Docket No. 105018.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE BOARD OF EDUCATION, JOLIET TOWNSHIP HIGH

SCHOOL DISTRICT No. 204, Appellee, v. THE BOARD OF

EDUCATION, LINCOLN WAY COMMUNITY HIGH SCHOOL

DISTRICT No. 210 et al. (The Illinois State Board of Education et

 al., Appellants).

Opinion filed October 17, 2008.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and JusticesThomas,Kilbride, Karmeier,

and Burke concurred in the judgment and opinion.

Justice Freeman specially concurred, with opinion.

OPINION

In 1998, the registered voters of a 320-acre parcel of land in Will

County filed a petition to detach the parcel from Joliet Township

High School District No. 204 and annex it to Lincoln Way

Community High School District No. 210, pursuant to section 7–2b

of the Illinois School Code (105 ILCS 5/7–2b (West 1998)). District

204 objected to the petition and argued inter alia that section 7–2b

violates the Equal Educational Opportunities Act of 1974 (EEOA)

(20 U.S.C. §1701 et seq. (2000)). The hearing officer for the Illinois
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State Board of Education (Board) found that the conditions of section

7–2b were met and recommended that the petition be granted. District

204’s EEOA claim was not considered when the hearing officer made

this recommendation, as the hearing officer found that the claim was

outside the scope of the Board’s authority under section 7–2b. The

Board accepted the hearing officer’s findings and granted the petition

for detachment/annexation. The circuit court of Will County affirmed

the Board’s order and found that the order did not violate the

constitution or federal statute. On appeal, the appellate court found

that section 7–2b was preempted by the EEOA and was, therefore,

unconstitutional. 373 Ill. App. 3d 563. The appellate court remanded

the cause to the Board to consider District 204’s EEOA claim. The

Board filed a petition for leave to appeal pursuant to Supreme Court

Rules 317 (210 Ill. 2d R. 317) and 315 (210 Ill. 2d R. 315). This court

granted the Board’s petition and for the following reasons, we reverse

the judgment of the appellate court and remand the cause to the

circuit court for consideration of District 204’s EEOA claim.

BACKGROUND

In July of 1998, four individuals who made up all of the registered

voters of a contiguous 320-acre parcel of farm land in Will County

filed a petition with the Illinois State Board of Education (Board) to

detach their property from Joliet Township High School District No.

204 (District 204) and attach it to Lincoln Way Community High

School District No. 210, pursuant to section 7–2b of the Illinois

School Code (105 ILCS 5/7–2b (West 1998)).

The parcel of land in question is situated in an area of the state

where the grade schools and high schools are split into separate

school districts and the boundaries of these districts are not

coterminous. The children who reside on the disputed parcel of land

currently attend grade school in the New Lenox Elementary School

District No. 122. The high school district that generally serves the

New Lenox Elementary School District is Lincoln Way Community

High School District No. 210. However, the parcel of land in question

does not fall within the boundaries of High School District 210, it

falls within the boundaries of Joliet High School District No. 204.

Thus the children who reside on the parcel will not attend the same

high school as the majority of their former grade school classmates.
 

1Section 7–2b has subsequently been amended to reduce the percentage

of both value and land mass that may be detached. Under the new law, the

land to be detached may constitute no more than 5% of the assessed value

and territory of the district. 105 ILCS 5/7–2b (West 2006). This change has

no impact on this decision.

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Section 7–2b allows for the detachment of land from one district

and annexation to another where the affected land lies within

elementaryand high school districts with noncoterminous boundaries.

Section 7–2b allows the land to be detached and annexed at either the

elementary or high school level. Thus, it is the petitioner’s choice

which district they leave and which they join. 105 ILCS 5/7–2b(a)

(West 1998). A parcel of land is eligible for detachment and

annexation only if (1) it represents 10% or less of the equalized

assessed value of the district; (2) the parcel constitutes 10% or less of

the territory of the district;1 (3) two-thirds of the registered voters of

the parcel support the petition; and (4) the annexation will make the

boundaries of the grade school and high school districts for the

affected parcel identical. 105 ILCS 5/7–2b(a) (West 1998). Before

this court, neither party disputes that these four conditions are met.

