concurring:
I concur in the majority opinion but write to express my belief that the “one man, one vote” rule is not as fragile as the dissenting opinion would indicate. Its application does not depend solely upon the distinction between the nature of the powers that legislatively created entities perform. I start with the premise that if the governing group of the entity created by the legislature is to be elected, then the “one man, one vote” rule applies. This is the teaching of Hadley v. Junior College District (1970), 397 U.S. 50, 25 L. Ed. 2d 45, 90 S. Ct. 791. There, the Court held that there is no valid reason why constitutional distinctions should be drawn on the basis of the purposes of the election. While there are differences in the powers of different offices, once the legislature has determined that the offices are to be elected, the crucial consideration is the right of each qualified voter to participate on an equal footing. If the purpose of the election were to be the determining factor in deciding whether voters are entitled to equal voting powers, the courts would be faced with the difficult job of distinguishing between various elections. (Hadley, 397 U.S. at 54-55, 25 L. Ed. 2d at 50, 90 S. Ct. at 794.) This difficult job of distinguishing between various elections is demonstrated by the dissent in this case. Attempting to measure the powers granted to the local school councils, or to any entity, to determine whether the “one man, one vote” rule is required involves the court in a morass from which it must extricate itself on an ad hoc basis.
The Court, in Hadley, did acknowledge that the requirement of equality of vote is not absolute by stating that there might be some cases in which a State “elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups” that the equality of vote is not required. (Hadley, 397 U.S. at 56, 25 L. Ed. 2d at 51, 90 S. Ct. at 795.) Hadley also noted that education has traditionally been a vital governmental function.
There are certain governmental bodies, organized pursuant to statute, which in fact do not perform functions that are generally considered governmental. In Ball v. James (1981), 451 U.S. 355, 68 L. Ed. 2d 150, 101 S. Ct. 1811, the Supreme Court referred to such bodies as nominal public entities. Although these bodies may exercise certain powers that are exercised by governmental bodies, they remain essentially business enterprises created for the benefit of limited groups of persons. In Ball, the Court"1 noted that in Salyer Land Co. v. Tulare Lake Basin Water Storage District (1973), 410 U.S. 719, 35 L. Ed. 2d 659, 93 S. Ct. 1224, it was recognized that the district involved did exercise some typical governmental powers, but that the primary purpose of the district, its reason for existence, was to provide for the storage and distribution of water for farming. Justice Powell, in a concurring opinion in Ball, defined these governmental bodies, where equality of vote is not required, as follows:
“The Court previously has held that when a governmental entity exercises functions that are removed from the core duties of government and disproportionately affect a particular group of citizens, that group may exercise more immediate control over the management of the entity than their numbers would dictate. *** The Salt River District is a governmental entity only in the limited sense that the State has empowered it to deal with particular problems of resource and service management. The District does not exercise the crucial powers of sovereignty typical of a general purpose unit of government, such as a State, county, or municipality.” (Emphasis added.) (Ball, 451 U.S. at 372, 68 L. Ed. 2d at 164, 101 S. Ct. at 1821-22 (Powell, J., concurring).)
In a footnote to the reference, in the above-quoted material, to the crucial powers of sovereignly typical of a general purpose unit of government, Justice Powell cited education as an example of such a crucial power. The dissent by Justice White, in Ball, as does the dissent in this case, focused on the authority or power of the district, instead of on the function served by the district, in determining whether the “one man, one vote” rule applied.
As noted, Justice Powell recognized education as a crucial power of local government. Also, in Hadley, the Court stated that education has traditionally been a vital governmental function, and in Salyer, the Court, in distinguishing the function of the wafer district there involved from those that may be classified as governmental functions, noted that the district performed no other general public service, such as schools, housing, transportation, roads, etc. Thus, education has consistently been recognized as an essential governmental function. The local school councils with which we are concerned were created as an essential part of the Chicago School Reform Act (Ill. Rev. Stat. 1989, ch. 122, par. 34 — 1.01 et seq.). We need not measure the powers or the authority of the councils against some mythical scale of governmental powers to ascertain whether the councils exercise general governmental powers, nor need we determine what percentage of the total bundle of governmental powers of the school district the councils must exercise to bring into play the “one man, one vote” rule. If we were to adopt that approach, we would be involved in the difficult task of constantly measuring the percentage of governmental powers that a public entity is authorized to exercise. As the majority opinion notes, the local school councils perform important functions in the operation of the local schools. Granted they do not exercise all of the powers that may be exercised by governmental entities, but they do play a vital role in the Chicago school reform program and, therefore, do not serve a limited constituency, but, rather, serve and promote the vital governmental function of education. Whether or not one may consider the powers the councils perform as “typical,” the councils, nonetheless, perform a vital governmental function.
The dissenting opinion justifies the inequality of the vote provided for in the Chicago School Reform Act by stating that the parents of children in public schools have a greater interest in the decisions of the local school councils than do nonparent residents in the school attendance area. This cannot be held up as a justification for giving the parents’ votes greater weight than non-parents’. Throughout the State of Illinois, almost all governing bodies of school districts are elected. Such an argument would not justify giving parents’ votes in these districts greater weight than nonparents’.
My position in this concurrence should not indicate that I am critical of the concept of local school councils. The Chicago School Reform Act is innovative legislation and local councils bring a salutary new dimension to the operation of schools in large multi-attendance-center districts. My difficulty with the legislation lies only in the constitutional requirements of the “one man, one vote” rule.