Noyola v. Board of Education
Annotate this Case
Noyola v. Board of Education, Nos. 82177, 82198 cons. (10/23/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the
opinion to request a rehearing. Also, opinions are subject to modification, correction or
withdrawal at anytime prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made available prior to the
Court's final action in this matter, it cannot be considered the final decision of the
Court. The official copy of the following opinion will be published by the Supreme
Court's Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.
Docket Nos. 82177, 82198 cons.--Agenda 33--May 1997.
CONCEPCION NOYOLA et al., Appellees, v. THE BOARD OF
EDUCATION OF THE CITY OF CHICAGO et al., Appellants.
Opinion filed October 23, 1997.
JUSTICE HARRISON delivered the opinion of the court:
The issue in this appeal is whether plaintiffs, who are the parents of
economically disadvantaged Chicago school students and a community advocacy
group whose members include the parents of such students, have the right to bring
an action challenging the manner in which the board of education of the City of
Chicago and the Illinois State Board of Education allocate Chapter 1 funds under
section 18--8(A)(5)(i)(1)(a) of the School Code (105 ILCS 5/18--8(A)(5)(i)(1)(a)
(West 1994)).
The circuit court initially dismissed plaintiffs' claims for lack of standing,
but the appellate court reversed and remanded. Noyola v. Board of Education, 227
Ill. App. 3d 429 (1992). On remand, plaintiffs filed a second amended complaint
alleging that defendants are violating the provisions of section 18--8(A)(5)(i)(1)(a)
of the School Code in two ways. The first is by diverting Chapter 1 funds that
should be spent at "attendance centers," i.e., schools, and using them instead for
administrative and overhead costs. The second is by using Chapter 1 funds to
supplant rather than supplement the resources necessary to meet the educational
needs of economically disadvantaged students.
Plaintiffs contend that as a result of defendants' unlawful use of Chapter
1 funds, economically disadvantaged Chicago school students have been deprived
of adequate educational opportunities in violation of their statutory and
constitutional rights. They also assert that defendants' actions violate the
requirements of the Illinois Administrative Procedure Act (5 ILCS 100/1--1 et seq.
(West 1994)). For their relief, plaintiffs request a determination that defendants
have violated the law and an order requiring defendants to use Chapter 1 funds
as section 18--8(A)(5)(i)(1)(a) of the School Code requires.
On defendants' motions, the circuit court dismissed plaintiffs' second
amended complaint. The court took issue with the sufficiency of plaintiffs' factual
allegations, but the primary basis for its decision was its belief that a private right
of action to enforce section 18--8(A)(5)(i)(1)(a) could not be implied under the
School Code.
The appellate affirmed in part and reversed in part and remanded. 284 Ill.
App. 3d 128. It held that the constitutional claims asserted by plaintiffs were
factually and legally insufficient. It also held that plaintiffs had abandoned their
claim that defendants' actions violated the Illinois Administrative Procedure Act.
Where the appellate court disagreed with the circuit court was on the question of
whether plaintiffs could assert a private right of action to enforce section 18--
8(A)(5)(i)(1)(a). In the appellate court's view, a private right of action could be
implied under the statute, plaintiffs were proper parties to bring such an action,
and the facts pled by plaintiffs were sufficient to withstand defendants' motions
to dismiss. Accordingly, the appellate court reversed the circuit court's judgment
dismissing plaintiffs' claim to enforce the statute and remanded for further
proceedings with respect to that claim. Defendants filed two separate petitions for
leave to appeal (155 Ill. 2d R. 315), which we consolidated and allowed.
In reviewing the appellate court's judgment, we begin with a discussion of
section 18--8(A)(5)(i)(1)(a) of the School Code, the statute on which plaintiffs'
cause of action is founded. Under Illinois law, school districts receive distributions
of general state aid from the state's common school fund. The formula for
calculating how much general state aid a district will receive is set forth in section
18--8 of the School Code. That formula is designed to enable districts with modest
property tax bases to achieve a certain minimum level of funding per pupil.
Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 6-7 (1996).
The amount of general state aid a district receives is based on a weighted
average of daily attendance at schools within the district and on the equalized
assessed valuation of property in the district. A district's weighted average daily
attendance is increased by the number of low-income eligible pupils it has. 105
ILCS 5/18--8(A)(1)(n) (West 1994). Correspondingly, the presence of low-income
eligible pupils will increase the amount of general state aid a district receives, all
else being equal. The additional general state aid monies a district receives due to
the presence of low income eligible pupils are known as Chapter 1 funds. 23 Ill.
Adm. Code sec. 202.10 (1997); 105 ILCS 5/18--8(A)(5)(i)(1)(a).
Detailed requirements govern how school districts with an average daily
attendance of 50,000 or more may expend Chapter 1 funds. Those requirements
are set forth in section 18--8(A)(5)(i)(1)(a) of the School Code. Under that statute,
school districts are required to distribute all Chapter 1 funds "to attendance centers
and only to attendance centers," subject to certain limitations. 105 ILCS 5/18--
8(A)(5)(i)(1)(a) (West 1994). This requirement was implemented by the General
Assembly in phases, beginning with the 1989-90 school year. It is now in full
effect.
Underlying section 18--8(A)(5)(i)(1)(a) is the principle that Chapter 1 funds
should benefit the low-income students responsible for bringing those funds into
the district. Consistent with this purpose, the statute specifies that the funds must
be distributed to attendance centers in proportion to the number of students
enrolled at the centers who are eligible to receive free or reduced price lunches
or breakfasts under the Federal Child Nutrition Act and the National School Lunch
Act. The statute further specifies that the appropriations an attendance center
would otherwise receive cannot be reduced or adjusted to offset a distribution of
Chapter 1 funds. Under the law, Chapter 1 funds must supplement rather than
supplant other appropriations. 105 ILCS 5/18--8(A)(5)(i)(1)(c) (West 1994).
To insure compliance with the foregoing requirements, school districts
must prepare annual plans and submit them for approval to the State Board of
Education. If they fail to do so, the State Board of Education is required to
withhold their Chapter 1 funding. In addition, once Chapter 1 funds have been
distributed to a district, the district must prepare and submit a report to the State
Board of Education showing how the funds were expended. 105 ILCS 5/18--
8(A)(5)(i)(1)(d) (West 1994). The law directs the State Board of Education to
promulgate rules and regulations to implement these requirements.
The Chicago Board of Education is subject to the provisions of section 18--
8(A)(5)(i)(1). In the complaint at issue in this case, plaintiffs allege that the Board
has violated the statute by using Chapter 1 funds for administrative and overhead
costs instead of distributing those funds to eligible attendance centers. Plaintiffs
further allege that the Board has also violated the statute by using Chapter 1 funds
to supplant, rather than supplement, funds that would otherwise be allocated to the
attendance centers. According to the complaint, the Board has done so, in part, by
cutting funding for basic programs, thereby forcing local school councils to use
Chapter 1 funds to cover the costs of those programs.
Plaintiffs' complaint takes issue with the conduct of the State Board of
Education as well. According to plaintiffs, the State Board has failed to meet its
responsibilities under the statute because it has not enforced the provisions of
section 18--8(A)(5)(i)(1) and has not promulgated rules and regulations that would
prevent the Chicago Board of Education from circumventing that statute.
