No. 54738. — Appeal from the Appellate Court for the Second
District; heard in that court on appeal from the Circuit Court of
Kane County, the Hon. Ernest W. Akemann, Judge, presiding.
No. 55134. — Appeal from the Appellate Court for the First
District; heard in that court on appeal from the Circuit Court of
Cook County, the Hon. Arthur L. Dunne, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Thomas H. Morsch and Shalom L. Kohn, of Sidley & Austin, and Julia Quinn Dempsey and David A. Thompson, all of Chicago, for appellants.
Anthony Scariano and Robert H. Ellch, of Anthony Scariano & Associates, P.C., of Chicago Heights, for appellee Board of Education of School District No. 170.
This case involves the plaintiff school districts' challenge to the validity of the Rules Establishing Requirements and Procedures for the Elimination and Prevention of Racial Segregation in Schools (Rules). The Rules were promulgated by the defendant Joseph Cronin, the State Superintendent of Education (Superintendent), and adopted by the defendant State Board of Education (Board).
In cause No. 54738, Aurora East Public School District No. 131 (Aurora) brought suit against the defendants in the circuit court of Kane County for declaratory judgment and injunctive relief. The defendants filed a countercomplaint alleging that Aurora failed to comply with section 10-21.3 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 10-21.3), commonly referred to as the Armstrong Act. This act provides, in part:
"As soon as practicable, and from time to time thereafter, the [local] board shall change or revise existing [attendance centers] or create new [attendance centers] 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."
The circuit court declared the Rules void, and permanently enjoined their enforcement. It further determined that Aurora's practices regarding segregation did not violate the Armstrong Act. A majority of the appellate court affirmed on the grounds that the Rules were unreasonable and arbitrary, and that the circuit court's ruling with respect to the countercomplaint was not contrary to the manifest weight of the evidence. 92 Ill. App.3d 1010.
In cause No. 55134, the defendants appealed an order of the circuit court of Cook County granting the board of education of Chicago Heights Public School District No. 170 (Chicago Heights) summary judgment on count I of its complaint for declaratory relief. The trial court went on to state that the Rules were arbitrary, capricious and illegal, and a majority of the appellate court affirmed. (Chicago Heights Public School District v. Illinois State Board of Education (1981), 97 Ill. App.3d 246.) We granted defendants leave to appeal in each instance and consolidated the cases for purposes of review.
The following questions are raised on appeal: (1) Does the Board have authority to promulgate and enforce rules designed to prevent racial segregation? (2) If so, are these particular rules valid? (3) Has Aurora failed to comply with the requirements of the Armstrong Act? Because of the results reached in this case, it is necessary to address only the first and third issues.
The Rules were originally promulgated in 1971 for the purpose of enforcing the Armstrong Act. Subsequently, in 1973, the legislature enacted the Moore Amendment, which provides:
"Nothing herein shall be construed to permit or empower the State Superintendent of Public Instruction[*] 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.) [[*]In 1975, the duties of the Superintendent of Public Instruction were delegated to the Board. (Ill. Rev. Stat. 1977, ch. 122, par. 1A-4C.)]
In 1976, the rules at issue in this case were adopted by the Board. Under the Rules, each district must submit an annual report to the Board indicating the racial composition of the students in the district as a whole, and at each attendance center (Rule 2.2). The report is reviewed by the Superintendent for the purpose of determining whether any attendance center is in nonconformance (Rule 3.1). Rule 1.4 defines nonconformance as "[t]he condition in which racial segregation exists in the schools under any school authority, that is: (a) 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 under a given school authority." Thus, nonconformance as applied to racial segregation is defined in terms of a 15% plus or minus quota. For example, if a given school district is composed of 50% minority pupils, then the minority enrollment at each attendance center within that district must range from between 35% and 65% of the total enrollment.
If the Superintendent determines that a district is in nonconformance, he must promptly notify the district of that status (Rule 3.2). The district is then afforded 90 days in which to submit a plan in an effort to achieve conformance (Rules 4.1, 5.1). Upon receipt of the notification, the district may request that the Illinois Office of Education (IOE) provide technical assistance in devising a plan. Following receipt of such a request, the IOE must promptly furnish appropriate assistance (Rule 4.3).
Any plan offered by a district must contain "a detailed description of the specific actions to be proposed" and a timetable indicating the anticipated dates of implementation and completion (Rule 5.2). If the Board determines that a submitted plan is acceptable, the school is considered to be in compliance, and its efforts to implement the plan are subject to annual review by the Superintendent (Rule 6.5).
Under Rule 1.3, a school authority is considered to be in noncompliance if it fails or refuses to submit, amend or implement a plan in accordance with the Rules. Upon a finding of noncompliance, the school district is placed on probation (Rule 7.1). It remains in that status for one year, unless the cause for noncompliance has been removed (Rule 7.1(a)), or the Board determines that lesser measures are sufficient (Rule 7.1(b)). If a district remains on probation for one year without effecting compliance with the Rules, and it does not request a hearing, the Board may place the district on non-recognition status (Rule 7.2). If a hearing is conducted, the Board will review the findings of the hearing officer to determine if the district is in continued noncompliance. If it is, the Superintendent will place the district on non-recognition status (Rules 7.4(d), (e)). When a district loses recognition, the Board may withhold all Federal funding to which the district would otherwise be entitled (Rule 7.4(g)).
The final relevant provision, Rule 6.1, states in part that "[w]here educational, physical or economic constraints would place an unreasonable burden upon the school authority in completely conforming, the State Board of Education may, in its discretion, waive the requirement of complete conformance in pupil assignment."
Turning to the facts in the instant cases, Aurora currently operates one senior high school, two junior high schools, and 11 elementary schools for children attending kindergarten through grade six. The total minority enrollment in the district, for the 1976 through 1977 school years, was 41.4%. Based on this percentage, ...