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PITTMAN v. CHICAGO BD. OF EDUC.

June 30, 1994

SHIRLEY PITTMAN, BRUCE BERNDT, RALPH CUSICK, DAVID T. PETERSON, GWENDOLYN STEELE-BOUTTE, FREDERICK SEARS, individually and as class representatives, Plaintiffs,
v.
THE CHICAGO BOARD OF EDUCATION, ROLAND W. BURRIS, Attorney General of the State of Illinois, RICHARD M. DALEY, Mayor of the City of Chicago, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiffs Shirley Pittman, Bruce Berndt, Ralph Cusick, David T. Peterson, Gwendolyn Steele-Boutte, and Frederick Sears bring this twenty-two count complaint, challenging the validity of the Chicago School Reform Act, as amended. Presently before the court are the parties' cross-motions for summary judgment. For the reasons set forth below, plaintiffs' motion for summary judgment is denied and defendants' motion for summary judgment is granted.

 I. Background1

 In 1988, the Illinois General Assembly enacted the Chicago School Reform Act in an effort to improve the quality of the ailing Chicago public school system. Two years later, the Illinois Supreme Court concluded that the portion of the Act providing for local school council elections was constitutionally deficient, and thus struck down the entire statute. Fumarolo v. Chicago Bd. of Educ., 142 Ill. 2d 54, 566 N.E.2d 1283, 153 Ill. Dec. 177 (Ill. 1990). The Illinois General Assembly amended the statute in the summer of 1991, attempting to remedy those portions of the Act which the Supreme Court found wanting. Plaintiffs now challenge the constitutionality of the amended Act.

 In the present action, as in the Fumarolo litigation, two portions of the Act are challenged: the section providing for the election of the local school councils, and the section abolishing "tenure" for Chicago school principals. Each section shall be considered in turn. *fn2"

 A. Local School Councils

 In order to decentralize the Chicago school system, and "to place increased authority for individual school decisions at the individual school level," Fumarolo, 566 N.E.2d at 1286-87, the Act established local school councils for each grammar school and each high school in the Chicago public school system. These local school councils were accorded broad responsibilities, including: (1) selecting a principal; (2) evaluating the principal's performance, based in part upon criteria established by the local school council; (3) approving the expenditure plan prepared by the principal with respect to funds allocated to the school by the Board of Education; (4) making recommendations regarding curriculum, textbook selection, and attendance policies; (5) approving a school improvement plan; (6) evaluating the allocation of teaching and staff resources; (7) making recommendations to fill open teaching positions; and (8) requesting training and assistance from the Board of Education in a variety of areas, including school budgets, educational theory, and personnel selection. See Ill. Rev. Stat. 1989, ch. 122, par. 34-2.3; Fumarolo, 566 N.E.2d at 1295.

 The local school councils are comprised of eleven voting members: the principal of the school, two teacher representatives, two residents of the community served by the school ("community representatives"), and six parents of students currently enrolled in the school ("parent representatives"). *fn3" In addition to the above responsibilities, each local school council selects one of its parent or community representatives to sit on a subdistrict council. There are eleven such subdistrict councils, each of which elects and evaluates a subdistrict school superintendent and coordinates the activities of the local school councils within its subdistrict. In addition, each subdistrict council selects one of its members to sit on the school board nominating commission. This body is therefore comprised of eleven subdistrict council representatives, as well as five additional members appointed by the mayor. The commission, in an open forum, interviews candidates for the board of education, and presents the mayor with a slate of three candidates for each vacant seat on the board, from which the mayor fills the vacancy.

 The focus of the litigants' challenge in Fumarolo was the scheme by which local school council parent and community representatives were elected. Under the original Act, only parents could vote for parent representatives, and only non-parent community members could vote for community representatives. Furthermore, the Act provided that "each person eligible to vote for an office on the local school council to be filled at an election is entitled to vote for as many candidates as are to be elected to fill that office." Ill. Rev. Stat. ch. 122 P 34-2.1(b). As a result, parent voters were allotted six votes each, while community members were only entitled to two votes. The Illinois Supreme Court concluded that this voting scheme violated the "one person, one vote" guarantee implicit in the equal protection clauses of the United States and Illinois Constitutions. Fumarolo, 566 N.E.2d at 1300. The Court went on to hold that, because the local school councils were unconstitutionally elected, the selection of the subdistrict councils and school board nominating commission also violated constitutional principles. Ultimately, therefore, the Court concluded that the nominating commission could not properly select candidates for the board of education. Id. at 1303.

