Aurora East Public School Dist. No. 131, Kane County v. Cronin, 80-170

• Decision Date: 27 January 1981
• Docket Number: No. 80-170,80-170
• Citation: 48 Ill.Dec. 88,415 N.E.2d 1372,92 Ill.App.3d 1010
• Court: United States Appellate Court of Illinois
• Parties: , 48 Ill.Dec. 88 AURORA EAST PUBLIC SCHOOL DISTRICT NO. 131, KANE COUNTY, Illinois et al., Plaintiffs-Appellees, v. Joseph M. CRONIN et al., Defendants-Appellants.

Page 1372

415 N.E.2d 1372

92 Ill.App.3d 1010, 48 Ill.Dec. 88

AURORA EAST PUBLIC SCHOOL DISTRICT NO. 131, KANE COUNTY Illinois et al., Plaintiffs-Appellees, v. Joseph M. CRONIN et al., Defendants-Appellants.

No. 80-170.

Appellate Court of Illinois, Second District.

Jan. 27, 1981.

Rehearing Denied Feb. 23, 1981.

Julia Quinn Dempsey, David A. Thompson, Sidley & Austin, Thomas H. Morsch and Shalom L. Kohn, Chicago, for defendants-appellants.

Reid, Ochsenschlager, Murphy & Hupp, Lambert M. Ochsenschlager and Wayne F. Weiler, Aurora, for plaintiffs-appellees.

VAN DEUSEN, Justice:

Defendants, Illinois State Superintendent of Education, Joseph Cronin, and the members of the Illinois State Board of Education (hereinafter State Board), appeal from an order of the circuit court of Kane County entered on February 8, 1980, wherein the court granted plaintiff, Aurora East Public School District No. 131 (hereinafter Aurora), declaratory and injunctive relief. In its order, the court declared invalid and void, and permanently enjoined the enforcement of, the Rules Establishing Requirements and Procedures for the Elimination and Prevention of Racial Segregation in Schools (hereinafter Rules ) which had been promulgated by the State Board for the purpose of enforcing a 1963 amendment to section 10-21.3 of the School Code. The 1963 amendment to section 10-21.3 of the School Code provides, in relevant part, that:

" * * * As soon as practicable, and from time to time thereafter, the (local school) board shall change or revise existing (attendance) units or create new (attendance) units in a manner which will take into consideration the prevention of segregation and the elimination of separation of children in public schools because of color, race or nationality." (Ill.Rev.Stat.1977, ch. 122, par. 10-21.3.)

The above amendment was commonly known as the Armstrong Act and will be referred to as such throughout this opinion.

The court's order also granted a judgment in favor of Aurora and against the State Board on the State Board's countercomplaint which alleged, in substance, that Aurora had failed to comply with the requirements of the Armstrong Act and with the Rules.

Most of the issues involved in this case are, basically, questions of law. Thus, as to those issues, there are few facts which require recitation. The only issue which requires an understanding of the facts is the issue regarding violation of the Armstrong Act. The following, therefore, contains those facts relevant to a determination of that issue. In addition, we set forth some background information with respect to the history of the relevant law.

Aurora East School District 131 is divided into eleven attendance zones or subdistricts for purposes of elementary school attendance. Each subdistrict contains one attendance unit, i. e., an elementary school. The racial balance at each of Aurora's elementary schools is one of the issues in this case.

Aurora has changed its boundaries three times since the Armstrong Act became effective. These changes were effectuated in 1968, 1971 and 1977. The initial impetus for the boundary changes made in 1968 and 1971 was a series of space utilization studies begun in 1962 and conducted by Dr. Michael Sestak, who, at the time of trial, was Assistant Superintendent for Aurora. The studies revealed that certain elementary schools were either overcrowded or close to full capacity. As a result, new schools and school additions were built, necessitating the boundary changes.

Dr. James Cavanaugh, Assistant Superintendent for the Elementary Schools in the district at the time the space utilization studies were made, was responsible for recommending boundary changes to the local Board of Education. He explained the 1968 boundary changes, testifying that the space utilization studies were considered in planning the changes; but, also considered was available information on the race of the children who would be involved in the transfers and the distance students would have to travel if they were affected by the transfer. Dr. Cavanaugh explained that, in considering race as a factor in making boundary changes, he necessarily had to rely upon anticipated enrollment figures which were often inaccurate, since it was unpredictable how many families would move into or out of the area designated for any given attendance unit. In considering race, Dr. Cavanaugh utilized anticipated enrollment reports, which were sent yearly to the Department of Health, Education and Welfare (HEW), and dot maps.

