FOURTH DIVISION
March 14, 2002
No. 1-00-4040
THOMAS H. REECE, NORMA J. WHITE, )
PAMELYN MASSARSKY, MICHAEL J. WILLIAMS, )
MELVIN WILSON, and CLIFFORD WAGNER, )
)
Plaintiffs-Appellants, )
) Appeal from
v. ) the Circuit Court
) of Cook County.
BOARD OF EDUCATION OF THE CITY OF )
CHICAGO; DANIEL W. HYNES, Comptroller )
of the State of Illinois; RONALD J. )
GIDWITZ, Chairman of the Illinois State ) No. 00-CH-5481
Board of Education; SANDRA M. )
PELLEGRINO, Vice-Chair of the Illinois )
State Board of Education; MARILYN )
McCONACHIE, DAVID GOMEZ, CONNIE ROGERS, ) Honorable
WILLIAM E. HILL, VINCENT J. SERRITELLA, ) Robert V. Boharic,
JANET STEINER, Board Members of the ) Judge Presiding.
Illinois State Board of Education; )
ILLINOIS STATE BOARD OF EDUCATION; and )
GLENN W. McGEE, Illinois State )
Superintendent of Education, )
)
Defendants-Appellees. )
JUSTICE THEIS delivered the opinion of the court:
Plaintiffs Thomas H. Reece, Norma J. White, Pamelyn Massarsky, Michael J. Williams, Melvin
Wilson, and Clifford Wagner (collectively, plaintiffs) brought this action against defendants Board
of Education of the City of Chicago (Chicago Board of Education), Daniel W. Hynes, Ronald J.
Gidwitz, Sandra M. Pellegrino, Marilyn McConachie, David Gomez, Connie Rogers, William E. Hill,
Vincent J. Serritella, Janet
Steiner, Illinois State Board of Education, and Glenn W. McGee (collectively, defendants), alleging
that section 2-3.25g of the Illinois School Code (School Code) (105 ILCS 5/2-3.25g (West 1996)),
which allows school districts to petition the State Board of Education for a waiver or modification
of the School Code's mandates, is unconstitutional. They sought to enjoin the disbursement of funds
to the Chicago Board of Education, pursuant to section 11-301 of the Code of Civil Procedure (735
ILCS 5/11-301 (West 2000)), until it complied with all mandates of the School Code, including the
requirement of daily physical education. On the parties' cross-motions for summary judgment, the
trial court granted defendants' motion, finding section 2-3.25g constitutional and denied
plaintiffs' motion.
Plaintiffs now appeal, arguing that (1) the physical education curriculum is protected from
waiver by section 34-8.14(3) of the School Code (105 ILCS 5/34-8.14(3) (West 1996)); (2) section 2-
3.25g is unconstitutional because it modifies existing law without following procedural
constitutional formalities; (3) section 2-3.25g constitutes an unconstitutional legislative veto;
and (4) section 2-3.25g is an impermissible delegation of legislative authority to school boards.
For the reasons set forth below, we affirm.
Public Act 89-3 (Pub. Act 89-3, §5, eff. February 27, 1995) amended section 2-3.25g to
provide a procedure whereby school districts may petition the State Board of Education for a waiver
of most School Code mandates where "necessary to stimulate innovation or improve student
performance." 105 ILCS 5/2-3.25g (West 1996). Under section 2-3.25g, waiver applications must
demonstrate that the intent of the mandate can be addressed in a specific plan for improved student
performance and school improvement. Within 15 days after approval by the local board of education
following a public hearing, the application is submitted to the State Board of Education. 105 ILCS
5/2-3.25g (West 1996). The State Board reviews the applications and requests for completeness and
compiles them in reports to be filed with the General Assembly before each May 1 and October 1. The
General Assembly may disapprove the report of the State Board in whole or in part within 30 calendar
days after each house of the legislature next convenes by adoption of a resolution by a record vote
of the majority of the members of each house. If the General Assembly fails to disapprove any
waiver request within such 30-day period, the waiver is deemed granted. A waiver remains in effect
for up to five school years and may be renewed upon application by the school district. 105 ILCS
5/2-3.25g (West 1996).
