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10/18/96 COMMITTEE FOR EDUCATIONAL RIGHTS ET AL. v.

October 18, 1996

THE COMMITTEE FOR EDUCATIONAL RIGHTS ET AL., APPELLANTS,
v.
JIM EDGAR, GOVERNOR OF THE STATE OF ILLINOIS, ET AL., APPELLEES.



The Honorable Justice Nickels delivered the opinion of the court. Justice Harrison took no part in the consideration or decision of this case. Justice Freeman, concurring in part and dissenting in part.

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

This appeal draws us into the sensitive and controversial area of public school finance. The plaintiffs in this action are the Committee for Educational Rights (which consists of more than 60 school districts associated pursuant to an intergovernmental agreement), the boards of education of 37 school districts named individually, and a number of students and their parents. The defendants are Governor Jim Edgar, the State Board of Education and State Superintendent of Education Joseph A. Spagnolo. Plaintiffs brought this action in the circuit court of Cook County seeking a declaratory judgment that the statutory scheme governing the funding of public schools violates various provisions of the Illinois Constitution of 1970. The trial court dismissed the complaint and the appellate court affirmed. 267 Ill. App. 3d 18, 641 N.E.2d 602, 204 Ill. Dec. 378. The appellate court issued a certificate of importance under Supreme Court Rule 316 (155 Ill. 2d R. 316) giving rise to the present appeal. We affirm the appellate court, which affirmed the dismissal of plaintiffs' complaint.

BACKGROUND

We begin with a general and vastly simplified description of those aspects of public school finance in Illinois that are germane to this appeal. Public schools receive funds from various federal, State and local sources. The controversy in the present case hinges on the relationship between funding derived from local property taxes and funds supplied by the State. Under the School Code (105 ILCS 5/1--1 et seq. (West 1994)) school districts are authorized to levy property taxes for various school purposes up to specified maximum rates. See, e.g., 105 ILCS 5/17--2, 34--53 (West 1994). The voters of a school district may authorize higher property tax rates by referendum, but even with such voter approval the School Code places an upper limit on school property tax rates. 105 ILCS 5/17--3, 17--4, 17--5, 34--53 (West 1994). Obviously, the amount which a school district is able to raise through property taxes is determined by the taxable property wealth within the district. Wealthy district--those with substantial taxable property wealth per pupil--are able to raise more revenue per pupil at a given tax rate than poor districts.

There are principally two categories of State financial assistance which supplement local property tax revenues and other local sources of funding. First, the State provides assistance to school districts in the form of categorical grants for a variety of specific purposes. See, e.g., 105 ILCS 5/2--3.51 (West 1994) (reading improvement programs); 105 ILCS 5/2--3.65 (West 1994) (arts programs); 105 ILCS 5/18--7 (West 1994) (teacher retirement benefits); 105 ILCS 5/27--24.4 (West 1994) (driver education programs); 105 ILCS 5/29--5 (West Supp. 1995) (student transportation). School districts also receive distributions of general state aid from the State's common school fund pursuant to the formula set forth in section 18--8 of the School Code (105 ILCS 5/18--8 (West Supp. 1995)).

