dissenting:
I believe the School Reform Act should be evaluated under the rational basis test rather than the strict scrutiny test to determine if there is a violation of the equal protection clause of the fourteenth amendment of the United States Constitution. After applying the rational basis test to the School Reform Act, I conclude that the School Reform Act does not violate the equal protection clause. Therefore, I respectfully dissent.
As a general rule, each voter is entitled to have his vote given weight equal to that of every other voter. This concept is known as the one person, one vote rule. (See Reynolds v. Sims (1964), 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362.) Any legislation which impairs a person’s right to vote must survive a strict scrutiny analysis. Kramer v. Union Free School District No. 15 (1969), 395 U.S. 621, 626-27, 23 L. Ed. 2d 583, 589, 89 S. Ct. 1886, 1889-90.
But, as the majority opinion notes, the one person, one vote rule is subject to an exception. (See 142 Ill. 2d at 78.) In Avery v. Midland County (1968), 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114, the Supreme Court broached the possibility of an exception to the one person, one vote rule. Specifically, the Court reserved judgment on whether the rule applied to “special-purpose unit[s] of government assigned the performance of functions affecting definable groups of constituents more than other constituents.” Avery, 390 U.S. at 483-84, 20 L. Ed. 2d at 53, 88 S. Ct. at 1120.
In Avery, the Court held that the election of the representatives to the Midland County commissioners court was subject to the one person, one vote rule. The Court noted that the Midland County commissioners court had the authority to, inter alia, administer the county’s welfare services, set the county tax rate, issue bonds, adopt the county budget, build and run a hospital, airport and library, administer local elections, and fix the boundaries of school districts within the county. (Avery, 390 U.S. at 476-77, 20 L. Ed. 2d at 49, 88 S. Ct. at 1116.) The Court concluded that because the commissioners court exercised “general governmental powers,” the election of members to this board from substantially unequal populations violated the equal protection clause of the fourteenth amendment. Avery, 390 U.S. at 485-86, 20 L. Ed. 2d at 54, 88 S. Ct. at 1121.
Subsequently, in Hadley v. Junior College District (1970), 397 U.S. 50, 25 L. Ed. 2d 45, 90 S. Ct. 791, the Court again alluded to the existence of an exception to the one person, one vote rule. The Court stated that “there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with [the one person, one vote rule] might not be required ***.” Hadley, 397 U.S. at 56, 25 L. Ed. 2d at 51, 90 S. Ct. at 795.
In Hadley, the Court analyzed the powers granted to the consolidated junior college district to determine if the election of the trustees to this junior college district violated the equal protection clause. (Hadley, 397 U.S. at 52-53, 25 L. Ed. 2d at 48-49, 90 S. Ct. at 793.) The junior college district had the authority to levy and collect taxes, issue bonds, hire and fire teachers, make contracts, collect fees, and acquire property by condemnation. (Hadley, 397 U.S. at 53, 25 L. Ed. 2d at 49, 90 S. Ct. at 794.) After reviewing these powers granted to the trustees, the Court stated:
“[T]he trustees perform important governmental functions within the districts, and we think these powers are general enough and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here.” Hadley, 397 U.S. at 53-54. 25 L. Ed. 2d at 49, 90 S. Ct. at 794.
In reaching its conclusion in Hadley, the Court considered the nature and extent of the trustees’ powers, as well as their impact on the district.
Recently, the Court imposed the one person, one vote rule on the New York City board of estimate. (Board of Estimate v. Morris (1989), 489 U.S. 688, 103 L. Ed. 2d 717, 109 S. Ct. 1433.) In Board of Estimate, the Court noted that the board had the authority to manage all city property, exercise plenary zoning authority, dispense all franchises and leases on city property, fix the compensation for city employees, and grant all city contracts. (Board of Estimate, 489 U.S. at 694-95, 103 L. Ed. 2d at 728, 109 S. Ct. at 1438-39.) Based on a “significant range of functions common to municipal governments” (Board of Estimate, 489 U.S. at 694, 103 L. Ed. 2d at 728, 109 S. Ct. at 1438), the Court applied the one person, one vote rule to the board, and stated:
“This considerable authority *** situate[s] the Board comfortably within the category of governmental bodies whose ‘powers are general enough and have sufficient impact throughout the district’ to require that elections to the body comply with Equal Protection strictures.” (Board of Estimate, 489 U.S. at 696, 103 L. Ed. 2d at 729, 109 S. Ct. at 1439, quoting Hadley, 397 U.S. at 54, 25 L. Ed. 2d at 49, 90 S. Ct. at 794.)
