(upbeat music) - Welcome to Capitol View where we discuss the latest in state government and politics.

I'm Hannah Meisel with NPR, Illinois.

Joining us this week is John Jackson, visiting professor of political science at Southern Illinois University's Paul Simon Public Policy Institute.

Thanks for being here, John.

- I'm glad to be here.

- And also here is Jerry Nowicki of Capitol News, Illinois.

Glad you're here, Jerry.

- Glad to be here as well.

- Well, the debate over masks in schools (indistinct) despite Governor JB Pritzker's mask mandate that he issued last week.

Couple pieces of news.

There's been a lawsuit filed over the mask mandate, the attorney Tom DeVore, who rose to prominence among conservatives last year for challenging a bunch of the governor's executive orders on mitigations for COVID.

He's the one who forced filed the lawsuit on behalf of a father in Breese, which is about 40 miles east of St. Louis.

And this time, instead of claiming the usual argument that the governor is not allowed to make consecutive disaster declarations, he's trying to go after the state's Emergency Management Agency Act and saying that the governor can't serve local school districts control over decisions, you know, pertaining to health and safety.

Jerry, you know, tell us a little bit more about this lawsuit.

And what do you expect the outcome might be?

We have a hearing, I believe, early next week.

- Yeah, I don't know what the outcome will be.

It seems that Mr. DeVore's track record isn't exactly great with these cases.

He had some success in Clay County temporarily, but I think it was Sangamon County Judge, here in Springfield, that have ended up overturning.

I honestly forget which of his lawsuits had success.

- There were a lot of lawsuits last year.

- Right.

So he's challenged the indoor dining ban famously and just now the mask mandate.

It's on behalf of the Breese district and there are a lot of rural districts, I used to cover rural districts and I've kept in touch with some of the superintendents there on social media and otherwise, and they're, you know, they get annoyed that what this is doing is taking it out of local control hands, which is you know, one of the things that Mr. DeVore has always kind of held as a centerpiece of his challenges as well.

So, I know there is a lot of sort of animosity about it, but you know, to predict how it'll go, you know, that's just so dependent on the judge, number of other factors.

- Right, that's correct.

I mean, in Illinois, and lots of other states, but Illinois, you know, there's a lot of talk about venue shopping, because Illinois is such a stronghold for plaintiffs, lawyers, trial lawyers.

And so, you know, Tom DeVore, it's worth mentioning, well, his most famous client was then state rep, now state Senator Darren Bailey, who was, of course running for governor.

And in that Clay County case that you mentioned, Jerry, that was really successful.

You know, Darren Bailey was the only person who was left out of Governor Pritzker's stay at home orders last year.

And now, Darren Bailey is running for governor and Tom DeVore is running for a seat on the state's fourth district appellate court.

So you know, no matter win or lose, it does seem designed to just get him more publicity.

And, you know, people would be very lucky to know like, it would be very rare for you know, any random citizen to necessarily know the names of who sits on their fourth district appellate court or even what the state's fourth district appellate court is and how it differs from other jurisdictions, but, you know, he would definitely be the most famous name on that ballot, possibly ever.

So, John, what do you, you know, these lawsuits, these never ending lawsuits that seem designed more for publicity than anything.

I mean, I saw a suggestion this week that perhaps that is unethical, that maybe the Illinois State Bar Association or (indistinct) Association should step in.

You know, is that something that those professional organizations should consider?

- Let me just put it briefly in the larger context.

This fight's been going on a year and a half.

It's continuing saga of COVID wars or maybe mask wars.

And I think we've seen this movie before.

And I think we know how it's going to turn out.

It was inevitable as soon as the governor issued his edict about the mask that there would be lawsuits filed and not surprisingly by this party.

The governor is totally predictable on this stuff.

He's following what he said he was going to do, what he said about the (indistinct) and what he said about the guidance of the CDC.

I call that sort of the democratic governors model.

Gavin Newsom in California being the most famous example.

They've got same fights going on out there.

I didn't know with interest down here that Andy Bashir, the governor of Kentucky, this week followed JB Pritzker's model, and he will get some of the same kinds of pushback in Kentucky.

As you well know, the republican model is epitomized by the scientists in Florida and Abbott in Texas.