General state aid is distributed based on a weighted average daily attendance (ADA *fn1) at schools within a particular district and on the equalized assessed valuation(EAV) of property in the district. The general state aid formula is designed to enable districts with modest property tax bases to achieve a certain minimum level of funding per pupil. This minimum funding level, commonly known as the "foundation level," is computed by the State Board of Education based on the amount available for distribution from the common school fund. The foundation level represents a hypothetical "guaranteed" dollar amount of taxable property wealth per pupil (hereinafter, guaranteed EAV) (see 105 ILCS 5/18--8(A)(5)(a) (West Supp. 1995)) multiplied by a specified tax rate (hereinafter, foundation rate) (see 105 ILCS 5/18--8(A)(5)(d)(2) (West Supp. 1995)). The amount of general state aid per pupil that a particular district receives is calculated by subtracting the district's EAV per weighted ADA pupil from the guaranteed EAV and multiplying the difference by the foundation rate. The formula may be expressed as follows: general state aid per weighted ADA pupil = (guaranteed EAV - district EAV per weighted ADA pupil) x foundation rate. See 105 ILCS 5/18--8(A)(5)(d)(2) (West Supp. 1995). This formula is structured to provide that if a district levies property taxes at exactly the foundation rate, the sum of local revenues and general state aid will equal the foundation level. In order to receive full state aid under this formula, the district's local tax rates must equal or exceed a specified minimum "qualifying" rate (which is lower than the foundation rate) *fn2 but the amount of aid received does not otherwise depend on the actual local tax rates applied. See 105 ILCS 5/18--8(A)(5)(d)(1), (A)(5)(d)(2) (West Supp. 1995). Thus, to receive the full amount of general state aid the district must tax at orabove the "qualifying" rate. To achieve foundation level funding, the district must tax at the foundation rate. Where a district's local tax rate exceeds the foundation rate, the sum of local revenues and general state aid will exceed the foundation level.

The above method of distributing general state aid only applies in districts where the EAV per weighted ADA pupil is less than 87% of the guaranteed EAV. 105 ILCS 5/18--8(A)(5)(e) (West Supp. 1995). In wealthier districts, an alternative formula applies. The minimum amount of general state aid under the alternative formula is fixed at 7% of the foundation level. 105 ILCS 5/18--8(A)(5)(f) (West Supp. 1995).

In their five-count complaint, plaintiffs allege that under the present financing scheme, vast differences in educational resources and opportunities exist among the State's school districts as a result of differences in local taxable property wealth. During the 1989-90 school year, the average tax base in the wealthiest 10% of elementary schools was over 13 times the average tax base in the poorest 10%. For high school and unit school districts, the ratios of the average tax bases in the wealthiest and poorest districts were 8.1 to 1 and 7 to 1, respectively, during the 1989-90 school year.

Plaintiffs allege in their complaint that the general state aid formula does not effectively equalize funding among wealthy and poor districts. While the general State aid formula ensures minimum funding at the foundation level, the wealthiest districts are able to raise funds through property taxes considerably in excess of the foundation level. Moreover, the provision of a minimum grant--equal to 7% of the foundation level--to even the wealthiest school districts is counterequalizing.

Plaintiffs allege that disparities among wealthy and poor districts are reflected in various measures ofeducational funding; in several "key indicators" of educational quality (such as the percentage of teachers with master's degrees, teacher experience, teacher salaries, administrator salaries and pupil/administrator ratios); and in a comparison of the facilities, resources and course offerings in two neighboring school districts with dramatically disparate tax bases. According to the complaint, these disparities are attributable to variations in property wealth rather than tax effort; on average, the poorest school districts tax at higher rates than the wealthiest.

Based on these allegations, in counts I through III plaintiffs seek a declaratory judgment that to the extent that the statutory school finance scheme "fails to correct differences in spending and educational services resulting from differences in [local taxable property wealth]" the scheme violates our state constitution's equal protection clause (count I), prohibition against special legislation (count II) and education article (count III). Ill. Const. 1970, art. I, § 2; art. IV, § 13; art. X, § 1.

Counts IV and V of the complaint pertain to the educational opportunities available to certain socio-economically disadvantaged children who are at risk of academic failure (at-risk children). Plaintiffs allege that at-risk children frequently exhibit educational deficits and require early intervention in order to succeed academically. Section 2--3.71 of the School Code (105 ILCS 5/2--3.71 (West 1994)) provides for a grant program administered by the State Board of Education for the establishment of preschool educational programs addressing the needs of at-risk children. Plaintiffs allege that such programs are effective in correcting the educational deficits that at-risk children suffer, but grants under section 2--3.71 and other sources of funding are sufficient to provide such programs for only a fraction of the children who need them. Plaintiffs seek adeclaratory judgment that by failing to provide sufficient funding for preschool educational programs, the State's system for financing public education violates the equal protection clause (count IV) and education article (count V) of our state constitution.

