J. LYELL CLARKE and STEVEN SCHULZE, Plaintiffs-Appellants and Cross-Appellees,
COMMUNITY UNIT SCHOOL DISTRICT 303, Defendant-Appellee and Cross-Appellant
Appeal from the Circuit Court of Kane County. No. 11-CH-1250. Honorable David R. Akemann, Judge, Presiding.
Affirmed in part and vacated in part; cause remanded.
SPENCE, JUSTICE delivered the judgment of the court, with opinion. Justice Zenoff concurred in the judgment and opinion. Justice McLaren dissented, with opinion.
[¶1] Plaintiffs, J. Lyell Clarke and Steven Schultze, appeal the trial court's issuance of a writ of mandamus with respect to the reorganization of two schools. Plaintiffs argue that the trial court erred by issuing a writ of mandamus that did not reinstate the boundaries of the two schools to their original status prior to the reorganization. In the alternative, plaintiffs argue that the trial court erred by issuing a writ of mandamus that did not order a major restructuring of the two schools. Defendant, Community Unit School District 303, cross-appeals, arguing that the trial court erred by ordering the relief it did in the writ of mandamus. Defendant also moves to vacate the trial court's order and dismiss the appeal as moot based on a waiver of certain provisions in the No Child Left Behind Act of 2001 (NCLB) (20 U.S.C. § 6301 et seq. (Supp. I 2001)). We affirm in part, vacate in part, and remand the case with directions.
[¶2] I. BACKGROUND
[¶3] This case involves the reorganization of two schools, Davis Elementary and Richmond Elementary, that both, prior to the 2011-12 school year, served students in kindergarten through fifth grade. Plaintiffs are parents of students who originally attended Davis. Defendant is a school district organized under the Illinois School Code (School Code) (105 ILCS 5/1-1 et seq. (West 2010)). Beginning in the 2011-12 school year, defendant reconfigured the schools so that Davis served students in kindergarten through second grade and Richmond served students in third through fifth grade (2011 Plan).
[¶4] This case comes before us a second time after we held that plaintiffs' complaint contained sufficient allegations for a writ of mandamus based on violations of the School Code and its regulations and we remanded the matter to the trial court. Clarke v. Community Unit School District 303, 2012 IL App. (2d) 110705, ¶ ¶ 25, 41, 971 N.E.2d 1163, 361 Ill.Dec. 641 ( Clarke I ). Consistent with Clarke I, the trial court issued a writ of mandamus. The court found that the 2011 Plan failed to comport with the NCLB and the specific provisions of the School Code (105 ILCS 5/2-3.25d (West 2010)) and its regulations implementing the NCLB. However, the remedy ordered by the court left intact the reconfiguration of the two schools, despite plaintiffs' request that the court reinstate the schools' boundaries to their original status prior to the implementation of the 2011 Plan.
[¶5] We begin with a discussion of the relevant federal and state statutory provisions. Beginning with the NCLB, its overarching goal is " to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments." 20 U.S.C. § 6301 (Supp. I 2001). In addition, the NCLB seeks to close the " achievement gap between high- and low-performing children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers." 20 U.S.C. § 6301(3) (Supp. I 2001). The NCLB requires states to establish and enforce learning standards and to achieve adequate yearly progress (AYP) toward those standards, as measured by federally approved standardized tests. See 20 U.S.C. § 6311 (Supp. II 2002).
[¶6] Under several of its provisions, the NCLB provides for federal educational grants to states and schools, known as " Title I" funds. 20 U.S.C. § 6301 et seq. (Supp. I 2001). Specifically, Title I funds are used to supplement the educational needs of disadvantaged students. Id. The Secretary of Education has the authority to withhold federal funds if a recipient of funds fails to comply substantially with the NCLB's requirements. See 20 U.S.C. § 1234c (Supp. II 2002).