In 1997, the Chicago Board of Education applied for a waiver pursuant to this section, for the
eleventh and twelfth grades only, from the mandate in section 27-6 of the School Code requiring all
students to engage in daily physical education. 105 ILCS 5/27-6 (West 1996). It was submitted in
connection with the Chicago public schools "High School Redesign Project" to improve academic
performance in Chicago high schools following the General Assembly's conclusion that the public
schools were suffering an "education crisis." 105 ILCS 5/34-3.3 (West 1996).
The High School Redesign Project created a new two-year foreign language requirement and
raised the mathematics requirement from two years to three and the science requirement from one year
to three years. However, the project reduced the physical education requirement and mandated
physical education courses for only the first two years of high school. Juniors and seniors could
take physical education as an elective.
The Chicago Board of Education pursued the waiver in compliance with the procedural
requirements of this statute, including providing notice and holding a public hearing. After
approving the proposed waiver application, the Chicago Board of Education forwarded it to the State
Board of Education. The State Board then determined that the application was complete and included
it with waivers from other school districts in a report filed with the General Assembly. Following
receipt and consideration of the State Board of Education's report, the General Assembly did not
disapprove the Chicago Board of Education's waiver and, thus, the waiver was granted.
Before the Chicago Board of Education could implement its plan following approval of the
waiver, a group of plaintiffs including several taxpayers, physical education teachers, a teachers'
union, and parents of Chicago public school students filed the first lawsuit against the Chicago
Board of Education. They sought a declaratory judgment that section 2-3.25g was invalid and an
injunction preventing enforcement of the waiver. The trial court declared section 2-3.25g to be
invalid and granted the injunction. The Chicago Board of Education appealed to the Illinois Supreme
Court, which found that the plaintiffs lacked standing to bring the action and dismissed the appeal,
but did not address the constitutionality of section 2-3.25g. Chicago Teachers Union, Local 1 v.
Board of Education of City of Chicago, 189 Ill. 2d 200, 724 N.E.2d 914 (2000).
Another group of plaintiffs then brought the present action, alleging that section 2-3.25g was
unconstitutional and asked the trial court to enjoin the disbursement of public funds to the Chicago
Board of Education until it complied with the statutory requirement of daily physical education.
All parties' then filed cross-motions for summary judgment. The trial court granted defendants'
motion for summary judgment and denied plaintiffs' motion, holding section 2-3.25g constitutional.
Plaintiffs then filed this timely appeal.
Summary judgment is appropriate where the pleadings, depositions, admissions, and affidavits
on file present no genuine issue of material fact and show that the moving party is entitled to
judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998); Jones v. Chicago HMO Ltd., 191 Ill.
2d 278, 291, 730 N.E.2d 1119, 1127 (2000). When parties file cross-motions for summary judgment,
they agree that no material issue of fact exists and that only a question of law is involved.
Subway Restaurants of Bloomington-Normal, Inc. v. Topinka, 322 Ill. App. 3d 376, 381, 751 N.E.2d
203, 208 (2001). In such a case, we review the trial court's decision de novo and may affirm on any
ground present in the record. Subway Restaurants of Bloomington-Normal, Inc., 322 Ill. App. 3d at
381, 751 N.E.2d at 208; McDonald's Corp. v. American Motorists Ins. Co., 321 Ill. App. 3d 972, 978,
748 N.E.2d 771, 777 (2001).
Plaintiffs first contend that the physical education curriculum is protected from waiver by
section 34-8.14 of the School Code, which provides that statutes, regulations, rules, and policy
provisions concerning several areas, including health and safety, are not waivable. 105 ILCS 5/34-
8.14(3) (West 1996). Plaintiffs argue that the physical education curriculum is based upon health
and safety concerns, comparing the section 27-6 mandate of daily physical education to other health-
related sections. Defendants respond that section 2-3.25g contains its own exclusions from waiver
and argue that the nonwaivable provisions in section 34-8.14 are not related to section 2-3.25g.