Before the Board’s hearing officer, District 204 argued inter alia

that the detachment and annexation of the parcel increased

segregation in violation of the Equal Educational Opportunities Act

of 1974. 20 U.S.C. §1701 et seq. (2000). The EEOA prohibits a state

from denying “equal educational opportunity to an individual on

account of his or her race, color, sex, or national origin.” 20 U.S.C.

§1703 (2000). The EEOA delineates a number of activities that

constitute discrimination. Among these are the assignment of a

student to a school within the district in which he or she resides other

than the one closest to his or her residence “if the assignment results

in a greater degree of segregation.” 20 U.S.C. §1703(c) (2000). The

EEOA also prohibits the transfer of a student from one school to

another if “the purpose and effect of such transfer is to increase the

segregation of students.” 20 U.S.C. §1703(e) (2000).

District 204 claimed the detachment and annexation of the parcel

increases segregation because the four individuals who petitioned for

annexation are white while the population of District 204, from which
 

2Because of the procedural history of this case, District 204 has never

had the opportunity to establish the truth of these statements. While this

court takes no position on the veracity of these assertions, we include them

to illustrate the basis of District 204’s EEOA claim. 

 

3Public Act 91–46, which became effective on June 30, 1999, changed

the body responsible for reviewing a section 7–2b petition from the Illinois

State Board of Education to the Regional Board of School Trustees. This

modification has no bearing on this opinion.

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they seek to be detached, is “60% minority.”2 District 204 further

asserted that allowing the “land to be detached *** from a largely

minority school district (60%) and annexed to an almost completely

white school district” would increase segregation based on race. On

this basis, District 204 described section 7–2b as a “mechanism for

‘white flight’ ” and stated that it fostered “division among the races”

in violation of the EEOA.

The hearing officer refused to hear District 204’s EEOA claim

because section 7–2b contains a limiting clause that prohibits the

Board from hearing any evidence or considering any issue except

those necessary to determine if the four conditions of section 7–2b

have been met. See 105 ILCS 5/7–2b (West 1998) (“The [Board]

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”). The

hearing officer expressly stated in his proposed findings of fact and

conclusions of law that District 204’s EEOA claim was “beyond the

scope of the [Board’s], and by extension the Hearing Officer’s

authority.”3 The Board accepted the hearing officer’s findings of fact

and conclusions of law and granted the section 7–2b petition.

Thereafter, District 204 filed a complaint for administrative review

with the circuit court.

On administrative review, the circuit court confirmed the Board’s

decision to grant the petition, noting that there was “no Constitutional

problem with the actions of the [Board].” The circuit court also stated

that “mere suspicion” is not sufficient to establish racial motivation.

District 204 appealed this ruling.
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On appeal, the appellate court affirmed that the EEOA claim was

beyond the Board’s authority, but vacated the circuit court’s ruling on

the merits of the EEOA claim and remanded the cause to the hearing

officer to develop a record on the EEOA claim.

The appellate court agreed that the limiting clause of section 7–2b

prohibited the Board from hearing or considering District 204’s

EEOA claim. Specifically, the appellate court held that the Board

“acted in accord with its mandate when it refused to determine

whether section 7–2b orthe proposed detachment/annexation violated

the [EEOA].” 373 Ill. App. 3d at 568.

The appellate court went on to conclude that section 7–2b not

only stripped the Board of jurisdiction over the EEOA claim, but also

denied jurisdiction over the claim to the circuit court under

administrative review law. The appellate court noted that the circuit

court’s power to review the decisions of administrative agencies is

limited in scope to the statutory powers provided by the General

Assembly. 373 Ill. App. 3d at 569, quoting Ill. Const. 1970, art. VI,

§9 (“Circuit Courts shall have such power to review administrative

action as provided by law”). The Code of Civil Procedure provides

that a hearing for administrative review is limited to questions of law

and fact that are presented to the court by the record. “No new or

additional evidence *** shall be heard by the court.” 735 ILCS

5/3–110 (West 2006). The appellate court reasoned that because

section 7–2b limited the Board’s authority to reviewing only the

procedural requirements for a petition for detachment and annexation,

the circuit court’s authority on administrative review was similarly

“limited to determining whether the Board erred in finding those

requirements met.” 373 Ill. App. 3d at 570. Accordingly, the appellate

court vacated the circuit court’s determination that the Board’s

actions did not violate federal law, reasoning that the Board itself “did

not have jurisdiction to even develop a record which the circuit court

could then rely upon in formulating any constitutional decision.” 373

Ill. App. 3d at 570. Thus, the “circuit court lacked both the

jurisdiction and the evidence to make such an independent finding.”