The trial court dismissed plaintiffs' complaint for failure to state a cause of action. The appellate court affirmed the judgment of the circuit court and issued a certificate of importance pursuant to Supreme Court Rule 316. With leave of this court, the League of Women Voters of Illinois and the Mexican American Legal Defense and Education Fund have jointly filed an amicus curiae brief in support of plaintiffs. On appeal, plaintiffs do not challenge the dismissal of their special legislation claim. However, plaintiffs contend that the trial court erred in dismissing their claims under the equal protection clause and the education article.

ANALYSIS

I

We first consider the dismissal of plaintiffs' claims that the statutory system for financing public schools violates the education article of our state constitution. Section 1 of article X of the Illinois Constitution of 1970 provides:

"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.

The State has the primary responsibility for financing the system of public education." (Emphasis added.) Ill. Const. 1970, art. X, § 1.

Plaintiffs' challenge to the statutory system forfinancing public schools is based on the emphasized language above. First, plaintiffs contend that because the system produces vast disparities in the level of funding and educational resources available to various school districts based on differences in local taxable property wealth, it is not "efficient" within the meaning of the constitution. Second, plaintiffs argue that school districts with low property tax bases are unable to provide a "high quality" education to their students due to inadequate funding. Third, plaintiffs contend that under the financing scheme, funding is insufficient to provide a "high quality" education to at-risk children.

Before proceeding, we note that plaintiffs' second argument is essentially raised for the first time on appeal. While in count III of their complaint plaintiffs allege that the quality of public education is comparatively better in wealthier districts, as we read the complaint there is no specific allegation that students (other than at-risk students) in districts with low taxable property wealth are deprived of a "high quality" education in normative terms. Because the theory that poor districts provide a normatively inadequate education was not raised in the trial court, we could properly treat it as waived. See Eagan v. Chicago Transit Authority, 158 Ill. 2d 527, 534, 199 Ill. Dec. 739, 634 N.E.2d 1093 (1994) ("issues not raised in the trial court may not be raised for the first time on appeal"). We choose, however, to address the argument on the merits. The waiver rule is a limitation on the parties and not the jurisdiction of the courts. Herzog v. Lexington Township, 167 Ill. 2d 288, 300, 212 Ill. Dec. 581, 657 N.E.2d 926 (1995). Moreover, a reviewing court may consider an issue not raised in the trial court if the issue is one of law and is fully briefed and argued by the parties. People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 27, 165 Ill. Dec. 655, 585 N.E.2d 51 (1991); Hux v. Raben, 38 Ill. 2d 223, 225, 230 N.E.2d 831 (1967). As will be seen, plaintiffs' argument regarding the quality of education, in normative terms, presents questions of law relative to the power of the courts to adjudicate such a claim. The controlling questions have been sufficiently briefed and argued to facilitate review on the merits. Furthermore, the questions presented are of substantial public importance, and we believe the public interest favors consideration of the merits. Accordingly, we will consider this argument, along with those issues properly preserved for review.

A

We first consider plaintiffs' argument that the present school funding system is not "efficient" within the meaning of the constitution because it produces disparities in educational resources and services based on differences in local taxable property wealth. In plaintiffs' view, the efficiency requirement guarantees some measure of equality in educational funding and opportunity. Plaintiffs deny that they seek absolute uniformity in educational offerings or precisely equal spending for each pupil in the State. Plaintiffs would apparently approve variations in educational spending from district to district based on criteria such as local differences in the costs of resources and special educational needs in particular districts. However, plaintiffs maintain that a school district's property wealth is "educationally irrelevant" and is not a proper factor upon which to set the level of resources available to the district.

The trial and appellate courts rejected plaintiffs' argument that the efficiency requirement guarantees parity of educational funding and opportunity. The trial court emphasized that the framers of the 1970 Constitution had considered and rejected specific proposals for a constitutional provision designed to reduce funding disparities among districts by limiting the amount of funds that could be raised by local property taxes. The appellate court concluded that article X of the constitution"does not mandate equal educational benefits and opportunities among the State's school districts as the constitutionally required means of establishing and maintaining an 'efficient' system of free public schools." 267 Ill. App. 3d at 22.

