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Judge hears arguments on COVID lawsuits against Illinois schools with no decision in sight

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A Sangamon County judge heard nearly two full days of arguments related to COVID mitigations in Illinois schools this week, but it could be more than a month before some of those arguments can resume and any decisions are made.

Bond County Attorney Tom DeVore filed lawsuits in the fall on behalf of school employees and the parents of students over major state mandates for schools during the pandemic. Namely, they oppose vaccine or testing requirements for school employees, including teachers, the masking of all staff and students, and the exclusion of students from in-person classes if they are identified as close contacts of those who have the virus, but have no symptoms themselves.

Several similar cases were filed last year in different counties around the state, but as there were so many overlapping issues, the Illinois Supreme Court consolidated them to be heard by one Sangamon County judge, Judge Raylene Grischow.

Motions were made this week to share transcripts of the hearings in the record for each case to "avoid duplication or exhaustion," as one attorney put it.

The preliminary hearings this week were intended to address two main issues: class certification and temporary restraining orders. A motion had been made for the cases to be class action lawsuits, which would allow other employees and families who were not named as plaintiffs to also receive temporary restraining orders.

The temporary restraining orders, if granted, would temporarily prevent the COVID mitigation requirements from applying to those individuals. An unvaccinated teacher, for instance, would not be required to take regular COVID tests, and students could not be required to wear a mask in class, as long as the order was in effect.

No decisions were made in the cases about either class certification or temporary restraining orders this week.

Attorneys for the defendants made different arguments against certifying a class for the student mask case on Wednesday, including that "aggressive word of mouth" had already given people a chance to join the 700 plaintiffs and that DeVore could not represent all families because he was "antagonistic" toward those who favored mask mandates.

In reply, DeVore argued that the schools wanted to make families jump through hoops to limit the number of students without masks.

"I could have had a million parents listed as plaintiffs," he said.

The courtroom was full both days this week. On Wednesday, it was so full of attorneys and members of the public that Grischow kept the doors open to prevent overheating.

After the lunch break Wednesday, Grischow returned and told counsel she had to disclose that, as of the end of the break, she had received 80 emails from people sharing their opinions on the case, and that her assistant was receiving more calls and emails.

"I understand this is a passionate issue, but my judgment will be based on the law," she said, adding that she would either delete the emails without reading them or ensure they were submitted for the record.

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Between the lawsuits, there are around 800 plaintiffs and 140 school districts listed as defendants, along with Gov. J.B. Pritzker, the Illinois Department of Public Health, the Illinois State Board of Education, and their respective directors. Many of the defense attorneys told Grischow they represented more than one district, with one saying he represented 31 around the state.

According to the court record, final arguments for the employees' lawsuit are scheduled to resume on Jan. 19 at 10 a.m. Grischow said she will have to look at rearranging her schedule to hear continuing arguments for the student case, because her civil docket is filled through March, which she didn't think was fair.

"I personally don't want to wait that long," she told counsel. "I like to do things when they're fresh in my head."

Several school districts in the metro-east announced this week they were either going remote or shortening the school day as students return from winter break and the omicron variant causes spikes in COVID case numbers. Chicago Public Schools are closed Wednesday and Thursday, as the teachers union refuses to teach in-person under the current COVID conditions.

If students are granted temporary restraining orders that allow them to go maskless, the attorney representing Chicago Public Schools said the teachers union would be hard-pressed to return in-person.

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