concurring in part and dissenting in part:
In Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 23-32 (1996), this court shut the courthouse door to claims alleging violations of section 1 of the education article of the Illinois Constitution (Ill. Const. 1970, art. X, § 1). In this case, the majority nails that door shut. The majority holds that these plaintiffs may not — not do not, or could not, but may not — state a cause of action for a declaratory judgment based on a violation of the education article. 186 Ill. 2d at 210-11. Relying on Committee for Educational Rights, the majority concludes that plaintiffs raise a nonjusticiable political question, which is addressed solely to the legislature.
The majority views plaintiffs as asking Illinois courts “to enter the arena of Illinois public school policy.” 186 Ill. 2d at 201. I respectfully disagree. I view plaintiffs as simply asking the judicial department of state government to do its job and interpret the Illinois Constitution. I still am of the opinion that a claim alleging a violation of section 1 of the education article is justiciable. Committee for Educational Rights, 174 Ill. 2d at 45-58 (Freeman, J., concurring in part and dissenting in part). In this case, I agree with the appellate court that, at the least, plaintiffs could allege sufficient facts to state a cause of action for a declaratory judgment. Accordingly, I dissent from part I of the majority opinion.
BACKGROUND
This claim is before us following its dismissal pursuant to section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 615 (West 1994)). A section 2 — 615 motion to dismiss attacks the legal sufficiency of a complaint. In ruling on the motion, a court must accept as true all well-pled facts in the complaint and all reasonable inferences which can be drawn therefrom. The motion presents the question of whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86 (1996). Review is de novo. Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997).
The majority relates the physical condition of public schools in East St. Louis School District 189. 186 Ill. 2d at 202. However, the majority does not adequately relate the effect that these abhorrent physical conditions have on schoolchildren. I agree with the appellate court that the complaint’s introductory section accurately reflects the factual allegations in the body of the complaint:
“ ‘For themselves, and on behalf of all school-age children in East St. Louis School District 189 ***, Plaintiffs bring this class action to enforce their constitutional and statutory rights to a safe and adequate public school education.
By any reasonable measure, the public schools of District 189 are neither safe nor adequate. Strangers wander in and out of júnior high schools. Fire alarms malfunction, and firefighters find emergency exits chained shut as they rescue children from burning schools. Classrooms are sealed to protect students from asbestos and dangerous structural flaws.
In dark corridors, light bulbs go unreplaced and rain seeps through leaky roofs. In heavy rains backed-up sewers flood school kitchens, boilers, and electrical systems, resulting in student evacuations and cancelled classes. Bathrooms are unsanitary and water fountains are dry or spew brown water.
In winter, students sit through classes wearing heavy coats because broken windows and faulty boilers go unrepaired. They struggle to learn using meager instructional equipment and tattered, dated textbooks. School libraries are locked or destroyed by fire. Children never know whether they will have a teacher, since District 189 is chronically short staffed, and teachers are often absent or disengaged from students.
In these squalid surroundings, and denied adequate instruction, children cannot reasonably be expected to learn. On standardized tests, District 189 students score significantly below students in other districts, and most fail to achieve official State minimum goals. Deprived of even a minimally adequate education, barely half the District’s students graduate from high school, and many who manage to graduate are ill-prepared for skilled jobs, college or meaningful participation in a democratic society. Defendants are legally obligated to take all measures necessary to provide Plaintiffs with such an education, yet, for decades, [they] have knowingly allowed conditions and services to deteriorate so that District 189 now provides one of the worst school systems in the nation.
Plaintiffs bring this action to correct these intolerable and illegal conditions ***. ***
Plaintiffs seek an order compelling Defendants to take all appropriate and meaningful measures to provide, at long last, the safe and adequate schools to which Plaintiffs and all Illinois children are entitled.’ ” 287 Ill. App. 3d at 825-26.
DISCUSSION
I. Justiciability
Plaintiffs contend that defendants are violating the first sentence of the second paragraph of section 1 of the education article of the Illinois Constitution: “ ‘The State shall provide for an efficient system of high quality public educational institutions and services.’ ” 186 Ill. 2d at 205, quoting Ill. Const. 1970, art. X, § 1 (hereafter the education system provision). Relying on Committee for Educational Rights, the majority concludes that “plaintiffs may not state a claim based upon violation of the education article of the Illinois Constitution.” 186 Ill. 2d at 210. However, I agree with the appellate court that “the Illinois Constitution does indeed provide for at least a minimally adequate education and that those allegedly harmed by the lack of education, such as these plaintiffs, may bring that cause of action in the circuit courts of Illinois.” 287 Ill. App. 3d at 827.
In Committee for Educational Rights, I concluded as follows. Based on the plain language of the education article of the 1970 Illinois Constitution, the record of the 1970 Illinois Constitutional Convention, a comparison of the 1970 constitution to the 1870 constitution, and fundamental principles of constitutional law, “the education system provision is a constitutional directive to the three branches of state government to fulfill their duties in accordance with their traditional roles under separation of powers principles.” Committee for Educational Rights, 174 Ill. 2d at 47 (Freeman, J., concurring in part and dissenting in part). “Since the education system provision is addressed to the entire state government, and since the judiciary is a coordinate branch of state government, I would hold that the education system provision is judicially enforceable.” Committee for Educational Rights, 174 Ill. 2d at 52 (Freeman, J., concurring in part and dissenting in part).