373 Ill. App. 3d at 569.

Finally, the appellate court found that section 7–2b was

preempted by the EEOA and remanded the cause to the Board to

conduct a hearing on District 204’s EEOA claim. The appellate court
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noted that “ ‘state law is nullified to the extent that it actually

conflicts with federal law.’ ” 373 Ill. App. 3d at 572, quoting Fidelity

Federal Savings & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 73

L. Ed. 2d 664, 675, 102 S. Ct. 3014, 3022 (1982). The appellate court

noted that the right of a student to be assigned to a school on the basis

of geography and not race, as provided in the EEOA, could not be

nullified by state action. Thus, the court reasoned that section 7–2b’s

“restricting the Board’s ability to hear claims of racial segregation,

‘ “stands as an obstacle to the accomplishment and execution of the

full purposes and objectives of [the EEOA.]” ’ ” 373 Ill. App. 3d at

572, quoting Fidelity Federal Savings & Loan Ass’n, 458 U.S. at 153,

73 L. Ed. 2d at 675, 102 S. Ct. at 3022, quoting Hines v. Davidowitz,

312 U.S. 52, 67-68, 85 L. Ed. 581, 587, 61 S. Ct. 399, 404 (1941).

Therefore, the appellate court found that section 7–2b’s limitation

clause was preempted by the EEOA under the supremacy clause of

the United States Constitution and remanded the cause to the Board

for further consideration. 373 Ill. App. 3d at 573.

In its petition for leave to appeal to this court, the Board argues

that the appellate court erred in holding that section 7–2b was

preempted by the EEOA. We granted the Board’s petition. For the

following reasons, we reverse the decision of the appellate court.

QUESTION PRESENTED

Both parties agree that District 204’s EEOA claim must be heard

and decided by a body of competent jurisdiction. The parties disagree

over the proper means of effectuating this hearing.

The Board, as appellant, takes the position that the EEOA does

not require the Board to review EEOA claims and that these claims

are better developed in and decided by the circuit court. Conversely,

District 204 argues that the EEOA mandates that an “educational

agency,” in this case the Board, consider its EEOA claim. Therefore,

District 204 asserts that the appellate court was correct and that

section 7–2b must be preempted because it conflicts with the EEOA

by prohibiting the Board from hearing the EEOA claim.

District 204 further argues that the Board’s position is infeasible,

as the circuit court is prohibited from considering its EEOA claims

because administrative review is the exclusive means of reviewing an
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administrative decision and section 7–2b prevents the development

of a record that is sufficient given the limited scope of administrative

review. Thus, District 204 argues that the current legislative

framework is preempted because it is intentionally crafted to make it

“impossible for a factual record regarding the effect of segregation to

be considered when determining whether to grant a petition for

detachment.” District 204 notes that “[s]tates have an affirmative duty

to take measures to comply with the mandate set forth in the EEOA,”

and that the current legislative framework represents the General

Assembly’s “naked attempt to sidestep the federal mandate set forth

in the EEOA.”

There are then two areas of dispute between the parties. First, the

parties argue whether the EEOA requires that the Board consider the

EEOA in granting a petition for detachment/annexation. Second, if

the Board does not have to consider the EEOA, the parties dispute

whether the circuit court can review an alleged violation outside of

administrative review.

The resolution of both arguments turns on the constitutional law

doctrine of preemption. However, in the first argument, preemption

is only implicated if we agree with District 204’s interpretation of the

EEOA. Therefore, the initial question presented for the first argument

is a question of statutory interpretation, as this court must determine

what the EEOA mandates of an “educational agency.”

The second argument presents a question of preemption, as this

court must determine whether the current legislative framework

creates a situation where the state can avoid compliance with “the

mandate set forth in the EEOA.”

STANDARD OF REVIEW

Whether state law is preempted by a federal statute is a question

of law, which is subject to de novo review. Kinkel v. Cingular

Wireless, LLC, 223 Ill. 2d 1, 15 (2006), citing Schultz v. Northeast

Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 288 (2002).

