APPEAL from the Circuit Court of Kane County; the Hon. ERNEST
W. AKEMANN, Judge, presiding.
MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 23, 1981.
Defendants, Illinois State Superintendent of Education, Joseph Cronin, and the members of the Illinois State Board of Education, (hereinafter State Board), appeal from an order of the circuit court of Kane County entered on February 8, 1980, wherein the court granted plaintiff, Aurora East Public School District No. 131 (hereinafter Aurora), declaratory and injunctive relief. In its order, the court declared invalid and void, and permanently enjoined the enforcement of, the Rules Establishing Requirements and Procedures for the Elimination and Prevention of Racial Segregation in Schools (hereinafter Rules) which had been promulgated by the State Board for the purpose of enforcing a 1963 amendment to section 10-21.3 of the School Code. The 1963 amendment to section 10-21.3 of the School Code provides, in relevant part, that:
"* * * As soon as practicable, and from time to time thereafter, the [local school] board shall change or revise existing [attendance] units or create new [attendance] 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." (Ill. Rev. Stat. 1977, ch. 122, par. 10-21.3.)
The above amendment was commonly known as the Armstrong Act and will be referred to as such throughout this opinion.
The court's order also granted a judgment in favor of Aurora and against the State Board on the State Board's countercomplaint which alleged, in substance, that Aurora had failed to comply with the requirements of the Armstrong Act and with the Rules.
Most of the issues involved in this case are, basically, questions of law. Thus, as to those issues, there are few facts which require recitation. The only issue which requires an understanding of the facts is the issue regarding violation of the Armstrong Act. The following, therefore, contains those facts relevant to a determination of that issue. In addition, we set forth some background information with respect to the history of the relevant law.
Aurora East School District 131 is divided into 11 attendance zones or subdistricts for purposes of elementary school attendance. Each subdistrict contains one attendance unit, i.e., an elementary school. The racial balance at each of Aurora's elementary schools is one of the issues in this case.
Aurora has changed its boundaries three times since the Armstrong Act became effective. These changes were effectuated in 1968, 1971 and 1977. The initial impetus for the boundary changes made in 1968 and 1971 was a series of space utilization studies begun in 1962 and conducted by Dr. Michael Sestak, who, at the time of trial, was assistant superintendent for Aurora. The studies revealed that certain elementary schools were either overcrowded or close to full capacity. As a result, new schools and school additions were built, necessitating the boundary changes.
Dr. James Cavanaugh, assistant superintendent for the elementary schools in the district at the time the space utilization studies were made, was responsible for recommending boundary changes to the local board of education. He explained the 1968 boundary changes, testifying that the space utilization studies were considered in planning the changes; but, also considered was available information on the race of the children who would be involved in the transfers and the distance students would have to travel if they were affected by the transfer. Dr. Cavanaugh explained that, in considering race as a factor in making boundary changes, he necessarily had to rely upon anticipated enrollment figures which were often inaccurate, since it was unpredictable how many families would move into or out of the area designated for any given attendance unit. In considering race, Dr. Cavanaugh utilized anticipated enrollment reports, which were sent yearly to the Department of Health, Education and Welfare (HEW), and dot maps.
During the same year that Aurora first made boundary changes, the Illinois Supreme Court upheld the constitutionality of the Armstrong Act in Tometz v. Board of Education (1968), 39 Ill.2d 593. The court found that the Armstrong Act's requirement, that race be considered in changing attendance boundaries, was applicable to de facto as well as deliberate segregation. (39 Ill.2d 593, 602.) The court noted, however, that, while racial imbalance is one factor to be considered, other factors such as traffic, distances of students' homes from school, finances and classroom capacity are also factors to be taken into account and may, in a given case, be the determining factors and even override any factor of racial consideration. 39 Ill.2d 593, 605-06.
In 1971, the Rules were first promulgated by Michael Bakalis, then the State Superintendent of Public Instruction. Subsequently, the legislature adopted what is known as the Moore amendment, which provides in pertinent part:
"* * * Nothing herein shall be construed to permit or empower the State Superintendent * * * to order, mandate or require busing or other transportation of pupils for the purpose of achieving racial balance in any school." (Ill. Rev. Stat. 1977, ch. 122, par. 10-22.5, eff. Oct. 1. 1973.)