In reversing the circuit court's dismissal of these claims, the appellate court
opined that plaintiffs do have the right to bring a private right of action to compel
the Chicago Board of Education and the State Board of Education to comply with
section 18--8(A)(5)(i)(1)'s requirements. For the reasons that follow, we agree
with the appellate court's conclusion that plaintiffs should be permitted to pursue
their claim to enforce the requirements of that statute. We disagree, however, with
the court's application of the rules regarding implied private rights of action.
Implied private rights of action are an established feature of our
jurisprudence. Under several centuries of English common law, the courts adhered
to the view that every act of Parliament gave rise to private remedy to a party
wronged by its violation. H. Foy, Some Reflections on Legislation, Adjudication,
and Implied Private Actions in the State and Federal Courts, 71 Cornell L. Rev.
501, 524-25 (1986). The right to maintain a private action did not depend on the
text of the legislation or the demonstrable intentions of Parliament. Rather, it was
based on a general legal principle extrinsic to the legislation itself, namely,
"that every English subject had a right to a remedy for things done
to him contrary to English law, including the acts of Parliament,
and *** the royal courts were obligated to provide such remedies."
71 Cornell L. Rev. at 528.
In the United States, the theory justifying private rights of action has
evolved from these English common law origins. Beginning with Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), the view that has emerged in the
federal courts is that recognition of a right of action implied by statute ultimately
rests on the intent of the legislature. 71 Cornell L. Rev. at 565. See, e.g., Virginia
Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1102, 115 L. Ed. 2d 929, 951, 111 S. Ct. 2749, 2763 (1991). According to the federal courts, unless the intent to
create a private cause of action can be inferred from the language of the statute,
the statutory structure or some other course, the essential predicate for implication
of a private remedy does not exist. Karahalios v. National Federation of Federal
Employees, Local 1263, 489 U.S. 527, 533, 103 L. Ed. 2d 539, 547, 109 S. Ct. 1282, 1286-87 (1989).
An entirely different approach to analyzing the adjudicatory consequences
of legislation has been taken in the state courts. There judges have come to
identify the implied statutory action with modern tort actions based on the law of
the reasonable person. Their view is that conduct violating legislated rules is
negligent, and if a statutory violation proximately causes an injury of the kind the
legislature had in mind when it enacted the statute, the offending party is civilly
liable for that injury. 71 Cornell L. Rev. at 566. See, e.g., Restatement (Second)
of Torts secs. 285, 286, 288B (1965).
In Illinois, this approach is reflected in those cases holding that the
violation of a statute or ordinance designed to protect human life or property is
prima facie evidence of negligence. See, e.g., Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434-35 (1991); Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542-43 (1991); French v. City of Springfield, 65 Ill. 2d 74, 79 (1976); see
Curtis v. County of Cook, 98 Ill. 2d 158 (1983); cf. Martin v. Ortho
Pharmaceutical Corp., 169 Ill. 2d 234, 240-41 (1996) (invoking prima facie
negligence standard, but also requiring consideration of legislative intent where
cause of action was based on federal regulation rather than state statute or
ordinance).
Underlying these cases is the notion that statutes and ordinances designed
to protect human life or property establish the standard of conduct required of a
reasonable person. Illinois Pattern Jury Instructions, Civil, No. 60.00, Introduction,
at 246 (1995). In other words, they fix the measure of legal duty. See Gouge, 144
Ill. 2d at 542-43; W. Keeton, Prosser & Keeton on Torts sec. 36 (5th ed. 1984).
Where a defendant violates one of these statutes or ordinances, a plaintiff who
belongs to the class intended to be protected by that statute or ordinance and
whose injury is of the type the statute or ordinance was intended to protect against
may recover upon establishing that the defendant's violation proximately caused
plaintiff's injury. Kalata, 144 Ill. 2d at 434-35; Gouge, 144 Ill. 2d at 543; French,
65 Ill. 2d at 79.
While the foregoing decisions rest on a negligence paradigm, the
Restatement (Second) of Torts sec. 874A (1979) also recognizes that liability may
be imposed based on violation of a statute using tort theories in addition to
negligence, such as battery, trespass, and intentional infliction of emotional
distress. According to section 874A,
"When a legislative provision protects a class of persons by
proscribing or requiring certain conduct but does not provide a civil
remedy for the violation, the court may, if it determines that the
remedy is appropriate in furtherance of the purpose of the
legislation and needed to assure the effectiveness of the provision,
accord to an injured member of the class a right of action, using a
suitable existing tort action or a new cause of action analogous to
an existing tort action." Restatement (Second) of Torts sec. 874A
(1979).
This approach has also been followed by our court. Rodgers v. St. Mary's
Hospital, 149 Ill. 2d 302, 308 (1992), Corgan v. Muehling, 143 Ill. 2d 296, 312-13
(1991), and Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379 (1982), are
illustrative, as is Board of Education v. A, C & S, Inc., 131 Ill. 2d 428, 470
(1989). Those cases hold that implication of a private right of action is appropriate
when (1) plaintiff is a member of the class for whose benefit the statute was
enacted, (2) it is consistent with the underlying purpose of the statute, (3)
plaintiff's injury is one the Act was designed to prevent, and (4) it is necessary
to provide an adequate remedy for violations of the statute. Rodgers, 149 Ill. 2d
at 308. See also Calloway v. Kinkelaar, 168 Ill. 2d 312, 319-20 (1995) (invoking
the prima facie evidence of negligence standard followed in cases such as Kalata,
144 Ill. 2d at 434-35, but also noting that "[a] private remedy may be implied
from a remedial statute where there is a clear need to effectuate the purpose of
such statute [citation], even though no express remedy has been provided in the
legislation").
In Rodgers, 149 Ill. 2d 302, our court followed the four-part test for
implication of private right of action to hold that the plaintiff could sue a hospital
for damages based on its failure to preserve X rays in violation of the X-Ray
Retention Act (Ill. Rev. Stat. 1987, ch. 111«, par. 157--11). In Corgan, 143 Ill. 2d 296, the court held that a woman could bring a nuisance action to recover
damages from her psychologist based on his violation of the Psychologist
Registration Act (Ill. Rev. Stat. 1981, ch. 111, par. 5301 et seq.). Likewise, in
Sawyer Realty Group, Inc., 89 Ill. 2d 379, the court concluded that prospective
purchasers of real estate could assert a damage action against certain real estate
brokers based on the brokers' violation of the Real Estate Brokers and Salesmen
License Act (Ill. Rev. Stat. 1977, ch. 111, par. 5701 et seq.).
In reversing the circuit court's dismissal of plaintiffs' claims in the case
before us today and ruling that plaintiffs have the right to bring a private right of
action to compel the Chicago Board of Education and the State Board of
Education to comply with section 18--8(A)(5)(i)(1)'s requirements, the appellate
court relied on the criteria set forth in Rodgers and its antecedents. Although the
parties themselves have not questioned the relevance of those criteria, we note that
those criteria are not necessary for resolution of this dispute. Unlike the cases
cited above, the plaintiffs in this case are not attempting to use a statutory
enactment as the predicate for a tort action. What they want is to force the public
officials responsible for implementing section 18--8(A)(5)(i) to do what the law
requires.