As this case turns upon the meaning of constitutional language, a brief summary of the general principles of constitutional interpretation may be helpful. The meaning of a constitutional provision depends on the common understanding of the citizens who, by ratifying the constitution, gave it life. League of Women Voters v. County of Peoria, 121 Ill. 2d 236, 243, 117 Ill. Dec. 275, 520 N.E.2d 626 (1987); Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 492, 83 Ill. Dec. 308, 470 N.E.2d 266 (1984). This understanding is best determined by referring to the common meaning of the words used. League of Women Voters, 121 Ill. 2d at 243; Kalodimos, 103 Ill. 2d at 492-93. Where the language is unambiguous, it will be given effect without resort to other aids for construction. Baker v. Miller, 159 Ill. 2d 249, 257, 201 Ill. Dec. 119, 636 N.E.2d 551 (1994). However, if after consulting the language of a provision, doubt remains as to its meaning, it is appropriate to consult the debates of the delegates to the constitutional convention to ascertain the meaning they attached to the provision. League of Women Voters, 121 Ill. 2d at 243-44; Kalodimos, 103 Ill. 2d at 493.

"Efficient" has been defined as follows:

"1: serving as or characteristic of an efficient cause: causally productive: OPERANT *** 2: marked by ability to choose and use the most effective and least wasteful means of doing a task or accomplishing a purpose ***." Webster's Third New International Dictionary 725 (1981).

This definition does not inherently compel the conclusion that an "efficient system" of public schools necessarily involves statewide parity of educational opportunity and resources. However, we do not believe that the precise meaning of the word "efficient" as used in section 1 of the education article is entirely clear andfree from doubt, or that "efficient" could not conceivably be interpreted in the manner that plaintiffs claim. We note that the Court of Appeals of Maryland determined that Maryland's constitutional requirement that the General Assembly establish a "thorough and efficient" system of free public schools was "on its face *** plainly susceptible of more than one meaning." Hornbeck v. Somerset County Board of Education, 295 Md. 597, 619, 458 A.2d 758, 770 (1983). In determining whether the "thorough and efficient" provision required exact equality in per pupil funding and expenditures among Maryland's school districts, the Hornbeck court deemed it essential to consider the history underlying the enactment of the provision. Hornbeck, 295 Md. at 619-20, 458 A.2d at 770. Courts in other jurisdictions with similar constitutional efficiency provisions have also looked to sources beyond the language of the constitution to determine the meaning of those provisions. See Rose v. Counsel for Better Education, Inc., 790 S.W.2d 186, 205-06 (Ky. 1989); Edgewood Independent School District v. Kirby, 777 S.W.2d 391, 394-96 (Tex. 1989); Pauley v. Kelly, 162 W. Va. 672, 681-89, 255 S.E.2d 859, 866-69 (1979); see also Rose, 790 S.W.2d at 221 (Vance J., dissenting) ("It is because of [the] universal concern expressed by the delegates to the convention that I conclude that the word 'efficient' as used by them must include not only its dictionary definition but must also be construed to include the requirement of substantial equality of educational opportunity"). We shall likewise consider the history underlying the adoption of section 1 of the education article.

The education article of the 1970 Constitution originated as a proposal submitted by the education committee of the Sixth Illinois Constitutional Convention. 6 Record of Proceedings, Sixth Illinois Constitutional Convention 227 (hereinafter cited as Proceedings). Atthe outset, we note that an introductory passage in the education committee's report on the proposed education article states, "the opportunity for an education, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." 6 Proceedings 231. Considered in isolation, this statement might lend some credence to plaintiffs' position. However, this general statement of principle was not made in reference to the efficiency requirement or any other specific language in the proposed education article. Instead, as authority for this proposition the education committee report cites the landmark decision in Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), which was, of course, based on the equal protection clause of the fourteenth amendment of the United States Constitution. As explained below, specific references in the convention record to the efficiency requirement place the concept in a significantly different light.

