dissenting:
What is particularly disturbing about the Armstrong Act is the fact that school authorities are, for the first time in the history of this State, told to make decisions based upon race and nationality. The majority opinion holds that racial discrimination under the Act is constitutionally permissible because it is for the benign purpose of equalizing the educational opportunity between Negroes and Caucasians. I am of the opinion, however, that “the fundamental principle that racial discrimination in public education is unconstitutional” (Brown v. Board of Education, 349 U.S. 294, 99 L. Ed. 1083, 75 S. Ct. 753) prevents a State legislature or school board from deciding what is benign and what is not benign with respect to racial discrimination in public education.
The opening statements of the Supreme Court in Brown v. Board of Education, 349 U.S. 294, 99 L. Ed. 1083, 75 S. Ct. 753, (Brown II) were “These cases were decided on May 17, 1954. The opinions of that date [cited in footnote: Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686; Bolling v. Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693] declaring the fundamental principle that racial discrimination, in public education is unconstitutional [emphasis added], are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle.” In the third paragraph of the opinion the court mentions “a system ofJ public education freed of racial discrimination” and “steps to eliminate racial discrimination in public schools.”
Racial discrimination is, of course, the act of making distinctions based on race. A reading of Brown II indicates that the principle announced in Brown I is a neutral principle like the neutral principles of freedom of speech, freedom of the press, freedom of religion and freedom of assembly. Just as these principles prohibit government from deciding what is benign or not benign with respect to speech, the press, religion or assembly, so the “fundamental principle that racial discrimination in public education is unconstitutional” prohibits government from deciding when racial discrimination in public education is benign and when it is not.
The Armstrong Act has the effect of ordering school boards to enter the field of racial classification. In 1874, this court ruled that “The free schools of the State are public institutions, and in their management and control the law contemplates that they should be so managed that all children within the district * * * regardless of race or color, shall have equal and the same right to participate in the benefits to be derived therefrom. While the directors, very properly, have large and discretionary powers in regard to the management and control of schools, in order to increase their usefulness, they have no power to make class distinctions, * * (Chase v. Stephenson, 71 Ill. 383, 385 ; see also People ex rel. Congress v. Board of Education of The City of Quincy, 101 Ill. 308; People ex rel. Peair v. Board of Education of Upper Alton School Dist., 127 Ill. 613; People ex rel. Bibb v. Mayor and Common Council of Alton, 193 Ill. 309.) Later that same year, the legislature prohibited school officials from excluding any child on account of color. (Rev. Stat. 1874, chap. 122, par. 100.) Such a prohibition has always been in our school law and is now contained in section 10 — 22.5 of the School Code. (Ill. Rev. Stat. 1965, chap. 122, par. 10 — 22.5.) Thus, from 1874 until the passage of the Armstrong Act there has been no doubt that school authorities in this State had no power to make class distinctions.
During this same period the fourteenth amendment has been construed as not prohibiting school authorities from making racial classifications (Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 16 S. Ct. 1138), and then as prohibiting school authorities from making racial classifications. {Brown v. Board of Education, 349 U.S. 294, 99 L. Ed. 1083, 75 S. Ct. 753.) History paints a sorry picture for the period when school authorities were permitted to make decisions based on race. The very gist of Plessy v. Ferguson was that racial discrimination resulting in segregation was benign as long as the separate facilities were equal. Experience, of course, proved this proposition wrong.
Several States have again entered the field of racial classification in education albeit for what they now consider a proper governmental goal. As one commentator has pointed out, “This is exactly what the plaintiffs’ attorneys urged the Supreme Court to prohibit in the Brown case, and for good reason. Although today a court might rule that the state is required to consider race in a benign way, tomorrow this might well prove a precedent for a much less happy result. Moreover, even today it is not easy to decide whether a given racial classification is benign.” Kaplan, Segregation Litigation and the Schools — Part II: The General Northern Problem, 58 N.W.U.L. Rev. 157, 188 (1963).
