specially concurring:
This court holds that the circuit court of Will County has original jurisdiction to adjudicate the claim of Joliet Township High School District 204 (District 204), brought pursuant to the Equal Educational Opportunities Act of 1974 (EEOA) (20 U.S.C. §1701 et seq. (2000)). Consequently, this court further holds that the EEOA does not preempt and render unconstitutional section 7 — 2b of the Illinois School Code (105 ILCS 5/7—2b (West 1998)). 231 Ill. 2d at 207.
I fully agree with the court’s reasoning and result. I write separately to urge the General Assembly to amend section 7 — 2b of the School Code to allow a school board to hear disputes regarding equal educational opportunity when determining section 7 — 2b petitions. Such disputes should be heard initially by a school board and not a court. Also, I caution the circuit court in this case, on remand, to base its findings on sufficient evidence and not conjecture.
I. BACKGROUND
Four individuals who were all of the registered voters of a contiguous 320-acre parcel of farm land in Will County petitioned the Illinois State Board of Education (Board) to detach their property from District 204 and annex it to Lincoln Way Community High School District No. 210 (District 210), pursuant to section 7 — 2b of the School Code (105 ILCS 5/7—2b (West 1998)). Section 7 — 2b provides that, under specific circumstances, land may be automatically detached from one district and annexed to another district, at either the elementary or high school level. See M. Guenther & B. Wright, Creation, Dissolution, and Boundary Changes, in 1 Illinois School Law §1.11 (Ill. Inst. for Cont. Legal Educ. 2005). The Board held an administrative hearing on the detachment and annexation petition. District 204 claimed, inter alia, that granting the petition would violate the EEOA, which prohibits the transfer of a student from one school to another if the transfer results in increasing student racial segregation. See 20 U.S.C. §1703 (2000). District 204 alleged that petitioners are white, the population of District 204 is “60% minority,” and District 210 is “almost completely white.” District 204 argued that granting the petition would increase racial segregation in violation of the EEOA. The hearing officer specifically found that District 204’s EEOA claim was beyond its statutory and regulatory authority. It is undisputed that petitioners met section 7 — 2b’s four specific conditions. Accordingly, the Board granted the section 7 — 2b petition. 231 Ill. 2d at 189-90.
On administrative review, the circuit court confirmed the Board’s decision granting the petition. Additionally, the circuit court independently found that the Board’s decision did not “create a Constitutional impediment,” or violate federal law. On appeal, the appellate court: vacated the circuit court’s ruling on the merits of District 204’s EEOA claim; held that the EEOA preempted section 7 — 2b of the School Code and rendered it unconstitutional; and remanded the cause to the Board to conduct a hearing on the EEOA claim. 231 Ill. 2d at 191-93.
II. ANALYSIS
Before this court, District 204 essentially raises two issues:
“The current legislative framework developed by the General Assembly is a naked attempt [A] to sidestep the federal mandate set forth in the EEOA by stripping away an agency’s ability to consider the effect of detachment on racial segregation, and [B] then tie the hand of the circuit courts on review through application of the Administrative Review Act.”
While future litigation will shed light on the first claim, this court correctly rejects the second contention.
A. De Jure Segregation and Equal Educational Opportunity
Section 7 — 2b of the School Code mandates an automatic detachment and annexation procedure that expressly prohibits consideration of surrounding circumstances. This unique automatic procedure can potentially promote illegal student segregation. The potential for such a consequence flies in the face of constitutional principles that the United States Supreme Court first enunciated over 50 years ago, and decisions that this court issued over a century ago, upholding the right of children to attend public schools free of de jure segregation.
1. Authority to Change School District Boundaries Within constitutional limitations, the legislature ultimately controls the creation, division, and abolishment of school districts. People v. Wood, 411 Ill. 514, 522 (1952). This court has repeatedly recognized that any school district established under enabling legislation is:
“ ‘entirely subject to the will of the legislature thereafter. With or without the consent of the inhabitants of a school district, over their protests, even without notice or hearing, the State may take the school facilities in the district, without giving compensation therefor, and vest them in other districts or agencies. *** The area of the district may be contracted or expanded, it may be divided, united in whole or in part with another district, and the district may be abolished. All this at the will of the legislature.’ ” Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 155 (2006), quoting People ex rel. Dixon v. Community Unit School District No. 3, 2 Ill. 2d 454, 465-66 (1954).
