APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Willie Elliot is a handicapped student enrolled in the public school system operated by the defendant, Board of Education of the City of Chicago. The defendant Board of Education determined that the special education program of the Chicago Public Schools was inadequate to meet Willie's needs and excluded him from its public schools. Therefore, Willie attends classes at the Potential School for Exceptional Children, a nonpublic school in Chicago. Willie and his mother, Dolores Elliot, filed this matter as a class action in the Circuit Court of Cook County. Their complaint seeks primarily a declaration that section 14-7.02 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 14-7.02) is unconstitutional in that it limits the amount of tuition which the State, through its school districts, must pay for the special education of handicapped students who have been excluded from the public schools and who attend a nonpublic school or special education facility. The complaint also seeks injunctive relief mandating the school districts to pay the full tuition of all handicapped public school students attending nonpublic school or private educational facilities pursuant to section 14-7.02, and damages totaling the difference between the amounts contributed toward the private school tuitions by the school districts and the actual tuitions charged thus far. *fn1
Both of the defendants, the Board of Education and Joseph M. Cronin, State Superintendent of Education, moved to dismiss the complaint for failing to state a cause of action. The court allowed the motions and dismissed the complaint with prejudice. When announcing its decision, the court stated:
"Well, the law provides that where the public school system does not have the facilities for a mentally retarded child, that they will pay up to $2,500 towards that child's tuition.
Now, this Court cannot interfere with how much is to be paid. That is a matter clearly for the legislature.
I can't tell the legislature that you must pay $5,000 or $10,00 [sic] or $20,000. This is a matter for the legislature.
The plaintiffs seek to reverse the trial court's order dismissing their complaint and to remand the cause for trial. The question of the class action status was not reached in the proceedings in the trial court and, therefore, it is not before us in this proceeding. All facts well pleaded by the complaint are deemed true. Schreiner v. City of Chicago (1950), 406 Ill. 75, 92 N.E.2d 133; People ex rel. Hamer v. Board of Education (1974), 22 Ill. App.3d 130, 316 N.E.2d 820.
Willie Elliot began his formal education at Chicago's Orville T. Bright Elementary School in September 1971. In February 1973 the Board of Education of the City of Chicago excluded Willie from further attendance at Bright because his handicap was such that he could no longer benefit from the programs available within the public school system. Pursuant to section 14-7.02 of the School Code, the Board of Education certified to the then State Superintendent of Public Instruction *fn2 that Willie was a handicapped student and that the public schools of the City of Chicago could not meet his educational needs. Following his exclusion from the public schools and the certification to the superintendent it was arranged for Willie to attend classes at the Potential School for Exceptional Children, a State-approved nonpublic school. From February 1973 to the present Willie's mother, Dolores Elliot, has been required to pay the difference between the tuition charged by the Potential School, $2800 per school year, and the amount contributed by the Board of Education pursuant to section 14-7.02.
Each year the Chicago Board of Education receives reimbursement from the State for its expenditures toward Willie's tuition at the Potential School. Reimbursement is limited, however, to an amount computed by reference to the formula set forth in section 14-7.02. Provision is also made for the Board of Education to pay up to an additional $500 per year for summer school programs for Willie and to provide necessary transportation expenses to and from the Potential School. Reimbursement from the State for these expenditures is also limited by law.
Local and State school officials have made similar exclusions of handicapped children from the public schools and these students were placed in private educational facilities. Answers to interrogatories filed by Dr. Michael J. Bakalis, former State Superintendent of Public Instruction, set the number of applications for such private placements at 6635 as of May 1, 1974. A substantial number of these applications result in tuition charges in excess of the amount the school districts are authorized to contribute. This excess becomes the obligation of the parents and guardians of the handicapped students involved.
The plaintiffs challenge the constitutionality of section 14-7.02 of the School Code which provided:
"If because of his handicap the special education program of a district is unable to meet the needs of a child and the child attends a non-public school or special education facility, a public out-of-state school or a special education facility owned and operated by a county government unit on the effective date of this amendatory Act of 1975 that provides special educational services required by the child and is in compliance with the appropriate rules and regulations of the State Superintendent of Education, the school district in which the child resides shall pay the actual cost of tuition charged the child by that non-public school or special education facility, public out-of-state school or $2,500 per year, whichever is less, and shall provide him any necessary transportation. However, transportation shall not be provided to a residential school. If such non-public school or special education facility, public out-of-state school or county special education facility provides a summer school program, then the tuition charged the child for the summer program or $500 per summer, whichever is less, may also be paid together with transportation by the school district in which the child resides. A school district making tuition payments pursuant to this Section is eligible for reimbursement from the State for the amount of such payments actually made in excess of the district per capita tuition charge for students not receiving special education services. Where summer school tuition payments are made the school district shall be eligible for reimbursement from the State for the amount of such payments actually made in excess of $100 per student. Such reimbursement shall be paid in accordance with Section 14-12.01 for each school year ending June 30, to the board of each such school district, through the regional superintendent of schools, on the warrant of the State Comptroller.
If it otherwise qualifies, a school district is eligible for the transportation reimbursement under Section 14-13.01 and for the reimbursement of tuition payments under this Section whether the non-public school or special education facility, public out-of-state school or county special education facility, attended by a child who resides in that district and requires special educational services, is within or outside of the State of Illinois. However, a district is not eligible to claim transportation reimbursement under this Section unless the district certifies to the State ...