APPEAL from the Circuit Court of Lake County; the Hon. CHARLES
S. PARKER, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
On June 13, 1963, the legislature approved an amendment to section 10-21.3 of the Illinois School Code relating to the duties of school boards. (Ill. Rev. Stat. 1967, chap. 122, par. 10-21.3.) This amendment, commonly called the Armstrong Act, provides in part: "As soon as practicable, and from time to time thereafter, the board shall change or revise existing [attendance] units or create new units in a manner which will take into consideration the prevention of segregation and the elimination of separation of children in public schools because of color, race or nationality."
On August 4, 1965, the plaintiffs, seven children, by their respective parents, instituted a suit in the circuit court of Lake County claiming that the Waukegan City School District had violated the Armstrong Act and seeking a mandatory injunction requiring the district to revise the boundaries of its school attendance units. The district and the local board of education were named as defendants.
No boundary changes had been made in the school district since the enactment of the Armstrong Act. At the time suit was filed, the percentages of Caucasian and Negro students in each of the district's attendance units were as follows:
Name of Percentage of Percentage of School Caucasians Negroes
Whittier 15% 85% Clearview 100% 0% Glen Flora 98% 2% Glenwood 100% 0% Hyde Park 100% 0%
After suit had been filed, Dr. McCall, who was then the superintendent of the defendant school district, was requested by the board to make a study of the Whittier and surrounding attendance units. Dr. McCall prepared a comprehensive report, which included four possible revisions of the boundaries for the school district area, which were designated plans 1, 2, 3, and 4. His observations concerning each plan's feasibility and desirability were part of the report. On June 13, 1966, the board considered the report, which, though it described possible boundary changes, recommended that no changes be made, and voted to make no revisions of attendance unit boundaries.
Trial was had on the plaintiffs' complaint and at its conclusion on July 20, 1966, the court found inter alia that the racial imbalance in the Whittier School area had not been created by any deliberate conduct on the part of the defendants and that the defendants had not been guilty of any intentional racial discrimination. Also, the trial court held that the Armstrong Act was constitutional and applicable to "so-called de facto segregation in schools, i.e., racial imbalance in schools not created by the deliberate intent of a school board." The trial court judged that the defendants' failure to make any change in the boundaries of the district's attendance units was unreasonable under the circumstances and in violation of the Armstrong Act. The court therefore ordered the defendants to submit a plan making reasonable boundary revisions so as to "in some measure ameliorate the racial imbalance" in the attendance units concerned. August 4, 1966, was set for a hearing to consider the plan to be proposed.
On such date the trial court incorporated in its decree plan 2 of the McCall report with certain modifications. These modifications were proposed by Dr. Van Devander, the new school district superintendent, to improve the original plan 2 by avoiding certain traffic hazards and by more acceptably balancing class loads among the schools. Under the court's decree the distribution of Caucasian and Negro school children in the district was to be:
Name of Percentage of Percentage of School Caucasians Negroes
Whittier 57.4% 42.6% Clearview 100% 0% Glen Flora 83% 17% Glenwood 83.6% 16.4% Hyde Park 79.9% 20.1%
In this direct appeal the defendants challenge the constitutionality of the Armstrong Act, alleging that the Act's requirement that race be considered as a factor in changing or forming school attendance unit boundaries, constitutes a racial classification comdemned by the equal protection clause and due process clause of the fourteenth amendment to the United States constitution and the due process clause of the Illinois constitution.
To support this claim, the defendants heavily rely on three Federal cases, each of which held, no State law being involved, that a local school board does not have an affirmative constitutional duty to act to alleviate racial imbalance in the schools that it did not cause. (Deal v. Cincinnati Board of Education, (6th cir. 1966) 369 F.2d 55, cert. denied 389 U.S. 847, 19 L.E.2d 114, 88 S.Ct. 39; Downs v. Board of Education of Kansas City, (10th cir. 1964) 336 F.2d 988, cert. denied 380 U.S. 914, 13 L.Ed.2d 800, 85 S.Ct. 898; Bell v. School City of Gary, Indiana, (7th cir. 1963) 324 F.2d 209, cert. denied 377 U.S. 924, 12 L.Ed.2d 216, 84 S.Ct. 1223.) However, the question as to whether the constitution requires a local school board, or a State, to act to undo de facto school segregation is simply not here concerned. The issue here is whether the constitution permits, rather than prohibits, voluntary State action aimed toward reducing and eventually eliminating de facto school segregation.