The constitutional requirement that the State provide for an efficient system of high quality educational institutions and services corresponds to section 1 of article VIII of the 1870 Constitution, which stated, "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. Under the 1870 Constitution, this court consistently held that the question of the efficiency and thoroughness of the school system was one solely for the legislature to answer, and that the courts lacked the power to intrude. People v. Deatherage, 401 Ill. 25, 31, 81 N.E.2d 581 (1948) (and cases cited); People ex rel. Taylor v. Camargo Community Consolidated School District No. 158, 313 Ill. 321, 327-28, 145 N.E. 154 (1924) ("Whether [a provision governing detachment of territory from school districts] tends to affect adversely or favorably thethoroughness and efficiency of the system of free schools is a legislative question which is not for our determination"); see also G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 400-01 (1969) ("It has been said that the 'thorough and efficient' requirement was solely a matter for legislative discretion and the courts will not look into it").

However, under a limited exception to this principle it was held that pursuant to the "thorough and efficient" requirement school district boundaries must be established so that the districts are compact and contiguous. See People ex rel. Community Unit School District No. 5 v. Decatur School District No. 61, 31 Ill. 2d 612, 613-14, 203 N.E.2d 423 (1964). As explained in People ex rel. Leighty v. Young, 301 Ill. 67, 71, 133 N.E. 693 (1921), "it cannot be said that a system which places the school house at a point so remote that the children of school age cannot reach it conveniently is either thorough or efficient." School districts organized in contravention of the requirements of compactness and contiguity have been held invalid. See, e.g., Decatur School District, 31 Ill. 2d 612, 203 N.E.2d 423; People ex rel. Goelzer v. Crawford, 310 Ill. 205, 141 N.E. 725 (1923) (finding district invalid under both the constitution and the applicable statute).

The framers of the 1970 Constitution embraced this limited construction that the constitutional efficiency requirement authorized judicial review of school district boundaries, but they did not intend to otherwise limit legislative discretion. The education committee's report accompanying the proposed education article specifically states, "The concept of the efficiency of the system (already contained in the present Constitution) has been used by the courts as a guide to the validation of district boundary changes. The Committee believes it useful to continue this concept and to add the notion of high quality." 6 Proceedings 234.

An exchange between Delegates Netsch and Patch during the debate on section 1 confirms the framers' understanding of the efficiency concept:

"MRS. NETSCH: Mr. Patch or Mr. Fogal, could I explore just very briefly your use of the word *** 'efficient' ***. Was this done quite consciously to adopt and reincorporate into this constitutional provision all of the body of law that has developed with respect to that term in the previous constitution?

MR. PATCH: Yes. In terms of boundaries and in terms of quality, so there would be a continuity of education based on the law or the court decisions relative to efficiency." 2 Proceedings 766.

Careful review of the remainder of the debates on section 1 of the education article and other relevant materials in the convention record discloses no persuasive evidence to support the view that section 1's efficiency requirement was intended by the framers to function more broadly as a substantive guarantee of parity in educational opportunity or funding. Accord ILCS Ann., 1970 Const., art. X, § 1, Constitutional Commentary, at 789 (Smith-Hurd 1993) ("There is no indication that the Convention intended to alter the line of cases in which the courts have deferred to the legislature on the meaning of terms such as 'efficient'").

Disparity in educational funding was a highly charged and controversial subject during the constitutional convention, but it was not touched upon to any significant degree in connection with section 1's efficiency requirement. Instead, the debate over unequal opportunities and resources ultimately led to the incorporation of section 1's final sentence, which provides that "the State has the primary responsibility for financing the system of public education." Ill. Const. 1970, art. X, § 1. That language did not appear in the education committee's originally proposed education article. Rather, by a six to five majority, the education committee had initially proposed a separate sectiongoverning school finance that was designed to achieve greater parity of educational funding and opportunity by limiting local contributions to school operational costs to 10% of the amount received from the General Assembly. See 6 Proceedings 295. Delegate Bottino, a member of the education committee, submitted an alternative proposal permitting funding from local taxation in an amount equal to state funding, and requiring that state funds be distributed so as to "provide for substantial parity of educational opportunity throughout the state." 1 Proceedings 622-23.