The officials involved in this case assert that the manner in which they
have acted should be beyond the reach of the courts. We disagree. Although the
courts may not legislate in the field of public education (Committee for
Educational Rights v. Edgar, 174 Ill. 2d at 27), they most certainly have to
authority to assure that the action of public officials does not deprive citizens of
rights conferred by statute or the Constitution (Dixon Ass'n for Retarded Citizens
v. Thompson, 91 Ill. 2d 518, 533 (1982)). Where, as alleged here, public officials
have failed or refused to comply with requirements imposed by statute, the courts
may compel them to do so by means of a writ of mandamus, provided that the
requirements for that writ have been satisfied. See People ex rel. Sklodowski v.
State of Illinois, 284 Ill. App. 3d 809, 817-18 (1996), appeal allowed, 171 Ill. 2d 584 (1997) (action for mandamus will lie to compel state officials to comply with
statutory requirements regarding funding of state retirement systems); Senn Park
Nursing Center v. Miller, 104 Ill. 2d 169, 182-83 (1984) (mandamus proper to
compel Director of Public Aid to issue reimbursements under valid existing
procedure rather than invalid new procedure established by Department); Dennis
E. v. O'Malley, 256 Ill. App. 3d 334, 346 (1993) (mandamus can be used to
compel clerk of the court to comply with her statutory duties); Carroll v. Miller,
116 Ill. App. 3d 311 (1983) (mandamus appropriate to compel Illinois Department
of Public Aid to make assistance payments where recipients have right to such
payments and Department has nondiscretionary duty to provide the payments).
Mandamus is an extraordinary remedy to enforce, as a matter of right, "the
performance of official duties by a public officer where no exercise of discretion
on his part is involved." Madden v. Cronson, 114 Ill. 2d 504, 514 (1986). The writ
provides affirmative rather than prohibitory relief (Chicago Bar Ass'n v. Illinois
State Board of Elections, 161 Ill. 2d 502, 507 (1994)) and can be used to compel
the undoing of an act (People ex rel. Bier v. Scholz, 77 Ill. 2d 12, 16 (1979)).
Despite the remedy's extraordinary nature, mandamus proceedings are
governed by the same pleading rules that apply to actions at law. For a complaint
seeking mandamus to withstand a challenge to its legal sufficiency, it must allege
facts which establish a clear right to the relief requested, a clear duty of the
respondent to act, and clear authority in the respondent to comply with the writ.
See Dennis E., 256 Ill. App. 3d at 340-41. Plaintiffs' complaint here satisfies this
standard. Section 18--8(A)(5)(i)(1) of the School Code imposes specific
requirements regarding the use of Chapter 1 funds; defendants are the parties
responsible under the law for meeting those requirements; and, according to
plaintiffs' complaint, defendants have violated the law in contravention of their
statutory responsibilities.
As noted earlier in this disposition, plaintiffs' complaint alleges that the
local school board has violated the law by (1) using Chapter 1 funds for
administrative and overhead costs instead of distributing those funds to eligible
attendance centers and (2) using Chapter 1 funds to supplant, rather than
supplement, funds that would otherwise be allocated to the attendance centers. The
complaint further alleges that the state school board has violated the law by not
enforcing the provisions of the statute and by not promulgating rules and
regulations that would prevent the local school board from violating the statute.
Exhibits attached to the complaint and incorporated therein document plaintiffs'
allegations in detail.
As noted earlier in this disposition, Chapter 1 funds are intended to benefit
the low-income students responsible for bringing those funds into the school
district. Those low-income students have a clear right to the benefits provided by
the law, and as parents of those students and a group representing such parents,
plaintiffs are the appropriate parties to seek mandamus relief on the students'
behalf.
Defendants suggests that allowing plaintiffs to proceed with their action
would interfere with the right of the State Board of Education to exercise its
discretion and impede the operation of the public schools. This argument is
unpersuasive. Compliance with section 18--8(A)(5)(i)(1) of the School Code is not
optional, and the responsibilities vested in the State Board of Education do not
include the right to sanction expenditures of Chapter 1 funds contrary to the
dictates of the statute. Moreover, as this court noted in Senn Park Nursing Center,
104 Ill. 2d at 188, "the State cannot justifiably claim interference with its
functions when the act complained of by plaintiffs is unauthorized by statute."
Finally, the State Board of Education and its superintendent protest that
plaintiffs should be barred from proceeding against them by the doctrine of
sovereign immunity. This argument must also fail. Sovereign immunity dictates
that the state can only be sued in the Court of Claims, but the determination of
whether an action is in fact a suit against the state turns upon an analysis of the
issues involved and the relief sought, rather than on the formal designation of the
parties. In re Lawrence M., 172 Ill. 2d 523, 527 (1996). In this action plaintiffs
seek to compel the State Board of Education, through its superintendent, to fulfill
its responsibilities under the School Code. A suit to compel state officials to act
in accordance with the law is not regarded as an action against the state and is not
barred by sovereign immunity even though the payment of state funds may be
involved. In re Lawrence M., 172 Ill. 2d at 527; Senn Park Nursing Center, 104 Ill. 2d at 188-89.
In sum, plaintiffs may proceed, by means of mandamus, to compel the
board of education of the City of Chicago and the Illinois State Board of
Education to comply with section 18--8(A)(5)(i)(1) of the School Code, plaintiffs'
complaint is sufficient to withstand a motion to dismiss, and plaintiffs' claims
against the State Board of Education are not barred by sovereign immunity.
For the foregoing reasons, the judgment of the appellate court is affirmed.
Affirmed.
JUSTICE MILLER, dissenting:
I share Justice Bilandic's concern that today's decision, which holds that
the plaintiffs are entitled to seek relief in a mandamus action, resolves an issue
that has not been presented to us for consideration. On the merits of the question
before us, I believe that recognition of a private right of action is inconsistent with
the legislation at issue. The present case does not satisfy the applicable standards
for implication of a private right of action. See Board of Education v. A, C & S,
Inc., 131 Ill. 2d 428, 470-71 (1989). Most notably, parents of Chicago school
children may take part in the activities of their local school councils, which
determine how Chapter 1 funds are to be spent at each school. Their ability to
participate in that forum is adequate to protect their interests under the funding
law. I do not believe that the legislature intended that parents would possess a
private right of action under section 18--8(A)(5)(i)(1)(a) of the School Code (105
ILCS 5/18--8(A)(5)(i)(1)(a) (West 1994)).
JUSTICE BILANDIC, also dissenting:
I respectfully dissent. The majority reverses the circuit court's dismissal
of the plaintiffs' complaint on the ground that the plaintiffs have sufficiently stated
a claim for a writ of mandamus. This is a curious holding, to say the least, as the
plaintiffs' complaint does not seek a writ of mandamus, nor does it even attempt
to allege the requirements for such a writ. As a result, the trial judge never ruled
on whether the plaintiffs stated a claim for mandamus, and the defendants have
never been presented with the opportunity to argue that the elements for that writ
are lacking. Nor do the plaintiffs argue on appeal that their complaint should be
construed as seeking mandamus. To the contrary, all the parties to this case
confine their arguments to the issue on which this court accepted the defendants'
petitions for leave to appeal--namely, whether the plaintiffs have an implied
private right of action under section 18--8 of the School Code. The majority
avoids this extensively briefed and argued issue by resolving the unbriefed and
unargued issue of whether the plaintiffs have stated an action for mandamus. The
majority's attempt to avoid the primary issue in this case, however, is ultimately
fruitless. The required elements for a writ of mandamus have not been alleged in
this case.