In 1976, Joseph Cronin, Superintendent of State Board of Education, *fn1 promulgated the Rules at issue in the present case.
• 1 The first issue we consider is whether the State Board has the authority to promulgate Rules to enforce the Armstrong Act. Recently, the Court of Appeals for the Seventh Circuit explicitly addressed this question in Coates v. Illinois State Board of Education (7th Cir. 1977), 559 F.2d 445. The court noted that the State Board has a duty "[t]o supervise all the public schools in the State" (Ill. Rev. Stat. 1977, ch. 122, par. 2-3.3) and the concomitant power "[t]o make rules necessary to carry into efficient and uniform effect all laws for establishing and maintaining free schools in the State." (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 122, par. 2-3.6.) It thereafter found that the Armstrong Act (Ill. Rev. Stat. 1977, ch. 122, par. 10-21.3) was one law enacted for the purposes of establishing and maintaining free schools in this State. The court concluded and held that, under section 2-3.6 of the School Code, the State Superintendent has the power to make rules necessary to carry into efficient and uniform effect the local school board's charge under the Armstrong Act. The court found only one extrinsic limit on the State Superintendent regarding the regulations he may issue, i.e., the "anti-busing clause" of the Moore amendment (Ill. Rev. Stat. 1977, ch. 122, par. 10-22.5). (559 F.2d 445, 448.) The court went on, however, to define the scope of the State Superintendent's authority. The court explained that the statutory scheme under the School Code does not grant the State Superintendent authority to actually determine attendance units and pupil assignments. This task, i.e., "[a]ctual implementation," is left to the local school boards to be accomplished "within the guiding boundaries established by any Section 2-3.6 regulations which the State Superintendent has promulgated. * * * [T]he State Superintendent has an overseer's responsibility with respect to attendance units and pupil assignment * * *." (Emphasis added.) (559 F.2d 445, 448.) We believe Coates is determinative that the State Board has the authority to promulgate rules to carry out the Armstrong Act, and we agree with its reasoning and adhere to its ruling.
Having decided that the State Board has the required authority, the question becomes whether the present rules are a valid exercise of its authority. The legal principles regarding this issue are well established.
• 2, 3 Generally, any power exercised by an adminstrative agency must find its source within the provisions of the statute by which it is created. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 551.) An administrative agency has only such authority as is conferred by express provision of law or is found, by fair implication and intendment, to be incident to and included in the authority expressly conferred for the purpose of carrying out and accomplishing the objectives for which the agency was created. (Karas v. Dixon (1978), 67 Ill. App.3d 736, 739; Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App.3d 579, 583.) Thus, where an administrative agency promulgates rules which are beyond the scope of its legislative grant of authority, such rules are invalid. (Cf. Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540; Ruby Chevrolet, Inc. v. Department of Revenue (1955), 6 Ill.2d 147.) Similarly, to the extent that any administrative rule is in conflict with the statutory language under which the rule is adopted, it too is invalid. Pye v. Marco (1973), 13 Ill. App.3d 923, 926.
When reviewing administrative rules and regulations, a court will not set them aside unless they are clearly arbitrary, unreasonable or capricious. (Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill.2d 305, 310; Olin Corp. v. Pollution Control Board (1977), 54 Ill. App.3d 480, 483; Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App.3d 264, 270-71.) Thus, this court must examine the provisions of the Rules to determine whether they exceed statutory authority or are otherwise arbitrary, unreasonable or capricious.
• 4 The State Board contends that the trial court erred by failing to utilize the rules governing the construction of statutes which also govern the construction and interpretation of regulations promulgated by an administrative agency. (Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill.2d 53, 58; Olin Corp v. Pollution Control Board (1977), 54 Ill. App.3d 480, 483; Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App.3d 264, 273.) The State Board then sets forth several rules of construction including, inter alia, according substantial weight to an agency's construction and application of its own rules, interfering only if an agency's interpretation is plainly erroneous or inconsistent with long settled, uniform constructions (Scheffki v. Board of Fire & Police Commissioners (1974), 23 Ill. App.3d 971, 973) and, as with statutes, affording the rules a presumption of validity (Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill.2d 53, 58; Du-Mont Ventilating Co. v. Department of Revenue (1977), 52 Ill. App.3d 59, 63), construing them as valid rather than invalid if such can be reasonably done (cf. In re Tingle (1977), 52 Ill. App.3d 251, 257). The State Board argues that the trial court erred by failing to acknowledge or consider these rules of construction and by refusing to consider evidence pertaining to the history and development of the Rules.
