APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 16, 1975.
This is a suit to review proceedings before the Illinois Fair Employment Practices Commission (Commission) stemming from a charge of discrimination on account of race *fn1 filed with the Commission by plaintiff against defendant Chicago Board of Education (hereafter Board.) Following a hearing on stipulated facts, the Commission dismissed the complaint. In a proceeding pursuant to section 264 et seq. of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.) to review the Commission's action, the circuit court affirmed that dismissal from which order this appeal is taken.
Complainant contends that (1) the Commission exceeded its statutory authority in that, having found the School Board violated the Illinois Fair Employment Practices Act (FEPA), it excused said conduct on the basis of Federal law; (2) the Commission erred in finding that Federal law required the sanctioning of an unfair employment practice; and (3) that attorney's fees should have been awarded to complainant. The facts, as stipulated, are as follows:
On May 7, 1970, plaintiff applied for a position as a teacher with the Board. The employment of teachers in the City of Chicago is provided for under the Otis Law sections of the Illinois School Code. (Ill. Rev. Stat. 1973, ch. 122, pars. 34-83.) That law provides for teacher examinations by a Board of Examiners, certification, and permanent appointment by the Board as regularly certified teachers with tenure. The Board also employs temporary substitute teachers as either (1) full-time basis substitute teachers (FTB's) who are willing to work on a full-time basis; and (2) day-to-day substitutes. With regard to the hiring of teachers, the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24-4) provides:
"The color, race, nationality, religion or religious affiliation of any applicant seeking employment either as a superintendent, principal, teacher or otherwise in the public elementary or high schools, shall not be considered either a qualification or disqualification for any such employment. Nor shall color, race, nationality, religion or religious affiliation be considered in assigning any person to an office or position or to any school in the school system."
Violation of the act is made a misdemeanor.
Here, the plaintiff had been issued a temporary teaching certificate by the Board of Examiners on May 7, 1970, and then applied for an FTB position. Because it was close to the end of the school year, the only position then available was as an FTB at the Prussing School, which had an all white faculty. He was assigned there effective May 8 to fill a new vacancy under his temporary certificate. Later that day another FTB position became available beginning May 18 at the Arnold Upper Grade Center, a school with an integrated faculty within the citywide average of 66% white, 34% black.
Plaintiff was then informed by the Board that, in compliance with demands and proposals of the United States Departments of Justice and of Health, Education and Welfare (HEW), a program had been undertaken to (1) equalize the distribution of qualified teachers in the Chicago public school system; and (2) end the de facto segregation of teachers by race in the system; and, because he was white and the faculty of the Prussing School was all white, his assignment to that school was withdrawn and he was reassigned under the same temporary teaching certificate to an equal-paying FTB position (Grade 7-8, Language-Arts) at the Arnold Upper Grade Center, effective May 18. After being so informed, plaintiff accepted said assignment change and completed the application forms therefor. Out of the 6 school days between May 8 and May 18, he worked 2 days and was paid $40 per day as a day-to-day substitute.
On May 18, he reported as an FTB teacher to the Arnold School. However, the principal there, in accordance with her authority under Board rules, assigned him to a vacancy in a special education class instead of an upper-grade position for which there was then no vacancy at that school. He informed the principal that special education was beyond the scope of his training but that he would attempt to fill the position. He worked and was paid for May 18 and 19, when he told the principal he was unable to handle the class properly and requested a transfer. The principal informed him his only alternative was to resign and apply for day-to-day substitute work (which he did on May 20), and thereafter he worked as a day-to-day substitute. Out of the 26 school days of possible employment for day-to-day substitutes between May 20 and the close of the school term on June 26, 1970, he worked and was paid for 16 days and refused employment on 3 days. On July 24, 1970, he applied for and accepted assignment again as an FTB teacher, beginning with the new school term on September 7, 1970, at the Mason Upper Grade Center, where he is still employed.
For many years prior to the 1969 Justice Department demand, original appointments of regularly certificated teachers have been made by the Board under the Otis Law from the eligibility lists of the Board of Examiners in the order of merit, and to vacancies in the schools as they occurred. In addition, temporary assignments of teachers certified as temporary substitutes were based upon individual need for teachers, pending filling of vacancies with regular teachers. Likewise, transfers of teachers were made on the basis of application date on transfer books rigidly maintained and open for public inspection. The factors taken into consideration by the Board in the assignment of a teacher to a particular school were (1) nature of vacancy; (2) examination and certification; (3) teacher's educational background and special qualifications; (4) teacher's experience; (5) special interests; and (6) distance of travel. The Board maintained no record of the race of any teacher and race was not a factor in teacher assignment.
