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Morton v. Board of Ed. of City of Chicago

FEBRUARY 18, 1966.




Appeal from the Circuit Court of Cook County; the Hon. JOHN J. LUPE, Judge, presiding. Decree affirmed. MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

This appeal is taken from a decree dismissing with prejudice plaintiffs' complaint for an injunction to restrain the defendants from maintaining an experimental dual enrollment program (commonly known as the shared-time plan) created by a resolution of the Board of Education of the City of Chicago on April 23, 1964, and implemented by a report of the General Superintendent of Chicago Public Schools on April 29, 1965.

The 1964 resolution provides that students residing within the Kinzie High School attendance area who are otherwise eligible for full-time enrollment at that High School may attend the Kinzie High School on a part-time basis during the period of the experiment, beginning in September of 1965 and ending in June of 1969. The resolution provides that participation in the program may be effected only upon application in writing by the students' parents or legal guardians and that the participating students at all times during the duration of the experiment must fully comply with the compulsory attendance laws of Illinois. The resolution further provides that the General Superintendent of Public Schools shall request various private schools within the City of Chicago having students residing in the Kinzie High School attendance area to cooperate in the experiment, for the purpose of determining whether the dual enrollment plan is in the best interests of the Chicago public school children and the public school system. In August of 1964, the name of the Kinzie High School was changed to the "John F. Kennedy High School," and shall hereinafter be referred to by the latter name.

The General Superintendent's 1965 report described the progress of the implementation in connection with the Kennedy High School and set out the standards to be met by the students enrolled in the program as a condition to continued participation. The report also set out preliminary steps taken in connection with the initiation of a similar plan at the Taft High School. The 1965 progress report was approved and adopted by the Board of Education in May of 1965.

The Kennedy dual enrollment plan went into effect in September of 1965. The students enrolled in the program took all courses at the Kennedy High School except English, Social Studies, Music and Art, which courses were taken at the nearby St. Paul High School. Credit towards a Chicago Public High School diploma is given for the courses which are taken at the St. Paul High School.

Plaintiffs' complaint, filed in May of 1964, sought to enjoin the Board of Education from maintaining the dual enrollment program on the grounds that the program violated statutory and constitutional provisions. The complaint also sought to enjoin the Board of Education from permitting the construction of the Kennedy High School building which was then in the process of construction, but this matter had become moot by the time the hearing was had on the complaint in June of 1965, for the reason that the building had been erected and was then in use.

The legality of the dual enrollment program was challenged on the ground that it permits the parents or legal guardians of the participating students to violate the compulsory attendance laws of Illinois, set out in sections 26-1 and 26-2 of the 1961 School Code. Ill Rev Stats 1963, chap 122, pars 26-1 and 26-2. The complaint also challenged the constitutionality of the program on the ground that it violates article VIII, sections 1 and 3 of the Illinois Constitution, as well as the First Amendment to the United States Constitution, with respect to the establishment and/or maintenance of religion. Ill Const, art VIII, secs 1 and 3; US Const, 1st Amend. After considerable oral argument by counsel for the respective parties concerning both of the alleged violations, the trial court found that the dual enrollment plan does not violate either the statutory or the constitutional provisions, and ordered that the complaint be dismissed with prejudice.

Undoubtedly, the Chicago School Board has the power to create and maintain experimental education programs for the Chicago public school children. Section 34-18 of the 1961 School Code specifies the powers of the school boards and states that the "specifications of the powers herein granted are not to be construed as exclusive, but the board shall also exercise all other powers that may be requisite or proper for the maintenance and the development of a public school system, not inconsistent with the provisions" of the School Code. Ill Rev Stats 1963, chap 122, par 34-18. We cannot find any intention on the part of the legislature to limit the power of a school board to adopt and develop better methods of educating the children of this State, so long as the methods so adopted are otherwise consistent with the provisions of the School Code.

Section 26-1 of the School Code compels school attendance of all children in this State between the ages of 7 and 16 years. It provides:

"Whoever has custody or control of any child between the ages of 7 and 16 years shall cause such child to attend some public school in the district wherein the child resides the entire time it is in session during the regular school term; Provided, that the following children shall not be required to attend the public schools:

"1. Any child attending a private or a parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language;

"2. Any child who is physically or mentally unable to attend school, such disability being certified to the county or district truant officer by a competent physician; or who is excused for temporary absence for cause by the principal or teacher of the school which the child attends;

"3. Any child necessarily and lawfully employed according to the provisions of the law regulating child labor may be excused from attendance at a school by the county superintendent of schools or the superintendent of the public school which the child should be attending, on certification of the facts by and the recommendation of the school board of the public school district in which the child resides. In districts having part-time continuation schools, children so excused shall attend such schools at least 8 hours each week;

"4. Any child over 12 and under 14 years of age while in attendance at confirmation classes." Ill Rev Stats 1963, chap 122, par 26-1.

Section 26-2 relates to children under the age of 7 and over the age of 16, but only if they are enrolled in ...

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