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12/22/95 JOHN A. JENKINS II AND MICHELLE JENKINS v.

December 22, 1995

JOHN A. JENKINS II AND MICHELLE JENKINS, IN THEIR OWN BEHALF AND AS NATURAL GUARDIANS OF THEIR CHILDREN, NOREEN JENKINS AND JOHN JENKINS III; ROCHELLE MCCOY, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, DANIELLE MCCOY, ADRIENNE MCCOY, TREVELL MCCOY, AND MICHAEL MCCOY; DININE ROCKETT, ON HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, MICHELL ROCKETT, OTORIA ROCKETT, AND CAMEO ROCKETT; GERTRUDE MOORE, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, MELISSA MOORE AND MAGDELINA MOORE; ANNETTE ROBERTS, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, DA'SHAWN ROBERTS, ROBERT ROSS, AND DETRIC ROSS; PHYLIS CHEATHAM, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, THOMAS CHEATHAM, TIMOTHY CHEATHAM, TORRY CHEATHAM AND TERRENCE CHEATHAM; ROSELLA ROCKETT, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, ROOSEVELT ROCKETT, NICKALAS ROCKETT, AND TOWANYA WILLIAMS; ETHEL ROBINSON TOOL, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILD, MCKINZIE ROBINSON; MOSETTA CROWDER, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, VINCENT CROWDER AND MOSES CROWDER; CAROLYN PRICE, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, ROBERT PRICE, BRIAN PRICE, CASSANDRA PRICE, AND WALTER PRICE; JACQUELINE WARD, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, MELISSA WARD AND PATRICIA WARD; JOHNNIE CROWDER, IN HIS OWN BEHALF AND AS NATURAL GUARDIAN OF HIS CHILDREN, MAURICE CROWDER AND TYREESE CROWDER; FELICIA ROSS, ON HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILD, JAZMINE ROSS; LINDA HAYWOOD, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, DAVID HAYWOOD AND ALICIA HAYWOOD; ANGELA BARRON, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILD, TANGE THOMAS; RENEE FOX, IN HER OWN BEHALF AND AS NATURAL GUARDIAN FOR HER CHILDREN, DARNELL FOX, RONALD FOX, EBONY FOX, DONALD FOX AND REGINALD FOX; WANDA BUTLER, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER OWN CHILDREN, ALICIA BUTLER, AARON BUTLER AND AUNDRA BUTLER; RUTH HAMPTON, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILD, LLEWELLYN HAMPTON; LORETTE REDMOND, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, TIFFANY REDMOND, TIMOTHY REDMOND, LATRICE REDMOND, LAKESHIA REDMOND, MYLES REDMOND AND JASON REDMOND; ROSEMARY GARDNER, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, ELIZABETH EDWARDS AND PATRICE GARDNER; LOUISE ROSS, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF CHILD, DEMETRUS ROSS; JEANETTE GREEN, IN HER BEHALF AND AS NATURAL GUARDIAN OF HER CHILD, JAMES GREEN; LINDA GAYLES, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN DEJARUS GAYLES, LATEKA GAYLES, LOVELL GAYLES AND COREY GAYLES; YOLETHA WOODARD, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, JASON WOODARD, JAVARIS WOODARD, AQUETTA WOODARD AND JOHNATHAN WOODARD; MARTHA LOUISE BENNETT, IN HER BEHALF AND AS NATURAL GUARDIAN OF HER CHILD, MICHAEL BENNETT; LOIS MILLER, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILD, ANTEAUS MILLER, ROBERTA COLEMAN, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, RUFUS COLEMAN AND JEMAINE COLEMAN; DESIREE CHARLES, IN HIS OWN BEHALF AND AS NATURAL GUARDIAN OF HIS CHILD, DERICK STOKES; AND PEARLIE MCCLAIN, IN HER OWN BEHALF AND AS NATURAL GUARDIAN OF HER CHILDREN, DAWAYNE MCCLAIN AND DOROTHY MCCLAIN; PLAINTIFFS-APPELLANTS,
v.
ROBERT LEININGER, STATE SUPERINTENDENT OF EDUCATION; THE STATE BOARD OF EDUCATION; AND THE CHICAGO BOARD OF EDUCATION, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE AARON JAFFE, JUDGE PRESIDING.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and McNULTY, J., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court:

Plaintiffs, 100 low-income schoolchildren enrolled in the Chicago public schools and their parents, filed the instant action against the defendants, Robert Leininger, State Superintendent of Education; the State Board of Education; and the Chicago Board of Education, seeking declaratory and injunctive relief. Plaintiffs' complaint alleged violation of article 10, section 1 of the Illinois Constitution (Ill. Const. 1970, art. X, § 1), which guarantees an efficient and high-quality education; violation of the equal protection clauses of the United States and Illinois Constitutions (U.S. Const., art. XIV, § 1; Ill. Const. 1970, art. I, § 2); and violation of the First, Ninth and Fourteenth Amendments to the United States Constitution (U.S. Const., art. I, IX, XIV) and article I, section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, § 2) alleging deprivation of parental rights to control and influence the education of their children. The plaintiffs sought a declaration of their rights and an injunction diverting control over state education funds in the common school fund allocated pursuant to section 18-8 of Illinois School Code (105 ILCS 5/18-8 (West 1992)) from the Chicago Public Schools to the plaintiff parents so that they could secure an education for their children in a public or private school of their choice. The trial court dismissed plaintiffs' complaint with prejudice finding that the plaintiffs failed to state a cause of action, and the plaintiffs appeal. On motion, this court allowed the filing of an amicus curiae brief which supports the dismissal of plaintiffs' complaint, due to its conclusory pleading, but seeks the filing of an amended complaint realleging violations of the constitutional right to a high quality education and of the equal protection clauses to the federal and state constitutions. *fn1

The issues presented for review are: whether the Illinois Constitution imposes a duty to provide an efficient and high quality education to all schoolchildren in the state and, if so, whether that duty is satisfied by the legislative enactment of the Illinois School Code (105 ILCS 5/1-1 - 550/1 (West 1992) (the School Code); whether the complaint alleges facts sufficient to establish an equal protection violation of the Illinois and United States Constitutions; whether the complaint alleges facts sufficient to establish a deprivation of the right to parental liberty to control the child's education; and whether the court has judicial authority to enjoin the allocation of state education funds to the Chicago Public Schools.

A section 2-615 motion to dismiss is used to attack deficiencies in a pleading. (E.g., Reuben H. Donnelley Corp. v. Brauer (1995), 275 Ill. App. 3d 300, 655 N.E.2d 1162, 211 Ill. Dec. 779.) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover. (E.g., Zadrozny v. City Colleges of Chicago (1991), 220 Ill. App. 3d 290, 581 N.E.2d 44, 163 Ill. Dec. 93.) When ruling on a motion to dismiss, all well-pleaded facts in the complaint and all reasonable inferences arising therefrom are admitted as true ( Capitol Indemnity Corp. v. Stewart Smith Intermediaries (1992), 229 Ill. App. 3d 119, 593 N.E.2d 872, 171 Ill. Dec. 52) and are interpreted in a light most favorable to the plaintiff. ( Michael Reese Hospital and Medical Center v. Chicago HMO Ltd. (1990), 196 Ill. App. 3d 832, 554 N.E.2d 472, 143 Ill. Dec. 537. Cf. Claire Associates v. Pontikes (1986), 151 Ill. App. 3d 116, 502 N.E.2d 1186, 104 Ill. Dec. 526 (liberal construction of pleadings will not cure factual deficiencies).) Conclusions in a complaint, unsupported by fact, are not accepted as true ( Committee for Educational Rights v. Edgar (1994), 267 Ill. App. 3d 18, 641 N.E.2d 602, 204 Ill. Dec. 378); and where recovery is sought on the basis of constitutional violations, it is not sufficient to allege those violations generally; rather, specific facts must be set forth to rebut the presumption of constitutionality. Lee v. Pucinski (1994), 267 Ill. App. 3d 489, 642 N.E.2d 769, 204 Ill. Dec. 868.