This court has further explained that a school district is a quasi-municipal corporation created by the state to act as its administrative arm to implement the establishment of free schools. Wood, 411 Ill. at 522. The legislature may delegate its power to change school district boundaries to school authorities, who exercise that power in their discretion, guided by statutory standards. School District No. 79 v. County Board of School Trustees, 4 Ill. 2d 533, 538-40 (1954). Although the residents of a school district may initiate a petition for detachment and annexation because of personal desires or convenience, the decision to change established school district boundaries rests within the discretion of the appropriate school agency. Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees, 12 Ill. 2d 190, 193 (1957).
Of course, the legislature must exercise this significant power within constitutional limitations. School district lines are not sacrosanct and they must not conflict with the fourteenth amendment. See Milliken v. Bradley, 418 U.S. 717, 744, 41 L. Ed. 2d 1069, 1091, 94 S. Ct. 3112, 3127 (1974).
2. Constitutional Principles
One scholar has identified Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), “as having the most impact on education law.” 4 J. Rapp, Education Law §10.01[1], at 10—3 (2008). In Brown, the United States Supreme Court repudiated the doctrine of “separate but equal,” which the Court first enunciated in Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 16 S. Ct. 1138 (1896). The Court in Brown observed that de jure (state-imposed) racial segregation of students is in itself an evil that tends to frustrate the affected students “in a way unlikely ever to be undone.” Brown, 347 U.S. at 494, 98 L. Ed. at 880, 74 S. Ct. at 691. The Court held as follows:
“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”
Brown, 347 U.S. at 495, 98 L. Ed. at 881, 74 S. Ct. at 692. Brown is significant partly because the United States Supreme Court reversed years of constitutional history that permitted the segregation of students based on race or color. “It righted a legal and moral wrong. But as important — perhaps more important — is that Brown ushered in a new era of broader educational opportunity.” 4 J. Rapp, Education Law §10.01[1], at 10—3 (2008). Today, the idea that segregation based on race or color is inherently unequal is “a statement of clear constitutional principle and not a matter of educational conjecture.” 4 J. Rapp, Education Law §10.05[1], at 10—75 (2008).
The decision in Brown invalidated only de jure segregation in public schools, i.e., segregation resulting from intentional governmental action. In contrast, de facto segregation occurs without any governmental action that is intended to segregate. Unintentional de facto segregation, by itself, does not violate the fourteenth amendment. Dayton Board of Education v. Brinkman, 433 U.S. 406, 413, 53 L. Ed. 2d 851, 859, 97 S. Ct. 2766, 2772 (1977); see 3 R. Rotunda & J. Nowak, Treatise on Constitutional Law §18.9(a)(ii)(1), at 488 (4th ed. 2008); 4 J. Rapp, Education Law §10.05[1], at 10—74 through 10—75 (2008); 3 J. Cook & J. Sobieski, Civil Rights Actions 1116.02, at 16—5 (2008); E. Reutter, The Law of Public Education 794-95 (3d ed. 1985).
