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09/12/89 Daniel J. Morrison, A v. Chicago Board of Education

September 12, 1989

MOTHER AND BEST FRIEND, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

CHICAGO BOARD OF EDUCATION, DEFENDANT-APPELLANT AND CROSS-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

DANIEL J. MORRISON, a Minor, by Barbara B. Morrison, his

544 N.E.2d 1099, 188 Ill. App. 3d 588, 136 Ill. Dec. 324 1989.IL.1411

Appeal from the Circuit Court of Cook County; the Hon. Kenneth E. Gillis, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. JUSTICE DiVITO, specially Concurring. PRESIDING JUSTICE BILANDIC, Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Defendant appeals from an order of the circuit court granting in part plaintiff's motion for a preliminary injunction and ordering the Chicago Board of Education to assess the readiness of plaintiff to attend kindergarten pursuant to the provisions of the Illinois School Code (Ill. Rev. Stat. 1985, ch. 122, par. 1-1 et seq.). Plaintiff cross-appeals from the denial of his requests for preliminary and permanent injunctions seeking to compel defendant to enroll him, based on various asserted grounds.

Defendant raises the following issue on appeal: whether the trial court erred in ordering it to assess the readiness of the plaintiff to attend school in light of the fact that the language of the statute relating to assessments was clearly permissive. Plaintiff raises the following issues on cross-appeal: whether the trial court erred in denying his motion for preliminary and permanent injunctive relief because (a) defendant operates on a full year school basis and he was five years of age on September 4, 1988; (b) his statutory right to an equal education entitles him to enrollment; or (c) reading the statute and rules literally, his birth date actually qualified him for enrollment; and whether defendant violated his civil rights when it initially refused to enroll him, or alternatively, to assess his readiness to attend school.

Plaintiff, Daniel Morrison, is a minor child who attained the age of five on September 4, 1988, and who sought admission into the kindergarten program at Edgebrook School, operated by defendant, the Board of Education of the City of Chicago (the Board). At all times relevant to this cause, defendant's actions were governed by the Illinois School Code (Ill. Rev. Stat. 1985, ch. 122, par. 10-20.12), and certain rules adopted by the Board pursuant thereto which establish the school year and school age. Section 10-20.12 (Ill. Rev. Stat. 1985, ch. 122, par. 10-20.12) provides as follows:

"School year -- School age. To establish and keep in operation in each year during a school term of at least the minimum length required by Section 10--19, a sufficient number of free schools for the accommodation of all persons in the district over the age of 5 and under 21 years, and to secure for all such persons the right and opportunity to an equal education in such schools; provided that children who will attain the age of 5 years by November 1 after the first day of the 1986-1987 school term, October 1 after the first day of the 1987-1988 school term, and September 1 of the year of the 1988-1989 school term and each school term thereafter may attend school upon the commencement of such term. Based upon an assessment of a child's readiness to attend school, a school district may permit a child to attend school prior to the dates contained in this Section. In any school district operating on a full year school basis children who will attain the age of 5 within 30 days after the commencement of a term may attend school upon the commencement of such term. The school district may, by resolution of its board, allow for a full year school plan."

Section 6--2 of the Board Rules provides as follows:

"Admission to Elementary School. All children residing within the limits of the city who are not otherwise disqualified shall be entitled at the beginning of the school year to enter kindergarten or first grade if they will have reached the age of five or six years, respectively, by October 1 of the 1987-88 school year and by September 1 of the 1988-89 school year and each year thereafter. Based upon an assessment of a child's readiness to attend school, a child may be permitted to attend school prior to the dates contained in this Rule. The principal of the elementary school in the sub-district in which they reside shall require the parent to present birth certificate, baptismal record, or other satisfactory evidence of the date and place of birth."

Because plaintiff would not have attained the age of five by the statutorily mandated September 1 cutoff date, defendant refused to enroll him or to assess his readiness to attend school; and although defendant conducted readiness assessments for children who were going to be five years of age by November 1 of the 1986-87 school year and for children who were going to be five years of age by October 1 of the 1987-88 school year, it determined that it would not be doing so for the 1988-89 school year but would instead strictly adhere to the September 1 cutoff date.

Plaintiff subsequently filed a complaint for injunctive and other relief and a motion for a preliminary injunction requesting, inter alia, that the court order defendant to assess the readiness of plaintiff to attend school pursuant to section 10-20.12 (Ill. Rev. Stat. 1985, ch. 122, par. 10-20.12), and on August 10, 1988, the court granted plaintiff's motion and ordered defendant to assess the readiness of plaintiff to attend school prior to the date prescribed by the School Code. On August 22, 1988, the court held a further hearing on the remaining counts of plaintiff's complaint and denied plaintiff's motion for injunctive relief as to those counts.

Defendant's appeal and plaintiff's cross-appeal followed. Defendant did in fact assess the readiness of plaintiff and enrolled him in kindergarten after the filing of this appeal. I

Plaintiff first argues that this appeal is moot inasmuch as the Board voluntarily conceded plaintiff's asserted right when it enrolled him in school after it had assessed his readiness, citing Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316:

"A case becomes moot when, pending the decision on appeal, events occur which render it impossible for the reviewing court to grant effectual relief to any party involved in the suit." Panduit, 84 Ill. App. 3d at 1148.

We do not deem the case sub judice to be moot since Illinois recognizes a public interest exception to the mootness argument raised by defendant. Under this doctrine, a case may be decided on appeal despite its mootness if the issues raised are of substantial public interest. (Iowa-Illinois Gas & Electric Co. v. Illinois Commerce Comm'n (1980), 91 Ill. App. 3d 96, 414 N.E.2d 287.) The test for determining whether a sufficient degree of public interest exists requires that three elements be considered: (1) the public nature of the question presented; (2) the need for an authoritative determination for the future guidance of public officials; and (3) the likelihood of recurrence of the question. (City of Chicago v. Leviton (1985), 137 Ill. App. 3d 126, 129, 484 N.E.2d 438, citing People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769, cert. denied (1952), 344 U.S. 824, 97 L. Ed. 642, 73 S. Ct. 24.) Each criterion must be met to avoid dismissal of moot questions on appeal. City of Chicago v. Leviton, 137 Ill. App. 3d at 129.

The facts presented in this case easily come under the public interest exception: first, the issue raised is of a public nature in that it affects the rights of a large number of children to a clear, early and effective determination of their entitlement to enroll in our public schools; second, there is a desire and a need for guidance and clarification respecting the law regarding readiness assessments among ...


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