Board of Estimate indicated the types of governmental functions performed by a unit of local government which require the imposition of the one person, one vote rule.
In the preceding cases, the Court recognized the existence of an exception to the one person, one vote rule, but refused to apply the exception because the units of local government exercised general governmental powers. Two cases, though, have applied the exception. 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, the Court held that the one person, one vote rule did not apply to the electoral scheme for directors of a water storage district in California. (Salyer, 410 U.S. at 730, 35 L. Ed. 2d at 667, 93 S. Ct. at 1231.) In Salyer, only landowners were permitted to vote for the board of directors of the district, and their votes were apportioned according to the assessed value of their land. (Salyer, 410 U.S. at 725, 35 L. Ed. 2d at 664, 93 S. Ct. at 1228.) Although the water storage district was authorized to employ and discharge persons, contract for construction of district projects, condemn private property, and issue bonds, the Court refused to apply the one person, one vote rule:
“The [water storage] district ***, although vested with some typical governmental powers, has relatively limited authority. Its primary purpose, indeed the reason for its existence, is to provide for the acquisition, storage, and distribution of water for farming in the Tulare Lake Basin. It provides no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body.” Salyer, 410 U.S. at 728, 35 L. Ed. 2d at 666, 93 S. Ct. at 1230.
Similarly, in Ball v. James (1981), 451 U.S. 355, 68 L. Ed. 2d 150, 101 S. Ct. 1811, the Court refused to apply the one person, one vote rule to the election of directors of the Salt River Project Agricultural Improvement and Power District. Pursuant to Arizona State law, only landowners were eligible to vote for the district’s directors, and voting power was apportioned according to the number of acres owned. (Ball, 451 U.S. at 357, 68 L. Ed. 2d at 154, 101 S. Ct. at 1814.) Unlike the water storage district in Salyer, the Salt River district performed various functions in addition to storing, conserving and delivering water. Specifically, the district generated and sold hydroelectric power to a large portion of the State, distributed water to urban areas, and paid its operating costs out of revenues generated by the selling of hydroelectric power. (Ball, 451 U.S. at 365, 68 L. Ed. 2d at 159-60, 101 S. Ct. at 1818.) Yet, despite these other functions performed by the district, the Court stated:
“[T]he [Salt River] District simply does not exercise the sort of governmental powers that invoke the strict demands of Reynolds. The District cannot impose ad valorem property taxes or sales taxes. It cannot enact laws governing the conduct of citizens, nor does it administer such normal functions of government as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services.” (Ball, 451 U.S. at 366, 68 L. Ed. 2d at 160, 101 S. Ct. at 1818.)
Because the district’s electric power functions were “incidental” to the district’s water functions and because these water functions were “relatively narrow,” the Court deemed the district to be “essentially [a] business enterprisef ], created by and chiefly benefiting a specific group of landowners.” Ball, 451 U.S. at 367-68, 68 L. Ed. 2d at 160-61, 101 S. Ct. at 1818-19.
In the instant case, the majority, recognizing the exception to the one person, one vote rule, stated:
“To ascertain whether the [School Reform] Act violates the constitutional assurance of equal protection, we must first determine whether the local school councils exercise ‘general governmental powers’ and, if they do, whether the Act advances a compelling State interest so that the provisions of the Act can withstand strict scrutiny analysis. Alternatively, if we find that the local school councils are special limited purpose units created by and benefiting a special limited group of citizens, so that they fall within the exception to the one person, one vote rule, we must determine whether, pursuant to the rational basis test, they are rationally related to the legislature’s purpose.” 142 Ill. 2d at 80-81.
