measures were enforceable.

"Guidance issued jointly by ISBE and IDPH detailing those measures were lawfully issued and enforceable," Kennedy said. "Further, the court found the governor's executive order and IDPH/ISBE guidance were lawfully issued both statutorily and constitutionally."

Some JCAR members also raised concerns that ISBE allowed a probationary period before removing recognition status from public schools defying the mask mandate. However, private schools don't have that option. Recognition status is automatically pulled in those cases.

Rep. Edgar Gonzalez Jr (D-Chicago) filed a proposal late last month to "add some teeth" to the guidelines. He noted current state law allows the board to have the mask guidance in place with additional enforcement measures. Gonzalez argued his bill could also remove any ambiguity around the current guidance.

JCAR members hope to see proposed rule next month

Although, some Republican members of JCAR feel that admits ISBE never had the authority to do this in the first place. Rep. Mike Halpin (D-Rock Island) noted that another lawmaker filed legislation to prohibit ISBE from implementing the mask policy.

"By using the same logic, that must mean that the sponsor of that bill believes that ISBE already does have that authority and therefore wants to prohibit it," Halpin said.

Halpin noted that is relying on an existing rule for enforcement in terms of recognition and funding. He also asked ISBE to clarify that officials connected that with the governor's executive order to the existing rule in order to define the current health threat. Kennedy confirmed that is the process ISBE currently has in place for the mandate.

ISBE officials must now go back to the drawing board and present their new proposal next month. JCAR plans to hold its next meeting on October 19.

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Mike Miletich

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