State laws or administrative policies, directed toward the reduction and eventual elimination of de facto segregation of children in the schools and racial imbalance, have been approved by every high State court which has considered the issue. (Pennsylvania Pennsylvania Human Relations Com. v. Chester School District, (Sept. 1967) 427 Pa. 157, 233 A.2d 290; Massachusetts School Committee of Boston v. Board of Education, (June, 1967) ___ Mass. ___, 227 N.E.2d 729, appeal dismissed, (Jan. 15, 1968) ___ U.S. ___, 19 L.Ed.2d 778, 88 S.Ct. 692; New Jersey Booker v. Board of Education of Plainfield, (1965) 45 N.J. 161, 212 A.2d 1; Morean v. Board of Education of Montclair, (1964) 42 N.J. 237, 200 A.2d 97; California Jackson v. Pasadena City School District, (1963) 59 Cal.2d 876, 382 P.2d 878; New York Addabbo v. Donovan, (1965) 16 N.Y.2d 619, 209 N.E.2d 112, cert. denied 382 U.S. 905, 15 L.Ed.2d 158, 86 S.Ct. 241; Vetere v. Allen, (1965) 15 N.Y.2d 259, 206 N.E.2d 174; see also Guida v. Board of Education of City of New Haven, (1965) 26 Conn. Sup. 121, 213 A.2d 843.) Similarly, the Federal courts which have considered the issue, including Deal v. Cincinnati Board of Education, (6th cir.) 369 F.2d 55, cert. denied 389 U.S. 847, 19 L.Ed.2d 114, 88 S.Ct. 39, relied on by the defendants, have recognized that voluntary programs of local school authorities designed to alleviate de facto segregation and racial imbalance in the schools are not constitutionally forbidden. E.g., Offermann v. Nitkowski, (2d cir. 1967) 378 F.2d 22; Deal v. Cincinnati Board of Education, (6th cir. 1966) 369 F.2d 55, 61, cert. denied 389 U.S. 847, 19 L.Ed.2d 114, 88 S.Ct. 39; Wanner v. County School Board of Arlington County, (4th cir. 1966) 357 F.2d 452, 455; Springfield School Committee v. Barksdale, (1st cir. 1965) 348 F.2d 261; Hobson v. Hansen, (D.D.C. 1967) 269 F. Supp. 401, 509, 510.
In Springfield School Committee v. Barksdale, (1st cir. 1965) 348 F.2d 261, the school authorities of Springfield, Massachusetts, had passed a resolution to take appropriate action "to eliminate to the fullest extent possible, [de facto] racial concentration in the schools within the framework of effective educational procedures." Addressing itself to this resolution, the Court of Appeals for the First Circuit stated at page 266 that: "It has been suggested that classification by race is unlawful regardless of the worthiness of the objective. We do not agree. The defendants' proposed action does not concern race except insofar as race correlates with proven deprivation of educational opportunity. This evil satisfies whatever `heavier burden of justification' there may be. Cf. McLaughlin v. State of Florida, 1964, 379 U.S. 184, 194, 85 S.Ct. 283, 13 L.Ed.2d 222. It would seem no more unconstitutional to take into account plaintiffs' special characteristics and circumstances that have been found to be occasioned by their color than it would be to give special attention to physiological, psychological or sociological variances from the norm occasioned by other factors. That these differences happen to be associated with a particular race is no reason for ignoring them. Booker v. Board of Education, 1965, 45 N.J. 161, 212 A.2d 1 * * *."
In Morean v. Board of Education of Montclair, (1964) 42 N.J. 237, 200 A.2d 97, the Supreme Court of New Jersey sustained the constitutionality of a school board's plan to assign students from a predominantly Negro junior high school to the town's three remaining junior high schools, even though race had been a consideration. The court stated there that: "The motivation was, to avoid creating a situation at Hillside [school] which would deprive the pupils there of equal educational opportunities and subject them to the harmful consequences of practical segregation. Constitutional color blindness may be wholly apt when the frame of reference is an attack on official efforts toward segregation; it is not generally apt when the attack is on official efforts toward the avoidance of segregation." 200 A.2d at 99; accord, Offermann v. Nitkowski, (2d cir. 1967) 378 F.2d 22, 24.
Also pertinent is the observation of the Supreme Court of Pennsylvania in Pennsylvania Human Relations Com. v. Chester School District, (Sept. 1967) 427 Pa. 157, 233 A.2d 290. In this case, which involved de facto segregation in public schools, the court said: "The School District does not suggest that it would be unconstitutional for the Legislature to command them to consider race in their redistricting proposals in order to achieve a semblance of racial balance in its schools, nor do we believe there would be any merit in such a contention." 233 A.2d at 294.
Too, the United States Supreme Court on January 15, 1968, dismissed an appeal in School Committee of Boston v. Board of Education, (Mass. 1967) 227 N.E.2d 729, which challenged the statute providing for elimination of racial imbalance in public schools "for want of a ...