Since the education system provision is judicially enforceable, it accordingly falls upon the judicial department of our state government to interpret it when properly raised. Committee for Educational Rights, 174 Ill. 2d at 53 (Freeman, J., concurring in part and dissenting in part). “The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.” Baker v. Carr, 369 U.S. 186, 217, 7 L. Ed. 2d 663, 686, 82 S. Ct. 691, 710 (1962); see Committee for Educational Rights, 174 Ill. 2d at 54 (Freeman, J., concurring in part and dissenting in part). It is the function and duty of the supreme court — not the legislature — to act as the final arbiter of the Illinois Constitution. People ex rel. Harrod v. Illinois Courts Comm’n, 69 Ill. 2d 445, 458 (1977); accord 1 T. Cooley, Constitutional Limitations 104-07 (8th ed. 1927). I agree with Judge Cooley that “[t]he right and the power of the courts to do this are so plain, and the duty is so generally — we almost say universally— conceded, that we should not be justified in wearying the patience of the reader in quoting from the very numerous authorities upon the subject.” 1 T. Cooley, Constitutional Limitations 106-07 (8th ed. 1927).
Subsequent to Committee for Educational Rights, the Ohio Supreme Court was presented with this issue in DeRolph v. State, 78 Ohio St. 3d 193, 677 N.E.2d 733 (1997). Early in the opinion the court declared:
“Under the long-standing doctrine of judicial review, it is our sworn duty to determine whether the General Assembly has enacted legislation that is constitutional. [Citation.] We are aware that the General Assembly has the responsibility to enact legislation and that such legislation is presumptively valid. [Citations.] However, this does not mean that we may turn a deaf ear to any challenge to laws passed by the General Assembly. The presumption that laws are constitutional is rebuttable. Id. The judiciary was created as part of a system of checks and balances. We will not dodge our responsibility by asserting that this case involves a nonjusticiable political question. To do so is unthinkable. We refuse to undermine our role as judicial arbiters and to pass our responsibilities onto the lap of the General Assembly.” DeRolph, 78 Ohio St. 3d at 198, 677 N.E.2d at 737.
Regrettably, this is exactly what this court has done.
Further, I note the applicability of People ex rel. Leighty v. Young, 301 Ill. 67, 71 (1921), where this court reasoned: “[i]t cannot be said that a system which places the school house at a point so remote that the children of school age cannot reach it conveniently is either thorough or efficient.” In this case, the majority rejects plaintiffs’ argument that the quality of education in District 189 is so abysmal that schoolchildren are actually being deprived of access to an education. The majority reasons that “plaintiffs have not alleged in this case that schoolchildren are being denied access to schools. Rather, the plaintiffs complain about the quality of the education that is being provided in those schools.” 186 Ill. 2d at 210.
The majority apparently overlooks significant factual allegations in the complaint, a summary of which I earlier quoted. Plaintiffs allege that the physical condition of some District 189 schools, or portions thereof, are so dangerously abysmal that they are actually closed. 287 Ill. App. 3d at 825-26. Thus, schoolchildren are physically being denied access to an education within the reasoning of Leighty. I am troubled by the majority’s view that District 189 schools are better than a vacant building marked with the word “School.” 186 Ill. 2d at 210. I am at a loss as to what additional allegations the majority needs. Plaintiffs plead facts that are disgusting and shameful. Curiously, the majority doubts “that the legislature would ever set standards for education so as to allow for such a situation.” 186 Ill. 2d at 210. However, the facts alleged here plainly show that “such a situation” exists.
II. The Merits
The appellate court found that plaintiffs do not plead “sufficiently detailed facts stating the particular acts or omissions of defendants that have allegedly created the abhorrent conditions attributed to these schools. Without factual allegations alleging the specific wrongs of defendants, the complaint cannot allege a cause of action upon which relief can be granted.” 287 Ill. App. 3d at 827. However, the appellate court went on to hold that plaintiffs may bring a cause of action under the education article (287 Ill. App. 3d at 827) and that sufficient facts could exist to state such a claim (287 Ill. App. 3d at 831).
I agree. I earlier explained why plaintiffs’ complaint is legally sufficient. A complaint should not be dismissed for failure to state a claim unless it clearly appears that no set of facts could be proved under the allegations that would entitle the party to relief. Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 473 (1990); Ogle v. Fuiten, 102 Ill. 2d 356, 360-61 (1984). At the least, plaintiffs could allege sufficient facts to state a cause of action for a declaratory judgment.
CONCLUSION
In Committee for Educational Rights, I criticized the majority for abandoning its responsibility to interpret the Illinois Constitution. Committee for Educational Rights, 174 Ill. 2d at 62 (Freeman, J., concurring in part and dissenting in part). As a result of that decision, the judiciary became powerless to enforce the constitution, i.e:, to inquire “into whether the legislative and executive departments of our state government conform to the education system provision.” Committee for Educational Rights, 174 Ill. 2d at 58 (Freeman, J., concurring in part and dissenting in part). In this case, the majority continues to turn the provision into a dead letter. See DeRolph, 78 Ohio St. 3d at 263, 677 N.E.2d at 781 (Pfeifer, J., concurring).
I would hold that plaintiffs’ claim is justiciable and that plaintiffs should be given an opportunity to amend their complaint. Accordingly, I dissent from part I of the majority opinion.
JUSTICE HARRISON joins in this partial concurrence and partial dissent.