Unfortunately the battle for equal educational opportunity is being fought as a racial one. This tends to generate heat rather than light. Even the strongest exponents for elimination of racial imbalance in the schools recognize and admit that denial of equal education opportunity is not limited to the Negroes. (See e.g., Fiss, Racial Imbalance in the Public Schools; The Constitutional Concepts, 78 Harv. L. Rev. 564 (1963).) I believe that programs to create equal educational opportunities must, under the equal-protection clause of the fourteenth amendment (Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686), and under section 22 of article IV of our constitution, be administered without regard to race. Chase v. Stephenson, 71 Ill. 383.
Several commentators have recognized the desirability of employing our traditional concept of general laws without regard to race to reach the problems of the disadvantaged in general, and Negroes in particular. For example, Professor Freund has stated, “Is not the constitution color blind? Can a preferential treatment of Negroes be squared with the requirement of equal protection of the laws? Is it not an unconstitutional discrimination in reverse? A head on clash of principle can be averted, in most cases wisely in my judgment, by framing programs of aid in terms of reaching the most disadvantaged segment of the community, whether economically, or politically. And if these happen to be in fact predominantly Negroes, no principal of race-creed classification has been violated.” (Freund, Civil Rights and the Limits of Law, 14 Buffalo L. Rev. 199, 204 (1964).) The Anti-Poverty Programs of the Federal government and our Public Aid Programs are good examples of the point.
Assuming racial discrimination is not a neutral principle, it should be noted that in those few States where action against racially imbalanced schools has been sustained, it has been done on the ground that it was for equality of educational opportunity. For example, in Vetere v. Allen, 15 N.Y.2d 259, 206 N.E.2d 174, which involved a determination of the commissioner of education directing a school board to reorganize attendance areas in a school district, the court stated, “Here the Board of Regents under authority of section 207 of the Education Law has declared racially imbalanced schools to be educationally inadequate. The Commissioner under section 301 and 305 of the Education Law has implemented this policy by directing local boards to take steps to eliminate racial imbalance. These administrative decisions are final absent a showing of pure arbitrariness.”
If the purpose of the Armstrong Act is to eliminate racial imbalance, it would appear to be for integration qua integration without any determination that it would promote equal educational opportunities. As the trial judge pointed out, the Act does not mention factors such as traffic hazards, distance from home to school or overcrowding to be considered along with racial imbalance in fixing attendance unit lines. He concluded that elimination of racial imbalance is mandatory and the paramount consideration. Apparently the trial judge and the plaintiffs were aware that the legislature had not made a determination that elimination of racial imbalance will promote equal educational opportunities. Plaintiffs produced expert witnesses who testified that racial imbalance impairs educational opportunity and the trial judge made a finding that racial imbalance can result in educational disadvantage (not that it did in this case), a finding that would be unnecessary if the legislature had made it when passing the Armstrong Act. The difference, in short, is that New York approached the problem as an educational one whereas our legislature approached it as a social problem.
It was the trial court, and not the legislature, who attempted to tie the social aspect to the educational aspect. Where the legislature has passed an act which it deems socially desirable, the courts should not, as did the trial court here, determine that it will improve educational opportunity. This is a matter for the legislature. Aside from the fact that the trial court should not make a legislative determination, we note parenthetically that a strong argument can be made for the position that the action of a trial court in changing the attendance units may have an adverse effect on the goal of obtaining equal educational opportunities. See Kaplan, Equal Justice in an Unequal World: Equality for the Negro — The Problem of Special Treatment, 61 N.W.U.L. Rev. 363, 403 (1966).
Finally assuming the legislature does have the power to vest school authorities with the power to change attendance units based on considerations of race and nationality, I believe it has done so without properly defining the terms under which the power is to be exercised.
The Act tells school boards to eliminate the “separation of children in public schools because of color, race or nationality.” It was conceded by both parties that separation of children in the Waukegan District was not because of color or race. The trial judge avoided this difficulty by holding that “separation * * * because of color, race or nationality” was not to be taken literally as definitive of the origin of the separation but merely as descriptive of the .condition of separation. Whether this construction is or is not correct, it demonstrates that the Act by its ambiguous terms would apply only to de jure segregation which has never been permitted in this State.