The primary rule of statutory construction is to ascertain and give effect to the
legislature's intent. Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 40, 759 N.E.2d 533, 545
(2001). The best evidence of legislative intent is the language of the statute itself, which must
be given its plain and ordinary meaning. Lulay v. Lulay, 193 Ill. 2d 455, 466, 739 N.E.2d 521, 527
(2000). Words and phrases should not be construed in isolation, but must be interpreted in light of
other relevant provisions in the statute. Primeco Personal Communications, L.P. v. I.C.C., 196 Ill.
2d 70, 87-88, 750 N.E.2d 202, 212 (2001). The court must analyze the statute as a whole,
considering each section in connection with every other section. Bruso v. Alexian Brothers
Hospital, 178 Ill. 2d 445, 451-52, 687 N.E.2d 1014, 1016 (1997). Where the statutory language is
clear and unambiguous, resort to other tools of statutory interpretation is unnecessary. Burger,
198 Ill. 2d at 40, 759 N.E.2d at 545.
In a case of first impression, we will construe sections 34-8.14 and 2-3.25g together and in
light of their surrounding statutes. Section 34-8.14 applies only to cities with a population over
500,000 while section 2-3.25g applies statewide and concerns the powers of the State Board of
Education. Additionally, section 34-8.14 is located within the Chicago Learning Zone Implementation
Law. 105 ILCS 5/34-8.6 (West 1996). The General Assembly created this law "to accelerate the
process of Chicago school reform" by adopting "the overriding philosophy that attendance centers
[schools] should be empowered to develop models most appropriate to their situations." 105 ILCS
5/34-8.7 (West 1996). Learning Zone schools are entitled to operate without state laws and
regulations or board rules and policies. 105 ILCS 5/34-8.7 (West 1996). However, section 34-8.14
prohibits Learning Zone schools from waiving rules and regulations concerning certain issues,
including health and safety, student and staff civil rights, performance and financial audits, the
Freedom of Information Act (5 ILCS 140/1 et seq. (West 1996)), and collective bargaining agreements.
105 ILCS 5/34-8.14 (West 1996). Thus, the clear language of section 34-8.14 dictates that it
pertains only to Learning Zone schools and is separate and distinct from the waiver provision in
section 2-3.25g. We find that section 34-8.14 does not apply to section 2-3.25g and does not
insulate physical education from waiver. Further, section 2-3.25g specifically excludes only
special education, teacher certification, and teacher tenure and seniority from waiver, implying
that these are the only provisions which cannot be waived by this section. 105 ILCS 5/2-3.25g (West
1996). Accordingly, we reject plaintiffs' argument.
Next, plaintiffs make several arguments that the waiver procedure in section 2-3.25g is
unconstitutional. Specifically, plaintiffs contend that, because section 2-3.25g waivers take
effect upon the inaction of the legislature, they violate the constitutional formalities governing
the formal passage of legislation, including the passage of bills (Ill. Const. 1970, art. IV, §8),
separation of powers (Ill. Const. 1970, art. II, §1), presentment clause (Ill. Const. 1970, art. IV,
§9(a), (e)), bicameralism (Ill. Const. 1970, art. IV, §8(c)), and the origination clause (Ill.
Const. 1970, art. IV, §8(a), (b)). All of these constitutional arguments are based on plaintiffs'
contention that waivers under section 2-3.25g repeal or modify existing statutory enactments, here,
section 27-6 of the School Code mandating daily physical education and, thus, must follow
constitutional formalities including passage by a majority of both houses and presentment to the
governor. Defendants respond that section 2-3.25g waivers do not repeal or modify existing
legislation, but merely allow a school district to temporarily waive School Code mandates when
"necessary to stimulate innovation or improve student performance." 105 ILCS 5/2-3.25g (West 1996).
