SIXTH DIVISI ON

September 30, 2010

No. 1-09-2746

DAWN SHERMAN, a Minor Through ) Appeal from the Robert Sherman, her father and ) Circuit Court of next friend, ) Co ok Co un ty. ) Plaintiff-Appellant, ) ) v. ) No. 09 CH 03690 ) TOWNSHIP HIG

H SCHOOL DI STRICT ) 214, and ILLINOI S STATE BOAR D OF ) EDUCATION, ) Honorab le ) Peter A. Flynn, Defendants-Appellees. ) Judge Presi ding.

JUSTICE ROBERT E. GORDON d elivere d the opini on of the c ourt: Plaintiff brought a pro se declaratory

judgment action against Township High School District 2 14 (Distr

ict 214) a nd the Illinois Stat

e Boar d of Educ ation (Sta

te Boar d) asser ting tha t a $350 fee for a Buffalo Grove High School drivers’ education course wa s unauthorized under the Illinois Administrative Code (23 Ill. Adm. Code § 252.30(a )(3), amended at 32 I ll. Reb. 10935, eff. July 7, 2008) a

nd the fr ee educ ation cla

use of the Illinois Constitu

tion (I ll. Const. 19 70, art. X, sec. 1 ). Plaintif

f also sou ght an in junction a

gainst t he impositi on of the $ 350 fee. Both defendants filed combined motions to dismiss for failure to state a cause of ac tion and for lack of standing under sections 2-615 and 2-619 of the I llinois Code of Civil Procedure. 735 IL CS 5/2- 615, 2-619 (West 2008). The trial court dismissed the case with prejudice, and plaintiff now appeals. For the reasons stated below, we affirm.No. 1-09-2746 BACKGROUND

Plaintiff Dawn Sherman was a 15 y ear-old sophomore at Buffalo Grove High School when the instant action was filed. Robert Sherman is plaintiff’s father, next friend, and a taxpayer in Buff

alo Grove. Defendant District 214 is the administrative unit for a 68 square

mile area of Illinois which serve s approximately 250,000 citizens and educates students on seve n high school campuses, including Buffa lo Grove High School. Defendant State Boar d is the administr ative ag ency

charg ed with sup ervising all I llinois publ ic school s, includi ng Buf falo Grove High School. Pursuant to the Illinois School Code (School Code), “[a]ny school district which maintains grade s 9 throug

h 12 shall o ffer a

driver e ducation

course i n any such scho ol which it operates.” 105 IL

CS 5/27-24.2 (West 2008). This course “shall consist of *** classroom instruction” and “individual behind-the-wheel instruction.” 105 I LCS 5/27-23 (West 2008). Additionally, “[s]ubject to rules *** of the State Board of Education, the district may cha rge a reasonable fee, not to exceed $50, to students who participate in the [driver e ducation] course.” 105 IL CS 5/27-23 (West 2008). School districts, however, may re quest a waiver of mandates within the School Code, such as the Driver Education Act, under section 2-3.25g (105 IL CS 5/2- 3.25g (West 2008)) (Waiver Provision). On Augu st 8, 2006, District 2 14 submitte d a Waiver Provision a

pplication to the Illinois General Assembly

requesting it to waive the “reasonable f ee, not to exceed $50” portion of the Driver Education Act and raise the fee for the Buffalo Grove Hig h School drivers’ education course (Driver Education Course) to $350 for a five-ye ar period. The Waiver Provision outlines specific requirements a school district must complete to request a waive r of a School Code mandate. In releva

nt part, the Waiver Provision requires school districts to:No. 1-09-2746

3 “demonstrate that the intent of the mandate can be addr essed in a more effective, efficient, or e conomical manner or be based upon a specific plan for improved student performance and school improveme

nt.***[I f the] inte

nt of the ma

ndate ca n be addr essed in

a more e conomica

l manner [, the scho ol district] shall inc lude in the application a fiscal analy sis showing current expenditures on the mandate and projected savings resulting from the wa iver or modification.” 105 IL CS 5/2-3.25g (c) (West 2008). Pursuant to this requirement, District 214’s “fiscal analysis showing current expenditur

