Within One North Shore District, The Fight For Due Process

Lunch time student quarantines raises larger issues over legal rights of school districts to exercise local control

(Photo Credit: National Education Association)

We are a few weeks past the breathless pace of legal maneuverings that defined the month of February. Friday court document dumps became a regular occurrence (usually btw 4-5 p.m. or at 1 a.m. Good times). The importance of court rulings in forcing the removal of reckless public health mitigations (forced masking/quarantines) cannot be understated. What also cannot be underestimated is the diligence of skittish school administrators to try and instill their own interpretations of a judge’s directives.

Emails and correspondence obtained by The Kerr Report show one North Shore suburban school district steadfast in a belief it can turn on and off mitigations based not on the rule of law, but by using its own set of guidelines.

That district is CUSD 109, a K-8, six-school district in suburban Deerfield.

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When Sangamon County Circuit Court Judge Grischow first granted the Temporary Restraining Order ordering the removal of masking and quarantines in Illinois public schools on Feb. 4, D109 officials were quick to discredit the ruling (D109 was not a named defendant in the suit).

During a Feb. 17 board of education meeting, Superintendent Michael Simek dismissed the ruling’s impact within the district:

There’s been a lot of speculation that it applies to us. Our legal counsel tells us it does not apply to us

In a later email to parents requesting the district’s masking policy be adjusted to optional after the court ruling, Simek wrote:

Your understanding of the judge’s order is incorrect. I fear that a great deal of misinformation being shared online. The District is well within its legal right to continue to enforce COVID-19 mitigation practices

By invoking the popular ‘misinformation’ narrative when answering questions about the district following a judge’s order, Simek basically flipped the bird to Grischow’s decision, saying how in his eyes and in that of district lawyers, the judge’s rule of law means nothing.

(This is the same superintendent, Simek, who got run out of District 67/115 in Lake Forest in the fall of 2020 for recommending the district begin the school year with remote learning. The board of education disagreed, voted against his recommendation and Simek landed at D109 where his fear-based leadership was welcomed with open arms.)

The 2,800 or so students in D109 remained masked up through Gov. Pritzker’s ceremonial ‘mask mandate removal’ date of Feb. 28 (Pritzker had no actual authority to lift anything, based on numerous lower court rulings and the Supreme Court’s rejection of his appeal).

But don’t think D109 administrators were done enforcing mitigations.

A foreboding email in February from Simek stated “(we will) peel back mitigations as we feel comfortable doing so.”

This statement addresses the district’s current lunch policy and the source of a simmering legal back-and-forth between attorneys on both sides.

While lunch period should be a time for socialization and an opportunity to take a mental break from classes, the time of day is one of forced isolation for students attending D109.

This photo, taken at Wilmot Elementary, shows students sitting at desks, facing forward, inside the gymnasium.

Another school within the district, Shepard Middle School, has a similar set up over lunch time – students placed at individual desks with no interaction with their peers, “reprimanded for leaving their seats or talking other than to throw away trash,” according to a source.

Before students are allowed to sit in isolation at lunch, parents are required to fill out “wellness” forms and submit to district officials.

(A cruel irony – juxtaposed with the photographs of segregated kids is a comment from Simek at the Feb. 17 BOE meeting. He said “really important is to maintain the continuity of social experience for our kids…one of the really biggest takeaways from the pandemic is how important that connection at school is.” Really? Do those images look like an administration that values ‘social experience?’)

Parents appealed directly to school officials about the segregated lunch period policy, labeling it a form of “quarantine.” They again cited the Feb. 4 TRO ruling, where Judge Grischow ruled unlawful any quarantining of students that did not include an order from a public health department.

But D109 leadership remained undeterred in sticking with mitigations.

It cited a portion of the Fourth District Court of Appeals decision from Feb. 17, interpreting the Appellate Court as granting legal authority to districts to quarantine students as they see fit:

We note the language of the TRO in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19. Thus, it does not appear the school districts are temporarily restrained from acting by the court’s TRO.

At the Feb. 17 BOE meeting, held hours before the Fourth District Appellate Court rendered Pritzker’s appeal as “moot,” Simek foreshadowed the potential return of quarantines, masking and other mitigations.

Here is a Q&A exchange with a board member:

Board Member: “If for some reason there is an uptick in cases…what would be our legal standing if we needed to reinstate masks or do we have to wait for the outcome of the court cases and appeals? If the executive order mandate is ended, what legal rights would we have if we see an uptick in cases, and needed to re-instate masks. Do we have an answer to that?

Simek: “The authority that is currently in place is that of the governor’s executive order. Going forward, we are going to be speaking to counsel about what authority we currently have or might need a request from the board.”

On Feb. 28, Gov. Pritzker lifted his statewide “mandate.” Reluctantly, D109 officials complied. But the above exchange between Simek and board member reveals an administration grooming for the return of quarantines and masking.

The definition of local control, regard for due process and interpretation of the rule of law is at the center of the conflict between administrators and parents within District 109.

The law firm Griffin, Williams, McMahon and Walsh, representing “Parents for Choice,” sent a March 3 letter addressed to Simek and district attorney Laura E. Knittle.

In the letter, it first addressed how:

Families are concerned with D109’s continued  enforcement of unlawful quarantine policies in the face of Judge Grischow’s February 4, 2022, temporary  restraining order regarding unlawful quarantining in schools, the Fourth District Appellate Court’s opinion  of February 17, 2022, and the Illinois Supreme Court refusing to hear.