To determine whether the local school councils exercise general governmental powers, it is necessary to analyze the powers granted to the local school councils. A local school council has the authority to: select the principal, who will serve under a four-year performance contract; evaluate the performance of the principal to determine whether the contract should be renewed; establish criteria to be included in the principal’s performance contract; approve the expenditure plan prepared by the principal with respect to all funds allocated and distributed to the attendance center by the board; make recommendations to the principal concerning textbook selection; advise the principal concerning the attendance and disciplinary policies; approve a school improvement plan developed by the principal in conjunction with the local, school council, school staff, parents and community residents; evaluate and make recommendations regarding the allocation of teaching resources; make recommendations to the principal and subdistrict superintendent concerning the appointment of persons to fill any vacant, additional or newly created teaching positions; and request training and assistance for the local school council. Ill. Rev. Stat. 1989, ch. 122, par. 34 — 2.3 et seq.
As is evident in the list of powers granted to the local school councils, it is the overall function and duty of the local school councils to “advise,” “recommend,” or “evaluate.” (Ill. Rev. Stat. 1989, ch. 122, pars. 34 — 2.3(1) through 34 — 2.3(10).) The local school councils have some actual decisionmaking authority, but this authority is limited to three areas and is relatively narrow. First, although a local school council has the authority to select a principal, the choice is limited to those persons certified by the State of Illinois. (Ill. Rev. Stat. 1989, ch. 122, par. 34 — 2.3(1).) The local school councils are not authorized to enter into employment contracts with the principals. The Chicago board of education retains all contracting authority, and the principals remain employees of the board. (Ill. Rev. Stat. 1989, ch. 122, pars. 34 — 2.3(1), 34 — 8.1, 34 — 18(9).) Second, while the local school council must approve a local school expenditure plan, it is the principal who prepares this expenditure plan after consultation with “the local school council, the professional personnel advisory committee and with all other school personnel.” (Ill. Rev. Stat. 1989, ch. 122, par. 34— 2.3(4).) Further, the amount allocated to each local school is determined by the board of education, and the local school council has no authority to increase the amount appropriated to the local school. (Ill. Rev. Stat. 1989, ch. 122, par. 34 — 2.3(4).) Third, although the local school council must approve a school improvement plan (Ill. Rev. Stat. 1989, ch. 122, par. 34-2.3(7)), it is the principal who develops the plan after consultation with the “local school council, all categories of school staff, parents and community residents.” Ill. Rev. Stat. 1989, ch. 122, par. 34 — 2.4.
The holdings in Avery, Hadley, and Board of Estimate do not support the majority’s conclusion that the local school councils exercise general governmental powers. In each of those cases, the local unit of government was granted extensive governmental powers. Thus, the Court refused to apply the exception to the one person, one vote rule. In this case, however, the local school councils have none of the powers the Court deemed general governmental powers in Avery, Hadley, and Board of Estimate. The local school councils cannot levy taxes, issue bonds, enter into employment contracts, purchase, lease or acquire by condemnation buildings or real estate, divide the city into districts and apportion the pupils, etc. In fact, the local school councils not only cannot perform these general governmental functions, but these are precisely the powers granted to the Chicago board of education.
The Chicago board of education has broad governmental powers regarding the operation of the Chicago public schools. As stated in the Act, “[t]he Board shall exercise general supervision and jurisdiction over the public education and the public school system of the city ***.” (Ill. Rev. Stat. 1989, ch. 122, par. 34 — 18.) Briefly, the board retains the authority to, inter alia: levy taxes; issue bonds; establish and approve systemwide curriculum objectives and standards; prescribe the duties, compensation and terms of employment of its employees; erect, purchase or otherwise acquire buildings for school purposes; acquire real estate by purchase or condemnation proceedings for any school purposes; take control and manage all public playgrounds for the moral, intellectual, and physical welfare of the children; and divide the city into subdistricts and apportion the pupils to several schools. Ill. Rev. Stat. 1989, ch. 122, par. 34 — 1 et seq.
