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)(l)(a) of the School Code (105 ILCS 5/18 — 8(A)(5)(i)(l)(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)(l) "imposes specific requirements regarding the use of Chapter 1 funds.” 179 Ill. 2d at 133. 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)(l)(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)(l)(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)(l)(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)(l)(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. Il linois 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)(l)(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)(l)(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)(l)(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.