Our precedents are clear that a writ of mandamus is an extraordinary
remedy that will not be granted unless the plaintiff can show a clear, affirmative
right to relief, a clear duty of the defendant to act, and clear authority in the
defendant to comply with the writ. Orenic v. Illinois State Labor Relations Board,
127 Ill. 2d 453, 467-68 (1989); Senn Park Nursing Center v. Miller, 104 Ill. 2d 169, 182 (1984); Walter v. Board of Education of Quincy School District No. 172,
93 Ill. 2d 101, 105 (1982). The plaintiffs' complaint in this case nowhere alleges
a clear, affirmative right to the extraordinary relief of mandamus. Indeed, as noted
above, the plaintiffs never even ask for such a writ to issue. Regardless, even
assuming that this element was pled, the majority's conclusion that mandamus is
appropriate is nevertheless erroneous because the remaining elements for that writ
are not satisfied.
First, the plaintiffs' complaint fails to allege the essential element of a
clear duty on the part of the defendants to act. The majority summarily concludes
that this element was pled because section 18--8(A)(5)(i)(1) "imposes specific
requirements regarding the use of Chapter 1 funds." Slip op. at 9. In so holding,
the majority vastly oversimplifies the relevant statutory provisions. A review of
these statutory provisions shows that the duties alleged to be owed by the
defendants in this case are far from "clear." The plaintiffs' complaint charges that
the defendants, during the years from 1978 to 1993, violated two requirements of
section 18--8: first, that all Chapter 1 funds be allocated and distributed only to
eligible attendance centers and, second, that Chapter 1 funds be used only to
supplement, rather than supplant, other funding for the attendance centers. These
two requirements were added to section 18--8 by the 1988 School Reform
Legislation and, as the majority concedes, were to be phased-in over a number of
years. The requirement that all Chapter 1 funds be allocated only to attendance
centers was to be implemented as follows: 25% compliance in the 1989-90 school
year; 50% compliance in the 1990-91 school year; 75% compliance in the 1991-92
school year; and full compliance in the 1992-93 school year and thereafter. 105
ILCS 5/18--8(A)(5)(i)(1)(a) (West 1992). The requirement that Chapter 1 funds
be used only to supplement, rather than supplant, other appropriations was to be
implemented as follows: 20% compliance in the 1989-90 school year; 40%
compliance in the 1990-91 school year; 60% compliance in the 1991-92 school
year; 80% compliance in the 1992-93 school year; and full compliance in the
1993-94 school year and thereafter. 105 ILCS 5/18--8(A)(5)(i)(1)(c) (West 1992).
Therefore, as the trial court concluded, for the years referred to in the plaintiffs'
complaint, the Chicago Board was explicitly authorized to use a portion of its
Chapter 1 funds for any purpose it deemed appropriate. Notably, in 1993, the
legislature again amended section 18--8 to provide that, for the 1993-94 and 1994-
95 school years, the Chapter 1 funds that are allocated by the Chicago Board to
attendance centers shall be reduced by $16 million, which amount may be used
"in support of the school district's educational program as the Board of Education
determines." 105 ILCS 5/18--8(A)(5)(i)(1)(c) (West 1994). In 1995, the legislature
again amended section 18--8 to provide that, beginning with the 1995-96 school
year and thereafter, the Chicago Board must allocate to attendance centers an
aggregate amount of not less than $261 million of Chapter 1 funds. Any amounts
of Chapter 1 funds above that figure may be used by the Board "for any lawful
school purpose." 105 ILCS 5/18--8(A)(5)(i)(1)(c) (West 1996). Under these
circumstances, I am unable to determine what "clear duty" on the defendants' part
the majority believes it appropriate to compel by means of a writ of mandamus.
Most importantly, the majority ignores the crucial requirement for a writ
of mandamus that the act sought to be compelled be a purely ministerial act over
which the defendant has no discretion. Chicago Bar Ass'n v. Illinois State Board
of Elections, 161 Ill. 2d 502, 507 (1994); Madden v. Cronson, 114 Ill. 2d 504, 514
(1986). Even a cursory review of the relevant provisions of section 18--8
demonstrates that the actions of the defendants at issue in this case are not the sort
of purely ministerial acts to which the writ of mandamus is applicable. Section 18-
-8 provides that Chapter 1 funds are to be used at each school at the discretion of
the principal and local school council "for programs to improve educational
opportunities." 105 ILCS 5/18--8(A)(5)(i)(1)(c) (West 1992). Notably, these local
school councils, comprised of the school principal and parents, teachers and
community members, were created by the Chicago School Reform Act of 1989
for the purpose of placing increased authority for individual school decisions at
the individual school level. See Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 63 (1990). Section 18--8 requires the Chicago Board to submit to the State
Board each year "an acceptable plan to meet the educational needs of
disadvantaged children, in compliance with the requirements of this paragraph,"
which is "consistent with the decisions of local school councils." After the plan
is submitted, the State Board has 60 days within which to approve or reject the
plan. If the Chicago Board fails to submit a plan that is approved by the State
Board, the funds affected by that plan are to be withheld. If the Chicago Board
fails to distribute state aid in accordance with an approved plan, the plan for the
following year is to allocate additional funds to those attendance centers which
were underfunded during the previous year. 105 ILCS 5/18--8(A)(5)(i)(1)(d) (West
1992).
Also under section 18--8, the State Board conducts a review of the Chicago
Board's Chapter 1 expenditures to determine compliance with statutory
requirements. The Chicago Board is required to submit to the State Board each
year a separate report detailing its expenditures of Chapter 1 funds during the
previous year. If the State Board determines that there has been a failure to
comply with the expenditure provisions of section 18--8, the Chicago Board must
inform the state of the remedial or corrective action it will take, whether by
amendment of the current plan or by adjustment in the plan for the following year.
Failure to provide the expenditure report or the notification of remedial or
corrective action in a timely manner will result in a withholding of the affected
funds. The State Board is also directed to promulgate regulations to implement the
provisions of the statute. 105 ILCS 5/18--8(A)(5)(i)(1)(d) (West 1992).
The plaintiffs do not allege that the defendants did not perform their
functions under the statute. There is no dispute that, for each year referenced in
the plaintiffs' complaint, the Chicago Board submitted a plan for the expenditure
of Chapter 1 funds and the State Board approved that plan. The plaintiffs contend
only that the defendants wrongfully performed these functions. Mandamus is not
appropriate under these circumstances. Neither the Chicago Board's actions in
formulating a spending plan incorporating the plans formulated by each of over
500 local school councils nor the State Board's actions in reviewing and
approving that plan may be considered purely ministerial acts, capable of being
compelled by a writ of mandamus.
The writ of mandamus is a summary writ which commands the officer to
whom it is addressed to perform some duty which the petitioner is entitled of right
to have performed and which the party owing has failed to perform. Board of
Education v. Armstead, 279 Ill. App. 3d 922, 927 (1996). The purpose of the writ
is not to determine the rights and duties of the parties, but is simply to enforce
rights already established. Doe v. Carlson, 250 Ill. App. 3d 570, 573 (1993).
Simply stated, the extraordinary remedy of mandamus is obviously not appropriate
in this case.