And they're saying that they won't let the school districts follow the federal guidelines.

I think it's interesting to note that Texas and Florida are the epicenter of this resurgence.

And they've got about 25% of the cases in Florida and the rest in Texas mounts up to 40% of all the cases.

It's also interesting to me that the two big school districts that are fighting back in those two states are the capital cities, Austin, in the case of Texas, and Tallahassee, in the case of Florida.

They're saying, we want local control, leave us alone.

And of course, the Santa has particularly been very aggressive about that.

So this really is a continuation of national fight.

And it's a fight that is very partisan and very polarized.

I think this particular one will in the same way that as Jerry said, the track record on challenging the governor's power is not good in court.

The state has something very strong called police power.

It has the right to look after the safety, health and welfare of its citizens.

And there's something called Dillon's rule, which says the cities have follow along with what the state says ultimately.

So I'm not a lawyer, but I expect that lawyers will be trotting out some of that kind of thing.

So I don't think this is going anywhere with the possible exception of getting the two players that you mentioned some really sizable, free publicity.

- Yeah, that's a good point on the state's police powers.

You know, those are pretty powerful.

I feel like last time I saw there was fair lism was pension debate, you know, six years ago and by the Illinois Supreme Court.

But, you know, mentioning the other Republican governors, I did think it was interesting last week, when Arkansas Republican governor Asa Hutchinson said he actually regretted signing the, you know, it's the opposite world of Illinois where, you know, he signed a law that forbids local school districts to do mask mandates.

That's what the hyper partisan, a state legislature in Arkansas sent him to his desk in the spring when cases were going down to be fair.

But, you know, along comes this delta variant, which is more transmissible, possibly more virulent.

And, you know, we're seeing Arkansas as among those states where, you know, cases are unfortunately going up again, and even more unfortunately, pediatric ICUs are getting full.

- Yeah, I'm from Arkansas, so I know a lot about that case.

Let me just comment quickly and that is, so Hutchinson's been sort of on the knife edge about this.

He did sign the law and he later publicly regretted it, called the legislature back in session.

They refused to repeal the law, so the fight goes on.

- Right, right.

I didn't know you're from Arkansas.

Now the viewers know that too.

Jerry, the Illinois State Board of Education though, they are not messing around.

They told, so over on Wednesday morning, the superintendent for a private Christian school up in Elmhurst, in Chicago suburb of Elmhurst said in a video that went live that he would not enforce Governor Pritzker's mask mandate within her school as a pre K-12, 1200 students school.

And, you know, apparently he and the State Superintendent spoke all day Wednesday.

And by Wednesday evening, less than 12 hours after that video went up, the State Superintendent Carmen Eilat told him that his school had been stripped of recognition status by SB.

And that is a really big deal.

It's very rare move, really big deal, it means that, among other things, the school will not be able to participate in a state scholarship program.

And students cannot compete in elementary or high school sports or activities.

But even more critically, means that seniors who graduate from that school, you know, their diploma would not be recognized by SB.

Now, the school has 14 days to appeal, and then there'll be a hearing.

But Jerry, what kind of message is the State Board of Education sending here?

- It's a pretty powerful one.

I think it's probably easier for a private school like that to challenge than it wouldn't be for public school to challenge the authority that is, to take the risks that the district is obviously taking right now.

Just because of the fewer resources you get as a private school, but in terms of the message, I mean, SB doesn't wanna mess around with it.

And it's in pretty wide divergence from where they were, I think in mid July, I think you and I were working on similar stories when they were saying, you know, they should be doing masks, we're not looking at recognition as an enforcement measure at this time, but it shows you how quickly the Delta variant has kind of taken hold and sent hospitalization skyrocketing for all age groups, as you know.

So in terms of what the response does, from SB, I think in some of the districts I covered that fact about sports, for better or worse, that would be one of the driving factors that would cause the administration to sort of rethink what it did, because if they were took an action, one way or another, that prevented their students from being able to participate in sports, there'd be a lot of blowback on that.

So, you know, it'll be interesting to see what how that appeal turns out.

I don't know anything about that process.

Maybe you have more information as to who it's an appeal to or is there a type of panel that hears it?

I'm not 100% sure, but it'll be interesting to watch that process.