In Keyes v. School District No. 1, 413 U.S. 189, 37 L. Ed. 2d 548, 93 S. Ct. 2686 (1973), the Court addressed for the first time the constitutionality of racial imbalance in a school system that had “never been operated under a constitutional or statutory provision that mandated or permitted racial segregation in public education.” Keyes, 413 U.S. at 191, 37 L. Ed. 2d at 553, 93 S. Ct. at 2688. Nevertheless, the Court held that where “school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system.” Keyes, 413 U.S. at 201, 37 L. Ed. 2d at 559, 93 S. Ct. at 2694. “Correction of such actions comes within the direct mandate of Brown, for it is segregation which has developed, not fortuitously, but by governmental action. Although often called de facto segregation, it is really ‘covert de jure’ segregation.” E. Reutter, The Law of Public Education 795 (3d ed. 1985). The Court emphasized that the crucial difference between de jure and de facto segregation is the intent to discriminate. The Court endorsed a burden-shifting procedure designed to adduce the intent necessary to prove “covert de jure” segregation where the law does not expressly authorize segregation. Keyes, 413 U.S. at 208, 37 L. Ed. 2d at 563, 93 S. Ct. at 2697; see Brinkman, 433 U.S. at 420, 53 L. Ed. 2d at 863, 97 S. Ct. at 2775; 3 R. Rotunda & J. Nowak, Treatise on Constitutional Law §18.9(a)(ii)(1), at 490-92 (4th ed. 2008) 4 J. Rapp, Education Law §10.04[3], at 10—69 through 10 —70, §10.05[3], at 10—86 through 10—90 (2008); 3 J. Cook & J. Sobieski, Civil Rights Actions 1116.02, at 16—8 through 16 — 12 (2008). Keyes exemplifies that “the Equal Protection Clause [is] aimed at all official actions, not just those of state legislatures. *** Even actions of state agents that may be illegal under state law are attributable to the State.” Columbus Board of Education v. Penick, 443 U.S. 449, 457 n.5, 61 L. Ed. 2d 666, 676 n.5, 99 S. Ct. 2941, 2946 n.5 (1979).
3. Equal Educational Opportunities Act of 1974
The EEOA is a multipurpose statute. The Act declares it to be a policy of the United States that “all children enrolled in public schools are entitled to equal educational opportunity without regard to race, color, sex, or national origin.” 20 U.S.C. §1701(a)(l) (2000).8 To effectuate this policy, the EEOA prohibits in pertinent part:
“No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by—
* * *
(c) the assignment by an educational agency of a student to a school, other than the one closest to his or her place of residence within the school district in which he or she resides, if the assignment results in a greater degree of segregation of students on the basis of race, color, sex, or national origin among the schools of such agency than would result if such student were assigned to the school closest to his or her place of residence within the school district of such agency providing the appropriate grade level and type of education for such student;
***
(e) the transfer by an educational agency, whether voluntary or otherwise, of a student from one school to another if the purpose and effect of such transfer is to increase segregation of students on the basis of race, color, or national origin among the schools of such agency.” 20 U.S.C. §1703 (2000).
With respect to racial desegregation, the EEOA is essentially a restatement of preexisting case law, and its prohibitions are mostly coextensive with the equal protection clause of the fourteenth amendment. 4 J. Rapp, Education Law §10.02[3], at 10—19 (2008); 3 J. Cook & J. Sobieski, Civil Rights Actions If 16.19, at 16 — 99 (2008).
4. Segregation in Illinois Schools
De jure racial segregation existed in Illinois at the time of the ratification of the fourteenth amendment. In 1825, the General Assembly provided for the establishment of public schools, which were “open and free to every class of white citizens, between the ages of five and twenty-one years.” (Emphasis added.) 1833 Ill. Laws 556. The 1857 School Code did not expressly exclude black children from public schools but, rather, impliedly limited public schools to white children. 1857 Ill. Laws 260, §7 (requiring state superintendent to periodically report to Governor on, inter alia, “the number of white persons in each county under twenty-one years of age”), 1857 Ill. Laws 263, §16 (requiring school commissioner to apportion state funds among school districts in county based on, in part, “the number of white children, under twenty-one years of age”), 1857 Ill. Laws 292, §80 (“In townships in which there shall be persons of color the board of trustees shall allow such persons a portion of the school fund equal to the amount of taxes collected for school purposes from such persons of color in their respective townships”); see generally B. Reams & E Wilson, Segregation and The Fourteenth Amendment in the States 138-54 (1975); D. Douglas, The Limits of Law in Accomplishing Racial Change: School Segregation in the Pre-Brown North, 44 UCLA L. Rev. 677, 695-96 (1997).