[¶7] To comply with the NCLB, the Illinois General Assembly amended sections of, and added sections to, the School Code (Pub. Act 93-470, § 5 (eff. Aug. 8, 2003)). Most notably, Public Act 93-470, section 5, significantly amended section 2-3.25d of the School Code (105 ILCS 5/2-3.25d (West 2010)). Section 2-3.25d(a) provides that a school that fails to meet AYP for two consecutive years is placed on " academic early warning status for the next school year." 105 ILCS 5/2-3.25d(a) (West 2010). If the school fails to meet AYP for a third consecutive year, it remains on academic early warning status. Id. If the school fails to meet AYP for a fourth consecutive year, it is placed on " initial academic watch status." Id. If the school remains on academic watch status after a fifth year, the school district must develop a restructuring plan for the school. Id. Section 2-3.25d(a) provides, " A school district that has one or more schools on academic early warning or academic watch status shall prepare a revised School Improvement Plan [(SIP)] ***." Id. Further, section 2-3.25d(c) provides that a SIP " shall be developed in collaboration with parents ***. *** The *** [SIP] shall address measurable outcomes for improving student performance so that such performance meets [AYP] criteria ***." 105 ILCS 5/2-3.25d(c) (West 2010).
[¶8] In this case, for four consecutive school years, 2007-08 through 2010-11, Richmond failed to achieve AYP. Richmond failed to achieve AYP because some of its students were " limited English proficient" (LEP). Once Richmond failed to make AYP for the second consecutive school year, 2008-09, defendant developed a SIP for Richmond in 2009. Defendant was required to notify the parents of Richmond students of the AYP issue and to offer those parents the option to enroll their children in higher performing schools within the district (this option is known as " choice" ). By the following school year, 2010-11, 117 Richmond students had transferred to other schools in the district and the enrollment at Davis had increased by 19 students. Davis had achieved AYP every school year prior to 2010-11.
[¶9] On February 7, 2011, a " robocall" went out to the parents of students at Richmond and Davis, informing them of significant changes at the two schools. Parent open-house meetings were held on February 9 and 10, 2011, and the 2011 Plan to combine Richmond and Davis was adopted by defendant in March 2011. The 2011 Plan reconfigured Richmond and Davis, both Title I schools, from two independent elementary schools, serving students in kindergarten through fifth grade, into interdependent elementary schools, with Davis serving students in kindergarten through second grade and Richmond serving students in third grade through fifth grade. After the fall of 2011, the parents of Richmond students no longer had the option of transferring their children to higher performing schools, because choice was no longer available.
[¶10] Plaintiffs filed a complaint alleging that defendant's 2011 Plan was an unlawful SIP under the School Code and its regulations. Clarke I, 2012 IL App. (2d) 110705, ¶ ¶ 10-12. Defendant moved for judgment on the pleadings; the trial court granted defendant's motion; and plaintiffs appealed. Id.¶ 1. We reversed in part, stating that there was a genuine issue of material fact regarding whether the 2011 Plan was a SIP under the School Code. Id. ¶ ¶ 39, 41. Further, we held that plaintiffs had alleged sufficient facts to support a cause of action for a writ of mandamus, and we remanded the case to the trial court. Id. ¶ ¶ 25, 41.
[¶11] On remand, plaintiffs filed a third amended complaint to include a cause of action for a writ of mandamus. Defendant answered plaintiffs' complaint, filed an amended answer with an affirmative defense, and also filed a counterclaim against plaintiffs and a third-party complaint against the Illinois State Board of Education (ISBE). Defendant sought a declaratory judgment finding that the 2011 Plan (1) was not a SIP and was not required to be a SIP pursuant to the School Code, and (2) did not violate section 2-3.25d of the School Code and regulations implementing the School Code. In addition, defendant argued that the 2011 Plan was within its " discretionary authority granted to it by the General Assembly to act as a policymaking body." On January 28, 2013, the trial court granted plaintiffs' motion to strike defendant's affirmative defense. On May 24, 2013, the trial court granted plaintiffs' and the ISBE's motion to dismiss defendant's counterclaim and third-party complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)).