The members of the education committee were deeply divided over the main committee proposal. The committee's majority report specifically noted that "[a] salient fact of Illinois school finance is the enormous inequality among the districts with respect to their resources from local tax receipts" and that "the quality of education received by any student in the State is largely a product of the accident of the wealth of his district." 6 Proceedings 297. One of the majority's stated objectives was to "produce a level of educational opportunity that would be more equal throughout the State for all children." 6 Proceedings 299. The education committee's minority report acknowledged existing inequities in school funding (see 6 Proceedings 300), but sought to preserve the tradition of local control of public education, which the minority feared would be imperiled under a constitutional regime of centralized funding of education. The minority believed that a system of statewide funding of schools would prove incompatible with local autonomy in educational decisionmaking. Simply put, the minority did not believe that it was realistic to expect that the General Assembly would allow local school boards and administrators free reign with state funds. See 6 Proceedings 301-02. The minority also objected that:

"While substantially full [State] support might improve the programs of inferior schools, it would lower the quality of education in the better schools and make it impossible for local citizens to restore these quality programs despite their willingness to do so. Local citizens might well show less interest in the welfare of their schools if they are frustrated in their efforts to improve their programs." 6 Proceedings 302.

The minority further expressed the view that educational funding was "inherently a legislative subject." 6 Proceedings 304.

The framers of the 1970 Constitution rejected both the education committee proposal (1 Proceedings 527-28) and Delegate Bottino's alternative proposal (1 Proceedings 622-23). Subsequently, however, Delegate Netsch offered an amendment to section 1 adding the language placing primary responsibility for financing public education on the State. 1 Proceedings 738. Delegate Netsch explained that the purpose of the amendment was "to put the Convention on record" that the State should bear greater responsibility for school funding both to reduce the burden of property taxes and to cure inequality in education. 5 Proceedings 4502. Delegate Netsch carefully explained, however, that the added language was "not a legally obligatory command to the state legislature. *** It is something that can be pointed to every time the question of appropriations from the state to the school districts is at issue." 5 Proceedings 4502. In Blase v. State, 55 Ill. 2d 94, 302 N.E.2d 46 (1973), this court reviewed this background and held that final sentence of section 1 "was intended only to express a goal or objective, and not to state a specific command." Blase, 55 Ill. 2d at 98; see also People ex rel. Carey v. Board of Education, 55 Ill. 2d 533, 535, 304 N.E.2d 273 (1973).

In our view, the foregoing persuasively suggests that the framers of the 1970 Constitution viewed educational equality and "efficiency" to be separate and distinctsubjects. The framers of the 1970 Constitution grappled with the issue of unequal educational funding and opportunity, and chose to address the problem with a purely hortatory statement of principle. To ignore this careful and deliberate choice by interpreting the efficiency requirement as an enforceable guarantee of equality would do violence to the framers' understanding of the education article.

Plaintiffs insist that the rejection of the specific funding proposals merely represents the framers' unwillingness to prescribe specific funding ratios or formulas in the constitution. According to plaintiffs, the delegates generally spoke in support of the general ideal of equalizing educational opportunity. Be that as it may, we find no significant evidence in the convention record suggesting that the delegates believed that section 1's efficiency requirement related to these concerns. *fn3 The mere utterance of sentiments favoring educational equality does not itself give rise to a constitutional guarantee. This court has noted:

"While statements and reports made by the delegates to the constitutional convention are certainly useful and important aids in interpreting ambiguous language of the constitution [citation], they are, of course, not a part of the constitution. It would be improper for this court to transform statements made during the constitutional convention into constitutional requirements where such statements are not reflected in the language of the constitution." (Emphasis in original.) Village of Carpentersville v. Pollution Control Board, 135 Ill. 2d 463, 473, 142 Ill. Dec. 848, 553 N.E.2d 362 (1990).