In approximately 1958, because of a teacher shortage, a new procedure had been added by the Board for original appointments and assignments. A city map was established in the personnel department showing the location of schools where teacher vacancies existed, and teachers were permitted to indicate schools preferable to them because of proximity to home, etc. At that time, the FTB category of teachers was first established. Later, in 1964, the Board modified its transfer procedure by providing that no regularly appointed teachers would be transferred to a school where 95% or more of the teaching positions were filled by regularly appointed teachers. Also, on February 13, 1964, it adopted a "Statement of Policy of Racial Integration" as follows:
"The members of the Chicago Board of Education believe that this city and this country would be healthier economically, educationally, and morally if Chicago, Illinois, and all sections of the country, reflected the kind of racial and ethnic diversity characteristic of the nation as a whole * * * Therefore, we reaffirm and publicly declare a policy of racial integration. We shall endeavor to effect the development of a continuous program to achieve this goal."
On August 23, 1967, the Board published a report "Increasing Desegregation of Faculties, Students, and Vocational Education Programs," which was the result of a planning grant from the United States Office of Education. The report found that for the most part black teachers were teaching in schools located in black neighborhoods and white teachers in schools in white neighborhoods; teachers in schools in the black and the low socioeconomic neighborhoods were younger, less experienced, less qualified and subject to higher turnover than teachers in schools in predominantly white, more favored socioeconomic areas; the pattern of segregation and staff imbalance was the result of long enduring social and economic realities and resulting preferences and attitudes of teachers permitted by administrative policies and practices. The report recommended, among other things, that the Board personnel department and department of integration and human relations continue to cooperate in their program of encouraging integration in teacher assignments, and teachers were "reminded of the importance of the education of all children that they have some contact and acquaintance with persons of ethnic backgrounds other than their own in preparation for their successful adjustment in the multi-racial multi-cultural world in which they will live as adults."
In 1968, pursuant to agreement with the Chicago Teachers Union, the Board again modified its teacher assignment procedure so that no regularly appointed teachers would be transferred to a school where 90% (formerly 95%) or more positions were filled by regular teachers, thereby requiring each city school to have at least 10% of its faculty consist of temporary teachers. Thereafter, in 1968 and 1969, the Board continued its efforts to reduce the separation of races existing in its teaching personnel. No records were made as to the race of individual teachers, but visual observation surveys of the teaching staff indicated that approximately 66% of the staff was white and 34% black.
On July 9, 1969, the United States Department of Justice notified the Board that its practices with respect to the assignment and transfer of faculty and staff members had the effect of denying black students in the Chicago public schools the equal protection of the laws in violation of Title IV of the Civil Rights Act of 1964 and the fourteenth amendment to the United States Constitution. The Department of Justice further stated that, according to information available to it, "215 of Chicago's 578 elementary, junior high and senior high school schools have totally all-white or all-Negro faculties * * * that 93% of the Negro elementary and junior high school teachers are assigned to schools with Negro enrollments between 90-100% and only 3% of the Negro elementary and junior high school teachers are assigned to schools having 50% or more white enrollments * * * that there are 16 high schools which have all-white faculties and one high school with a faculty that is 91% Negro." The Department demanded that the Board undertake a "comprehensive program to disestablish the segregated pattern of faculty assignments, and to equalize the distribution of certificated and experienced personnel and substitute teachers" by a program (1) modifying the present transfer policy; (2) assigning new teachers so as to correct the present assignment pattern; (3) encouraging voluntary transfers; and (4) if necessary, requiring mandatory transfers.
On July 23, 1969, the Board answered the Justice Department by (1) stating it had not engaged in de jure segregation in the assignment and transfer of teachers; (2) expressing its concern because of the Illinois School Code section 24-4 prohibition of consideration of color or race in assignments or transfers in the school system; (3) stating its concern with the guarantee of equal protection provided by the Fourteenth Amendment and Title IV of the 1964 Civil Rights Act; and (4) by offering to undertake a step-by-step program to modify the pattern of faculty assignments to reflect the citywide ratio of experienced and inexperienced teachers.
On October 20, 1969, the Department of Justice rejected the Board's proposal and directed it to request the assistance of HEW in formulating an educationally feasible faculty desegregation and equalization plan. On November 25, 1969, in compliance with this direction, the Board requested assistance from that Department. Thereafter, representatives of the ...