delivered the opinion of the court;
Defendants, Illinois State Board of Education (State Board) and the State Superintendent of Education, Dr. Joseph Cronin (Superintendent), appeal from an order of the trial court granting plaintiff, Chicago Heights Public School District 170 (District 170) summary judgment on count I of its complaint for declaratory relief. In its order, the trial court found that the Rules Establishing Requirements and Procedures for the Elimination and Prevention of Racial Segregation in Schools (Rules), promulgated by the State Board were arbitrary, capricious and illegal. The court further prohibited the State Board from enforcing the Rules against District 170 or from initiating or continuing any administrative action based upon the Rules.
On appeal, the State Board contends that; (1) the Rules are within the authority delegated to the State Board by the legislature; (2) the trial court erred in finding that the “15% rule” contained in the Rules is a rigid and inflexible end in itself and is therefore illegal; and (3) the trial court improperly ruled that the Rules do not provide adequate due process procedures for the school districts so affected.
The Rules were promulgated in 1971 by Michael Bakalis, the then Superintendent of Public Instruction, and were amended in 1976 and 1977 by the State Board. They were enacted by the State Board for the purpose of enforcing a 1963 amendment to the Illinois School Code (Ill. Rev. Stat. 1977, ch. 122, par. 1 — 1 et seq.) commonly known as the Armstrong Act. The Armstrong Act provides that:
“As soon as practicable, and from time to time thereafter, the board shall change or revise existing units or create new units in a manner which will take into consideration the prevention of segregation and the elimination of separation of children in public schools because of color, race or nationality.” Ill. Rev. Stat. 1977, ch. 122, par. 10 — 21.3.
Generally, the Rules provide that “attendance centers” or schools defined as racially segregated must take affirmative steps to achieve racial balance within their districts. An attendance center is deemed racially segregated and, thus, in “nonconformance” with the Rules if the minority racial composition of the pupils in attendance fails to reflect, within 15 percentage points, the minority racial composition of the pupils in the district as a whole. (Rule 1.4.) For instance, if a school district’s total number of enrolled minority students is 25 percent, then each attendance unit within that district may have a minority enrollment which ranges from between 10 percent and 40 percent of the total minority enrollment, yet still not be considered in nonconformance. If a local district is in nonconformance, it is notified of this condition by the State Superintendent of Education who specifies the deficiency and requires the submission of a plan to achieve conformance. (Rules 3.2, 4.1.) The plan must detail specific actions and present a timetable for implementation and completion. (Rule 5.2.) Upon a finding that the plan meets the requirements of the Rules, the school is considered in compliance and must forthwith implement the plan. (Rule 6.2.) Thereafter, an annual review is made by the State Superintendent. If the plan is behind its timetable for implementation, the State Board may also find, after an investigation, that the local district is in “noncompliance.” (Rule 6.5.) Essentially, noncompliance, under the Rules, is defined as the failure or refusal of a school to submit, amend or implement a plan within the specified time limits. (Rule 1.3.) A school found to be in noncompliance is placed on “Probationary Recognition” status by the Superintendent. (Rule 7.1.) After any school has remained on probationary recognition status for one year without complying with the Rules, it may be placed, upon the refusal to request an administrative hearing, on “nonrecognition” status. (Rule 7.2.) Upon this change of status, the State Board will decline to accept or expend Federal funds otherwise available to the district. Rule 7.4(g).
New facts concerning the present case require recitation, since the issues basically concern questions of law.
District 170 maintains and operates attendance centers for grades kindergarten through sixth at 10 school buildings. The district also maintains a single junior high school. In 1971, the district was informed that the Rules required submission of a report detailing the number of students of various racial groups enrolled in the district and a breakdown of the racial population of each attendance center within the district.
In a letter dated January 17, 1972, the Superintendent informed District 170 that it was not in compliance with the Rules.
After ensuing discussions between the parties, in 1974, the State Board again requested the submission of a plan enumerating the district’s desegregation efforts. By letter, the district responded on June 3, 1974, that statistical compliance with the Rules required large-scale busing which was not feasible.
Nine months later, in March of 1975, the State Board informed District 170 that compliance with the Rules required a comprehensive desegregation plan, and that the June 3, 1974, letter-report did not constitute sufficient compliance.
On February 26,1976, the State Board formally found District 170 to be in noncompliance with the Rules, as amended. The district submitted a plan to the State Board on April 7,1976. Two weeks later, the State Board notified the district that the plan was deficient because it did not comply with the Rules. The district was placed on Probationary Recognition status effective April 21,1976. Under the Rules, the probationary period was to last one year, but the State Board granted an extension until June 26, 1977, in order to permit the district time to review the desegregation plans submitted by a desegregation consultant employed by the Illinois Office of Education. District 170 submitted another plan on June 22,1977.