Article X, section 1 of the Illinois Constitution of 1970 provides in pertinent part as follows:

"Section 1. GOAL--FREE SCHOOLS

A fundamental goal of the People of the State is the educational development of all persons to the limits of their capacities.

The State shall provide for an efficient system of high quality public educational institutions and services. Education in public schools through the secondary level shall be free. There may be such other free education as the General Assembly provides by law." (Ill. Const. 1970, art. X, § 1.)

There is no question that this article mandates that the legislature provide an efficient, high quality educational system which is free to the public. ( Allen v. Maurer (1972), 6 Ill. App. 3d 633, 640, 286 N.E.2d 135, 140 ("the State has a constitutional duty to provide and the public has a right to receive an efficient, high quality educational system"); see Elliot v. Board of Education (1978), 64 Ill. App. 3d 229, 380 N.E.2d 1137, 20 Ill. Dec. 928 (holding legislature was required to provide a system of free education to the public including programs for the handicapped). See also 2 Record of Proceedings, Sixth Illinois Constitutional Convention 764 (remarks of Delegate Samuel A. Patch, member of the Committee on Education: "The State is mandated to provide a system that is thorough, complete, and useful to all the people of Illinois").

In Pierce v. Board of Education (1977), 69 Ill. 2d 89, 370 N.E.2d 535, 12 Ill. Dec. 731, our supreme court held that article X, section 1 of the Illinois Constitution of 1970 pronounced a statement of general philosophy. The court stated that the article was not self-executing and did not "mandate that certain means be provided in any specific form." 69 Ill. 2d at 93, 370 N.E.2d at 536; see also Cronin v. Lindberg (1976), 66 Ill. 2d 47, 58, 360 N.E.2d 360, 365, 4 Ill. Dec. 424 ("the question of the efficiency of the educational system is properly left to the wisdom of the legislature"); Board of Education, School District No. 150 v. Cronin (1977), 51 Ill. App. 3d 838, 367 N.E.2d 501, 10 Ill. Dec. 113 (the question of efficiency and fairness of school system established by legislative action is solely for legislature to answer).

A similar interpretation was given to article X's predecessor in the Illinois Constitution of 1870 which required that "the General Assembly shall provide a thorough and efficient system of free schools, whereby all children of this State may receive a good common school education." (Ill. Const. 1870, art. VIII, § 1.) In People ex rel. Leighty v. Young (1923), 309 Ill. 27, 139 N.E. 894, the court held that this constitutional provision provided the legislature with both a mandate, to provide a thorough and efficient system of schools, and a limitation, to provide a free system. (See also People v. Deatherage (1948), 401 Ill. 25, 81 N.E.2d 581 (the legislature has two limitations, that the system be free and that it be open to all without discrimination).) The court further noted in Young, however, that, while the legislature had no discretion with respect to providing the system, it had "unquestioned power and discretion, within the limits stated, to determine what a common school education shall be." (309 Ill. at 34, 139 N.E. at 897; see Elliot v. Board of Education, 64 Ill. App. 3d at 235, 380 N.E.2d at 1141 (under the Illinois Constitution of 1870 "the legislature was left free to determine the content of the curriculum to be taught by the public schools").) With respect to that discretion, the supreme court stated in People v. Deatherage:

"This court has also been consistent in holding that the question of the efficiency and thoroughness of the school system established by legislative permission is one solely for the legislature to answer and that the courts lack power to intrude. [Citations.] In Fiedler v. Eckfeldt (1929), 335 Ill. 11, [166 N.E. 504, 509,] we said, it was not for the court to determine if the system is the best which could be brought forth. School problems are essentially practical ones,--what is best cannot be easily answered. 'It is no more within the authority of the court to pass judgment upon the thoroughness and efficiency of the system, or any part of it, than to determine whether the laws enacted for the protection of operative miners, in compliance with section 29 of article 4 of the constitution, are such as necessary for that purpose; *** All of these questions have been held to be matters for legislative determination, with which the courts have no right to interfere. *** Even if the legislative intent might be thought crude or unwise and the law unjust or ...


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