I would reach the issue actually presented in this case--whether section 18-
-8 grants the plaintiffs an implied private right of action.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the
opinion to request a rehearing. Also, opinions are subject to modification, correction or
withdrawal at anytime prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made available prior to the
Court's final action in this matter, it cannot be considered the final decision of the
Court. The official copy of the following opinion will be published by the Supreme
Court's Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.
Docket Nos. 82177, 82198 cons.--Agenda 33--May 1997.
CONCEPCION NOYOLA et al., Appellees, v. THE BOARD OF
EDUCATION OF THE CITY OF CHICAGO et al., Appellants.
Opinion filed October 23, 1997.
JUSTICE HARRISON delivered the opinion of the court:
The issue in this appeal is whether plaintiffs, who are the parents of
economically disadvantaged Chicago school students and a community advocacy
group whose members include the parents of such students, have the right to bring
an action challenging the manner in which the board of education of the City of
Chicago and the Illinois State Board of Education allocate Chapter 1 funds under
section 18--8(A)(5)(i)(1)(a) of the School Code (105 ILCS 5/18--8(A)(5)(i)(1)(a)
(West 1994)).
The circuit court initially dismissed plaintiffs' claims for lack of standing,
but the appellate court reversed and remanded. Noyola v. Board of Education, 227
Ill. App. 3d 429 (1992). On remand, plaintiffs filed a second amended complaint
alleging that defendants are violating the provisions of section 18--8(A)(5)(i)(1)(a)
of the School Code in two ways. The first is by diverting Chapter 1 funds that
should be spent at "attendance centers," i.e., schools, and using them instead for
administrative and overhead costs. The second is by using Chapter 1 funds to
supplant rather than supplement the resources necessary to meet the educational
needs of economically disadvantaged students.
Plaintiffs contend that as a result of defendants' unlawful use of Chapter
1 funds, economically disadvantaged Chicago school students have been deprived
of adequate educational opportunities in violation of their statutory and
constitutional rights. They also assert that defendants' actions violate the
requirements of the Illinois Administrative Procedure Act (5 ILCS 100/1--1 et seq.
(West 1994)). For their relief, plaintiffs request a determination that defendants
have violated the law and an order requiring defendants to use Chapter 1 funds
as section 18--8(A)(5)(i)(1)(a) of the School Code requires.
On defendants' motions, the circuit court dismissed plaintiffs' second
amended complaint. The court took issue with the sufficiency of plaintiffs' factual
allegations, but the primary basis for its decision was its belief that a private right
of action to enforce section 18--8(A)(5)(i)(1)(a) could not be implied under the
School Code.
The appellate affirmed in part and reversed in part and remanded. 284 Ill.
App. 3d 128. It held that the constitutional claims asserted by plaintiffs were
factually and legally insufficient. It also held that plaintiffs had abandoned their
claim that defendants' actions violated the Illinois Administrative Procedure Act.
Where the appellate court disagreed with the circuit court was on the question of
whether plaintiffs could assert a private right of action to enforce section 18--
8(A)(5)(i)(1)(a). In the appellate court's view, a private right of action could be
implied under the statute, plaintiffs were proper parties to bring such an action,
and the facts pled by plaintiffs were sufficient to withstand defendants' motions
to dismiss. Accordingly, the appellate court reversed the circuit court's judgment
dismissing plaintiffs' claim to enforce the statute and remanded for further
proceedings with respect to that claim. Defendants filed two separate petitions for
leave to appeal (155 Ill. 2d R. 315), which we consolidated and allowed.
In reviewing the appellate court's judgment, we begin with a discussion of
section 18--8(A)(5)(i)(1)(a) of the School Code, the statute on which plaintiffs'
cause of action is founded. Under Illinois law, school districts receive distributions
of general state aid from the state's common school fund. The formula for
calculating how much general state aid a district will receive is set forth in section
18--8 of the School Code. That formula is designed to enable districts with modest
property tax bases to achieve a certain minimum level of funding per pupil.
Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 6-7 (1996).
The amount of general state aid a district receives is based on a weighted
average of daily attendance at schools within the district and on the equalized
assessed valuation of property in the district. A district's weighted average daily
attendance is increased by the number of low-income eligible pupils it has. 105
ILCS 5/18--8(A)(1)(n) (West 1994). Correspondingly, the presence of low-income
eligible pupils will increase the amount of general state aid a district receives, all
else being equal. The additional general state aid monies a district receives due to
the presence of low income eligible pupils are known as Chapter 1 funds. 23 Ill.
Adm. Code sec. 202.10 (1997); 105 ILCS 5/18--8(A)(5)(i)(1)(a).
Detailed requirements govern how school districts with an average daily
attendance of 50,000 or more may expend Chapter 1 funds. Those requirements
are set forth in section 18--8(A)(5)(i)(1)(a) of the School Code. Under that statute,
school districts are required to distribute all Chapter 1 funds "to attendance centers
and only to attendance centers," subject to certain limitations. 105 ILCS 5/18--
8(A)(5)(i)(1)(a) (West 1994). This requirement was implemented by the General
Assembly in phases, beginning with the 1989-90 school year. It is now in full
effect.
Underlying section 18--8(A)(5)(i)(1)(a) is the principle that Chapter 1 funds
should benefit the low-income students responsible for bringing those funds into
the district. Consistent with this purpose, the statute specifies that the funds must
be distributed to attendance centers in proportion to the number of students
enrolled at the centers who are eligible to receive free or reduced price lunches
or breakfasts under the Federal Child Nutrition Act and the National School Lunch
Act. The statute further specifies that the appropriations an attendance center
would otherwise receive cannot be reduced or adjusted to offset a distribution of
Chapter 1 funds. Under the law, Chapter 1 funds must supplement rather than
supplant other appropriations. 105 ILCS 5/18--8(A)(5)(i)(1)(c) (West 1994).
To insure compliance with the foregoing requirements, school districts
must prepare annual plans and submit them for approval to the State Board of
Education. If they fail to do so, the State Board of Education is required to
withhold their Chapter 1 funding. In addition, once Chapter 1 funds have been
distributed to a district, the district must prepare and submit a report to the State
Board of Education showing how the funds were expended. 105 ILCS 5/18--
8(A)(5)(i)(1)(d) (West 1994). The law directs the State Board of Education to
promulgate rules and regulations to implement these requirements.
The Chicago Board of Education is subject to the provisions of section 18--
8(A)(5)(i)(1). In the complaint at issue in this case, plaintiffs allege that the Board
has violated the statute by using Chapter 1 funds for administrative and overhead
costs instead of distributing those funds to eligible attendance centers. Plaintiffs
further allege that the Board has also violated the statute by using Chapter 1 funds
to supplant, rather than supplement, funds that would otherwise be allocated to the
attendance centers. According to the complaint, the Board has done so, in part, by
cutting funding for basic programs, thereby forcing local school councils to use
Chapter 1 funds to cover the costs of those programs.
Plaintiffs' complaint takes issue with the conduct of the State Board of
Education as well. According to plaintiffs, the State Board has failed to meet its
responsibilities under the statute because it has not enforced the provisions of
section 18--8(A)(5)(i)(1) and has not promulgated rules and regulations that would
prevent the Chicago Board of Education from circumventing that statute.