We agree with defendants.
Statutes are presumed to be constitutional, and the party challenging the validity of the
statute has the burden of clearly rebutting this presumption. Miller v. Rosenberg, 196 Ill. 2d 50,
57-58, 749 N.E.2d 946, 951 (2001). Courts must construe a statute as to affirm its
constitutionality if the statute is reasonably capable of such a construction. Miller, 196 Ill. 2d
at 58, 749 N.E.2d at 951. Accordingly, "if [a] statute's construction is doubtful, a court will
resolve the doubt in favor of the statute's validity." People v. Shephard, 152 Ill. 2d 489, 499,
605 N.E.2d 518, 523 (1992).
Plaintiffs confuse two separate and distinct issues: the enactment of the waiver procedure
under Public Act 89-3 and the process in section 2-3.25g through which the waivers are granted.
First, we address the constitutionality of Public Act 89-3. Public Act 89-3 modified the existing
statute by establishing the procedure at issue to waive School Code mandates and, thus, it was
necessary to follow constitutional legislative formalities. It became law through the vote of a
majority of both houses of the General Assembly and was presented to the Governor for his possible
veto. Public Act 89-3, therefore, satisfied all procedural requirements for the passage of a bill.
See, e.g., Quinn v. Donnewald, 107 Ill. 2d 179, 483 N.E.2d 216 (1985).
Secondly, we consider plaintiffs' arguments that the process created in section 2-3.25g
through which waivers are granted is unconstitutional. Plaintiffs' contentions rest entirely on the
mistaken assertion that section 2-3.25g waivers repeal or modify existing statutory enactments. In
this case, for example, the statute mandating daily physical education remained in effect after the
Chicago Board of Education obtained its waiver. The waiver did not repeal or amend that statute.
It simply excused the Chicago Board of Education from complying with that portion of the School Code
for a certain period of time. Therefore, each individual waiver need not be passed as if it were
separate legislation and need not comply with the constitutional procedural requirements. See,
e.g., Quinn, 107 Ill. 2d at 190-91, 483 N.E.2d at 222. Similarly, plaintiffs' contention that
section 2-3.25g impermissibly grants school districts home-rule powers also fails because it is
again based on the false premise that, under section 2-3.25g, school districts hold the power to
repeal or modify existing statutory enactments. Accordingly, all of plaintiffs' constitutional
arguments based on this erroneous proposition fail.
Plaintiffs next argue that section 2-3.25g and the waivers granted to school districts
constitute special legislation as prohibited by article IV, section 13 of the Illinois Constitution.
Ill. Const. 1970, art. IV, §13. They contend that section 2-3.25g creates arbitrary legislative
classifications and changes the affected statute from a law of general application to a local matter
controlled by the school district. Plaintiffs also argue that the Chicago Board of Education's
waiver in this case permits the suspension of a general law, the mandate of daily physical
education, on an individual and local basis. Defendants respond that section 2-3.25g contains no
classifications, applies equally to all Illinois school districts, and that waivers under section 2-
3.25g are not legislation and, thus, not bound by the special legislation prohibition.
Article IV, section 13 of the Illinois Constitution provides in relevant part that "[t]he
General Assembly shall pass no special or local law when a general law is or can be made
applicable." Ill. Const. 1970, art. IV, §13. This clause prohibits the General Assembly from
conferring a special benefit or privilege on a person or group to the exclusion of others similarly
situated. Miller, 196 Ill. 2d at 60, 749 N.E.2d at 953. Because the purpose of this prohibition is
to prevent arbitrary legislative classifications which discriminate in favor of a select group
without a sound, reasonable basis, "a party raising a special legislation claim must, at the very
least, prove the existence of an arbitrary legislative classification." Chavda v. Wolak, 188 Ill.