- Because it's so rare, I, you know, never encountered it before (indistinct) was covering state government.

But, you know, I assume it's an appeal to the Board of Education itself.

And there's gonna be some sort of hearing.

But, John, we were talking before we hit record on this program, and you've been in higher education, basically, your entire career.

And, you know, you had some thoughts on what graduating with a diploma that is not recognized by the State Board of Education might mean for students?

- Well, there are some disadvantages in some places, depends on the university that you might be trying to get into, as opposed to another one or a community college.

The differences really range across the broad spectrum of American higher education.

It is a disadvantage that follows a student around.

They can probably get in if they've got exceptional test scores and good grades and all of that, but it's not good for the students.

I do wanna add follow up something Jerry said though, and that is to note that SB's being taking this heavy handed, some would say stance and doing not surprisingly, what the governor said that they would be doing.

So it's not surprising what SB's doing, but that in tandem with what the governor has done, it seems to me really takes a lot of heat off of these local school districts and superintendents and principals are really between a rock and a hard place.

Because the state has spoken and the school boards and superintendents, they're going to say, in the public schools, look, we got to follow what the governor says and what SB says.

I haven't seen but one or two small articles about these really heated local school board meetings where people demonstrated, people got up and got angry at one another (indistinct) that's going on routinely in Florida, Texas.

I think all of these people at that level will probably be quietly thanking the governor and SB for taking the heat off of them in the public sector.

- Yeah, no, that's a good point.

You know, it's definitely a huge trend in other states.

I saw a video last night from Tennessee, and it was just insane.

But yeah there have been fights here, especially up in the Chicago suburbs, there have been ones where police had to be called, but, you know, perhaps folks are conflating what's happening somewhere else with what's happening locally.

But nevertheless, you're right, you know, definitely takes a lot of pressure off of those local school boards to not have to decide and just say, well, we're going with the governor's mandate.

But, I do wanna move on to an update on the frontline state worker vaccine mandate.

You know, as we discussed on the program, last week, the frontline state workers, people who work in prisons, you know, facility, mental health facilities, congregate care, living veterans homes, they are, you know, within the vaccine mandate, and the union that represents them, the state's largest public sector, Employee Union, is (indistinct) and they are still pretty upset about it, though, they did leave the door open to bargaining on the issue.

You know, I asked the governor the other day, if he'd be willing to model his, you know, amend his executive order to kind of model President Biden's order on federal employees and contractors.

And, you know, in that case, people are able to give exemptions for, you know, religious reasons, and submit to regular testing (indistinct), but the governor said, no, these and folks in 24/7 employees were serving the most vulnerable.

And, you know, like he noted, last week, a lot of these facilities have pretty low vaccination rates.

And, you know, even if their residents have pretty high vaccination rates, and the other thing he did was, end COVID sick time, which of course, (indistinct) also up in arms about.

But Jerry, you know, when we, before October 4, when this is supposed to go into effect, what do you think we might see happen?

Do you think that there will be a good faith bargaining process with SB, or is this just gonna go into effect as an edict, and we'll see what happens with the workers who refuse?

- Yeah, that's a good question.

I think there's a little bit of a strained relationship between some of the unions and the governor, you know, in as much as union strain their relationship with Democrats, but I think what the governor is gonna have to decide is that, you know, what kind of example does he wanna set for businesses across the state, if he carves out too many exceptions on this, businesses might say, well, the governor is letting all these state workers get away with it, whatever.

So I don't know how that'll work.

And the other thing that's kind of interesting to watch is whether it'll be sort of full approval from the FDA at any point for the vaccines rather than emergency use authorization.

I know.

Dr. Fauci had sort of said recently, that made national news, that you're going to see a whole slew of businesses or whoever mandating vaccines, once it's out of the emergency authorization process.

So I don't know if that's gonna play in the state's decision, but I think the governor will be certainly cognizant of what kind of example he's setting.

- Sure.

And, you know, we also have schools obviously, we just spent a lot of time talking about schools.

Teacher vaccine mandates up until the other day, were kind of just a theoretical possibility.

But then California went and said, you know, they lay down the gauntlet and said, we're gonna be the first state to mandate that teachers get the vaccine.