In 1867, the General Assembly ratified the fourteenth amendment. In 1874, the legislature enacted legislation that expressly prohibited the exclusion of any child from a public school based on race. Ill. Rev. Stat. 1874, ch. 122, par. 100. In a series of decisions beginning in 1874, this court repeatedly ruled against racial segregation in education in the face of local defiance. See, e.g., Chase v. Stephenson, 71 Ill. 383 (1874); People ex rel. Longress v. Board of Education of the City of Quincy, 101 Ill. 308 (1882); People ex rel. Peair v. Board of Education of Upper Alton School District, 127 Ill. 613 (1889); People ex rel. Bibb v. Mayor & Common Council, 193 Ill. 309 (1901). Against this backdrop, I turn to article 7 of the Illinois School Code.
5. Detachment and Annexation: Overall Benefit
“The most typical” school boundary changes are the result of the detachment of a portion of school district territory and its annexation to another school district. See C. Russo & R. Mawdsley, Education Law §1.04 [3], at 1—19 through 1—20 (2008). In Illinois, school district boundaries may be changed by detachment, annexation, division, dissolution, or by any combination of those methods pursuant to article 7 of the School Code. 105 ILCS 5/7—02 (West 2006). The general method for detachment and annexation involves a petition process, administrative hearings, and the potential for judicial review pursuant to the Administrative Review Law (735 ILCS 5/3—101 et seq. (West 2006)). See 105 ILCS 5/7—1, 7—2, 7—6, 7—7 (West 2006).
At the administrative hearing on a detachment and annexation petition, section 7 — 6 of the School Code mandates that the hearing officer:
“shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the State Board of Education, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted ***.” 105 ILCS 5/7 — 6(i) (West 2006).
Based on the language of section 7 — 6, a petition for detachment and annexation should be granted only where the overall benefit to the annexing district and the detachment area clearly outweighs the resulting detriment to the losing district and the surrounding community as a whole. Carver v. Bond/Fayette/Effingham Regional Board of School Trustees, 146 Ill. 2d 347, 356 (1992) (collecting cases).
In applying this benefit-detriment test, the hearing board, and the courts reviewing the board’s decision, are to consider differences between school facilities and curricula, the distances from the petitioners’ homes to the respective schools, the effect detachment would have on the ability of either district to meet state standards of recognition, and the impact of the proposed boundary change on the tax revenues of both districts. Carver, 146 Ill. 2d at 356. The hearing board may also consider the closely related “whole child” and “community of interest” factors. The “whole child” factor “recognizes that extracurricular participation in social, religious and even commercial activities is important in a child’s development as a beneficial supplement to the child’s academic involvement.” Board of Education of Golf School District No. 67 v. Regional Board of School Trustees of Cook County, 89 Ill. 2d 392, 397 (1982). The “community of interest” factor ascertains whether the petitioning area is identified with the school district and the community to which annexation is requested. If a child attends school in his or her natural community, it not only enhances the child’s educational opportunity but encourages the child’s participation in social and other extracurricular activities that figure importantly in the “whole child” concept. Golf, 89 Ill. 2d at 397-98. Further, consideration of the racial impact of a school district boundary change is relevant to a detachment and annexation proceeding “to ensure that a dual school system based upon race, national origin, or color does not result.” C. Russo & R. Mawdsley, Education Law §1.04[3], at 1—19, 1—20 (2008). See, e.g., In re Petition for Authorization to Conduct a Referendum on the Withdrawal of North Haledon School District from the Passaic County Manchester Regional High School District, 181 N.J. 161, 181-82, 854 A.2d 327, 339 (2004); Union Title Co. v. State Board of Education, 51 Ohio St. 3d 189, 192 n.5, 555 N.E.2d 931, 934 n.5 (1990).