I disagree with the majority’s claim that because the local school council “serve[s] to determine the membership of the board of education,” it possesses general governmental powers. (See 142 Ill. 2d at 85.) Granted, the local school council participates in the election of members to the board of education, but its participation is remote and indirect. The process of selecting the members to the board of education, which the majority accurately describes (see 142 Ill. 2d at 85-86), indicates that the local school council is three times removed from the selection of the members to the board of education. The local school council’s indirect participation in the selection of members to the board of education does not translate into a grant of general governmental powers to the local school council. As previously noted, the board of education retains the general governmental powers, and the local school council has no voice in how the board of education exercises these powers.
Based on a comparison of the powers granted to a local school council and the board of education, I believe the local school council satisfies the first element of the exception to the one person, one vote rule — that it is a limited purpose unit of government. This conclusion is consistent with the cases which have applied the exception to the one person, one vote rule. See Salyer, 410 U.S. 719, 35 L. Ed. 2d 659, 93 S. Ct. 1224; Ball, 451 U.S. 355, 68 L. Ed. 2d 150, 101 S. Ct. 1811.
As demonstrated in Salyer and Ball, the focus of the Court’s analysis is not limited to the specific service that the unit of local government provides (e.g., water service), but rather whether the unit of local government exercises general governmental powers while providing the service. In other words, the Court applied the exception to the one person, one vote rule not because the unit of local government was a water district per se, but because the unit of local government being examined (Salt River district in Ball and water storage district in Salyer) did not exercise general governmental powers while providing the water service. In this case, the focus of our analysis should be whether a local school council exercises general governmental powers while participating in the management of a local school, not whether the local school council merely partakes in the management of a school.
Although the local school council participates in one of the “normal functions of government [such] as *** the operation of schools” (Ball, 451 U.S. at 366, 68 L. Ed. 2d at 160, 101 S. Ct. at 1818; see also Salyer, 410 U.S. at 728, 35 L. Ed. 2d at 666-67, 93 S. Ct. at 1230), the local school council is not vested with any authority to set the basic educational policies for the Chicago public school system. The board of education retains this power (Ill. Rev. Stat. 1989, ch. 122, par. 34 — 18(9)), and it is the function and duty of the local school council to merely “advise,” “recommend,” or “evaluate” (Ill. Rev. Stat. 1989, ch. 122, pars. 34 — 2.3(1) through 34 — 2.3(10)).
The majority opinion also relies on Kramer v. Union Free School District to support its conclusion that the School Reform Act violates the equal protection clause. (See 142 Ill. 2d at 98.) In Kramer, the Court invalidated an election scheme which attempted to limit the franchise in local school district elections to those persons “ ‘primarily interested’ in school affairs.” (Kramer, 395 U.S. at 633, 23 L. Ed. 2d at 593, 89 S. Ct. at 1893.) Only persons who owned or leased taxable real property and parents of children enrolled in the local school were eligible to vote. (Kramer, 395 U.S. at 623, 23 L. Ed. 2d at 587, 89 S. Ct. at 1887.) The Court held that the election scheme violated the equal protection clause because it permitted many persons to vote who had a “remote and indirect interest” in the school affairs, while excluding others from voting who had a “distinct and direct interest” in the school affairs. Kramer, 395 U.S. at 632, 23 L. Ed. 2d at 592-93, 89 S. Ct. at 1892.
As in this case, Kramer involved a State statute which was designed to encourage community and parent participation in the management of local public schools. Despite this similarity of purpose, Kramer is distinguishable from the innovative educational system described in the School Reform Act. In Kramer, the Court held the election scheme unconstitutional because it did not limit the franchise to those “primarily interested” in school affairs. More importantly, though, the Court stated:
“We need express no opinion as to whether the State in some circumstances might limit the exercise of the franchise to those ‘primarily interested’ or ‘primarily affected.’ ” Kramer, 395 U.S. at 632, 23 L. Ed. 2d at 592, 89 S. Ct. at 1892.