es” (105 IL CS 5/2-3.25 g (c) ( West 2008) ) estimat

ed the Dr iver Educ ation Course would cost District 214 $685,897 for “Teacher Salaries,” $63,000 f or “Benefits,” $20,000 for “Vehicle Cost,” and $22,500 for “Supplies.” The “projec ted savings from the waiver modification” estimated the Driver Education Course would cost District 214 $993 per student during the 2005-2006 school y ear and that District 214 would save $350 per student by instituting the fee, but would still incur a $643 cost for each student enrolled. Following a “public hearing” on the application and approval “by the board or regional superint endent,” the waive

r applic ation is the

n requir ed to be su

bmitted to t

he State B oard with specific “description[s]” of its required obligations under the Waiver Provision. 105 I LCS 5/2- 3.25 (c) -(d) (We st 2008). T he Waiver

Provision provides: “The application as submitted to the State Board of Education shall include a description of the public hearing. The de scription shall include, but need not be limited to, the means of notice, theNo. 1-09-2746

4 number of people in attendance, the number of pe ople who spoke as proponents or opponents of the waiver, a brief de scription of their co mments, an

d whethe r there were a ny w ritten sta tements submitted. The State Board shall review the applications and request s for com

pletene ss and sha

ll compile the requ ests in re ports to be filed with the General Assembly .” 105 IL CS 5/2-3.25g (d) (West 2008). After the State B oard “r

eview[s] the

applica tions***f or comple teness,” it submits the waiver application to the “General Assembly [,which] may disapprove the report of the State Board in whole or in part,” but “[i]f the General Assembly fails to disapprove a ny waiver r

equest***within [a] 60 day period, the waiver or modific ation sha ll be dee med gra nted.” 10 5 ILCS 5/2-3.25 g (d) ( West 2008). Pursuant to the Waiver Provision, District 214 submitted its waiver application to the State Board in accordance with all nec essary r equirements. The State Board reviewe d District 214’s application “for completeness” and submitted the application to the Gene ral Assembly. The General Assembly

subsequently g

ranted District 214’s waiver request to raise the $50 porti on of t he Dri ver Ed ucati on Act . A $35 0 fee wa s then charged to all Buffal o Grov e High School students who enrolled in its Driver Education Course. In December

2008, plaintiff registered for Buff alo Grove High School’s Driver Education Course and was informed of the $350 fee. Plaintiff re fused to pay the r equired fee; and on January

29, 2009, t

hrough her fat her and next friend

Robert She

rman, fil ed this pro seNo. 1-09-2746

1 Plaintiff initially sued 28 de fendant s but volunt arily agree d to remov e all def

endants except District 214 and the State Board. 5 complaint against various defendants for dec laratory judg ment claiming that the $350 fee was unlawful and requesting a temporary restraining order aga

inst imposition of the fee. On February 3, 2009, the trial court denied plaintiff’s motion for a temporary restraining order and ordered plaintiff to pay

the $350 fee under protest without prejudice to her claims. Pursuant to the “Parties’ Stipulations To Clarify The Amende d Complaint” of May 22, 2009, pla intiff al leges t

hree ca uses of a ctions ag ainst two d

efenda nts. 1 First, plaintiff alleges that District 214’s “request and r enewal applications for waiver of the I llinois Scho ol Code, wh ich soug ht to incre ase the d

river’s educati on fees i

n the Distr

ict to include s taffing

costs, we re uncon stitutiona

l under [the

free e ducation

clause] o f the I llinois Constitution and are therefore invalid.” The fre e educa

tion clau se states : “A fundamental goal of the People of the State is the educati onal deve lopment of all persons to the lim

its of thei r capacities. The St ate sh all pr ovid e for an effici ent syst em of h igh quality public ed ucationa l institution s and ser

vices. Ed ucation i n public school through the secondary level shall be free. There may be such other free education as the Ge neral Assembly pr

ovides by law.No. 1-09-2746

6 The State has the primary responsibility for financing the system of public educa tion.” Ill. Const. 1970, art. X, § 1. Second, p laintiff

