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September 20, 2021

JCAR met with ISBE on Sep. 14 to question them over their authority to revoke school recognition and withhold state funding to schools that do not follow the mask mandate
Screenshot of the JCAR meeting
JCAR met with ISBE on Sep. 14 to question them over their authority to revoke school recognition and withhold state funding to schools that do not follow the mask mandate.

Features, News • September 20, 2021

JCAR questions ISBE on authority over withholding state funding for schools not complying with mask mandate

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HUNTLEY – Illinois state’s Joint Committee on Administrative Rules (JCAR), a bipartisan legislative oversight committee authorized to conduct systematic reviews of administrative rules promulgated by state agencies, conducted a meeting on Sep. 14 questioning representatives of the Illinois State Board of Education (ISBE) over their authority to revoke school recognition status and withhold state funding from schools that do not follow Gov. JB Pritzker’s mask mandate.

Several JCAR members asked ISBE’s Deputy Legal Officer Kristen Kennedy whether the agency planned on participating in the rulemaking process under the Illinois Administrative Procedures Act.

Kennedy responded with, “ISBE does not currently plan on filing rules. ISBE is relying on the court’s decision in Hudsonville. So, that was a case that was decided last year. The final order came out in December of 2020 and the court in Hudsonville found that the governor’s executive orders requiring schools to comply with certain health measures associated with in-person instruction, including requiring face coverings at schools and guidance issued jointly by ISBE and IDPH (Illinois Department of Public Health) detailing those measures, were lawfully issued and enforceable.”

Further, Kennedy explained that ISBE has been following existing rules to enforce school non-recognition status under 23 Illinois Administrative Code (IAC) Section 1.2B2A for public schools and 23 IAC Section 425.60 for private schools.

However, Kennedy was not able to answer whether those existing rules truly authorize ISBE in revoking recognition status for schools not complying with masking and withholding state funds, citing it being the subject of ongoing pending litigation.

“It comes as no surprise that ISBE’s decision to revoke school recognition status and withhold state funding from schools that do not follow the mask mandate has been met with legal challenges,” said State Senator John Curran (R-Downers Grove) in a Sep. 15 press release. “There is no clear understanding of the steps, timeframes, and due process that is involved between when a school is notified of non-compliance with the mandate and when recognition status is revoked. The lack of process is leading to unjust outcomes and rightful outrage amongst parents.”

JCAR Co-Chairman and State Rep. Keith Wheeler (R-Oswego) was outspoken regarding executive orders not having the same enforceability as rules.

“Guidance is not a rule. A rule is enforceable. A statute is enforceable. I don’t believe that an executive order is enforceable to the same degree [a] statute and rule are,” Wheeler said. “When it comes to how we direct things toward the public, guidance says ‘should’ and rule and law say ‘shall’ and rarely can you cross those two because otherwise there’s no point in us having a legislature to oversee these things to set the policy.”

Despite some backlash over whether Pritzker’s mask mandates are legally enforceable, other state representatives have given their full support to upholding the executive order.

“I want to thank Governor Pritzker for taking steps to secure the safety and welfare of our residents. These decisions are not easy, however not making decisions is not an option when the health and lives of Illinoisans are at stake,” said State Rep. Fred Crespo (D-Hoffman Estates). “As he did in the past, Governor Pritzker is following science, which is the only way to combat this pandemic. This is not a political issue, it’s a very serious health issue. The sooner we act, the more successful we’ll be in controlling the Corona Delta variant.”

“Anything we can do to protect our most precious children who are still unable to receive vaccinations is essential. We have to do everything in our power to keep the COVID numbers down,” said State Rep. Sue Scherer (D-Decatur).

Following a brief recess, JCAR passed a motion encouraging ISBE to place all policy and guidance in an administrative rule as well as provide an update to JCAR on their decision within 30 days.

Additionally, JCAR recommended that ISBE “propose additional amendments to 23 IAC 425 expanding and clarifying the school recognition process to include a better-defined process prior to revoking a school’s recognition,” the press release stated.

“The required supermajority of JCAR was unwilling to publicly chastise ISBE for the arbitrary implementation of enforcement tools, so we set a 30-day clock for them to bring us rules,” said Senator Sue Rezin (R-Morris). “I don’t believe it’s a coincidence that the 30-day extension brings us to when the legislature will reconvene. We will have to see if ISBE brings us rules, or if they will ask the legislature to take up the issue legislatively.”