Similarly, questions of statutory interpretation present questions of

law and are therefore reviewed de novo. Harshman v. DePhillips, 218

Ill. 2d 482, 490 (2006).
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ANALYSIS

The underlying basis of both arguments is preemption. The

preemption doctrine originates with the supremacy clause of article

VI of the United States Constitution, which provides that the “Laws

of the United States *** shall be the supreme Law of the Land; and

Judges in every State shall be bound thereby, any Thing in the

Constitution or laws of any State to the Contrary notwithstanding.”

U.S. Const., art. VI, cl. 2. Thus, when state law conflicts with a

federal statute, state law is preempted by the supremacy clause and its

application is unconstitutional. Crosby v. National Foreign Trade

Council, 530 U.S. 363, 388, 147 L. Ed. 2d 352, 371, 120 S. Ct. 2288,

2302 (2000); see also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,

540, 150 L. Ed. 2d 532, 550, 121 S. Ct. 2404, 2414 (2001).

A state statute may be preempted in three situations. First, a

statute may be preempted through the express language of a

congressional enactment. Lorillard Tobacco Co., 533 U.S. at 540-41,

150 L. Ed. 2d at 550, 121 S. Ct. at 2414, citing Cipollone v. Liggett

Group, Inc., 505 U.S. 504, 120 L. Ed. 2d 407, 112 S. Ct. 2608 (1992).

A state statute may also be preempted where the “depth and breadth

of a congressional scheme” implies that Congress “occupies the

legislative field.” Lorillard Tobacco Co., 533 U.S. at 541, 150 L. Ed.

2d at 550, 121 S. Ct. at 2414; see also Fidelity Federal Savings &

Loan Ass’n v. de la Cuesta, 458 U.S. 141, 73 L. Ed. 2d 664, 102 S.

Ct. 3014 (1982). Finally, a statute may be preempted where the state

law presents a “conflict with a congressional enactment.” Lorillard

Tobacco Co., 533 U.S. at 541, 150 L. Ed. 2d at 550, 121 S. Ct. at

2414; see also Geier v. American Honda Motor Co., 529 U.S. 861,

146 L. Ed. 2d 914, 120 S. Ct. 1913 (2000).

In the present case, only the latter form of preemption, conflict

preemption, is at issue. Conflict preemption occurs where “ ‘under

the circumstances of [a] particular case, [the challenged state law]

stands as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.’ ” Crosby, 530 U.S. at 373, 147

L. Ed. 2d at 361, 120 S. Ct. at 2294, quoting Hines, 312 U.S. at 67,

85 L. Ed. at 587, 61 S. Ct. at 404. An obstacle to a congressional

objective is sufficient to find preemption when a state law would

operate in a way that a federal statute, when considered as a whole,

would be rendered ineffective and its purpose and intended effects
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frustrated. Crosby, 530 U.S. at 373, 147 L. Ed. 2d at 361, 120 S. Ct.

at 2294 (citing Savage v. Jones, 225 U.S. 501, 533, 56 L. Ed. 1182,

1195, 32 S. Ct. 715, 726 (1912), and Hines, 312 U.S. at 67 n.20, 85

L. Ed. at 587 n.20, 61 S. Ct. at 404 n.20).

In the present case, the Board asserts that the appellate court erred

in finding preemption on two bases. First, that the EEOA does not

require that the Board, as an “educational agency,” consider the

segregative effect that a section 7–2b petition would have on the

parties. Second, that review of District 204’s EEOA claim can be had

outside of administrative review under the circuit court’s original

jurisdiction. We will address each argument in turn.

I

The first argument presented by the Board that the appellate court

erred in finding that the EEOA preempts section 7–2b is that “nothing

in the EEOA specifically requires [EEOA] claims to be decided by

the [Board], rather than by a circuit court.” Under the Board’s view,

the two statutes do not directly conflict and, therefore, the limiting

clause of section 7–2b is constitutional.

District 204, in reply, argues that the EEOA requires an

“educational agency” to consider racial segregation in making school

assignment decisions. Thus, District 204 argues that section 7–2b’s

limiting clause prevents the Board from considering the EEOA and

is thus preempted.