Now assuming “separation of children * * * because of color” means “elimination of racial imbalance regardless of its cause” there is nothing to indicate what constitutes an improper racial imbalance. It is not surprising, of course, that “racial imbalance” is not defined because the Act does not even use the term. The majority opinion glosses over this omission by the legislature by stating that “segregation” has a common and recognized meaning. In my reading of the cases and law review articles on this subject I have not come across this “common and recognized meaning” and I doubt that the school authorities will find it unless the legislature or this court states it.
One author has defined de facto segregation in this manner: “When the population of a community, or a public school system, is predominantly Negro, a school can be predominantly Negro and yet not be considered racially imbalanced. Moreover, a predominantly white school is not deemed racially imbalanced when the proportion of Negroes in the school substantially exceeds the proportion of Negro children in all of the public schools of the same grade level in the community. Although the proportion of Negroes in such a school may exceed the proportion of Negro children in all of the public schools of the same grade level, common usage does not apply the term ‘racially imbalanced’ unless the school is also predominantly Negro, for only when a school is both predominantly Negro and literally imbalanced is it viewed as a segregated school.” Fiss, Racial Imbalance in the Public Schools: The Constitutional Concepts, 78 Harv. L. Rev. 564, 565 (1963).
Another author would define a segregated Negro school as one which is known within its community as a Negro school. (Sedler, School Segregation in North and West: Legal Aspects, 7 St. Louis U.L.J. 228, 257 (1963).) A 60 per cent or 70 per cent Negro school might be considered a “Negro” school in some communities and not in others.
Still another author in commenting on the percentage method for determining imbalance has observed: “The plaintiffs in Gary, through their expert witness, argued that a school in a given community was segregated if its percentage of Negroes was more than one-third above or more than one-third below the percentage of Negroes in the community at large. The Urban Legaue, however, defines a segregated school as one which is over 60 per cent Negro.” Kaplan, Segregation Litigation and the Schools — Part II: The General Northern Problem, 58 N.W.U.L. Rev. 157, 181 (1963).
Again we have the trial judge and a majority of this court deciding what the legislature has not. The trial court found that the revised attendance units were permissible under the Act, but there is nothing in the Act upon which to base this conclusion.
Another uncertainty created by the Act is its effect on the traditional and universally used neighborhood-school concept. The Act directs school boards to change attendance units, taking into consideration “the prevention of segregation” and “elimination of separation” of children of different color, race and nationality. The Act does not mention considerations of room capacity, distance from home to school, traffic hazards or any other relevant factors. Whether racial imbalance is just one factor to be considered with these traditionally relevant factors, as in Balaban v. Rubin, 14 N.Y.2d 193, 199 N.E.2d 375; or whether it is the “paramount” consideration, as the trial judge held; or whether it is the only consideration, as the Act indicates, creates a distinct uncertainty for school boards.
Again the majority opinion does what the legislature failed to do by stating, “We deem that the intention in the enactment was not to eliminate or minimize consideration by boards of factors traditionally weighed in setting school boundaries. Rather, the intent was to direct school boards in forming or changing school units-to take into consideration color, race and nationality so that segregation of children on such basis would be prevented and, where appropriate, ‘eliminated’.”
I recognize the problem of trying to provide equal educational opportunities in the State, but the legislature cannot delegate its authority without properly defining the terms under which this authority is to be exercised. This court has on many occasions held that a law vesting discretionary power in an administrative officer without properly defining the terms under which his discretion is to be exercised is void as an unlawful delegation of legislative power. (Krebs v. Thompson, 387 Ill. 471; Department of Finance v. Cohen, 369 Ill. 510; Chicagoland Agencies, Inc. v. Palmer, 364 Ill. 13; People v. Beekman & Co., 347 Ill. 92.) This rule applies with equal force to a delegation of power to school authorities. Richards v. Board of Education, 21 Ill. 2d 104.
For the preceding reasons, I would hold the Armstrong Act unconstitutional.
Mr. Justice Klingbiel and Mr. Justice Kluczynski join in this dissent.