During the same year that Aurora first made boundary changes, the Illinois Supreme Court upheld the constitutionality of the Armstrong Act in Tometz v. Board of Education (1968), 39 Ill.2d 593, 237 N.E.2d 498. The court found that the Armstrong Act's requirement, that race be considered in changing attendance boundaries, was applicable to de facto as well as deliberate segregation. (39 Ill.2d 593, 602, 237 N.E.2d 498.) The court noted, however, that, while racial imbalance is one factor to be considered, other factors such as traffic, distances of students' homes from school, finances and classroom capacity are also factors to be taken into account and may, in a given case, be the determining factors and even override any factor of racial consideration. 39 Ill.2d 593, 605-606, 237 N.E.2d 498.

In 1971, the Rules were first promulgated by Michael Bakalis, then the State Superintendent of Public Instruction. Subsequently, the legislature adopted what is known as the Moore amendment, which provides in pertinent part:

" * * * Nothing herein shall be construed to permit or empower the State Superintendent * * * to order, mandate or require busing or other transportation of pupils for the purpose of achieving racial balance in any school." (Ill.Rev.Stat.1977, ch. 122, par. 10-22.5, effective Oct. 1, 1973.)

In 1976, Joseph Cronin, Superintendent of the State Board of Education ¹, promulgated the Rules at issue in the present case.

The first issue we consider is whether the State Board has the authority to promulgate Rules to enforce the Armstrong Act. Recently, the Court of Appeals for the Seventh Circuit explicitly addressed this question in Coates v. Illinois State Board of Education (7th Cir. 1977), 559 F.2d 445. The court noted that the State Board has a duty "(t)o supervise all the public schools in the State" (Ill.Rev.Stat.1977, ch. 122, par. 2-3.3) and the concomitant power "(t)o make rules necessary to carry into efficient and uniform effect all laws for establishing and maintaining free schools in the State." (Emphasis added.) (Ill.Rev.Stat.1977, ch. 122, par. 2-3.6). It thereafter found that the Armstrong Act (Ill.Rev.Stat.1977, ch. 122, par. 10-21.3) was one law enacted for the purpose of establishing and maintaining free schools in this State. The court concluded and held that, under section 2-3.6 of the School Code, the State Superintendent has the power to make rules necessary to carry into efficient and uniform effect the local school board's charge under the Armstrong Act. The court found only one extrinsic limit on the State Superintendent regarding the regulations he may issue, i. e., the "anti-busing clause" of the Moore amendment (Ill.Rev.Stat.1977, ch. 122, par. 10-22.5). (559 F.2d 445, 448.) The court went on, however, to define the scope of the State Superintendent's authority. The court explained that the statutory scheme under the School Code does not grant the State Superintendent authority to actually determine attendance units and pupil assignments. This task, i. e., "(a)ctual implementation," is left to the local school boards to be accomplished "within the guiding boundaries established by any section 2-3.6 regulations which the State has promulgated. * * * (T)he State Superintendent has an overseer's responsibility with respect to attendance units and pupil assignment * * *." (Emphasis added.) (559 F.2d 445, 448.) We believe Coates is determinative that the State Board has the authority to promulgate rules to carry out the Armstrong Act, and we agree with its reasoning and adhere to its ruling.

Having decided that the State Board has the required authority, the question becomes whether the present rules are a valid exercise of its authority. The legal principles regarding this issue are well established.

Generally, any power exercised by an administrative agency must find its source within the provisions of the statute by which it is created. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 551, 12 Ill.Dec. 600, 370 N.E.2d 223.) An administrative agency has only such authority as is conferred by express provision of law or is found, by fair implication and intendment, to be incident to and included in the authority expressly conferred for the purpose of carrying out and accomplishing the objectives for which the agency was created. (Karas v. Dixon (1978), 67 Ill.App.3d 736, 739, 24 Ill.Dec. 366, 385 N.E.2d 133; Fahey v. Cook County Police Department Merit Board (1974), 21 Ill.App.3d 579, 583, 315 N.E.2d 573.) Thus, where an administrative agency promulgates rules which are beyond the scope of its legislative grant of authority, such rules are invalid. (Cf. Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 12 Ill.Dec. 600, 370 N.E.2d 223; Ruby Chevrolet, Inc. v. Department of Revenue (1955), 6 Ill.2d 147, 126 N.E.2d 617.) Similarly to the extent that any administrative rule is in conflict with the statutory language under which the rule is adopted, it too is invalid. Pye v. Marco (1973), 13 Ill.App.3d 923, 926, 301 N.E.2d 63.

When reviewing administrative rules and regulations, a court will not set them aside unless they are clearly arbitrary, unreasonable or capricious. (Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill.2d 305, 310, 319 N.E.2d 782; Olin Corp. v. Pollution Control Board (1977), 54 Ill.App.3d 480, 483, 12 Ill.Dec. 380, 370...