In this case, the School Reform Act does limit the franchise to those “primarily interested” in the Chicago public school system. Unlike the election scheme in Kramer, the School Reform Act grants every resident in single school attendance zones the right to vote, while also allowing the parents with children in the local schools (those “primarily interested”) a greater voice in the elections. (But see Ill. Rev. Stat. 1989, ch. 122, par. 34 — 2.1(b) (where the community residents to be elected to the local school council in multiarea districts are elected by parents of currently enrolled students, the principal of the multiarea school and the school staff).) The School Reform Act recognizes that while all residents in the attendance area have an interest in the local schools, these interests are not identical in their nature or weight.
Another important distinction between the unconstitutional election scheme in Kramer and the election scheme in the School Reform Act is that the local school district in Kramer had much more authority than the local school councils. The Court in Kramer noted that the local school district had the authority to levy taxes, purchase buildings and sites, employ teachers, maintain discipline, prescribe courses of study, and determine the textbooks to be used. (Kramer, 395 U.S. at 623-24, 23 L. Ed. 2d at 587, 89 S. Ct. at 1888.) These powers are similar to the powers the Court in Hadley, Avery, and Board of Estimate deemed general governmental powers. The local school councils, on the other hand, have none of these powers, and, as previously mentioned, it is the Chicago board of education which actually retains these powers.
The majority opinion argues that the election scheme in the School Reform Act does not fulfill the second element of the exception to the one person, one vote rule because the functions of the local school councils do not disproportionately affect the parents of children in the public schools. (See 142 Ill. 2d at 89.) The majority opinion lists several reasons to support this argument. First, the majority argues that the costs of operating the schools fall directly or indirectly on all community residents; e.g., property taxes are imposed on all residents regardless of whether they have children attending the schools. (See 142 Ill. 2d at 89.) Second, the majority argues that the election of competent and efficient local school council members will benefit all residents in the attendance area because the quality of the local schools directly affects property value. (See 142 Ill. 2d at 89.) Third, the majority contends that parents with children not yet of school age are directly interested in the quality and operation of the schools. (See 142 Ill. 2d at 89.) Fourth, the majority argues that parents with children in private schools have a direct interest in the public school system because they might re-enroll their children in an improved public school system. See 142 Ill. 2d at 89.
Although the majority argues that the decisions of the local school council will “affect virtually every resident of the school’s attendance area” (see 142 Ill. 2d at 89) and, consequently, parents of children in the public schools are not disproportionately affected, the crucial factor is whether the decisions of the local school council will affect the parents of children in the public schools more than other residents in the attendance area. If the functions of the special purpose unit of government affect definable groups of constituents more than other constituents, then the exception to the one person, one vote rule applies. (Avery, 390 U.S. at 483-84, 20 L. Ed. 2d at 53, 88 S. Ct. at 1120. See also Ball, 451 U.S. at 371, 68 L. Ed. 2d at 163, 101 S. Ct. at 1821 (“The Salyer opinion did not say that the selected class of voters for a special public entity must be the only parties at all affected by the operations of the entity ***. Rather, the question was whether the effect of the entity’s operations on them was disproportionately greater than the effect on those seeking the vote”).) Thus, while the interests listed by the majority are legitimate, they are not controlling in determining whether the local school council disproportionately affects one group more than another group.
In this case, the parents of children in the public schools have a greater interest in the decisions of the local school council than that of nonparent residents in the school attendance area. Nonparent residents do have legitimate interests in the decisions of the local school council, but their interests are not equal to that of parents of children in the public schools. The Supreme Court has specifically recognized the special interest of parents in their children’s education. (See Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary (1925), 268 U.S. 510, 534-35, 69 L. Ed. 1070, 1078, 45 S. Ct. 571, 573 (parents have a special interest in and a right to “direct the upbringing and education of children under their control”).) The interests of the parents with children in the public schools, as opposed to those of the nonparent residents, are distinct from and greater than those of nonparent residents.
