By MARK MATHEWSON
Lawsuit challenges state financing of public schools
On November 13, 1990, a group of school districts calling itself the Committee for Educational Rights fired the opening salvo in what may be the legal battle of the decade in Illinois. The committee and other plaintiffs filed it in Cook County Circuit Court against Gov. James R. Thompson, state Supt. of Education Robert Leininger and the Illinois State Board of Education. The plaintiffs are asking the court to declare Illinois' school financing scheme invalid under the Illinois Constitution.
Here is a thumbnail sketch of the lawsuit that could reshape Illinois school funding, and with it the education of millions of schoolchildren and the distribution of hundreds of millions of Illinois tax dollars.
Parties to the suit: The plaintiffs include (1) the Committee
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for Educational Rights, made up of 54 Illinois school districts joined together by intergovernmental agreement, the statutorily and constitutionally prescribed means by which local governments combine for a common purpose; (2) 30 school districts, all members of the committee, who joined the lawsuit individually; and (3) 10 schoolchildren and their parents (see box for details).
The committee has hired the Chicago-based law firm of Hinshaw & Culbertson and is also advised by Bloomington attorney Robert Lenz and DePaul University law professor Jeffrey Shaman. The school districts range in location from Rockford to Harrisburg and in size from Chicago with its 410,230 students to the 53-student Ohio Community High School district in north-central Illinois; they encompass about one-third of the students in the state. The Illinois Federation of Teachers has also petitioned the court for permission to join the plaintiffs, as has the conservative Washington, D.C.-based Landmark Legal Foundation Center for Civil Rights, which is an advocate of a tuition tax credit proposal. Neither group took part in the initial filing, and the court has not yet ruled on their petition to intervene. The committee members will pay the bulk of the lawsuit's costs, with help from the Coalition for Educational Rights, the umbrella group comprising the committee (the coalition is not party to the suit).
According to Lenz, the 30 districts that joined both individually and as part of the committee have no greater role in the suit than any other committee member. "We thought about filing as the committee only, but learned that a number of the individual districts simply wanted to be named plaintiffs," said Lenz. "So we circulated resolutions to the individual districts, and 30 got them adopted and returned them to us by the filing deadline. It was a practical, rather than a legal, concern; the feeling was that citizens may feel more involved if they see that a district from their region of the state is a party to the lawsuit." He said the same is true of the parents and children: "Essentially, they're there because they give a human face to the lawsuit."
Ironically, the defendants include Supt. Leininger, who is on record as saying that the disparity in per pupil spending between rich and poor districts "can't be defended." But because the state can be sued only through its officials, the chief executive officer (the governor) and the chief education official (the state superintendent) were obvious targets. "There are no bad guys in this lawsuit," Lenz said, though he did note that "many people say the real bad guys [state lawmakers] are not among the parties." Under the state Constitution, legislators are immune from lawsuits of this type.
Although the case was filed in Cook County, it will not become part of that court system's notorious case backlog. "This case was filed in the chancery division; the backlog is in the law division," Lenz said. "We felt that we had two good venues for filing the suit — Sangamon County, where the judges often hear cases involving state government, and Cook County, where the judges are also familiar with these issues." But Cook County is also home to the Chicago School District, far and away the largest of the committee members, and Lenz said, "The fact that there's more media visibility in Chicago was not insignificant." The case has been assigned to Judge Thomas O'Brien.
Basis for the complaint: The complaint charges that the current school funding scheme violates the education article, equal protection clause and "no special law" article of the Illinois Constitution (for a detailed discussion of many of the legal issues in the lawsuit, see "Litigation for equal education: a question of interpreting state constitution,'' Illinois Issues, May 1990, pp. 14-16). The five counts are as follows:
1. The system is inequitable, and thus unconstitutional under the education clause. According to the complaint, the disparity in per pupil spending — a spread from nearly $12,000 to $2,000 per pupil between rich and poor districts — violates the constitutional mandate that "all persons" be educated "to the limit of their capacities." The plaintiffs assert that "fiscal neutrality is inherent in the words 'efficient' and 'system' and in the description 'efficient system of high quality public educational institutions and services.' " The plaintiffs claim that while spending disparities from district to district may be permitted — even required — for an "educationally appropriate" reason, differences based on local property wealth are not edit educationally appropriate.