Both parties agree that section 7–2b’s limiting clause prevents the

Board from considering the EEOA in making decisions on

detachment/annexation petitions. The limiting clause of section 7–2b

states that the Board “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.” 105 ILCS 5/7–2b (West 1998). As noted previously,

section 7–2b contains four provisions that must be met before a

petition for detachment/annexation can be granted.EEOAcompliance

is not among these four factors. See 105 ILCS 5/7–2b (West 1998).

However, the parties disagree as to what the EEOA requires of

“educational agencies.” District 204 cites to section 1703 of the
 

4The parties agree that the Board is an “educational agency” as defined

by the EEOA and the Elementary and Secondary Education Act of 1965.

See 20 U.S.C. §1720(a) (2000), and 20 U.S.C. §7801(26)(A), (26)(E)

(Supp. 2005). 

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EEOA to support its conclusion that educational agencies are required

to enforce the EEOA. Section 1703 states:

“No State shall deny equal educational opportunity to an

individual on account of his or her race, color, sex, or national

origin, by–

(a) the deliberate segregation by an educational

agency of students on the basis of race, color, or national

origin among or within schools;

 ***

 (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 *** than would result if such students were

assigned to the school closest to his or her place of

residence ***.” (Emphases added.) 20 U.S.C. §1703

(2000).

District 204 reads section 1703 as a requirement that the Board, as an

educational agency,4 not only refrain from engaging in discriminatory

conduct, but affirmatively consider whether a proposed

detachment/annexation petition would violate the EEOA.

The resolution of this argument rests on statutory interpretation

grounds, as this court must decide whether Congress intended to

charge “educational agencies” with an affirmative duty to consider

the EEOA before making an administrative decision.

The goal of statutory interpretation is to ascertain and give effect

to the intent of the legislative body. The simplest and surest means of

effectuating this goal is to read the statutory language itself and give

the words their plain and ordinary meaning. Illinois Graphics Co. v.

Nickum, 159 Ill. 2d 469, 479 (1994). A statute must be read in its

entirety, keeping in mind the subject it addresses and the legislature’s

apparent objective in enacting it. Gill v. Miller, 94 Ill. 2d 52, 56
 

5The definitions of “local educational agency” and “State educational

agency” have subsequently been recodified multiple times. The definitions

are now available at 20 U.S.C. §7801 (Supp. 2005). 

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(1983). Where the language of the statute is clear and unambiguous,

it must be applied as written, without resort to other tools of statutory

construction. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.

2d 248, 255 (2004).

The EEOA is a remedial statute designed to “specify appropriate

remedies for the orderly removal of the vestiges of the dual school

system.” 20 U.S.C. §1701(b) (2000). A “dual school system” is one

“in which students are assigned to schools solely on the basis of race,

color, sex, or national origin.” 20 U.S.C. §1702(a)(1) (2000). The

remedies specified by Congress as part of the EEOA are “not

intended to modify or diminish the authority of the courts of the

United States.” 20 U.S.C. §1702(b) (2000).

Section 1703 of the EEOA expressly forbids the states from

denying equal educational opportunity when it states that “[n]o State

shall deny equal educational opportunity to an individual on account

of his or her race, color, sex, or national origin.” 20 U.S.C. §1703

(2000). The EEOA goes on to list a number of ways that a state can

deny equal educational opportunity. Each of these examples

anticipates that an “educational agency” has undertaken the

discriminatory action or failed to rectify previous discriminatory

actions. (I.e., “the failure of an educational agency *** to take

affirmative steps *** to remove the vestiges of a dual school system”

(20 U.S.C. §1703(b) (2000)) and “discrimination by an educational

agency *** in the employment, employment conditions, or

assignment to schools of its faculty or staff” (20 U.S.C. §1703(d)

(2000)).)

The EEOA views “educational agencies” as the political

subdivision of the state that is either engaging in discrimination or

failing to rectify past discrimination. The EEOA defines an

“educational agency” as “a local educational agency or a ‘State

educational agency’ as defined by section 801(k) of the Elementary

and Secondary Education Act of 1965.” 20 U.S.C. §1720 (2000).5 A

“local educational agency” is defined as:
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“[A] public board of education or other public authority

legally constituted within a State for either administrative

control or direction of, or to perform a service function for,

public elementary schools or secondary schools in a city,

county, township, school district, or other political

subdivision of a State, or of or for a combination of school

districts or counties that is recognized in a State as an

administrative agency for its public elementary schools or

secondary schools.” (Emphases added.) 20 U.S.C.