• 5 While the State Board has accurately set forth the rules of statutory construction, it fails to realize that the doctrine which requires a reviewing court to accord substantial discretion to an administrative agency in the construction of its own rules does not invite arbitrariness or inconsistency (Scheffki v. Board of Fire & Police Commissioners (1974), 23 Ill. App.3d 971, 973) and that it is the function of the court to determine, as a matter of law, whether the agency acted within and according to the provisions of the statute creating it (cf. People ex rel. Thompson v. Property Tax Appeal Board (1974), 22 Ill. App.3d 316, 322).
Moreover, it must be kept in mind that these rules are relatively new and are being challenged and tested for the first time. As such, the court's initial evaluation of them requires that they be examined on their face, standing alone. And there exists no long-settled or uniform construction or interpretation of the Rules which has been applied continuously by the State Board. (Compare Olin Corp. v. Pollution Control Board (1977), 54 Ill. App.3d 480, 483-85.) In fact, we have found no evidence whatsoever in the record revealing how, or in what manner, the State Board has generally construed and applied its Rules. Contrary to the State Board's contention that it has construed and therefore applied the rules in a uniform and consistent manner, we find the testimony quoted by the State Board in support of that contention to be nothing more than mere conclusory statements; in no way does the quoted testimony indicate a uniform construction and application by the State Board in its determination of whether a local district is in compliance with the Rules. While examples of the Rules' application in other circumstances indeed would be helpful to this court in determining the meaning of the Rules, the State Board has not presented such evidence. We find no error by the trial court in this regard.
The trial court found the Rules to be invalid. To support its finding, the court discussed, at length, the operation of three specific provisions of the Rules. First, the court found the 15% plus or minus formula invalid in that it is a fixed standard for determining compliance with the dictates of the Armstrong Act; that it takes away, for its own use, discretion otherwise granted to local school authorities; and that it conflicts with the Moore amendment. Second, the trial court found that the enforcement provisions contained in the Rules go beyond the scope of authority which the legislature conferred on the State Board. Third, the court found that the hearing provisions of the Rules violate procedural due process. Before we proceed to a discussion of these provisions, we set forth a brief explanation of how the Rules operate.
Every year, local school districts must submit a report to the State Board. The report must include, inter alia, the racial composition of all pupils in the district and the racial composition of the student body at each attendance center (Rule 2.2). The State Superintendent reviews the report and determines whether any attendance centers are in nonconformance (Rule 3.1). Nonconformance is defined as the condition in which racial segregation exists in the schools, i.e., the minority racial composition of the pupils in any attendance center fails to reflect, within 15 percentage points, the minority racial composition of the pupils in all attendance centers in the district (Rule 1.4). If a local district is in nonconformance, it is notified of this condition and of the reasons in support thereof and must submit a plan (Rule 3.2) within 90 days of receipt of the notice (Rule 5.1). The plan must seek to achieve conformance (Rule 4.1); it must detail specific actions and present a timetable for implementation and completion (Rule 5.2). Upon a finding that the plan meets the requirements of the Rule, the school is considered to be in compliance and must forthwith implement its plan (Rule 6.2). Thereafter, an annual review is made by the State Superintendent. If the plan is behind its timetable for implementation, the State Board may also find, after an investigation of the reasons why the school district is behind schedule, that the local district is in noncompliance (Rule 6.5). Essentially, noncompliance under the Rules is defined as the failure of a school authority to submit, amend or implement a plan in accordance with the aforementioned provisions (Rule 1.3).
The first basis for invalidating the Rules was a finding by the trial court that the 15% plus or minus formula is the controlling basis for determining whether the school board has complied with the provisions of the Armstrong Act. The State Board asserts that such is not the case and that compliance occurs when a school board submits an acceptable plan (Rule 1.3), not when a 15% plus or minus racial balance is achieved. The State Board argues that the 15% plus or minus range, as provided in ...