Indeed, it is recognized that “Illinois is exceptionally active in detachment proceedings. *** A review of Illinois detachment cases over the past two decades indicates that the judicial emphasis is consistently focused on the concepts of the ‘whole child,’ the ‘community of interests’ and ‘the educational welfare of the students.’ ” J. Menacker, Illinois Detachment Legislation: A Device for Creating Manageable Urban School Districts, 81 Educ. L. Rep. 411, 414-19 (1993). However, in enacting the automatic detachment procedure in section 7 — 2b of the School Code, the legislature pointedly rejected this well-settled holistic approach.
6. Section 7 — 2b: Automatic Procedure
Section 7 — 2b of the School Code provides for the detachment and annexation of noncoterminous land from an elementary or high school district. In contrast to the procedure for detachment and annexation generally, section 7 — 2b mandates that a detachment and annexation petition “shall” be granted if the affected land constitutes 10% or less of the district’s equalized assessed value and of its territory; two-thirds of the registered voters in the affected area support the petition; and the annexation will make the boundaries of the elementary school and high school districts for the affected land identical. 105 ILCS 5/7—2b(a) (West 1998); 231 Ill. 2d at 188-89.
The legislature originally added this procedure to the School Code in 1991. Pub. Act 87—667, eff. September 20, 1991 (adding Ill. Rev. Stat. 1991, ch. 122, par. 7—2b). Further, to ensure that this procedure is truly automatic, the legislature subsequently added a directive to section 7 — 2b, which at the time of these proceedings read as follows:
“The regional board of school trustees shall have no authority or discretion to hear any evidence or consider any issues except those that may be necessary to determine whether the limitations and conditions of this Section have been met.” Pub. Act 87 — 1270, §2, eff. March 3, 1993 (amending Ill. Rev. Stat. 1991, ch. 122, par. 7—2b).
Among the issues that the legislature expressly excludes from consideration is whether granting a detachment and annexation petition would deny public school children the equal educational opportunity guaranteed by the equal protection clause of the fourteenth amendment. Obviously, such a result is untenable.
School authorities have the primary responsibility for elucidating, assessing, and solving the problem of unconstitutional racial discrimination in public education. Brown v. Board of Education (Brown II), 349 U.S. 294, 299, 99 L. Ed. 1083, 1105, 75 S. Ct. 753, 756 (1955). It is recognized that detachment and annexation of school district territory can operate to perpetuate segregation. See C. Russo & R. Mawdsley, Education Law §1.04[3], at 1—19, 1—20 (2008). Surprisingly, the General Assembly expressly prohibits the Board from even considering this constitutional issue when presented with a section 7 — 2b petition. In a case presenting a more blatant example of legislative obstructionism, the United States Supreme Court declared as follows:
“[T]he prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action [citations]; or whatever the guise in which it is taken [citations]. In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously.’ [Citation.]” Cooper v. Aaron, 358 U.S. 1, 17, 3 L. Ed. 2d 5, 16, 78 S. Ct. 1401, 1409 (1958).
No state legislator, executive, or judicial officer can war against the Constitution without violating his or her oath to support it. Cooper, 358 U.S. at 18, 3 L. Ed. 2d at 16-17, 78 S. Ct. at 1409-10.
To be sure, the general detachment and annexation procedure, with its petition process, administrative hearings, and potential for judicial review, can be described as “cumbersome.” J. Menacker, Illinois Detachment Legislation: A Device for Creating Manageable Urban School Districts, 81 Educ. L. Rep. 411, 413 (1993). This court long ago admitted that the applicable standards “are general rather than specific in nature. However, it would be both impossible and undesirable for the legislature to draft rigid nondiscretionary standards which would embrace each and every school district boundary change, for conditions surrounding the changes are seldom the same.” District No. 79, 4 Ill. 2d at 537-38. Further: “ ‘The judiciary is ill equipped to act as a super school board in assaying the complex factors involved in determining the best interest of the schools and the pupils affected by a change in boundaries.’ ” Carver, 146 Ill. 2d at 362, quoting School Directors of School District No. 82 v. Wolever, 26 Ill. 2d 264, 267 (1962).