allege s that the S tate Boa rd “shoul d have re

jected the District’s request and renewal applications to waive the Illinois School Code and increase the driver’s education fee, as the fee s were to

be used in

part for staffing costs, wh ich is in vio lation of t

he I llinois Administrative Code. 23 Ill. Admin Code § 252.30(a)(3).” Section 25 2.30(a) (3) prov ides in re levant pa

rt: “The district may c

harge a reasonable f

ee – not to exceed the amount spe cified in

Section 27 -23 of the

School Code

– to students w

ho partic ipate in a

driver e ducation

course a pproved in accordance with this Part. No other fee or portion thereof shall be charged to students and attributed to the driver educ ation course. As used in this Part, ‘reasonable fee’ means a f ee calculated by dividing the sum of

document

ed annua l district c osts for it

ems such a s ins truct ional mater ials ( if not inclu ded in the di stri ct's textbook rental fee), the cost of driver education car s, car maintena nce cost s, fuel, a

nd insura nce by the numbe

r of stude nts enrolled or participating in the driver educa tion course. The district's costs used in this calculation shall not include any portion of the sa laries or benefit s of schoo l district p ersonne l. *** ” 23 Ill. Admin. Code §252.30(a)(3), amended at 32 Ill. Reg. 10935, eff. July 7, 2008.No. 1-09-2746

7

Third, pla intiff al leges “ [a]s superv isor of sc hool distri cts pursu

ant to [stat

ute], [the Sta

te Board] h ad a duty

to deter mine the Constitutiona

lity of Distric

t 214’s wa

iver re quest, not

just a duty to review the wa

iver submission for completeness pursuant to [the Waiver Provision].” As noted, on June 16, 2009, both District 214 and the State Board filed combined motions to di smiss seek

ing dismis sal of pla

intiff’s amended complain t for fai lure to sta

te a cau se of action and for

lack of s tanding

under se ctions 2- 615 and 2- 619 of the Illinois Code of

Civil Procedure. On July 28, 2009, plaintiff filed a response to defendants’ motions to dismiss, and a hearing on defendants’ motions to dismiss was held on September 3, 2009. At the September 3, 2009, hearing, the trial court dismissed, with prejudice, pla intiff’s complaint without a written opinion and orally stated:

“[The State Board] did not have an adequate dispositive role with regar d to this wa

iver to wa rrant br inging them into th

is action as defendants. Their role was re ally just to compile waiver requests and send them on to the General Assembly . *** That is not

necessa rily true of [D istrict 21 4] becaus e [District 2 14] had to ta

ke the ste p of initia ting the waiver p rocess to begin with. *** Yet I cannot find it actionable to re quest a waiver which the General Assembly

has the authority to approve or disapprove merely bec ause the General Assembly happens to have approved it. That would present serious problems of standing and ju st ic ia bi li ty.No. 1-09-2746

8 *** I therefore

conclude that both [the State Board and District 214’s] motions to dismiss must be granted for the reasons I have outlined. Becau se if ther e is a cul prit here , so to spea

k, the cul prit is the General Ass embly . The General Ass embly is not bef

ore this court And I cannot ca

use them to be before this court. This does n

ot do what

the Plainti ff wants

which is to

raise specifically the

issue of whether the driver’s [education] charge s must be [a] ne

t of char ges for school dis trict personnel. B ut I conclude that I cannot a

ddress that because I

[do not] have the right de fendant s here to

do it [, a]nd f

or that re ason the m

otions to dismiss are granted.” On January 15, 2010, plaintiff filed a timely appeal to this court. ANA LYSIS The granting of a motion to dismiss pursuant to section 2-615 and 2-619 are reviewed de

novo . Compton v. Country Mutual I nsurance Co. , 382 I ll. App. 3d 323, 325 ( 2008); Glisson v. City of Marion , 188 I ll. 2d 211, 2 20, 221 (1 999). Dis missal is a ppropria te where no set of f

acts could be proved under the pleadings that would entitle plaintiff to re lief. Casualty I nsurance Co. v. Hill Mechanical Group , 323 I ll. App. 3d 1028, 1033 (2001); Wright v. City of Danvi lle , 174 Ill. 2d 391, 398 (1996). We accept all we ll-pleaded facts in the complaint as true and view them in the light most favorable to plaintiff. Casualty I nsurance Co. , 323 I

ll. Ap p. 3d a t 1033 . We may aff irm the dismissal of a complaint on any g round that is apparent from the record. Golf v.No. 1-09-2746