In reversing the circuit court's dismissal of these claims, the appellate court
opined that plaintiffs do have the right to bring a private right of action to compel
the Chicago Board of Education and the State Board of Education to comply with
section 18--8(A)(5)(i)(1)'s requirements. For the reasons that follow, we agree
with the appellate court's conclusion that plaintiffs should be permitted to pursue
their claim to enforce the requirements of that statute. We disagree, however, with
the court's application of the rules regarding implied private rights of action.
Implied private rights of action are an established feature of our
jurisprudence. Under several centuries of English common law, the courts adhered
to the view that every act of Parliament gave rise to private remedy to a party
wronged by its violation. H. Foy, Some Reflections on Legislation, Adjudication,
and Implied Private Actions in the State and Federal Courts, 71 Cornell L. Rev.
501, 524-25 (1986). The right to maintain a private action did not depend on the
text of the legislation or the demonstrable intentions of Parliament. Rather, it was
based on a general legal principle extrinsic to the legislation itself, namely,
"that every English subject had a right to a remedy for things done
to him contrary to English law, including the acts of Parliament,
and *** the royal courts were obligated to provide such remedies."
71 Cornell L. Rev. at 528.
In the United States, the theory justifying private rights of action has
evolved from these English common law origins. Beginning with Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), the view that has emerged in the
federal courts is that recognition of a right of action implied by statute ultimately
rests on the intent of the legislature. 71 Cornell L. Rev. at 565. See, e.g., Virginia
Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1102, 115 L. Ed. 2d 929, 951, 111 S. Ct. 2749, 2763 (1991). According to the federal courts, unless the intent to
create a private cause of action can be inferred from the language of the statute,
the statutory structure or some other course, the essential predicate for implication
of a private remedy does not exist. Karahalios v. National Federation of Federal
Employees, Local 1263, 489 U.S. 527, 533, 103 L. Ed. 2d 539, 547, 109 S. Ct. 1282, 1286-87 (1989).
An entirely different approach to analyzing the adjudicatory consequences
of legislation has been taken in the state courts. There judges have come to
identify the implied statutory action with modern tort actions based on the law of
the reasonable person. Their view is that conduct violating legislated rules is
negligent, and if a statutory violation proximately causes an injury of the kind the
legislature had in mind when it enacted the statute, the offending party is civilly
liable for that injury. 71 Cornell L. Rev. at 566. See, e.g., Restatement (Second)
of Torts secs. 285, 286, 288B (1965).
In Illinois, this approach is reflected in those cases holding that the
violation of a statute or ordinance designed to protect human life or property is
prima facie evidence of negligence. See, e.g., Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434-35 (1991); Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542-43 (1991); French v. City of Springfield, 65 Ill. 2d 74, 79 (1976); see
Curtis v. County of Cook, 98 Ill. 2d 158 (1983); cf. Martin v. Ortho
Pharmaceutical Corp., 169 Ill. 2d 234, 240-41 (1996) (invoking prima facie
negligence standard, but also requiring consideration of legislative intent where
cause of action was based on federal regulation rather than state statute or
ordinance).
Underlying these cases is the notion that statutes and ordinances designed
to protect human life or property establish the standard of conduct required of a
reasonable person. Illinois Pattern Jury Instructions, Civil, No. 60.00, Introduction,
at 246 (1995). In other words, they fix the measure of legal duty. See Gouge, 144
Ill. 2d at 542-43; W. Keeton, Prosser & Keeton on Torts sec. 36 (5th ed. 1984).
Where a defendant violates one of these statutes or ordinances, a plaintiff who
belongs to the class intended to be protected by that statute or ordinance and
whose injury is of the type the statute or ordinance was intended to protect against
may recover upon establishing that the defendant's violation proximately caused
plaintiff's injury. Kalata, 144 Ill. 2d at 434-35; Gouge, 144 Ill. 2d at 543; French,
65 Ill. 2d at 79.
While the foregoing decisions rest on a negligence paradigm, the
Restatement (Second) of Torts sec. 874A (1979) also recognizes that liability may
be imposed based on violation of a statute using tort theories in addition to
negligence, such as battery, trespass, and intentional infliction of emotional
distress. According to section 874A,
"When a legislative provision protects a class of persons by
proscribing or requiring certain conduct but does not provide a civil
remedy for the violation, the court may, if it determines that the
remedy is appropriate in furtherance of the purpose of the
legislation and needed to assure the effectiveness of the provision,
accord to an injured member of the class a right of action, using a
suitable existing tort action or a new cause of action analogous to
an existing tort action." Restatement (Second) of Torts sec. 874A
(1979).
This approach has also been followed by our court. Rodgers v. St. Mary's
Hospital, 149 Ill. 2d 302, 308 (1992), Corgan v. Muehling, 143 Ill. 2d 296, 312-13
(1991), and Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379 (1982), are
illustrative, as is Board of Education v. A, C & S, Inc., 131 Ill. 2d 428, 470
(1989). Those cases hold that implication of a private right of action is appropriate
when (1) plaintiff is a member of the class for whose benefit the statute was
enacted, (2) it is consistent with the underlying purpose of the statute, (3)
plaintiff's injury is one the Act was designed to prevent, and (4) it is necessary
to provide an adequate remedy for violations of the statute. Rodgers, 149 Ill. 2d
at 308. See also Calloway v. Kinkelaar, 168 Ill. 2d 312, 319-20 (1995) (invoking
the prima facie evidence of negligence standard followed in cases such as Kalata,
144 Ill. 2d at 434-35, but also noting that "[a] private remedy may be implied
from a remedial statute where there is a clear need to effectuate the purpose of
such statute [citation], even though no express remedy has been provided in the
legislation").
In Rodgers, 149 Ill. 2d 302, our court followed the four-part test for
implication of private right of action to hold that the plaintiff could sue a hospital
for damages based on its failure to preserve X rays in violation of the X-Ray
Retention Act (Ill. Rev. Stat. 1987, ch. 111«, par. 157--11). In Corgan, 143 Ill. 2d 296, the court held that a woman could bring a nuisance action to recover
damages from her psychologist based on his violation of the Psychologist
Registration Act (Ill. Rev. Stat. 1981, ch. 111, par. 5301 et seq.). Likewise, in
Sawyer Realty Group, Inc., 89 Ill. 2d 379, the court concluded that prospective
purchasers of real estate could assert a damage action against certain real estate
brokers based on the brokers' violation of the Real Estate Brokers and Salesmen
License Act (Ill. Rev. Stat. 1977, ch. 111, par. 5701 et seq.).
In reversing the circuit court's dismissal of plaintiffs' claims in the case
before us today and ruling that plaintiffs have the right to bring a private right of
action to compel the Chicago Board of Education and the State Board of
Education to comply with section 18--8(A)(5)(i)(1)'s requirements, the appellate
court relied on the criteria set forth in Rodgers and its antecedents. Although the
parties themselves have not questioned the relevance of those criteria, we note that
those criteria are not necessary for resolution of this dispute. Unlike the cases
cited above, the plaintiffs in this case are not attempting to use a statutory
enactment as the predicate for a tort action. What they want is to force the public
officials responsible for implementing section 18--8(A)(5)(i) to do what the law
requires.