§7801(26)(A) (Supp. 2005).

A “State educational agency” is similarly defined as “the State

educational agency in a State in which the State educational agency

is the sole educational agency for all public schools.” 20 U.S.C.

§7801(26)(E) (Supp. 2005).

The combination of the EEOA’s prohibition on states denying

individuals access to equal educational opportunity and the definition

of an “educational agency” as a political subdivision of the state

demonstrates that Congress intended that states and their “educational

agencies” not engage in discriminatory conduct. This point is

reinforced by District 204 when they cite Gomez v. Illinois State

Board of Education, 811 F.2d 1030 (7th Cir. 1987), to support its

contention that the Board is responsible for enforcement of the EEOA

as well as the courts. Gomez, 811 F.2d at 1038 (“relief is to be

obtained from the state and its agencies”). However, the quotation

used by District 204, taken in context, shows that relief was “to be

obtained from the state and its agencies” in court. The passage from

Gomez cited by District 204 went on to include the 7th Circuit’s

holding, which was that “Congress intended to abrogate the states’

Eleventh Amendment immunity to the extent such immunity would

foreclose recovery under that act.” Gomez, 811 F.2d at 1038. In other

words, Gomez stands for the proposition that the EEOA allows the

courts to hold the state and its agencies liable for past discriminatory

actions. It does not stand for the idea that the Board must adjudicate

or even consider the racially discriminatory impact of its actions.

The prohibition on acting in a discriminatory way is not the same

as an affirmative mandate to take certain actions or to conduct formal

proceedings to ensure that the actions taken are not discriminatory.

There is no language in the EEOA that prescribes that any state or
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“educational agency” take any affirmative step to consider the

segregative effects of their actions prior to taking them.

What the EEOA does provide is that if the state or an

“educational agency” does take a discriminatory action or has taken

a discriminatory action in the past that these “agencies” may either

take voluntary steps to remedy the past discrimination (20 U.S.C.

§1716 (2000)) or in the absence of action that these agencies are

liable in court (20 U.S.C. §§1712, 1713, 1714, 1716, 1717, 1718

(2000)).

Certainly, a state can choose to mandate that its “educational

agency” consider the EEOA in granting a petition for

detachment/annexation. However, the EEOA does not require that

states mandate educational agencies to consider the EEOA or vest

them with the power to consider the segregative effect of

detachment/annexation petitions. Preemption requires an actual

conflict such that “it is impossible *** to comply with both state and

federal law” and where the challenged law “stands as an obstacle to

the accomplishment and execution of the full purposes and objectives

of Congress.” Crosby, 530 U.S. at 372-73, 147 L. Ed. 2d at 361, 120

S. Ct. at 2294. That is not the case here.

The EEOA uses the term “educational agencies” to describe

potential discriminatory actors, but ultimately it is the discriminatory

actions of the state and its agencies that are to be corrected by the

court. It is the state that must provide relief for the discriminatory

actions of its subdivisions. Under the supremacy clause, “state courts

share responsibility for the application and enforcement of federal

law” (Howlett v. Rose, 496 U.S. 356, 372-73, 110 L. Ed. 2d 332, 351

110 S. Ct. 2430, 2441 (1990)) and a state court cannot refuse to hear

a federal claim as long as they would entertain a similar claim under

state law. Howlett, 496 U.S. at 369-73, 110 L. Ed. 2d at 348-51, 110

S. Ct. at 2439-41. Illinois recognizes numerous claims for both racial

discrimination and the invalidation of agency actions. See, e.g., Board

of Education v. Cady, 369 Ill. App. 3d 486 (2006), and Chicago

School Reform Board of Trustees v. Illinois Educational Labor

Relations Board, 315 Ill. App. 3d 522 (2000). Therefore, the courts
 

6This does not exclude the possibility that a federal claim is initially

considered and decided by an administrative tribunal and comes before the

court only under an exercise of the court’s statutory power for

administrative review. 

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of Illinois have an obligation to review and enforce the EEOA.6 It is

this obligation that we direct our attention to next.