2d 394, 400, 721 N.E.2d 1137, 1141 (1999).
First, we note that, because waivers under section 2-3.25g are not legislation and do not need
to comply with constitutional legislative formalities, they also need not comply with the
prohibition against special or local legislation. Moreover, after analyzing section 2-3.25g, we
cannot discern any legislative classification that discriminates in favor of a select group, "let
alone one that does so arbitrarily or without a sound, reasonable basis." Chavda, 188 Ill. 2d at
400-01, 721 N.E.2d at 1142. Section 2-3.25g allows all school districts, not only Chicago, to
petition the State Board of Education for a waiver from many of the School Code mandates and confers
no special benefits or privileges on a person or group to the exclusion of others similarly
situated. The same procedural requirements apply equally to any district requesting a waiver.
Further, as discussed above, section 2-3.25g does not repeal or modify existing statutes and, thus,
cannot change the affected statute from a law of general application to a local law. Plaintiffs
have failed to prove the existence of any legislative classification and, thus, we find that section
2-3.25g does not violate the special legislation clause. Therefore, we reject plaintiffs' argument.
Plaintiffs next argue that section 2-3.25g is a variation of an impermissible legislative
veto, a legislative decision to override a decision of the executive branch. Immigration &
Naturalization Service v. Chadha, 462 U.S. 919, 943-59, 77 L. Ed. 2d 317, ___, 103 S. Ct. 2764, 2781-
88 (1983). Defendants respond that this court has no jurisdiction to consider this issue and that
the General Assembly's right to grant or disapprove a waiver under section 2-3.25g does not
constitute a legislative veto.
We agree with defendants that we have no jurisdiction to address this argument. Here, the
State Board of Education reviewed the Chicago Board of Education's waiver application and submitted
it, along with other waiver requests, to the General Assembly. After the General Assembly failed to
disapprove the request, the waiver was granted. Because the waiver request was not disapproved by
the General Assembly, the issue of whether that action would constitute a legislative veto is not
before us. Quinn, 107 Ill. 2d at 192, 483 N.E.2d at 222.
Lastly, plaintiffs argue that section 2-3.25g is an unconstitutional delegation of legislative
authority because it delegates broad powers to school districts and school boards. Plaintiffs
contend that because school districts are not home-rule units, they cannot exercise this inherent
law-making power to amend, repeal and modify existing statutory enactments. Defendants respond that
section 2-3.25g delegates no legislative authority to school districts because school districts only
submit waiver requests to the General Assembly which retains the authority to approve or disapprove
a waiver application.
"It is well settled that notwithstanding the rule that the General Assembly cannot delegate
its general legislative power to others, it may authorize others to do things which it might
properly do but cannot do as understandingly or as advantageously itself, if the authority thus
granted is delimited by intelligible standards." Hoogasian v. Regional Transportation Authority, 58
Ill. 2d 117, 130, 317 N.E.2d 534, 541 (1974). When final approval of an administrative act remains
with the legislature, there is no delegation problem. Waterfront Estates Development, Inc. v. City
of Palos Hills, 232 Ill. App. 3d 367, 372, 597 N.E.2d 641, 646 (1992). "Accordingly, when an
administrative body acts in a merely advisory capacity, constitutional standards need not be met."
Waterfront Estates Development, Inc., 232 Ill. App. 3d at 372, 597 N.E.2d at 646.
Our supreme court rejected this constitutional attack when addressing a similar statute in
Quinn v. Donnewald, 107 Ill. 2d 179, 483 N.E.2d 216 (1985). In Quinn, the plaintiffs challenged the
Compensation Review Act (Ill. Rev. Stat. 1984, ch. 63, par. 901 et seq., now codified as 25 ILCS
120/1 et seq. (West 2000)), which created the Compensation Review Board to recommend to the General
Assembly the salaries of judges, General Assembly members and other state officers. Quinn, 107 Ill.