[¶12] The court heard testimony, admitted other evidence, and heard argument of counsel during a seven-day trial held from July 24 through August 1, 2013. In its September 18, 2013, modified opinion and judgment order, the court first addressed the issue of whether the School Code and its regulations relating to the NCLB applied to defendant's 2011 Plan. According to the court, the 2011 Plan had many elements of a revised SIP, and defendant was required to comply with section 2-3.25d of the School Code and its regulations when implementing the 2011 Plan, but defendant did not do so. The court stated: " The District is required to adopt a Plan which will assist or otherwise benefit the failing subgroups. The 2011 Plan contained no measures whereby the failing subgroups were addressed."
[¶13] The court also found that defendant developed the 2011 Plan " at least in part, to resolve [Richmond's] AYP issue." The court acknowledged that district personnel testified otherwise, but the court did " not find this testimony credible." The court stated that, although defendant " admittedly adopted a Plan for the general good," the 2011 Plan contained " no specific strategies for those subgroups [at Richmond] who failed AYP." The 2011 Plan failed to comply with the School Code and its regulations because it failed to: (1) " provide any measurable, scientific remedial strategies at Richmond[, which] did not pass that statewide ISAT test and failed AYP" ; (2) " address why the 2009 SIP did not improve the AYP scores of the failing subgroups" ; and (3) provide choice to the parents of Richmond students. The court stated:
" [O]nce Choice was implemented, the District cannot eviscerate past SIP failures by 'reconfiguring the school population.' This methodology only serves to circumvent the express requirements of the NCLB regulations. *** Under Section 5/2-3.25d [of the School Code], the District was obligated to adopt a Plan for Richmond School in 2011 for school years 2011-2013." (Emphasis in original.)
The court found that plaintiffs " have demonstrated that the 2011 Plan fails to comport with the applicable statutory and regulatory mandates of the NCLB, the [S]chool [C]ode and the regulations promulgated thereunder."
[¶14] Regarding the remedy, the trial court noted that plaintiffs had requested that the 2011 Plan be declared null and void, which would " 'undo'" the reconfiguration and return the boundaries of both schools back to their original status prior to the implementation of the 2011 Plan. However, the court noted that this court had stated in Clarke I that a plaintiff will not be entitled to a writ of mandamus when its effect would be to substitute the court's judgment or discretion for that of the public official. Clarke I, 2012 IL App. (2d) 110705,¶ 24 (citing Lewis E. v. Spagnolo, 186 Ill.2d 198, 229, 710 N.E.2d 798, 238 Ill.Dec. 1 (1999)). The court further noted that, while its role was to ensure compliance with the statutory and regulatory mandates, it must not determine on its own " whether or not the means ultimately adopted by [defendant] are wise or expedient nor interfere with the exercise of the powers by the members of [defendant] in matters confided to their discretion."
[¶15] Accordingly, the court issued a writ of mandamus but did not undo the reconfiguration and return the schools to their original status. Instead, the writ of mandamus stated:
" The Defendant District is ordered, within a period of six months from the date of this Judgment to develop a revised Corrective Action Plan that includes Choice and Supplemental Services (SES) in accordance with the mandates in the NCLB, the School Code 105 [ILCS] 5/2-3.25d and 23 Ill. Admin. Code, Sections 1.10-1.85 for students in the Davis and Richmond buildings. Without limitation to the foregoing, the Corrective Action Plan must be developed in collaboration with and the input of parents of students attending school in, and the staff serving in, the Davis and Richmond buildings." (Emphasis in original.)
[¶16] Plaintiffs moved to reconsider and clarify the trial court's decision, requesting the court to mandate defendant to " undo its previous action of combining the attendance areas for the students who attended school in the Davis and Richmond buildings." In another written decision, the court denied plaintiffs' request to reconsider but granted their request for clarification.
[¶17] Regarding the reconfiguration, the court stated that " boundary decisions are and remain the prerogative of the [defendant] school district." The court determined that it was " not the reconfiguration that the [defendant] school district did that, considered in isolation, was contrary to the mandates of the NCLB." Rather, it was defendant's " failure to provide the corrective action mandates that this Court now orders" that " ran contrary to the NCLB from which the State cannot provide a waiver." According to the court, its function " in mandamus " was not to " replace the quasi-legislative authority of the [defendant] district but to require that the [defendant] district perform ...