The officials involved in this case assert that the manner in which they
have acted should be beyond the reach of the courts. We disagree. Although the
courts may not legislate in the field of public education (Committee for
Educational Rights v. Edgar, 174 Ill. 2d at 27), they most certainly have to
authority to assure that the action of public officials does not deprive citizens of
rights conferred by statute or the Constitution (Dixon Ass'n for Retarded Citizens
v. Thompson, 91 Ill. 2d 518, 533 (1982)). Where, as alleged here, public officials
have failed or refused to comply with requirements imposed by statute, the courts
may compel them to do so by means of a writ of mandamus, provided that the
requirements for that writ have been satisfied. See People ex rel. Sklodowski v.
State of Illinois, 284 Ill. App. 3d 809, 817-18 (1996), appeal allowed, 171 Ill. 2d 584 (1997) (action for mandamus will lie to compel state officials to comply with
statutory requirements regarding funding of state retirement systems); Senn Park
Nursing Center v. Miller, 104 Ill. 2d 169, 182-83 (1984) (mandamus proper to
compel Director of Public Aid to issue reimbursements under valid existing
procedure rather than invalid new procedure established by Department); Dennis
E. v. O'Malley, 256 Ill. App. 3d 334, 346 (1993) (mandamus can be used to
compel clerk of the court to comply with her statutory duties); Carroll v. Miller,
116 Ill. App. 3d 311 (1983) (mandamus appropriate to compel Illinois Department
of Public Aid to make assistance payments where recipients have right to such
payments and Department has nondiscretionary duty to provide the payments).
Mandamus is an extraordinary remedy to enforce, as a matter of right, "the
performance of official duties by a public officer where no exercise of discretion
on his part is involved." Madden v. Cronson, 114 Ill. 2d 504, 514 (1986). The writ
provides affirmative rather than prohibitory relief (Chicago Bar Ass'n v. Illinois
State Board of Elections, 161 Ill. 2d 502, 507 (1994)) and can be used to compel
the undoing of an act (People ex rel. Bier v. Scholz, 77 Ill. 2d 12, 16 (1979)).
Despite the remedy's extraordinary nature, mandamus proceedings are
governed by the same pleading rules that apply to actions at law. For a complaint
seeking mandamus to withstand a challenge to its legal sufficiency, it must allege
facts which establish a clear right to the relief requested, a clear duty of the
respondent to act, and clear authority in the respondent to comply with the writ.
See Dennis E., 256 Ill. App. 3d at 340-41. Plaintiffs' complaint here satisfies this
standard. Section 18--8(A)(5)(i)(1) of the School Code imposes specific
requirements regarding the use of Chapter 1 funds; defendants are the parties
responsible under the law for meeting those requirements; and, according to
plaintiffs' complaint, defendants have violated the law in contravention of their
statutory responsibilities.
As noted earlier in this disposition, plaintiffs' complaint alleges that the
local school board has violated the law by (1) using Chapter 1 funds for
administrative and overhead costs instead of distributing those funds to eligible
attendance centers and (2) using Chapter 1 funds to supplant, rather than
supplement, funds that would otherwise be allocated to the attendance centers. The
complaint further alleges that the state school board has violated the law by not
enforcing the provisions of the statute and by not promulgating rules and
regulations that would prevent the local school board from violating the statute.
Exhibits attached to the complaint and incorporated therein document plaintiffs'
allegations in detail.
As noted earlier in this disposition, Chapter 1 funds are intended to benefit
the low-income students responsible for bringing those funds into the school
district. Those low-income students have a clear right to the benefits provided by
the law, and as parents of those students and a group representing such parents,
plaintiffs are the appropriate parties to seek mandamus relief on the students'
behalf.
Defendants suggests that allowing plaintiffs to proceed with their action
would interfere with the right of the State Board of Education to exercise its
discretion and impede the operation of the public schools. This argument is
unpersuasive. Compliance with section 18--8(A)(5)(i)(1) of the School Code is not
optional, and the responsibilities vested in the State Board of Education do not
include the right to sanction expenditures of Chapter 1 funds contrary to the
dictates of the statute. Moreover, as this court noted in Senn Park Nursing Center,
104 Ill. 2d at 188, "the State cannot justifiably claim interference with its
functions when the act complained of by plaintiffs is unauthorized by statute."
Finally, the State Board of Education and its superintendent protest that
plaintiffs should be barred from proceeding against them by the doctrine of
sovereign immunity. This argument must also fail. Sovereign immunity dictates
that the state can only be sued in the Court of Claims, but the determination of
whether an action is in fact a suit against the state turns upon an analysis of the
issues involved and the relief sought, rather than on the formal designation of the
parties. In re Lawrence M., 172 Ill. 2d 523, 527 (1996). In this action plaintiffs
seek to compel the State Board of Education, through its superintendent, to fulfill
its responsibilities under the School Code. A suit to compel state officials to act
in accordance with the law is not regarded as an action against the state and is not
barred by sovereign immunity even though the payment of state funds may be
involved. In re Lawrence M., 172 Ill. 2d at 527; Senn Park Nursing Center, 104 Ill. 2d at 188-89.
In sum, plaintiffs may proceed, by means of mandamus, to compel the
board of education of the City of Chicago and the Illinois State Board of
Education to comply with section 18--8(A)(5)(i)(1) of the School Code, plaintiffs'
complaint is sufficient to withstand a motion to dismiss, and plaintiffs' claims
against the State Board of Education are not barred by sovereign immunity.
For the foregoing reasons, the judgment of the appellate court is affirmed.
Affirmed.
JUSTICE MILLER, dissenting:
I share Justice Bilandic's concern that today's decision, which holds that
the plaintiffs are entitled to seek relief in a mandamus action, resolves an issue
that has not been presented to us for consideration. On the merits of the question
before us, I believe that recognition of a private right of action is inconsistent with
the legislation at issue. The present case does not satisfy the applicable standards
for implication of a private right of action. See Board of Education v. A, C & S,
Inc., 131 Ill. 2d 428, 470-71 (1989). Most notably, parents of Chicago school
children may take part in the activities of their local school councils, which
determine how Chapter 1 funds are to be spent at each school. Their ability to
participate in that forum is adequate to protect their interests under the funding
law. I do not believe that the legislature intended that parents would possess a
private right of action under section 18--8(A)(5)(i)(1)(a) of the School Code (105
ILCS 5/18--8(A)(5)(i)(1)(a) (West 1994)).
JUSTICE BILANDIC, also dissenting:
I respectfully dissent. The majority reverses the circuit court's dismissal
of the plaintiffs' complaint on the ground that the plaintiffs have sufficiently stated
a claim for a writ of mandamus. This is a curious holding, to say the least, as the
plaintiffs' complaint does not seek a writ of mandamus, nor does it even attempt
to allege the requirements for such a writ. As a result, the trial judge never ruled
on whether the plaintiffs stated a claim for mandamus, and the defendants have
never been presented with the opportunity to argue that the elements for that writ
are lacking. Nor do the plaintiffs argue on appeal that their complaint should be
construed as seeking mandamus. To the contrary, all the parties to this case
confine their arguments to the issue on which this court accepted the defendants'
petitions for leave to appeal--namely, whether the plaintiffs have an implied
private right of action under section 18--8 of the School Code. The majority
avoids this extensively briefed and argued issue by resolving the unbriefed and
unargued issue of whether the plaintiffs have stated an action for mandamus. The
majority's attempt to avoid the primary issue in this case, however, is ultimately
fruitless. The required elements for a writ of mandamus have not been alleged in
this case.
