Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1977.
The School Code of Illinois (Ill. Rev. Stat. 1975, ch. 122, par. 1-1 et seq.) requires that school boards prepare annual calendars for the school term providing "a minimum term of at least 185 days to insure 176 days of actual pupil attendance" (Ill. Rev. Stat. 1975, ch. 122, par. 10-19) computed as specified in other sections of the Code. Section 18-12 of the Code provides for a reduction in the amount of State aid to any district failing to comply with this requirement. As a result of a teacher's strike in the Chicago public schools and a subsequent shortage of funds available to the Chicago Board of Education, the city of Chicago public schools operated for only 162 days of actual pupil attendance during the 1975-76 school year. This was, of course, 14 days short of the statutorily required minimum. As a result it was determined that the amount of State aid to those schools should be reduced by $53.26 million, to be deducted from State aid payments over the ensuing 3-year period. State Superintendent of Education Joseph M. Cronin (Superintendent) submitted vouchers for State aid payments to Chicago schools computed on this basis to State Comptroller George W. Lindberg, who refused to honor them on the ground that section 18-12 required deduction of the entire amount within a 1-year period. It is from this factual setting that this litigation has arisen. There is also pending in the Sangamon County circuit court a mandamus action against Superintendent Cronin by the Illinois Education Association and a taxpayer who have filed here an amicus statement adopting the Comptroller's brief.
The day following Comptroller Lindberg's refusal to honor the vouchers two suits for injunctive and declaratory relief were filed in the Cook County circuit court. The State Superintendent and the Superintendent of the Education Service Region of Cook County sued Comptroller Lindberg challenging his refusal to honor the August vouchers for State aid to Cook County schools as certified by Superintendent Cronin. The Chicago Board of Education (Chicago Board) and Dr. Joseph P. Hannon, in his official capacity as General Superintendent of Schools of the Chicago Board and in his individual capacity as a citizen, resident, and taxpayer, sued both Superintendent Cronin and Comptroller Lindberg, challenging the validity of any reduction in State aid under section 18-12 of the School Code. The two actions were consolidated, and the trial court ordered the distribution of State aid funds, to the extent not disputed, to Cook County schools, pending decision of the consolidated suits.
At the September 14 hearing on the consolidated actions the trial court suggested counsel for all parties first argue the issue of the constitutionality of that portion of section 18-12 which provided for a reduction in State aid to those school districts failing to comply with the required minimum number of days of actual pupil attendance. The court suggested if that provision were to be found invalid, the other issues became moot, and, if a reviewing court reversed the finding of invalidity and remanded, further hearings on those other issues could then be held. The parties proceeded accordingly, the trial court held the reduction provision of section 18-12 unconstitutional and further found "there is no just reason to delay the enforcement or appeal of this order." Both Superintendent Cronin and Comptroller Lindberg appealed, and we set an expedited schedule for briefing and oral argument.
After the September 14 decision of this case in the trial court the second paragraph of section 18-12 was amended in a special session of the legislature. Effective September 28 that paragraph reads:
"If, for any school year before the 1975-1976 school year, any school district fails to provide the minimum school term specified in Section 10-19, the State aid claim shall be reduced by the State Superintendent of Education in an amount equivalent to 1% for each day less than the number of days required by this Act. If, for the 1975-1976 school year or any school year thereafter, any school district fails to provide the minimum school term specified in Section 10-19, the State aid claim shall be reduced by the State Superintendent of Education in an amount equivalent to .56818% for each day less than the number of days required by this Act. However, if the State Superintendent of Education determines that such failure to provide the minimum school term was occasioned by an act or acts of God, the State aid claim need not be reduced." (Pub. Act 79-6th SS-1.)
The net effect of this amendment is to retain for all pre-1975-1976 school years the flat reduction of 1% per day for each day below the minimum as the statute originally provided, but to limit that reduction for the 1975-1976 and subsequent school years to .56818%, the decimal equivalent of 1/176. That amendment is applicable to this case (Rios v. Jones (1976), 63 Ill.2d 488, 494; Community Consolidated School District No. 210 v. Mini (1973), 55 Ill.2d 382), and reduces from $53.26 million to $30.26 million the amount to be deducted from State aid to Chicago's schools.
We turn now to a consideration of the issues. As amended, the Chicago Board complaint alleged that section 18-12 was irreconcilably repugnant to article X, section 1, of the Constitution of 1970, requiring an efficient system of high quality public educational institutions and services, and to section 34-18(1) of the School Code, requiring the Chicago Board to maintain schools for not less than nine months; that closing the schools during the strike was in the nature of an act of God and thus expressly exempt from the reduction provisions of section 18-12; and that closing during June was compelled by the nonexistence of funds. It was further alleged that the Board's actions were undertaken in good faith, that the penalty is excessive and constituted an illegal forfeiture, that it discriminates against poorer school districts and has a marked racially discriminatory effect on Chicago school children; and that section 18-12 violates the due process and equal protection clauses of the United States and Illinois constitutions. The trial court's order found section 18-12 of the School Code to be a penal statute which contravened the Illinois Constitution's goal that the State bear primary responsibility for financing public education; that the Chicago Board had been precluded from maintaining a full school term by the strike and the lack of State and local financial resources; that section 18-12 is unconstitutional, inequitable, and void insofar as it permitted the exaction of a harsh and excessive penalty against the Chicago Board; that equity required the penalty be vacated; and that the second paragraph of section 18-12 is an unconstitutional delegation of legislative power to an administrative official without sufficient guidelines or procedural safeguards.
We agree with the defendants in the case brought by the Chicago Board and its superintendent that neither plaintiff has standing to question the validity of the reduction provision of section 18-12 on due process grounds. Boards of education and school districts are governmental agencies created by the legislature and subject to its will. (People ex rel. Taylor v. Camargo Community Consolidated School District No. 158 (1924), 313 Ill. 321-27; Trustees of Schools v. Tatman (1851), 13 Ill. 27.) Due process guarantees, in the ordinary sense, do not extend to them. (People ex rel. Dixon v. Community Unit School District No. 3 (1954), 2 Ill.2d 454, 466; People v. Deatherage (1948), 401 Ill. 25, 32.) A school board may, however, assert a denial of equal protection of the laws if it is a member of a class being discriminated against (Board of Education v. Bakalis (1973), 54 Ill.2d 448, 467; see also City of Carbondale v. Van Natta (1975), 61 Ill.2d 483, 488; Leno v. St. Joseph Hospital (1973), 55 Ill.2d 114, 121), and the allegation that the effect of the reduction in State aid here was to discriminate "against relatively poorer school districts such as Chicago" merits consideration. That board did not, however, have standing to protest alleged racial discrimination, since it is not a member of the protected class of pupils (Board of Education v. Bakalis (1973), 54 Ill.2d 448, 467), nor is the Board's superintendent in any different position, for he is controlled by the same considerations applicable to the Board. Moreover, his position as a taxpayer does not permit him to challenge the statute's constitutionality without allegations of its injurious effect upon him (Hamer v. Board of Education (1970), 47 Ill.2d 480, 483) which are not present here.
The major issue in the Chicago Board case is whether the provisions of section 18-12 for reduction of State aid to non-complying districts are compatible with section 1 of article X of the Illinois Constitution, which reads as follows:
"A fundamental goal of the People of the State is the educational development of all persons to the limits of their capacities.
The State shall provide for an efficient system of high quality public educational institutions and services. Education in public schools through the secondary level shall be free. There may be such other ...