9

Henderson , 376 Ill. App. 3d 271, 275 (2007). Plaintiff alleges three causes of ac tion for declaratory

judgment. First, plaintiff alleges District 214’s $350 Driver Education Course fee is a violation of the fre e education clause of the Illinois Constitution because a portion of the $350 fee was use d for payme nt of teacher salaries and benefits. Second, plaintiff alleges the State B oard’s submission of District 214’s waiver application to the General Assembly , which sought to waive a portion of the I llinois School Code by permitting the $350 f ee, was a violation of the State Board’s obliga tions under section 252.30(a )(3) of title 23 of

the I llinois Admi

nistrativ e Code. Th

ird, plain tiff alle ges the

State Board violated the free educa tion clause of the Illinois Constitution by submitting District 214’ s

wa iv er ap pl ic at io n t o t he Ge ne ra l A ss em bl y. 1. District 214 I s a Proper Party As previously noted, the trial c ourt dismissed on the ground that District 214 and the St at e B oa rd we re no t p ro pe r p ar ti es . F ir st , w e f in d t ha t D is tr ic t 2 14 is a p ro pe r p ar ty. Plaintiff alleges that District 214’s $350 Driver Education Course fe e is a violation of the free education clause of the I llinois Constitution because a portion of the $350 fee was used for pay ment of te acher s alaries

and bene fits. The

free e ducation

clause s tates: “A fundamental goal of the People of the State is the educati onal deve lopment of all persons to the lim

its of thei r capacities. The St ate sh all pr ovid e for an effici ent syst em of h igh quality public ed ucationa l institution s and ser

vices. Ed ucation i n public school through the secondary level shall be free. There mayNo. 1-09-2746

10 be such other free education as the Ge neral Assembly pr

ovides by law. The State has the primary responsibility for financing the system of public educa

tion.” Ill. Const. 1970, art. X, § 1. District 214 argues that plaintiff has no cause of a ction because District 214 followed a waiver provision expressly appr oved by the Ge

neral Assembly. How

ever, plaintiff is not alleging that District 214 improperly followed the law. Rather, plaintiff is alleging the la w that District 2 14 followe d is unconstitutional

. “A party who attac

ks a statu te as unc onstitutional must bri ng himse lf within the class aggrieved by

the alleged unconstitutionality.” People v. Mayber ry , 63 Ill. 2d 1, 6 (1976), citing People v. Bombacino , 51 Ill. 2d 17 (1972). Plaintiff alleges the $350 she paid for the Driver Education Course is

unconstit utional a nd demand s return

of her $3 50 pay

ment. Thus , plaintif

f is “within the class aggrieved by the alleged unconstitutionality.” Mayberr y , 63 Ill. 2d at 6. Next, “ ‘[a] person aggrieved by the application of a legal rule does not su e the rule maker - Congress, the President, the United States, a state, the state’ s legislatu re , the judge who

announc ed the pr

inciple o f common la

w. He sue s the person whose acts hur t him.’ ” (Emphasis added.) Illinois Press Assn v. Ryan , 195 Ill . 2d 63 , 67 (2 001), quot ing Quinones v. City of Evanston , Illi

nois , 58 F.3d 275, 277 (7th Cir. 1995). District 214 submitted the waiver application for the $350 fee and charg ed plaintiff $350 to enroll in the Driver Education Course. Thus, District 214 is the party whose a ctions allegedly

aggrieved or “hur

t” plaintiff. Illinois Press Assn , 195 Ill. 2d at 67. Additionally , plaintiff properly did not bring a cause of action against the General Assembly because “a person aggrieved by the application of a legal rule doesNo. 1-09-2746