2. The system deprives some districts of enough money to provide an adequate education, and so it is unconstitutional under the education clause. This argument focuses on absolute, not relative, quality; that is, putting aside the disparity between rich and poor districts, some districts simply don't get enough money. As the complaint puts it, many low-spending districts can't even provide "adequate or minimal education for some or all of their students," let alone the "high quality" education called for under the Constitution.
3. The system does not meet the needs of "at-risk" children (for the most part black and Hispanic victims of urban poverty who are "at risk" of academic failure) and so violates the education article's mandate for an "efficient system of high quality public education. "At-risk children are defined as those "eligible for a pre-kindergarten program" under the state school code.
"In this count we highlight the fact that even though the state itself has deemed these children to be at risk, they are not being properly educated," said committee attorney Jeffrey Shaman.
4. The system discriminates against children in poor districts by depriving them of "equal opportunity for educational services," and so violates the Illinois equal protection clause requirement that "no person shall be ... denied equal protection of the laws."
5. The system violates the "no special laws" provision of the Constitution (forbidding the legislature to pass a local law where "a general law is or can be made applicable"). The "no special laws" provision "forbids the arbitrary bestowal of privlege," the complaint says, and distributing resources on the "educationally irrelevant" basis of local property wealth arbitrary.
Relief sought: For each count the plaintiffs seek a declaratory judgment that the system is unconstitutional. This aspect of the lawsuit raises an interesting question if the court were to find for the plaintiffs on only one count. Consider the result if the court is-
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sued a declaratory judgment only on the count focusing on at-risk children. Couldn't the legislature meet the letter of the law by spending more only for schools serving the victims of urban poverty? That result, however laudable, would do nothing of material benefit for the many rural and suburban districts backing the lawsuit.
"While that's true in a very technical, narrow sense, I think it's inconceivable that if we prevail on only one count, the legislature will tinker in a very narrow way and ignore the other issues raised in the suit," said Lenz. "Besides, I think it's likely that if we prevail on one count, we'll win across the board. And don't forget that you're looking just at a complaint here, not a memorandum of law. At any time we can file a memorandum and outline specific remedies."
The committee also insists in its press handouts that it does not want to take from the rich districts and give to the poor ones, nor does it want to cap rich district's per pupil spending. The complaint itself, however, merely asks that the current system be found unconstitutional as to the various counts. Whether money is diverted from rich to poor districts as a result of the suit, Shaman said, "depends on the court's response. Ultimately, it depends on the legislature's response." He noted that in the 12 successful school funding lawsuits in other states across the nation, "some legislatures have responded by leveling down" per pupil spending. But given the political clout of lawmakers from the collar counties, home to the richest districts, it seems unlikely that the legislature would level down without a clear directive to do so from the court.
Procedure: It is unclear at this point (mid-January) who will represent the defendants in this lawsuit, though the attorney general, chief lawyer for the state, is almost certain to play a key role. The plaintiffs have tried to prepare themselves for a defense motion to dismiss the lawsuit before trial. In essence, a motion to dismiss asserts that even if the facts presented by the plaintiffs are true, there is no legal basis for their claim. "We've tried to produce a complaint that's rich in facts so the judge will have plenty to work with in the event of a motion to dismiss," Lenz said.
Whether or not a motion to dismiss is granted — or even filed— the constitutional issues raised in the lawsuit will almost certainly go to the Illinois Supreme Court. "We'd like to prevail in the first round, of course, but I'm not sure it makes much difference who does," Lenz said. "The case will be appealed whoever wins. Some members of our group hope that during the pendency of this suit, there'll be an appropriate response by the legislature. I suppose if we get one, that could moot the lawsuit. But I don't foresee that happening. I think the final decision will be made by the Supreme Court. "
Mark Mathewson is managing editor of the Illinois Bar Journal. He holds the J.D. from the University of Illinois College of Law and a master's degree in writing from the University of Iowa.
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