dissenting:
I dissent from my brethren’s opinion because I believe the Rules enunciated by the State Board of Education are not arbitrary, or unreasonable, and validly constitute an exercise of the State Board’s lawful authority to promulgate rules to effectuate the objective of the Armstrong Act.
I also respectfully dissent from the majority opinion which supports the trial court’s finding that the “15$ Rule” contained in the Rules is a rigid and inflexible end in itself and is therefore illegal. The majority adopts the reasoning of the recent Second District opinion, Aurora East Public School District No. 131 v. Cronin,1 with one Justice dissenting, which stated that:
“(1) the 15$ plus or minus formula is the ultimate standard by which the State Board determines a local board’s compliance with the dictates of the Armstrong Act, which is more burdensome than that which is anticipated by the statute’s language;
(2) the 15$ Rule is in direct contravention of the decision of Tometz v. Board of Education, which held that prevention of segregation was just one of several factors to be considered by the local boards in setting attendance boundaries;
(3) the 15$ Rule could under certain circumstances conflict with the Moore Amendment; and finally
(4) there are infirmities in the enforcement aspects of the Rules, including the absence of a provision for a stay of sanctions pending judicial review.”
The policy objectives of the Armstrong Act are to prevent and eliminate racial segregation of pupils. The Rules enunciated by the State Board to effectuate this objective were deemed to exceed the authority delegated to the State Board by the legislature. (Aurora East Public School District No. 131 v. Cronin.) Courts generally adhere to the doctrine that interpretation and construction of rules of an administrative agency are governed by the same rules applicable to statutes in the same field. (Olin Corp. v. Pollution Control Board (1977), 54 Ill. App. 3d 480, 370 N.E.2d 3.) The interpretation of a statute by the agency charged with its administration, while not binding on the courts, is entitled to substantial deference (Milkowski v. Department of Labor (1980), 82 Ill. App. 3d 220, 402 N.E.2d 646) and such construction should be persuasive. (Milkowski; Olin.) The court should accord substantial weight to the agency construction and actual application of its own rule and should not interfere unless the agency’s interpretation is plainly erroneous or inconsistent with long settled constructions. Olin; Scheffki v. Board of Fire and Police Commissioners (1974), 23 Ill. App. 3d 971, 320 N.E.2d 371.
The necessity of the use of a numerical standard as a starting point to measure the progress of integration has been sanctioned by the United States Supreme Court. (Swann v. Charlotte-Mecklenburg Board of Education (1971), 402 U.S. 1, 28 L. Ed. 2d 554, 91 S. Ct. 1267.) We should consider then the 15% provision as the starting guide which measures the progress of integration for implementation of the Armstrong Act. It is not the absolute end, as the majority believes, by which the State Board determines a local district’s compliance. This is evident from the language of the Rules themselves, which must be read in conjunction with one another, initially, it acts as a diagnostic tool to determine those school districts in which there is a significant racial imbalance. (Rule 1.4.) From this point, the State Board requires the local authorities, upon notification, to submit a plan to correct deficiencies and achieve conformance. Rule 5.3 provides that “* * * school authorities shall consider and employ all methods that are educationally sound and administratively and economically feasible 0 * Local school authorities are required to commit themselves to the fulfillment of the requirements of the Rules (Rule 5.2), the objective of which is to implement the Armstrong Act, which seeks an end to racial segregation of pupils. Rule 5.5 requires school authorities to give “maximum effect” to the requirements of the Rules; however, there is an allowance for educational, economic and administrative constraints. Further, Rule 5.6 provides that equitable plans be submitted “within the constraints imposed by feasibility and educational soundness”; and the “inconvenience or burdens” of desegregation are to be apportioned among all pupils. Additionally, Rule 5.9 allows for amendments to improve the effectiveness of plans submitted.
As such, it is clear that the 15% Rule is not the sole criterion for measuring compliance. In fact, the majority’s rationale is undermined by Rule 6.1 which provides that, “Where educational, physical or economic constraints would place an unreasonable burden upon the school authority in completely confirming” the State Board is empowered to relax the necessity of complete conformance. Thus, I do not understand the numerical rigidity the majority speaks of as there is sufficient flexibility in the Rules to implement the Armstrong Act.
Nor do I believe that the Rules violate the Moore Amendment, which prohibits the State Board from requiring busing to achieve racial balance. All the Rules require is submission of an acceptable plan and there is no mention of busing.
Further, the majority upholds the trial court’s findings of infirmities in the enforcement aspects of the Rules, including the absence of a provision for a stay of sanctions pending judicial review. This issue is directly correlated to the trial court’s finding that the Rules do not provide adequate due process procedures to school districts affected by the Rules. The majority opinion did not consider the due process question. There is a considerable time delay involved from the initial determination of nonconformance under Rule 1.4 to the finding of “noncompliance” under Rule 1.3 and the subsequent implementation of sanctions. The time\ processes and other procedural requirements afford adequate safeguards and mitigates against the misconception surrounding the “harshness” of the sanction provision as well as nullifies the trial court’s finding that there is a lack of opportunity for due process procedures for school districts deemed to be in violation of the Rules.
If we are to give any effect to the directive of the Armstrong Act, the Rules provide that a school district must submit an acceptable plan. What constitutes an acceptable plan is a determination to be made by the State Board giving consideration to the economic, administrative and educational constraints that Tometz advanced. We do not regard the Rules as being in violation or in contravention of the decision in Tometz since they include the very criteria enunciated in Tometz.
The Rules require that a school authority receive notification of nonconformance and it then has 90 days to submit an acceptable plan. This time can be extended up to 180 days from the original notification. Schools then have 60 days to amend plans, which are unacceptable, before they are in noncompliance. Once a district’s plan is deemed to be unacceptable or in noncompliance, that district is entitled within 30 days to request a hearing under Rule 7.1(c). The district is entitled to present whatever evidence it has to contest the State Board’s finding of noncompliance, which, we must keep in mind, was based on the evidence submitted to it by the local board initially.
A school in noncompliance remains on probationary recognition status for a period of one year, upon which the State Board within 30 days then serves notice, with the complaint attached, that another hearing may be requested. If no hearing is requested, nonrecognition status or other measures may be instituted. If a hearing is requested, no sanctions are imposed pending the outcome of the hearing. If the State Board, after reviewing the findings and recommendations of the hearing officer, determines that the district is in a state of continued noncompliance, it is not obligated to place that school on nonrecognition status, perhaps necessitating a cut-off of funds, but may, under Rule 7.4(f), adopt such measures which would lessen the burden upon the schools involved.
Thus, it is clear that any infirmities in the enforcement aspects of the Rules are minimal, because of the latitude the Rules afford school authorities to comply. And it is equally apparent that the Rules afford more than ample due process in the compliance and hearing procedures to ensure fairness and impartiality to local school districts. All due process requires is adequate notice, and a full, fair and impartial hearing. Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369, 406 N.E.2d 863.
I must again emphasize that the directive of the Armstrong Act is to achieve racial balancing of pupils. While the Act itself does not impose a specific deadline, I believe the legislature intended that its objective be carried out without delay. The Rules implicitly reflect this intent to implement a program to expedite the Act’s objective allowing sufficient flexibility pursuant to a timetable.
For these reasons, I would reverse the trial court’s finding that the Rules are unreasonable and therefore invalid. Further, I would enter judgment for the State Board allowing them to enforce the Rules against District 170 and initiate or continue any other administrative action based upon the Rules.
Petition for leave to appeal has been filed in the Illinois Supreme Court.