2d at 183, 483 N.E.2d at 218. If each house of the General Assembly failed to disapprove the
Compensation Review Board's report of recommendations within a specified time period, the salary
recommendations became effective. Quinn, 107 Ill. 2d at 184, 483 N.E.2d at 218-19. The plaintiffs
argued that the Act impermissibly delegated to the Compensation Review Board the power to determine
the salaries of these state officials. The court dismissed plaintiffs' argument, finding that the
legislature's general legislative powers were not delegated to the Compensation Review Board because
the Board simply conducted studies, held public hearings, and recommended compensation levels to the
General Assembly. Quinn, 107 Ill. 2d at 188, 483 N.E.2d at 220. Further, the Act provided several
restrictions on the Compensation Review Board's authority to make recommendations. The court also
noted that the General Assembly could reject any report of the Compensation Review Board. Quinn,
107 Ill. 2d at 189, 483 N.E.2d at 221.
Plaintiffs attempt to distinguish Quinn, arguing that the central holding of the case is that
the Compensation Review Board's recommendations are not self-executing and only go into effect once
the General Assembly passes an appropriations bill to fund the pay increases. Waivers under section
2-3.25g, however, take effect automatically without any action by the General Assembly. We find
plaintiffs' attempts unpersuasive as Quinn's discussion of salary changes and appropriation bills is
not critical to the court's resolution of the constitutionality of the Compensation Review Act.
After holding that the Act does not delegate any general legislative powers to the Compensation
Review Board, the court addressed the defendants' contentions concerning appropriation bills,
stating that this issue was "not relevant, of course, to the question of the Act's validity."
Quinn, 107 Ill. 2d at 189, 483 N.E.2d at 221. The court's discussion of the appropriation bills
does not affect Quinn's holding that the Compensation Review Act is constitutional. Thus, this
portion of the court's opinion is merely dicta and does not distinguish Quinn from the present case.
Here, as in Quinn, the legislature has not delegated its general legislative powers to school
districts or school boards under section 2-3.25g. First, as discussed above, school districts do
not hold the power to repeal or amend existing law. School districts merely petition their local
school boards for waivers from School Code mandates when "necessary to stimulate innovation or
improve student performance." 105 ILCS 5/2-3.25g (West 1996). If the local school board approves
the request after holding a public hearing, it forwards the application to the State Board of
Education. The State Board only reviews these requests for completeness and compiles them into
reports for submission to the General Assembly. The General Assembly then has 30 calendar days in
which to approve or disapprove the report in whole or in part by a vote of the majority of each
house. Therefore, the school districts and school boards act in a purely advisory role while the
General Assembly retains the final authority to approve or disapprove the waiver requests. While
the Compensation Review Board in Quinn determined salaries and made recommendations to the General
Assembly, the school boards here merely compile requests and submit reports outlining the requests
to the General Assembly. Thus, section 2-3.25g does not delegate general legislative powers to the
school districts and school boards.
Further, any authority given to the school districts and school boards is sufficiently
"delimited by intelligible standards." Hoogasian, 58 Ill. 2d at 130, 317 N.E.2d at 541. School
districts may only petition for a waiver by showing that the waivers are necessary to "stimulate
innovation and improve student performance." 105 ILCS 5/2-3.25g (West 1996). The statute provides
that waivers may not be requested from rules, regulations and laws regarding special education,
teacher certification or teacher tenure and seniority. Moreover, the written applications must be
based upon a specific plan for improved student performance and school improvement. Accordingly,
section 2-3.25g is not an unconstitutional delegation of legislative powers.
For the reasons stated above, we find that section 2-3.25g of the School Code is not
unconstitutional and, thus, we affirm the judgment of the circuit court of Cook County which denied
plaintiffs' motion for summary judgment and granted defendants' summary judgment motion.
Affirmed.
HOFFMAN, P.J., and HARTMAN, J., concur.