John, do you think that puts pressure on other blue states to follow suit?

I know that, you know, when I asked the, well, first of all, the American Teacher Federation, President Randi Weingarten, who is definitely famous in political circles, she over the weekend came out in favor of vaccine mandates.

And when I asked the Illinois Education Association, President Kathy Griffin the other day, she said, you know, she's not necessarily opposed.

She just wants them to be bargained with individual districts in their local school board.

So do you think that those things mean that it might be coming to other blue states, including Illinois?

- Yes, I absolutely do.

This is a case of, don't do what I say, do what I do.

And people are looking to these educational leaders for leadership on this question.

I've watched the national and tried to watch the state and pretty carefully on this.

And the constant theme that is dominant, is that these teachers say they want to protect the kids, and they won't follow the most safe route.

And all the custodial people up to the principal and Superintendent have a role in that.

And I think that's been the predominant, although there are exceptions.

Drift of all of the information I can gather, the interviews I've seen and so forth.

And I think the blue state governors will sort of follow Joe Biden's example on what he said to the armed forces, ultimately, because that's a pretty strong statement.

And I think they are likely to copy that.

I think his governor has particular motivation, because he's got the sound Veterans Home thing hanging over his head, and it'll be an issue and he wants to have some good retorts, when both the Republicans and the reporters come after him.

- Now, that's a really good point.

In fact, you know, that was what he used as an example last week, to point out the delta between, you know, 99, 100% of residents vaccinated and some of those veterans homes versus really low vaccination rates among staff.

But yeah, I mean, Jerry, the superintendents that you keep in touch with I mean, would they necessarily fight against a vaccine mandate too, you know, in order to avoid a bargaining session with their locals?

- Yeah, hadn't really touched on that.

But I think it's, as John had kind of said earlier, that there'd probably be a lot of relief, if it took that bargaining situation out of the hands of the local districts.

And they were just able to say, you know, this is something that the state is requiring us to do.

We don't have much choice in the matter.

But there is also that sort of local control streak that these districts are very proud of, and they're proud of their communities.

And, you know, they wanna be able to set their policies as well.

So I mean, it is always a sort of, kind of tightrope walk in that regard.

But I think there might be a little relief there, if the state makes that decision.

- And just with a couple of minutes left here, John, I wanna get in one more subject.

The US Senate this week, very active, they finally passed a half a trillion dollar transportation infrastructure bill, which has been in negotiations for many, many weeks.

That includes, you know, a lot of money for Illinois, you know, Federal Highway aid, broadband, public transit, electric vehicles.

And also, you know, getting, let out of the water, Illinois is apparently the state with the most lead pipes in the whole nation.

But, you know, this isn't a complete done deal, has to go through the US House and progressives there want to get the other things that they had wanted, there's like, kind of social programs through budget reconciliation.

So what do you think we'll see there in Washington?

- Well, this is huge for state and local governments.

I think you will see good deal of pressure on some of those republicans in these congressional districts because they know that there's a lot of money there for all kinds of things that are very popular in their districts, even if there is rural and red as they come.

And they wanna be there cutting those ribbons.

I think that same pressure will come to bear on the House, I think probably Pelosi will hold her coalition together and this thing will pass.

And then of course, they'll move right along to the so called Human Services, infrastructure, which is gonna be an even tighter squeeze but probably doable, maybe doable.

- I guess, we'll see.

And, you know, Jerry, one of the things that we knew would probably come out of this was, money to keep nuclear plants open.

But (indistinct) has already said that that money wouldn't keep them from closing the plants that they'd have already identified.

That would be shuttered this fall.

And, you know, we know that we might be called back to Springfield later this month in August.

You know, any movement there?

- Yeah, the interesting thing about that, I think, is at least the way I understand it is if the state gives aid, it would detract, it would take away some of the federal aid available.

So even if there is federal aid, I guess every dollar of the state would decrease that amount.

And it would not take away the amount, not take away from the amount of aid the state would have to give to satisfy the nuclear plants.

- Kind of an impossible situation we find ourselves in, but we'll see how it plays out.

I wanna thank my guests, John Jackson, Jerry Nowicki.

Thanks for watching Capitol View and we'll catch you again next time.

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