11

not sue the rule maker.” (Emphasis added.) Illinois Press A ssn , 195 Ill. 2d at 67, quoting Quinones v. City of Evans ton, I llinois , 58 F.32 at 277.. Furthermore, “[n]either the legislature nor any executive or judicial officer may disregard the provisions of the Constitution even in case of a great emer gency .” Jorgensen v. Blagojevich , 211 Ill. 2d 286 , 304 ( 2004) , quot ing Peopl e ex. rel. Lyle v. City of C hicago , 360 Ill. 25, 29 (1935). Since plaintiff is alleging that the law District 214 followed is unconstitutional, we find that the trial court erred by holding that District 214 is not a proper party defendant. 2. District 214 Was Properly Dismissed Howeve r, our fi nding tha t the tria l court e rred doe s not end ou

r analy sis. I f the ca

use should be d

ismissed f

or other reasons under se ction 2-6 15 of the C ode, it is o ur oblig ation as a reviewing court to affirm the dismissal. Golf , 376 Ill. App. 3d at 275. When a trial court dismisses on an improper ground, a reviewing c ourt may aff irm the dismissal, if the record supports a proper ground for dismissal. Raintree Homes, Inc. v. Villag e of Long Gr ove , 209 I ll. 2d 248, 261 , 262 (200 4) (whe n review ing a mot ion to dismis s, we ca

n affirm “on any basis present in the re cord”) ; In re Marriage of Gary , 384 Ill. App. 3d 979, 987 (2008) (“we ma y affirm on any

basis supp orted by

the rec ord, regardless

of wheth er the tr

ial cour t based its decision on the proper ground”). Plaintiff’s first claim is that the $350 Driver Education Course fee violated the fre e education clause of the I llinois Constitution. Thus, the determining factor is whether drivers education is covered under the free education clause. The trial court did not make a determination about whether the Driver Education Course is, or is not, cover ed by the fr

ee education clause. The plaintiff has provided no authority to show that it was the intent of theNo. 1-09-2746

12

framers of our I llinois Constitution to cover drivers’ education, nor have they provided us any authority in other ju

risdictions to show that drive rs educa tion is cov ered und

er simila r state constitutions. We can find no Illinois authority specifically on the

issue of whether a drivers education course is included under the free education clause. To determine whether drive rs education is covered by

the free education clause of the I llinois Constitution, we must first look at the intent of the framers of our constitution. People v. Caballes , 221 Ill. 2d 282 (2006). In Hamer v. Board of Education of School District 109 , 9 Ill. App. 3d 663 (1973), the Appellate Court, of the Second District, referred to the r ecord of the Constitutional Convention:

“In discussin g the pr oposed ne w constitu

tional ar ticle per taining to ‘free schools’ we find [that an] Educational Committee member stated at page 765:

‘ *** The first par t states that educa

tion in the p

ublic schools through the secondary level shall be free. This sentence picks up the 1870 Constitutional requirement of free schools. *** Howev er, we r ecogni ze th at sch ools are not total ly free; t hroughtradition and practice, this has been interpreted to mean tuitionfree and not totally

free public education, and this is the intent of this third paragraph.’ In response to a query

as to what the word ‘free’ included, the following colloquy took place, a s set forth at page 767:

‘ *** Is it y

our intention that the word “free” includes anything othe

r than tuition for the elementary and secondaryNo. 1-09-2746

13 schools? MR. FOGAL: You may

recall earlier in our committee deliberations we voted tentatively to strike “free” since most of us recognize that we don’t have – and as f ar as I know we ha

ve never had – totally f

ree public schools; and we considered that earlier position. We

felt that tradition will contin

ue, prob ably

to interpret “free public education” a s we alway s have, and it’s open to either provide totally fr ee education, whether y

ou are speaking of book fees, book rentals, or PE equipment, or we can c ontinue as we are now, I