Reminding us that the meaning of a constitutional provision depends on the common understanding of the citizens who ratified the constitution, plaintiffs emphasize that with reference to the education article, the "Address to the People" accompanying the 1970 Constitution upon its submission to the voters explains that "the Convention was greatly concerned with improving and equalizing opportunities for education." 7 Proceedings 2676. The articulated "concern" is manifest in the purely hortatory features of the education article as described above and in Blase v. State, 55 Ill. 2d 94, 302 N.E.2d 46 (1973). The mere expression of concern does not describe an enforceable constitutional guarantee of educational equality.

Finally, plaintiffs contend that several decisions from other states interpreting similar constitutional language have concluded that "efficiency" dictates fairness and parity in educational funding. See Abbott v. Burke, 119 N.J. 287, 575 A.2d 359 (1990); Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989); Edgewood Independent School District v. Kirby, 777 S.W.2d 391 (Tex. 1989); Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979). For various reasons, these decisions provide no persuasive support for plaintiffs' argument.

Pauley simply does not stand for the proposition for which plaintiffs' cite it. In Pauley, the court ultimately defined a "thorough and efficient" system of schools not in terms of equal opportunity, but in terms of various specific substantive educational goals. Pauley, 162 W. Va. at 699-700, 255 S.E.2d at 877. Similarly, in Abbott, the court stated that New Jersey's "thorough and efficient" clause required "a certain level of educational opportunity, a minimum level, that will equip the student to become 'a citizen and ... a competitor in thelabor market.' [Citation.] *** If, however, that level is reached, the constitutional mandate is fully satisfied regardless of the fact that some districts may exceed it." Abbott, 119 N.J. at 306, 575 A.2d at 369. Indeed, the Abbott court noted that in an earlier decision the school finance statute was upheld as facially valid even though it guaranteed the continuation of substantial disparities in educational expenditures per pupil. Abbott, 119 N.J. at 308, 575 A.2d at 369, citing Robinson v. Cahill, 69 N.J. 449, 355 A.2d 129 (1976).

Despite these statements, the Abbott court concluded that New Jersey was constitutionally required to ensure that education in poor urban school districts was funded at substantially the same level as in more affluent suburban districts. Abbott, 119 N.J. at 385, 575 A.2d at 408. The court reached this dubious result essentially by equating the constitutionally guaranteed minimum level of educational opportunity with the educational offerings in the wealthiest districts. See Abbott, 119 N.J. at 364, 575 A.2d at 397; see also Note, State Constitutional Law--Public School Financing--Spending Disparity Between Wealthy School Districts and Poor Urban School Districts. Caused By Reliance on Local Property Taxes, is Violative of the "Thorough and Efficient Education" Clause, 21 Seton Hall L. Rev. 445, 470 (1991). One writer has characterized the reasoning employed in Abbott as "an intellectual shell game" (21 Seton Hall L. Rev. at 477-78), and has suggested that the variance between the court's description of the "thorough and efficient" requirement and its ultimate holding "is simply the imprimatur of result oriented jurisprudence cloaked in superfluous reasoning" (21 Seton Hall L. Rev. at 480). The criticism is well founded, and we therefore decline to apply the Abbott court's analysis in this case.

The other decisions cited by plaintiffs, Rose from Kentucky and Kirby from Texas, are of limited relevancebecause in each case the construction given the term "efficient" depended in large measure on historical conditions and considerations (see Rose, 790 S.W.2d at 205-06; Kirby, 777 S.W.2d at 395-96) which are not part of the history of our own constitution. While plaintiffs place major emphasis on Kirby, the historical basis for the court's analysis stands in sharp contrast to the history of our constitution. In Kirby, the court noted that in 1876, when the Texas constitution was written, economic conditions and educational funding were fairly uniform throughout the state, and the framers never contemplated the gross funding disparities that were later to develop as wealth grew at different rates in different districts. Kirby, 777 S.W.2d at 395-96. In contrast, as discussed above, the framers of the Illinois Constitution of 1970 were well aware of disparities produced under the local property tax based funding system. Indeed, inequality was a recognized feature of education in Illinois when the 1870 Constitution-- which introduced the efficiency concept in Illinois--was adopted. As stated in Richards v. Raymond, 92 Ill. 612, 617-18 (1879):

"It is a part of the history of the State when the constitution was framed, that there was a great want of uniformity in the course of study prescribed and taught in the common schools of the State. In the larger and more wealthy counties the free schools were well graded and the course of instruction of a high order, while in the thinly settled and poorer counties the old district system was still retained and the course of instruction prescribed was of a lower order."

