The opinion of the court was delivered by: Chief Justice Harrison
At issue in this case is the constitutionality of section 2-3.25g of the Illinois School Code (105 ILCS 5/2-3.25g (West 1996)), which allows school districts to petition the State Board of Education for waiver or modification of the School Code's mandates. The circuit court held that the statute constituted an impermissible delegation of legislative authority and could not serve as the basis for excusing the board of education of the City of Chicago from having to comply with certain mandates pertaining to physical education classes. On the parties' cross-motions for summary judgment, the circuit court declared the statute invalid and enjoined the Chicago board of education from waiving daily physical education classes for students in eleventh and twelfth grade. The Chicago board of education and the State Board of Education appealed directly to our court. 134 Ill. 2d R. 302(a)(1). We reverse.
Section 2-3.25g provides:
"Notwithstanding any other provisions of this School Code or any other law of this State to the contrary, school districts may petition the State Board of Education for the waiver or modification of the mandates of this School Code or of the administrative rules and regulations promulgated by the State Board of Education. Waivers or modifications of administrative rules and regulations and modifications of mandates of this School Code may be requested when a school district demonstrates that it can address the intent of the rule or mandate in a more effective, efficient, or economical manner or when necessary to stimulate innovation or improve student performance. ***
A request for a waiver from mandates contained in this School Code shall be submitted to the State Board within 15 days after approval by the board of education. The State Board shall review the applications and requests for completeness and shall compile the requests in reports to be filed with the General Assembly. The State Board shall file reports outlining the waivers requested by school districts and appeals by school districts of requests disapproved by the State Board with the Senate and the House of Representatives before each May 1 and October 1. The General Assembly may disapprove the report of the State Board in whole or in part within 30 calendar days after each house of the General Assembly next convenes after the report is filed by adoption of a resolution by a record vote of the majority of members elected in each house. If the General Assembly fails to disapprove any waiver request or appealed request within such 30 day period, the waiver or modification shall be deemed granted. Any resolution adopted by the General Assembly disapproving a report of the State Board in whole or in part shall be binding on the State Board." 105 ILCS 5/2-3.25g (West 1996).
Pursuant to this legislation, the Chicago board of education applied for a waiver from the mandate in section 27-6 of the School Code (105 ILCS 5/27-6 (West 1996)) requiring pupils to engage in daily courses of physical education. The waiver pertained only to students in the eleventh and twelfth grades. It was submitted in connection with a program instituted by the Chicago board of education to improve academic performance in the City's high schools following the General Assembly's determination that the public schools were suffering an "educational crisis" (105 ILCS 5/34-3.3 (West 1996)).
Under the Chicago board of education's plan, physical education requirements were reduced while mathematics, science and foreign language requirements were substantially increased. Physical education courses were still offered, but were only mandatory for the first two years of high school. After that, they were elective and were not necessary for graduation. By contrast, the mathematics requirement was raised from two years to three, the science requirement from one year to three, and the foreign language requirement from nothing to two years.
The Chicago board of education pursued the requested waiver in accordance with the procedural requirements of the statute, including the requirements for notice and a public hearing. The State Board subsequently determined that the waiver application was complete and compiled it with requests for waivers from other school districts in a report it filed with the General Assembly. The General Assembly did not disapprove the waiver following receipt and consideration of the State Board's report. In accordance with the statute, the waiver was therefore deemed to have been granted.
When the Chicago Board of Education was about to implement its plan following approval of the waiver, plaintiffs initiated this action for declaratory and injunctive relief. As the litigation proceeded, the list of plaintiffs came to include two physical education teachers employed by the Chicago board of education; Chicago Teachers Union, Local No. 1, the union representing physical education teachers employed by the Chicago board; parents of two students who attended public high school in Chicago; and several individuals who alleged that they were taxpayers and parents of elementary school students.
As grounds for their complaint, plaintiffs alleged that section 2-3.25g of the Illinois School Code (105 ILCS 5/2-3.25g (West 1996)) violated the principle of separation of powers and "encroached upon the power of the General Assembly and the Governor to enact and approve amendatory legislation." Plaintiffs sought a declaratory judgment that the law was invalid and that the waiver obtained by the Chicago board of education pursuant to the statute was "void and without legal effect." Plaintiffs further asked that the court enjoin defendants from "approving, adopting, or enforcing" waiver of the physical education requirement for "students in grades 9 through 12."
Defendants each moved to dismiss plaintiffs' complaint on the grounds that plaintiffs lacked standing. Plaintiffs and the defendant State Board also filed cross motions for summary judgment. The circuit court granted the motions to dismiss as to the Chicago Teachers Union and the plaintiffs who claimed standing based on their status as parents of students. It ruled, however, that the two physical education teachers did have standing to challenge the statute, as did the plaintiffs who asserted standing based on their status as taxpayers. The court further ruled that plaintiffs were entitled to summary judgment and that summary judgment should be entered against the State Board of Education. The court declared section 2-3.25g to be invalid and held that the waiver sought by the Chicago board and approved by the General Assembly pursuant to that statute had no legal effect. In accordance with that determination, the court enjoined the Chicago board from waiving daily physical education requirements for eleventh and twelfth grade students.
Defendants now appeal the circuit court's judgment, arguing that the circuit court erred in declaring the statute invalid. Defendants also contend that the remaining plaintiffs lack standing to challenge the statute and that the circuit court should therefore have dismissed the case based on lack of standing as to all of the plaintiffs, including the physical education teachers and the individuals claiming standing as taxpayers.
A fundamental rule of constitutional law is that a court will not determine the constitutionality of a provision of a statute which does not affect the parties to the cause under consideration. People v. Hamm, 149 Ill. 2d 201, 214 (1992). Accordingly, in addressing defendants' arguments, we shall begin with the issue of standing.
Under Illinois law, lack of standing is an affirmative defense. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 494 (1988). A plaintiff need not allege facts establishing standing. Rather, it is the defendant's burden to plead and prove lack of standing. People v. $1,124,905 ...