The letter goes on to reference the Illinois Department of Public Health Act and how the state’s public health agency (and not a school district) is the “supreme authority in matters of quarantine and isolation, and may declare  and enforce quarantine and isolation when none exists, and may modify or relax quarantine and isolation when it has been established.”

More from the letter, specific to the lunch time isolation from students in D109:

The Act grants and defines the powers provided to the IDPH. According the Act, only the IDPH or a local health department may order a person to be quarantined or isolated to prevent the probable  spread of a dangerously contagious or infectious disease. 20 ILCS 2305(b). An administrative agency  may not delegate its authority to another administrative agency. That is a function of the legislature. Thus, District 109 has no authority to quarantine a student and any policy purporting to authorize a quarantine would be void. Indeed, even where the IDPH or local health department seeks to issue an order of quarantine, the subject of the order must first be provided with due process.

All of the legal maneuverings in the month of February upheld what is written in the Act, how the governor, public health official or school district cannot act independently of the legislature and make its own rules. That’s what all of the legal action was about, to challenge and overturn unlawful authority.

But those in charge at District 109 don’t see it that way.

In a March 14 letter obtained by The Kerr Report in response to the March 3 letter from D109 parents, district attorneys wrote how the district “disagrees that ‘any quarantine policies or COVID-19 related mitigations adopted by District 109 would be unlawful on their face’ and that the District is in any way denying students’ due process rights.”

More from the March 14 letter:

The District further disputes the accuracy and relevance of your assertions regarding the  IDPH rules and the definition of “modified quarantine.” Nonetheless, pursuant to the authority  vested to the Board of Education in the Illinois School Code, 105 ILCS 5/1 et seq., the Board has  all powers requisite or proper for the maintenance, operation, and development of schools and  development of rules related thereto. 105 ILCS 5/10-20, 10-20.5, 10-22.6, 24-24. The General  Assembly has further acknowledged that governmental bodies, including school districts, have  expansive powers and are generally immune from tort claims challenging those powers. Illinois  Tort Immunity Act, 745 ILCS 10/1 et. seq. The Act goes even further, providing that “[n]either a  local public entity nor a public employee is liable for an injury resulting from the policy decision  to perform or not perform any act to promote the public health of the community by preventing  disease or controlling the communication of disease within the community if such decision was  the result of the exercise of discretion vested in the local public entity or the public employee,  whether or not such discretion was abused.” 745 ILCS 10/6-104.

Most troubling are the following two sentences from the end of the letter:

The Board of Education has the authority, independent of the IDPH, to put mitigations in place to keep staff and students safe. To  suggest that a local school board does not have such authority is a false and dangerous notion.

In consideration of its goal to keep students in school and learning, the District may re-implement mitigations as appropriate.

Based on recent actions and correspondence, It’s clear D109 has no interest in complying with recent court rulings.

It also appears the district’s interpretation of local control ignores due process for students.

Under the direction of Simek, the district is developing a set of “indicators” for when to flip on and off layers of mitigations.

Simek teased those indicators in the Feb. 17 BOE meeting, along with heavy promotion of ongoing SHIELD testing:

Signing up for SHIELD testing and participating in that every week helps us to determine now and moving forward the prevalence of the virus in our buildings.

It’s very likely we will move into a prevalence within a building, within a classroom indicator. So SHIELD testing will take on great importance for us.

As of March 7, the district did remove daily health certification for staff and students and the SHIELD testing requirement for participation in extracurricular activities.

But advertisement of SHIELD and encouragement to mask remains a staple on the district’s website and in messaging on school grounds.

Along with the virtue signaling optics that position D109 as a health care facility rather than a school, district officials practice selective enforcement of federal and state public health guidelines.

In affirming the district’s need for continuous SHIELD testing to “limit the spread,” Simek referenced consulting with “CDC, IDPH and county (health departments)” in determining the district’s path forward.

In the March 14 letter from district attorneys, it states “the District’s recent SHIELD testing results have revealed an uptick in positive COVID-19 cases.”

Yet recently, the CDC diminished the importance of “cases” when determining risk assessment with COVID-19. The new formula looks more at hospital capacity as a signal for how bad a local outbreak is. According to the CDC’s new threshold, as long as hospital metrics are low, a county is considered “low transmission” (or green) with any number up to 200 weekly cases per 100,000 people.

It begs the questions – why is the district referring to “cases” as justification for re-instituting mitigations when the CDC has devalued their significance? And why is Simek referencing CDC guidelines when advocating for more SHIELD testing?

What is it exactly? Do they follow CDC guidance or not?

It reads like a classic case of crafting a story to fit pre-conceived conclusions. Call it outcome bias. And it’s a negligent way to govern a school district, especially when the court system has repeatedly said “no” to do what they are doing.

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As of publication of this article, parents in D109 had not officially filed legal action against the district.

One parent told The Kerr Report, “a lot of parents think in the here and now. As in, masks are off at the moment so why think about future issues (like masking) again. So cost per family becomes a barrier.”

At the Feb. 17 BOE meeting, only one parent of a D109 student spoke during public comment.

The speaker said this:

My concern is how steadfast will we scramble and look for a reason to find an excuse to mask our kids’ beautiful faces again?

It looks like D109 leaders are looking for that reason.

And they may get it very soon.

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