dissenting:
I dissent from the thoughtful and scholarly opinion of the majority because I believe that the Illinois State Board of Education’s Rules Establishing Requirements and Procedures for the Elimination and Prevention of Racial Segregation in Schools are reasonable, not arbitrary, and constitute a valid exercise of the State Board’s authority to promulgate rules to carry into effect the requirements of the Armstrong Act.
I also dissent from the conclusion of the majority that the manifest weight of the evidence supports the trial court’s finding that Aurora has complied with the requirements of the Armstrong Act.
The majority holds that the rules are invalid for the following reasons:
(1) the 15% plus or minus formula is the ultimate standard by which the State Board determines a local board’s compliance with the dictates of the Armstrong Act; and is in direct contradiction of the decision in Tometz and in conflict with the Moore amendment and
(2) the rule enabling the State Board to decline the acceptance of Federal Funds for the benefit of the local school district exceeded the scope of its powers.
The Armstrong Act is clearly designed to prevent and eliminate the separation of pupils based upon race. In upholding the Armstrong Act, the supreme court in Tometz v. Board of Education (1968), 39 Ill. 2d 593, determined that the constitution permits, rather than prohibits, voluntary State action aimed toward reducing and eventually eliminating de facto school segregation. The court stated therein:
“State laws or administrative policies, directed toward the reduction and eventual elimination of de facto segregation of children in the schools and racial imbalance, have been approved by every high State court which has considered the issue.” 39 Ill. 2d 593, 597.
De facto segregation, as addressed in Tometz, concerns racial imbalance, that which exists irrespective of intentional governmental action. To determine if racial imbalance exists, one must use some starting point.
The Rules define racial segregation as existing in any attendance center in a school district which has a minority enrollment which is more than 15 percentage points over or under the minority enrollment percentage for the district as a whole. (Rule 1.4.) As an example, when a district has an overall minority enrollment of 41% (as School District No. 131 had in 1976), each attendance center within the district may have a minority enrollment between 26% and 56% without being defined as racially segregated. Districts which have attendance centers which are segregated under this definition are required to take affirmative action to meet the objectives of the Armstrong Act.
The Rules contain a provision (Rule 6.1) for waiving strict conformance with the percentage range if educational, economic or physical factors similar to those outlined by the supreme court in Tometz make conformance unduly burdensome on the school district.
The majority determines that the 15% plus or minus formula is the ultimate standard by which the State Board determines a local board’s compliance with the dictates of the Armstrong Act. It is not an inflexible 15% standard, which is a requirement significantly more burdensome than that which the statutory language of the Armstrong Act imposes. The Rules themselves contain several provisions demonstrating that the 15% standard is a starting point only, and will be administered flexibly.
The interpretation and construction of the rules of an administrative agency generally are governed by the same rules applicable to statutes in the same field. (See Rucker v. Wabash R.R. Co. (7th Cir. 1969), 418 F.2d 146.) In construing an administrative rule or regulation, a reviewing court must necessarily look to the construction given the rule by the agency. Although the construction of statutes and rules of an administrative agency is not binding on the court, such construction should be persuasive. (Hardway v. Board of Education (1971), 1 Ill. App. 3d 298.) The court should accord substantial weight to the agency’s construction and actual application of its own rule and should not interfere unless the agency’s interpretation is plainly erroneous or inconsistent with long-settled construction. Scheffki v. Board of Fire & Police Commissioners (1974), 23 Ill. App. 3d 971.
Dr. Joseph M. Cronin, the State Superintendent of Education, testified at length concerning the desegregation status of school districts throughout the State under the Rules, and it would appear from that extensive testimony that the Rules are applied by his agency in a uniform, fair, flexible and reasonable manner.
The 15% provision is a definition of school districts which do not conform. Such districts must submit plans to achieve compliance with all of the requirements of the Rules. Districts may plan to directly reassign pupils or districts may base plans on parents or pupils voluntarily selecting a different attendance center. It is only in the instance of a voluntary plan that the Rules require a backup plan if the voluntary plan does not conform.
The Rules do not require that plans which involve involuntary pupil assignments, including the backup plan, must meet an absolute 15% standard. The basic applicable rule concerning all plans developed is stated in Rule 5.3, which provides that “** ” school authorities shall consider and employ all methods that are educationally sound and administratively and economically feasible
In Rule 5.6, involving new schools, additions to schools or closing of schools, it is provided that the district should give maximum effect to the 15% provision. Obviously, “maximum effect” may be something less than an absolute 15% requirement in view of the allowance for educational, economic and administrative constraints provided for in Rule 5.3.