Our precedents are clear that a writ of mandamus is an extraordinary
remedy that will not be granted unless the plaintiff can show a clear, affirmative
right to relief, a clear duty of the defendant to act, and clear authority in the
defendant to comply with the writ. Orenic v. Illinois State Labor Relations Board,
127 Ill. 2d 453, 467-68 (1989); Senn Park Nursing Center v. Miller, 104 Ill. 2d 169, 182 (1984); Walter v. Board of Education of Quincy School District No. 172,
93 Ill. 2d 101, 105 (1982). The plaintiffs' complaint in this case nowhere alleges
a clear, affirmative right to the extraordinary relief of mandamus. Indeed, as noted
above, the plaintiffs never even ask for such a writ to issue. Regardless, even
assuming that this element was pled, the majority's conclusion that mandamus is
appropriate is nevertheless erroneous because the remaining elements for that writ
are not satisfied.
First, the plaintiffs' complaint fails to allege the essential element of a
clear duty on the part of the defendants to act. The majority summarily concludes
that this element was pled because section 18--8(A)(5)(i)(1) "imposes specific
requirements regarding the use of Chapter 1 funds." Slip op. at 9. In so holding,
the majority vastly oversimplifies the relevant statutory provisions. A review of
these statutory provisions shows that the duties alleged to be owed by the
defendants in this case are far from "clear." The plaintiffs' complaint charges that
the defendants, during the years from 1978 to 1993, violated two requirements of
section 18--8: first, that all Chapter 1 funds be allocated and distributed only to
eligible attendance centers and, second, that Chapter 1 funds be used only to
supplement, rather than supplant, other funding for the attendance centers. These
two requirements were added to section 18--8 by the 1988 School Reform
Legislation and, as the majority concedes, were to be phased-in over a number of
years. The requirement that all Chapter 1 funds be allocated only to attendance
centers was to be implemented as follows: 25% compliance in the 1989-90 school
year; 50% compliance in the 1990-91 school year; 75% compliance in the 1991-92
school year; and full compliance in the 1992-93 school year and thereafter. 105
ILCS 5/18--8(A)(5)(i)(1)(a) (West 1992). The requirement that Chapter 1 funds
be used only to supplement, rather than supplant, other appropriations was to be
implemented as follows: 20% compliance in the 1989-90 school year; 40%
compliance in the 1990-91 school year; 60% compliance in the 1991-92 school
year; 80% compliance in the 1992-93 school year; and full compliance in the
1993-94 school year and thereafter. 105 ILCS 5/18--8(A)(5)(i)(1)(c) (West 1992).
Therefore, as the trial court concluded, for the years referred to in the plaintiffs'
complaint, the Chicago Board was explicitly authorized to use a portion of its
Chapter 1 funds for any purpose it deemed appropriate. Notably, in 1993, the
legislature again amended section 18--8 to provide that, for the 1993-94 and 1994-
95 school years, the Chapter 1 funds that are allocated by the Chicago Board to
attendance centers shall be reduced by $16 million, which amount may be used
"in support of the school district's educational program as the Board of Education
determines." 105 ILCS 5/18--8(A)(5)(i)(1)(c) (West 1994). In 1995, the legislature
again amended section 18--8 to provide that, beginning with the 1995-96 school
year and thereafter, the Chicago Board must allocate to attendance centers an
aggregate amount of not less than $261 million of Chapter 1 funds. Any amounts
of Chapter 1 funds above that figure may be used by the Board "for any lawful
school purpose." 105 ILCS 5/18--8(A)(5)(i)(1)(c) (West 1996). Under these
circumstances, I am unable to determine what "clear duty" on the defendants' part
the majority believes it appropriate to compel by means of a writ of mandamus.
Most importantly, the majority ignores the crucial requirement for a writ
of mandamus that the act sought to be compelled be a purely ministerial act over
which the defendant has no discretion. Chicago Bar Ass'n v. Illinois State Board
of Elections, 161 Ill. 2d 502, 507 (1994); Madden v. Cronson, 114 Ill. 2d 504, 514
(1986). Even a cursory review of the relevant provisions of section 18--8
demonstrates that the actions of the defendants at issue in this case are not the sort
of purely ministerial acts to which the writ of mandamus is applicable. Section 18-
-8 provides that Chapter 1 funds are to be used at each school at the discretion of
the principal and local school council "for programs to improve educational
opportunities." 105 ILCS 5/18--8(A)(5)(i)(1)(c) (West 1992). Notably, these local
school councils, comprised of the school principal and parents, teachers and
community members, were created by the Chicago School Reform Act of 1989
for the purpose of placing increased authority for individual school decisions at
the individual school level. See Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 63 (1990). Section 18--8 requires the Chicago Board to submit to the State
Board each year "an acceptable plan to meet the educational needs of
disadvantaged children, in compliance with the requirements of this paragraph,"
which is "consistent with the decisions of local school councils." After the plan
is submitted, the State Board has 60 days within which to approve or reject the
plan. If the Chicago Board fails to submit a plan that is approved by the State
Board, the funds affected by that plan are to be withheld. If the Chicago Board
fails to distribute state aid in accordance with an approved plan, the plan for the
following year is to allocate additional funds to those attendance centers which
were underfunded during the previous year. 105 ILCS 5/18--8(A)(5)(i)(1)(d) (West
1992).
Also under section 18--8, the State Board conducts a review of the Chicago
Board's Chapter 1 expenditures to determine compliance with statutory
requirements. The Chicago Board is required to submit to the State Board each
year a separate report detailing its expenditures of Chapter 1 funds during the
previous year. If the State Board determines that there has been a failure to
comply with the expenditure provisions of section 18--8, the Chicago Board must
inform the state of the remedial or corrective action it will take, whether by
amendment of the current plan or by adjustment in the plan for the following year.
Failure to provide the expenditure report or the notification of remedial or
corrective action in a timely manner will result in a withholding of the affected
funds. The State Board is also directed to promulgate regulations to implement the
provisions of the statute. 105 ILCS 5/18--8(A)(5)(i)(1)(d) (West 1992).
The plaintiffs do not allege that the defendants did not perform their
functions under the statute. There is no dispute that, for each year referenced in
the plaintiffs' complaint, the Chicago Board submitted a plan for the expenditure
of Chapter 1 funds and the State Board approved that plan. The plaintiffs contend
only that the defendants wrongfully performed these functions. Mandamus is not
appropriate under these circumstances. Neither the Chicago Board's actions in
formulating a spending plan incorporating the plans formulated by each of over
500 local school councils nor the State Board's actions in reviewing and
approving that plan may be considered purely ministerial acts, capable of being
compelled by a writ of mandamus.
The writ of mandamus is a summary writ which commands the officer to
whom it is addressed to perform some duty which the petitioner is entitled of right
to have performed and which the party owing has failed to perform. Board of
Education v. Armstead, 279 Ill. App. 3d 922, 927 (1996). The purpose of the writ
is not to determine the rights and duties of the parties, but is simply to enforce
rights already established. Doe v. Carlson, 250 Ill. App. 3d 570, 573 (1993).
Simply stated, the extraordinary remedy of mandamus is obviously not appropriate
in this case.
I would reach the issue actually presented in this case--whether section 18-
-8 grants the plaintiffs an implied private right of action.
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