Arguments pending in Parkview Christian Academy vs. ISBE court case Wednesday

Attorneys for Parkview Christian Academy and the Illinois State Board of Education will make oral arguments in Kendall County Court Wednesday, Sept. 29 as school officials seek a temporary restraining order against the state.

Parkview Christian, a K-12 school that operates two campuses in Yorkville, previously announced its intent to hold its school year without acknowledging the statewide mask mandate in a letter sent to ISBE on Aug. 23. Gov. JB Pritzker in early August declared a mask mandate, requiring all students and staff in public and private schools to wear masks while inside, regardless of vaccination status.

The ISBE responded by revoking Parkview Christian’s recognition Aug. 24. Consequences for the removal of the school’s recognition include eliminating the school’s ability to participate in Illinois High School Association and Illinois Elementary School Association sanctioned sports, blocking its participation in the Invest in Kids Act tax scholarship program, and ISBE will not recognize diplomas for graduating seniors.

In its request for a temporary restraining order filed by Plano attorney Carlo Colosimo, Parkview maintains that the state’s revocation of its recognition is invalid because it did not follow established procedures. During a hearing Sept. 23 in Kendall County Court, Colosimo stated that while Parkview’s concern is with how the state’s actions were taken while the ISBE’s response to Parkview’s filing argues “why” the actions were taken.

According to the filing, Parkview asserts that ISBE improperly delegated the power to revoke the school’s recognition to State Superintendent Dr. Carmen I. Ayala. The filing claims that ISBE delegated to Ayala the power to “make a final administrative decision” in regards to the status of schools, when that power does not exist for Ayala.

“There is no statutory authorization in the School Code or elsewhere providing the State Superintendent authority to make a final administrative decision as it pertains to nonpublic school recognition status,” the filing reads.

In the letter it received from the state revoking their recognition, Parkview asserts that it was not provided with a notice of opportunity for a hearing contesting the state’s decision, something the school is allowed to request.

If granted by the court, the temporary restraining order would remain in effect until an already-scheduled December hearing to contest ISBE’s revocation of Parkview’s recognition.

Recognition rules more burdensome for private schools?

Parkview also maintains in its appeal that the state Administrative Code’s recognition rules are more “burdensome” for nonpublic or private schools than for public schools.

“The fact that...Illinois Administrative Code...provides for the immediate revocation of recognition status in an ‘emergency situation’ directly contradicts the legislature’s direction that the rules promulgated by ISBE in regard to nonpublic school recognition procedures be no more burdensome than those imposed on public schools,” the filing read.

ISBE keeps an online list of nonpublic and public schools and districts throughout the state that have stated they will not follow the state’s mask mandate, a list that Parkview remains on. As of Sept. 23, four public school districts have been placed on probation for their decision, while nine nonpublic schools are listed as “nonrecognized.”

“In contrast to Parkview, who immediately lost all benefits of recognition status on August 24, 2021, all public schools determined to have not followed the public health guidance were placed on probation with the opportunity to confer with representatives of ISBE and take corrective action without immediately losing all benefits associated with public school recognition status,” Parkview’s filing read.

Appealing ISBE’s decision, Colosimo wrote, “is more burdensome on nonpublic schools in retaining their recognition status than the public school recognition rules.”

“A nonpublic school must submit a written notice of appeal within 14 days of notification of change in recognition status,” Colosimo continued, “whereas a public school has 30 days.”

In its response to Parkview’s filing, attorneys representing ISBE argued that the school does not have an “ascertainable right” to be granted probationary status given the school’s “noncompliance” with the governor’s executive order requiring masks be worn indoors in schools.

“Preliminarily, Parkview acknowledges that its recognition status is dependent on compliance with ISBE’s administrative guidelines and procedures,” the response reads. “What Parkview fails to address in its Emergency Motion is that it did not comply with those requirements.

“Instead, Parkview tries to side-step the very reason for which it was changed to ‘non-recognized’ status in the first place - failing to comply with the Executive Order and Revised Guidelines.”

Nonpublic schools, ISBE maintained, enter a “voluntary agreement to obtain recognition status.”

“In exchange for receiving and maintaining a recognized status, the nonpublic school in turn agrees to comply with the requirements to remain recognized,” the response continued, acknowledging that the Illinois School Code allows for different regulations between nonpublic and public schools, but “in no event should those requirements ‘be more burdensome’.”

The regulations ISBE maintains that Parkview failed to follow “are applicable to both public and nonpublic schools.”

“Parkview’s failure to comply with an equally applicable requirement is what ultimately led to its demotion to ‘non-recognized’ status,” the filing read.

While ISBE’s response acknowledges that Parkview is entitled to an administrative appeals process “which is currently ongoing, it is not entitled to a particular status during the pendency of that process given the evidence of the emergency at hand.”

In its response, ISBE asserts that authority was properly delegated to the state superintendent, and that Parkview has sourced the incorrect portion of the School Code in its filing - that Ayala cannot have the authority to nonrecognize school districts, not schools as Parkview asserted in its filing.

“As the Illinois School Code solely exempts nonrecognition of school districts from the Superintendent’s purview, the power to nonrecognize other entities such as nonpublic schools can rightfully be delegated and has in fact been so delegated.”

The superintendent’s authority, ISBE argues, is supported by the Executive Order put into place by the Governor.

“The Executive Order issued by the Governor stands as a clear source of law that otherwise provides for the Superintendent’s nonrecognition of Parkview,” ISBE wrote. “The Governor’s orders have been the subject of intense litigation, but they have been repeatedly upheld.

“The Governor and ISBE, through its Superintendent, have issued a command to Parkview that the school must comply with the mask mandate if it is to operate as a school. Parkview has chosen to not only disregard and disrespect the clear legal authority of the State, but also expose young students to a dangerous virus that has so far caused the deaths of countless Illinoisans.”

ISBE further asserts that Parkview’s argument calling for the appeals process to play out before its status can be determined “ignores clear language” allowing for an exception for the State Superintendent to “change any nonpublic school’s recognition status in the event that the ‘Superintendent determines there is an emergency situation present at school’.”

“It is clear that the Superintendent would only place a school in ‘nonrecognition’ status in extenuating circumstances. There can be no ‘planned status change’ in the event of a finding that an emergency situation is present in a school, ands as such this emergency carve-out takes precedent over the normal administrative procedures.”

ISBE also contests Parkview’s assertion that nonpublic school recognition rules are “more burdensome” than those for public schools, by writing that the school “misunderstands the...language.”

“Although Parkview claims its review process is much more abbreviated than that of public schools, what Parkview really disagrees with is the sanction that it was issued,” ISBE wrote. “If anything, given the issue for which Parkview was nonrecognized, the appeals and review process is much more streamlined and hinges on one key issue: whether Parkview will abide by the mask mandate or not.

“There is no need to be placed on probationary status for a compliance measure that is pretty black or white: either wear the mask or don’t. Parkview has affirmatively asserted that it will not comply.”