don’t think we have changed it.’ ” Hamer , 9 Ill App. 3d at

666, quotin

g 2 Record of Proc eeding s, Sixth I llinois Constitutional Convention 765, 767-68.. In Ambroig gio v. B oard of E ducation of School D istrict No . 44, Du Pa ge Count y , 101 I ll. App. 3d 18 7 (1981), the Secon d Distric t again

had a simil ar issue

where p arents o f student s sought to enjoin the board of education from charg ing certain students a fee for use of the school’s supervised lunchroom. No student was required to participate in the lunc hroom program, but students who resided 0.7 of a mile or less from the school we re charged $15 per term for use of the lunchroom, which was used to defra y pay ment of the supervision of the lunchroom by noncer

tified school personnel. Ambroig gio , 101 Ill. App. 3d at 188, 189. This fee was held not to violate the free education clause be cause: the lunchroom program was not mandatory; it was ele ctive; it was supervised by nonc ertified school personnel; and it could not be considered “part of the educa tion process.” Although drivers education is also not mandatoryNo. 1-09-2746

14

and it is an

elective course, it is super

vised by teachin g perso nnel and c ertainly

distingu ishable from a lun

chroom pr

ogram. When the f

ramers o f our Illinois Cons titution sta ted that “ [e]ducation in public schools through the secondary

level should be free,” we do not believe that they meant all courses offered should be free. I

ll. Const. 1970, art. X, §1. When they talked about tuition-free , they were “ ‘speaking of book fe es, book rentals and PE equipment.’ ” Hamer , 9 Ill. App. 3d at 666, quoting 2 Record of Proceedings, Sixth Illinois Constitutional Convention 768. There was no refer ence to d rivers e ducation . The Supr eme Court

of New Me

xico held th at drive

rs educa tion is an elective course and that reasona ble fees can be charg ed. Norton v. Board of Education of School District No. 16 , 89 N.M. 470, 553 P.2d 1277 (1976). “The reasoning of I llinois cases as well as those from other jurisdictions distinguish educational services, which must be provided to student s tuition-f

ree, fr om nonedu

cationa l service s and scho ol supplie s for whic h reasonable charges may

properly be

assessed.” Ambroig gio , 101 Ill . App. 3d at 1 89, ci ting Sneed v. Greensboro City B oard of Education , 299 N.C. 609, 611 n.1, 264 S.E.2d 106, 109 n.1 (1980); Granger v. Cascade County School District No. 1 , 159 Mont. 516, 499 P.2d 780 (1972). In Granger , the Supreme Court of Montana affirmed a lower cour t ruling that drivers educati on fees were not c overed u nder Mont

ana’s si milar fr ee educ ation cla

use of its

const itut ion, stati ng: “We believe that the controlling principle or test should be stated

in this manner: Is a given c ourse or activity r easonably r

elated to a recog nized aca demic an d educa tional g oal of the

particu lar scho ol sy stem? If it is, it constitutes part of the free, public school sy stem commanded byNo. 1-09-2746

15 Art. XI, Sec. 1 of the Montana Constitution and additional fees or charges cannot be levied, directly or indirectly against the student or his parents. If it is not, reasonable fee s or charges may be imposed. In this manner a deg

ree of flexibility is insured. The school district may thus define its own aca demic and educational goals and the courses and activities that will carry credit toward graduation within the limits provided by law. At the same time, the individual student has the freedom of choic e, within t he limits of

the educ ational f

ramewor k so established, to pursue a course of study , directed toward business, a trade, college preparatory

, commercial, secretarial, or some other goal without regard to his financial ability to pay additional fee s or charges.” Granger , 159 Mont. at 527-28, 499 P.2d at 786. The Court of Appeals of Georgia also a ffirmed a lower court’s ruling that driver ’s education fees were not covere d under Georgia’s similar free education clause of its constitution when the driver’s education progr am was offered after hours, but provided no g uidance for drivers education offered during school hours. Kristen National, Inc. v. B oard of Education , 250 Ga. App. 488, 493, 552 S.E. 2d 475, 479 (2001). We have y et to find any authority

in other jurisdictions that hold that driver’s education is covered by free education provisions of similar constituti onal prov

isions to I llinois. In a ddition, we

look at the

School Code

(105 I LCS 5/2 7-23 (Wes t 2008)), which sta tes in releva nt part: “Subject to rules of the State Board of Education, the district may char ge aNo. 1-09-2746