 Following the Illinois Supreme Court's decision in Fumarolo, the Illinois General Assembly passed an interim measure, Public Act 86-1477, which directed the Mayor of the City of Chicago to appoint the members of each local school council, each subdistrict superintendent, the school board nominating commission, and the board of education within seven days. The mayor obtained a list of the individuals then sitting as members or officers of those bodies, and appointed those persons to the same positions they had held under the unconstitutional provisions of the School Reform Act. Nine months later, on September 11, 1991, the amendments to the School Reform Act, Public Acts 87-454 and 87-455, became effective. While the basic structure of the local school councils remained the same, i.e., six parent representatives and two community representatives, the voting scheme was altered. The Act now provides:

 
Each eligible voter shall be entitled to cast one vote for up to a total of 5 candidates, irrespective of whether such candidates are parent or community resident candidates.

 105 ILCS 5/34-2.1 (d)(iii). Plaintiffs in the present action now challenge both the mayor's action in appointing the existing members of the various bodies to the positions to which they were unconstitutionally elected or selected, as well as the amended provisions providing for the election of local school councils.

 B. Principals

 The day after the Fursman decision was filed, the Illinois General Assembly enacted emergency legislation which restored the tenure which principals and teachers had previously enjoyed. Specifically, the relevant statute provided:

 
Appointments and promotion of teachers, principals and other educational employees shall be made for merit only, and after satisfactory service for a probationary period of three years, (during which period the board may dismiss or discharge any such probationary employee upon the recommendation, accompanied by the written reasons therefor, of the superintendent of schools), appointments of teachers and principals shall become permanent, subject to the rules of the board concerning conduct and efficiency, and subject to removal for cause . . . .

 Laws of Illinois, 723, 731 (1917). This language remained in the statute until 1987. See Ill. Rev. Stat. ch. 122, ยง 34-84 (1987). In the Chicago School Reform Act, however, the legislature abolished the "tenure" system for principals, and instead provided that principals would be employed under four-year, renewable performance contracts.

 II. Discussion

 A. Local School Councils

 The crux of plaintiffs' argument with respect to the local councils is that the manner in which the representatives are elected is constitutionally defective. *fn5" Acknowledging that there are no cases that have dealt with a system identical to the one here, the parties have focused their discussion on cases which deal with a variety of candidate restrictions," and their impact on the right to vote. See. e.g., Trafelet v. Thompson, 594 F.2d 623 (7th Cir.) (age limitation on judicial candidates), cert. denied, 444 U.S. 906, 62 L. Ed. 2d 142, 100 S. Ct. 219 (1979); Williams v. Rhodes, 393 U.S. 23, 21 L. Ed. 2d 24, 89 S. Ct. 5 (1968) (system which essentially limits candidates to members of Republican or Democratic parties); Dusch v. Davis, 387 U.S. 112, 18 L. Ed. 2d 656, 87 S. Ct. 1554 (1967). Although none of these cases is sufficiently analogous to direct a conclusion regarding the School Reform Act, the principles set forth do, to some degree, provide us with meaningful guidance. A careful analysis of these cases is therefore appropriate.

 In Dusch v. Davis, 387 U.S. 112, 18 L. Ed. 2d 656, 87 S. Ct. 1554 (1967), the Court was asked to assess the validity of the means by which the governing body of the City of Virginia Beach and Princess Anne County, which had been consolidated, was elected. This territory consisted of seven boroughs, three of which were primarily urban, three primarily rural, and one primarily tourist. The Virginia legislature provided for a governing council of eleven members under the following system:

 
Four members are elected at large without regard to residence. Seven are elected by the voters of the entire city, one being required to reside in each of the seven boroughs.

 Dusch, 387 U.S. at 114. This was termed the "Seven-Four Plan."

 Electors of five of the boroughs brought suit, claiming that the Plan violated the principles of Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362, which established the so-called "one person, one vote" rule. *fn6" The district court disagreed, and upheld the Plan. The Court of Appeals reversed, and the case went to the Supreme Court. The Court initially noted that the Plan made "no distinction on the basis of race, creed, or economic status or location. Each of the 11 councilmen is elected by a vote of all of the electors in the city." The Court then considered the residency restrictions placed on seven members of the council, and concluded that such restrictions did not doom the Seven-Four Plan. Quoting from an earlier case, the Court stated:

 
"The statute uses districts . . . merely as the basis of residence for candidates, not for voting or representation. Each district's senator must be a resident of that district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interest of all the people in the county, and not merely those of people in ...

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