In Rule 5.6, it is provided that all plans should be equitable and “within the constraints imposed by feasibility and educational soundness”; and inconvenience or burdens should not be borne disproportionately by a racially identifiable group of pupils.
The economic, educational or administrative constraints provided for in the Rules are the very criteria enunciated in Tometz. Reading the provisions of the Rules in pari materia, as statutes must be read, it is clear that the 15% standard is not fixed as an absolute rigid requirement. The sole criterion for measuring compliance with the Rules is not a strict application of the 15% provisions. Compliance with the Rules is the submission of an acceptable plan. While the 15% provision identifies which districts must submit a plan, and while the Rules encourage giving maximum effect to the 15% provision, nothing in the Rules requires that application of the 15% provision take precedence over the educational, economic, and administrative constraints also enunciated in the Rules. Other criteria of an acceptable plan include a detailed description of the specific actions to be proposed and a timetable showing dates of initial implementation3 and completion (Rule 5.2) which is subject to annual review (Rule 6.5). Amendments to plans may be submitted to improve their effectiveness (Rule 5.9). It is self-evident that if a plan may contain a timetable for implementation which is subject to annual review, and plans may be amended to improve their effectiveness, the absolute compliance with the 15% provision is not required by the Rules.
The majority also finds that the operation of the 15% plus or minus provision may, under certain circumstances, cause conflict with the Moore Amendment and is invalid for that reason. The apparent logic used must be that if the State Board requires a school district to develop a plan, and the plan submitted contains a provision for busing, which is one of the many options available to local school districts, then the State Board has required busing in violation of the Moore Amendment. These Rules do not require busing, and I do not believe they conflict with the Moore Amendment.
The majority concludes that the State Board exceeded its scope of statutory power by promulgating a rule enabling it to decline acceptance of Federal funds. The majority ignores the provisions of section 18 — 8(7) of the School Code, which states that:
“Any school district which fails * * * to maintain school as required by law, * * “ is not eligible to file * * * any claim upon the common school fund.” (Ill. Rev. Stat. 1979, ch. 122, par. 18-8(7).
Federal revenue sharing dollars are placed in the common school fund under section 8J2 of “An Act relating to internal auditing in State government” (Ill. Rev. Stat. 1979, ch. 127, par. 144a.) Generally, Federal statutes control the purposes for which federal funds are expended. Section 2 — 3.26 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 2 — 3.26) authorizes the State Board to receive Federal funds, but Federal law controls their expenditures. Numerous Federal laws require that recipients of Federal funds sign assurances that no money shall be expended to maintain segregated facilities. Once the State Board has reason to believe the signed assurances may be violated, it has an affirmative duty to take action. Therefore, the defendants would not exceed their authority if Federal funds were withheld as provided in Rule 7.4(9).
The majority finds that the manifest weight of the evidence supports the conclusion that Aurora has complied with the requirements of the Armstrong Act. I disagree.
Aurora East School District No. 131 operates 11 elementary schools for kindergarten through grade six.
In 1976, when 41% of the pupils of the school district were minority, 74% of the students attending the Beaupre Elementary School were minority; 78% of the students attending the Brady Elementary School were minority, and 70% of the students attending the Oak Park Elementary School were minority.
In 1976, the State Board informed the plaintiffs that they were out of conformance with the Rules in that the three elementary schools had excessive minority concentrations and requested that District No. 131 submit a plan to eliminate separation of students on the basis of race.
The plaintiffs submitted a plan which permitted voluntary pupil enrollment in other attendance centers and provided for the involuntary reassignment of 29 minority and 33 white students between two attendance centers out of approximately 5,000 elementary school pupils. The plan did not have a time-frame for implementation nor did it provide for reduction of racial isolation in the high minority schools. The defendants then determined that Aurora East School District No. 131 should be placed upon probationary recognition status for failure to submit an acceptable plan.
In an eight-year period from 1969 to 1977, Beaupre School went from 75% to 74% minority enrollment; Brady School went from 43% to 81% minority enrollment and Oak Park School went from 50% to 74% minority enrollment.
It is this very isolation of pupils in a racially identifiable manner which is addressed by the Armstrong Act, and it is clear from the record that Aurora never took any serious or meaningful affirmative action to eliminate segregation by redrawing boundaries or transferring students as the Act requires. This mandatory duty is tempered only by the educational, economic and physical constraints enunciated in Tometz.
I would reverse the trial court’s finding that the Rules are invalid and void as against the manifest weight of the evidence and applicable law. I would also reverse the entry of judgment for the plaintiffs on the issue of whether the plaintiffs are in compliance with the Armstrong Act and enter judgment on the counterclaim in favor of the defendants.
The primary reason the plaintiffs were found to be in noncompliance was because the plan submitted was not time-frame specific.