Disputes regarding equal educational opportunity obviously must be heard in the first instance by some public body, and that body should be the Board. I urge the General Assembly to amend section 7 — 2b to lift this prohibition from the Board when determining section 7 — 2b petitions.
B. Safeguarding Equal Educational Opportunity
Of course, this legislative oversight cannot prevent judicial intervention to safeguard the fundamental goal of equal educational opportunity. This court correctly holds that the circuit court of Will County has original jurisdiction to adjudicate District 204’s EEOA claim. 231 Ill. 2d at 201-02, 205-07. Indeed, the circuit court has jurisdiction to hear not only the EEOA claim, but all claims brought under the full panoply of federal and Illinois remedial legislation for the vindication of equal educational opportunity. See Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 823, 108 L. Ed. 2d 834, 839-40, 110 S. Ct. 1566, 1568-69 (1990) (holding that state courts have inherent authority to adjudicate federal claims and that Congress must affirmatively divest state courts of their concurrent jurisdiction).
On remand, the circuit court will have the obligation to hear any claim that District 204 may bring, and to receive relevant evidence in support thereof. Surprisingly, the circuit court made the following independent finding in confirming the Board’s grant of the section 7 — 2b petition:
“While one may have suspicions as to why property owners may want to detach their land from one district and attach it to another, mere suspicions are not enough. There is nothing in this record to establish any type of racial motivation on the part of the parties seeking disconnection. On the record before the Hearing Officer it appears that the reason for the disconnection was to properly align elementary and high school boundaries so that students who attend New Lennox Grade School District 122 could attend [h]igh school at Lincolnway with their friends.
Now, this court is not so naive as to not understand that there may well be an economic benefit to a developer going from one school district to another. Clearly, this land in question will be used for development purposes. However, even if that is the motivation, which is unclear from the record, that in and of itself does not create a Constitutional impediment or a violation of Federal law. The Court finds no Constitutional problem with the actions of the State Board of Education.” (Emphasis added.)
The circuit court correctly observed that the record contained no evidence regarding District 204’s EEOA claim because section 7 — 2b of the School Code prohibited the Board from receiving such evidence.
“It is essential to the sufficiency of findings of a court that they be sustained by the evidence.” Hanaman v. Davis, 20 Ill. App. 2d 111, 115 (1959). In this case, it was impossible for the circuit court to find no constitutional or statutory violation because section 7 — 2b prohibited the Board from receiving any evidence supporting District 204’s claim. Such indiscriminate comments “do not aid in the administration of justice but on the contrary are a distinct obstruction.” Lewis v. West Side Trust & Savings Bank of Chicago, 288 Ill. App. 271, 275 (1937). On remand, I assume that the circuit court will provide an analysis based on the relevant evidence presented by the parties, rather than conjecture based on no evidence at all.
III. CONCLUSION
The enduring legacy of Brown v. Board of Education is that the doctrine of “separate but equal” has no place in the field of public education. Segregation based on race, color, or national origin deprives students of the equal protection of the laws guaranteed by the fourteenth amendment. Brown, 347 U.S. at 495, 98 L. Ed. at 881, 74 S. Ct. at 692. I recommend that the General Assembly amend section 7 — 2b of the School Code to effectuate this constitutional requirement more efficiently. Meanwhile, on remand, I am confident that the circuit court will fully and fairly decide the merits of any claims that District 204 chooses to bring.
The EEOA also declares it to be a policy of the United States that “the neighborhood is the appropriate basis for determining public school assignments.” 20 U.S.C. §1701(a)(2) (2000). It is generally recognized that Congress enacted the EEOA in reaction to court decisions upholding busing as a means of remedying de jure segregation. See 4 J. Rapp, Education Law §10.06[5], at 10— 121 (2008); 3 J. Cook & J. Sobieski, Civil Rights Actions ¶16.19, at 16—96 through 16—97 (2008). The Act directs federal courts not to use busing to remedy de jure segregation “unless the court first finds that all alternative remedies are inadequate.” 20 U.S.C. §1755 (2000).