In view of all of the foregoing considerations, we agree with the courts below that disparities in educational funding resulting from differences in local property wealth do not offend section 1's efficiency requirement.

B

The remaining question under section 1 of the educationarticle pertains to its guarantee of a system of "high quality" educational institutions and services. There is no dispute as to the nature of this guarantee in the abstract. Instead, the central issue is whether the quality of education is capable of or properly subject to measurement by the courts. Plaintiffs maintain that it is the courts' duty to construe the constitution and determine whether school funding legislation conforms with its requirements and cite a number decisions from other jurisdictions in which courts have concluded that similar constitutional challenges are capable of judicial resolution. As explained below, however, we conclude that questions relating to the quality of education are solely for the legislative branch to answer.

Historically, this court has assumed only an exceedingly limited role in matters relating to public education, recognizing that educational policy is almost exclusively within the province of the legislative branch. Section 1 of article VIII of the 1870 Constitution provided 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. As discussed earlier, except in matters relating to school district boundaries, this court consistently held that questions relating to the efficiency and thoroughness of the school system were left to the wisdom of the legislative branch. This principle has likewise been applied with respect to the efficiency requirement in the 1970 Constitution. See Cronin v. Lindberg, 66 Ill. 2d 47, 58, 4 Ill. Dec. 424, 360 N.E.2d 360 (1976) (law reducing state aid to schools that failed to operate for a school year of a specified minimum duration was not reviewable under the efficiency requirement).

More generally, it has been stated that section 1 of article VIII of the 1870 Constitution was both "amandate to the legislature and a limitation on the exercise of the [legislative] power. [Citation.] The mandate is to provide a thorough and efficient system of schools, and the limitations are that they shall be free to all children of the State and such that all children may receive a good common school education." People ex rel. Leighty v. Young, 309 Ill. 27, 33, 139 N.E. 894 (1923); see also People ex rel. Hepfer v. Price, 310 Ill. 66, 73, 141 N.E. 409 (1923). Yet, while the requirement that schools provide a "good common school education" was explicitly recognized to be a limitation on the legislature's power to enact public school laws, that limitation was not among those held generally capable of judicial enforcement. Fiedler v. Eckfeldt, 335 Ill. 11, 166 N.E. 504 (1929), illustrates this subtle but important point:

"[Section 1 of article VIII of the 1870 Constitution] was a command addressed to the legislature, and it has been construed as a limitation also on its power to provide for the maintenance by local taxation of free schools of a different character from that named in the section. *** When we look for the limitations on that power we find these two, and these two only, which the courts can enforce: that the schools shall be free, and that they shall be open to all equally. The court has enforced these limitations when the occasion requiring the enforcement of them arose. [Citations.] There are no others to which the judicial power extends." (Emphasis added.) Fiedler, 335 Ill. at 23.

In Richards v. Raymond, 92 Ill. 612 (1879), this court rejected the claim that a law providing for the establishment of public high schools exceeded the General Assembly's power to provide for schools where children may receive "a good common school education." This court found no basis in the 1870 Constitution for limiting the discretion of the legislature in determining what a good common school education entails:

"No definition of a common school is given or specified in the constitution, nor does that instrument declare whatcourse of studies shall constitute a common school education. How can it be said that a high school is prohibited by the constitution and not included within the definition of a common school? The phrase, 'a common school education' is one not easily defined. One might say that a student instructed in reading, writing, geography, English grammar and arithmetic had received a common school education, while another who had more enlarged notions on the subject might insist that history, natural philosophy and algebra ...


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