In July of 1977, the Superintendent again notified the district that its plan was unacceptable under the Rules. The State Board then found the district to be in “continued noncompliance,” and the district was served notice that, unless it requested an administrative hearing pursuant to the Rules, the district would be denied recognition 30 days from the receipt of the notice.
District 170 requested such a hearing in August of 1977 after the instant suit was filed, and subject to the condition that no hearing would be conducted until the court determined the legal issues raised in the complaint.
The trial court’s order finding the Rules invalid was entered on November 21, 1979.
Opinion
The State Board first contends that the Rules it enacted are within the authority delegated to the Board by the legislature.
Recently, this very issue was decided by the Second District of the Illinois Appellate Court in Aurora East Public School District No. 131 v. Cronin (1981), 92 Ill. App. 3d 1010, 415 N.E.2d 1372. There, the court, relying on Coates v. Illinois State Board of Education (7th Cir. 1977), 559 F.2d 445, first found that the State Board has the authority to promulgate rules necessary to carry out the Armstrong Act. This authority was found to have been based upon the State Board’s duty “[t]o supervise all the public schools in the State” (Ill. Rev. Stat. 1977, ch. 122, par. 2 — 3.3) and the concomitant power “[t]o make rules necessary to carry into efficient and uniform effect all laws for establishing and maintaining free schools in the State.” (Ill. Rev. Stat. 1977, ch. 122, par. 2 — 3.6.) However, the court in Aurora further found that the State Board exceeded its authority by promulgating the Rules which make the 15% plus or minus formula the ultimate standard by which the State Board determines a local board’s compliance with the dictates of the Armstrong Act. The court stated:
“It is clear that the question of the Rules’ 15% plus or minus provision places on local districts a requirement significantly more burdensome than that which the statutory language [of the Armstrong Act] imposes.” {Aurora, 92 Ill. App. 3d 1010, 1017-18, 415 N.E.2d 1372, 1378.)
The 15% Rule was also found by the Aurora court to be in direct contravention of the decision of Tometz v. Board of Education (1968), 39 Ill. 2d 593, 237 N.E.2d 498, which ruled that the prevention of segregation was just one of several factors to be considered by the local boards in setting attendance boundaries. In this regard, the Rules were deemed invalid since they gave the State Board rather than the local boards, to which the legislature had granted discretion, the authority to consider the factors set forth in Tometz.
The third basis discussed in Aurora for finding the 15% Rule invalid was that its operation could, under certain circumstances, conflict with the Moore Amendment (Ill. Rev. Stat. 1977, ch. 122, par. 10 — 22.5) which forbids the State Board from ordering, mandating or requiring busing to achieve racial balance in any school. This finding was premised upon the potential situation where a local district is unable to achieve conformance with the 15% Rule by any involuntary means other than busing, yet is required to submit a plan to achieve that rate in order to comply with the Rules. In effect, then, the State Board could coerce the local district to implement busing in violation of the Moore Amendment.
We believe that the Aurora decision is well reasoned and adhere to its holding. In the present case, the trial court specifically found that the 15% Rule is illegal. For the reasons elucidated in Aurora, the trial court’s decision was proper.
The trial court in the instant case also found infirmities in the enforcement aspects of the Rules, including the absence of a provision for a stay of the sanctions pending judicial review. As we have mentioned, the State Board, under Rule 7.4(g) can decline to accept or expend any Federal funds available for allotment to a local district which is on nonrecognition status. In Aurora, the court examined this provision and found that the Board has no authority under the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 1 — 1 et seq.) to so withhold funds as a sanction for noncompliance with the Rules, and that the State Board exceeded its scope of statutory power by enacting a rule to this end. Therefore, the trial court’s belief that the Rules were invalid due to their faulty enforcement provisions is supported by Aurora, although on a different basis.
The State Board’s final issue is that the trial court erroneously concluded that the Rules do not provide adequate due process procedures to school district affected by the Rules.
We need not decide this constitutional question, however, since we have adhered to the ruling in Aurora that the Rules are invalid. A court will not pass upon a constitutional dispute if the case can be decided without doing so. See Aurora; City of Chicago v. Abdullah (1979), 76 Ill. App. 3d 325, 395 N.E.2d 50.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
SULLIVAN, P. J, concurs.