Because the local school council is a special purpose unit of government which affects definable groups of citizens more than other citizens, the election scheme in the School Reform Act fits the exception to the one person, one vote rule. Consequently, the School Reform Act should be analyzed under the rational basis test rather than the strict scrutiny test. (See Ball, 451 U.S. at 371, 68 L. Ed. 2d at 163, 101 S. Ct. at 1821.) Under the rational basis test, the School Reform Act — which grants parents of children in the public schools a greater say in the election of local school council members — is rationally related to the statutory objective of improving the Chicago public school system, and is therefore constitutional.
In November 1987, United States Secretary of Education William Bennett labeled the Chicago public schools the “worst in the nation.” Statistics, cited by the appellees in their briefs, substantiate the conclusion that the Chicago public school system is failing miserably in its responsibility to educate the City’s youths. Currently, only 15% of Chicago high school students both graduate and read at or above the national average for twelfth graders. (Designs for Change, The Bottom Line: Chicago’s Public Schools and How to Save Them (1985).) According to a study comparing the reading test results of Chicago public high schools with suburban high schools, only 2.9% of the Chicago public high schools scored at or above the national average in reading achievement whereas all reporting suburban high schools scored at or above the national average. (G. Orfield, The Chicago Study of Access and Choice in Higher Education 134-36 (1984).) One-half of the City’s public high schools have average ACT scores that fall in the lowest 1% of all United States high schools. Chicago Tribune, Chicago Schools: “Worst in America”: An Examination of the Public Schools that Fail Chicago (1988).
These statistics, which depict the dire condition of the Chicago public schools, provoked the legislature in Springfield to completely restructure public education in Chicago. In 1988, the legislators set aside their bipartisan differences and passed the Chicago School Reform Act by a nearly unanimous vote. Senator Berman aptly described the development of the School Reform Act:
“ ‘The Act was not a hasty legislative response to an irrational public cry. Instead, it was a long, careful, painstaking process that involved hundreds of hours and thousands of concerned legislators, citizens, businesses and civic and community groups.’ ” Fumarolo v. Chicago Board of Education (Cir. Ct. Cook Co. Aug. 29, 1989), No. 89 — CH—3105, slip op. at 3 (quoting amicus curiae brief of Senator Arthur Berman, at 13).
In developing the School Reform Act, the legislature listened closely to the advice of leading researchers and education policy analysts. Accordingly, I do not think this court should substitute its judgment for that of the legislature unless the School Reform Act is clearly unconstitutional. For the reasons previously stated, I do not believe that the School Reform Act is an unconstitutional response to the educational dilemma facing the City of Chicago. I certainly agree with the majority that the local school council is a decisionmaking body (see 142 111. 2d at 86), for this is what the education experts stressed to the legislature in designing the School Reform Act. But, the mere fact that the local school council is a decisionmaking body which participates in the operation of local schools does not mean that it exercises general governmental powers. In fact, much of the local school council’s power is advisory, and the board of education retains the precise powers that the Court has traditionally considered general governmental powers.
The School Reform Act is a unique and creative response to the education problems facing Chicago. The Supreme Court has emphasized the importance of innovation and experimentation in designing units of local government to respond to the needs and problems of the community. (See Avery, 390 U.S. at 485, 20 L. Ed. 2d at 53-54, 88 S. Ct. at 1120-21 (“The Constitution does not require that a uniform straitjacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems. *** [T]he Constitution and this Court are not roadblocks in the path of innovation, experiment, and development among units of local government”).) Presently, the innovative School Reform Act is responding to the needs of the thousands of children attending public schools in Chicago. The local school councils are being elected in the communities, and the newly appointed board of education is beginning to implement reform policies in the public schools. I agree with the circuit court’s ruling that the School Reform Act is a proper and constitutional response to the educational crisis facing the City of Chicago. Therefore, I respectfully dissent.