16

reasonable fee, not to exceed $50 , to studen ts who par

ticipate in the cou

rse, unle ss a student is unable to pay for such a course, in which event the fee for such a student shall be waived. The total amount from driver education fee s and reimburs ement fr

om the State

for driv er educ ation must n ot exceed the total c ost of the driver education program in any year a nd must be deposited into the school di st ri ct 's dr iv er ed uc at io n f un d a s a se pa ra te li ne it em bu dg et en tr y. A ll mo ne ys deposited into the school district’s driver education fund must be used solely for the fundi ng of a high sch ool drive r educa tion prog ram appr oved by the State Board o f Educa

tion that us es [driver

educati on] instructors cer tified by the State Board of Education.” (Emphasis added.) 105 I LCS 5/27-23 (West 2008). Since the School Code provides that “the school district may charge a reasona

ble fee,” the lang uage o f the stat

ute must be

given it s plain an

d ordinar y me aning, which illu strates t hat it was never intended to be free. Rosewood Care Center, Inc . v. Caterpillar, Inc. , 226 Ill. 2d 559, 567 (2007). Although we hold today

that driver’s education is not covered by the free education clause, this does notmean that other elective courses are a lso excluded. In su m, the $350

Drivers Education Course f

ee did not violate the free

educati on clause of the Illinois Cons titution an d the plai ntiff’s c omplaint a

gainst D istrict 21 4 was pro perly dismissed with prejudice. 3. The Sta te Boar d Was Not Pro

per Part y Plaintiff’s second claim is that the State Board’s submission of District 214’s waiver application to the General Assembly was a violation of the State Board’s obligations underNo. 1-09-2746

17

section 2 52.30(a

)(3) of title 23 of

the I llinois Admi

nistrativ e Code. Se ction 252. 30(a)( 3) states : “The district may c

harge a reasonable f

ee – not to exceed the amount spe cified in

section 2 7-23 of the School Co de – to stud ents who part icipate i n a drive r educa tion course approved in accordance with this Part. No other fee or portion thereof shall be charged to students and attributed to the driver educ ation course. As used in this Part, “reasonable fee” means a fee calculated by dividing the sum of

document

ed annua l district c osts for it

ems such as instructional materials (if not included in the district’s textbook rental fee), the cost of driver education car s, car maintena nce cost s, fuel, a

nd insura nce by the numbe

r of stude nts enrolled or participating in the driver educa tion course. The district's costs used in this calculation shall not include any portion of the salaries or benefits of school district personnel. ” (Emph asis a dded. ) 23 Ill. Adm. C ode § 2 52.30 (a)(3) , amen ded at 32 Ill. R eg. 10935, eff. July 7, 2008). As noted, District 214’s waiver application listed expenditures for “Teache r Salaries” and for “Benefits” which were used in its calculation outlining the need to raise the Driver Educa tion Course fee from $50 to $350. Thus, plaintiff claims that the State Board’s submission of District 214’s waiver request to the General Assembly was a violation of the State Board’s obligations under section 252.30(a)(3) because the “calculation shall not include any portion of the salaries or benef its of scho ol district personnel.” 23 I ll. Adm. Cod

e § 252.30 (a)(3) , amende d at 32 Ill.No. 1-09-2746

18

Reg. 10935, eff. July 7, 2008. The State Board claims that its statutory oblig ation under the Waiver Provision was only to review District 214’ s waiver application for “completeness,” which did not include consideration of section 252.30(a)(3) of the c ode. In re levant pa

rt to plain tiff’s se cond ca

use of ac tion, the Wa

iver Prov ision state s: “The application as submitted to the State Board of Education shall include a description of the public hearing. The description shall include, but need not be limited to, the means of notice, t he number

of people in attend ance, the number

of people who spoke as proponents or opponents of the waiver, a brief description of their comments, and whether there wer e any wr itten statements submitted. The State Board shall review the applications and requests for completeness and shall compile the requests in reports to be filed with the General Assembly. ” (Emphasis added.) 105 ILCS 5/2-3.25g (d) (West 2008). Plaintiff alleges that section 252.30(a)(3) requir ed the State Board to reject the waiver applica tion and r efuse to submit it to the Gener

al Assemb ly. Again, the State Board c laims its obligat ions under

the Waive

r Provision are expl icitly

provided for and s ection 25 2.30(a) (3) is not mentioned, nor alluded to. The State Board claims, and the rec ord indicates, that both the State Board and District 214 accurately followed every

single stated requirement listed throughout the Waiver Provision. Plaintiff does not challenge this contention. Accordingly , we must determine whether the Waiver Provision compels the State Board to act outside its specifically mentioned duties. I n determining, the language of the WaiverNo. 1-09-2746

19

Provision “must be given its plain and ordinary meaning.” Illinois Power Co. v. Mahi

n , 72 I ll. 2d 189, 194 (1978). “If leg islative intent can be ascertained from the statute' s plain language, that intent must prevail without resort to other interpretive aids.” Paris v. Feder , 179 Ill. 2d 173, 177 (1 997) c itin g People v. Fitzpatrick , 158 Ill. 2d 360, 364-65 (1992). The State Boa rd’s requirements under the Waiver Provision are explicit and simple: “The State Board sha ll review the applications and requests for completeness and shall compile the re quests in reports to be filed with the General Assembly .” 105 IL CS 5/2-3.25g (d) (West 2008). The plain and ordinary mea

ning of the Waiver Provision requires the State Board to ensure District 214’s proper documentation was in order before submitting the waiver application to the General Assembly. Moreover, the parties stipulated that “any and all requests to charge a drive r’s education fee in excess of $50 or renewals of such re quests are acted on solely by the Gene ral Assem bly pursuant to [the Waiver Provision].” (Emphasis added.) Thus, both a plain and ordinary reading of the Waiver Provision and the stipulations of the parties conclusively show that the State Board was not required to consider section 252.30(a)(3), a nd the decision on the merits of District 21 4’ s w ai ve r a pp li ca ti on wa s a de ci si on to be ma de so le ly b y th e G en er al As se mb ly. Accordingly , we agree with the trial court’s de termination that the State Board “did not have an adequa te disposit

ive role with reg ard to [the ] waiver t o warra nt bring ing them

into this action as defendants. Their role was re ally just to compile waiver re quests and send them to the General Assembly .” The State Board did not have the obligation to reje ct District 214’s waiver request for any thing other than “ complete ness” (1 05 IL

CS 5/2-3.25 g (d) (

West 2008) ), and thi s completeness review did not warrant consideration of se ction 252.30(a)(3). Therefore, we affirmNo. 1-09-2746

20

the dismiss al of pla

intiff’s second c laim pursu

ant to sec tion 2-615 of the Illinois Code of Civil Procedu re beca use the Sta

te Boar d is not a pr

oper par ty d efenda nt. Plaintiff’s third claim is that the State Board violated the free educa tion clause of the Illinois Constitution by submitting District 214’s waiver application to the General Assembly

. For the reasons stated above, the State Boa rd did not have the obligation to reject District 214’s waiver request for any

thing other than “completeness” (105 I LCS 5/2-3.25g (d) (West 2008)), and this completeness review did not warrant a constitutionality determination. Therefore, we also affirm the dismissal of plaintiff’s third claim pursuant to section 2-615 of the Illinois Code of Civil Procedure because the State Board is equa lly not a proper pa

rty defe ndant here also. CONCLUSIO

N For the reasons stated above, we af firm the trial court’s dismissal. First, while District 214 was a proper party , the drivers education fee was not cover ed by the fr

ee education clause of the Illinois Constitution; and thus, the district was properly dismissed. Second, the State Board was not a proper party . Thus, both defendants were properly dismissed. Affirmed. CAHIL L and McBRI

DE, JJ., concur.