II

The second argument presented by the Board to refute the

appellate court’s finding of preemption is that administrative review

is not the exclusive means of challenging the Board’s decision to

grant a petition for detachment/annexation. The Board argues that

District 204’s EEOA claim may be brought under the circuit court’s

original jurisdiction.

District 204 counters that the EEOA requires states to take

affirmative steps to “remove vestiges of a dual school system” and to

not “deny equal educational opportunity to an individual on account

of his or her race, color, sex, or national origin.” 20 U.S.C. §1703

(2000). District 204 asserts that administrative review is the exclusive

means of reviewing the Board’s decision because the administrative

review law states that “[e]very action to review a final administrative

decision shall be commenced by the filing of a complaint and the

issuance of summons.” 735 ILCS 5/3–103 (West 2006). In the present

case, District 204 seeks review of a final decision of an administrative

agency. Further, District 204 notes that on administrative review, the

circuit court is limited to the record developed before the

administrative body (see 735 ILCS 5/3–110 (West 2006)) and section

7–2b prohibits the Board from considering the EEOA. Thus, if

administrative review is the exclusive means of challenging the

Board’s decision, then section 7–2b, in conjunction with the scope of

the circuit court’s jurisdiction on administrative review, would

effectively prohibit the state from stopping a potentially

discriminatory action under the EEOA. Thus, the EEOA would

preempt section 7–2b, as the EEOA mandates that the state must not

allow discriminatory action.
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Thus, District 204 asserts that either section 7–2b’s limiting

clause or the administrative review statute must be invalidated and

thereby allow for consideration of its EEOA claim. However, this

problem exists only if administrative review is the exclusive means

of challenging the Board’s decision.

The Board asserts that the way to both obtain a hearing on the

Board’s decision and avoid declaring a statute unconstitutional is to

allow District 204 to bring the EEOA claim as an independent cause

of action under the circuit court’s original jurisdiction. This would

allow District 204 to bring its EEOA claim in the circuit court and

develop a factual record before the circuit court. Under the Board’s

argument this action could either progress independently or be

consolidated with an action for administrative review. The Board

notes, and District 204 does not dispute, that under this approach

there is no preemption issue. In this way, District 204’s EEOA claim

can be fully litigated, and this court avoids invalidating a statute. For

the following reasons, we believe that this is the correct approach.

As a creation of statute, the Board may exercise only the authority

given to it by statute. “Any power or authority it exercises must find

its source within the law pursuant to which it was created.” Delgado

v. Board of Election Commissioners, 224 Ill. 2d 481, 485 (2007). As

previously noted, section 7–2b’s limitation clause serves to severely

limit the evidence that a party may introduce into the record before

the Board. While the General Assembly could have vested the Board

with the power to hear District 204’s EEOA claim, it did not. So long

as the right to equal educational opportunity can be vindicated,

however, the wisdom of the General Assembly’s choice in this regard

is not for this court to decide.

The Code of Civil Procedure states that on administrative review

the circuit court is limited to “questions of law and fact presented by

the entire record before the court. No new or additional evidence ***

shall be heard by the court.” 735 ILCS 5/3–110 (West 2006).

Therefore, to the extent that section 7–2b restricts the evidence that

the Board may place in the record, the circuit court is similarly

restricted in its administrative review. Thus, the circuit court on

administrative review is no better able to address District 204’s

EEOA claims than the Board was in the first instance.
-16-

The Illinois Constitution of 1970 vests the circuit courts with

original jurisdiction over “all justiciable matters except when the

Supreme Court has original and exclusive jurisdiction.” Ill. Const.

1970, art. VI, §9. As this court has noted,

“Our current constitution does not define the term

‘justiciable matters,’ nor did our former constitution, in which

this term first appeared. See Ill. Const. 1970, art. VI, §9; Ill.

Const. 1870, art. VI, §9 (amended 1964). Generally, a

‘justiciable matter’ is a controversy appropriate for review by

the court, in that it is definite and concrete, as opposed to

hypothetical or moot, touching upon the legal relations of

parties having adverse legal interests.” Belleville Toyota, Inc.

v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 335

(2002).

In this case, there is a controversy between private citizens who

wish to detach property from a government entity, the Board who

wishes to defend the law, and a second government body that opposes

the proposed action. There is nothing abstract or moot about the

controversy. It affects the legal relationship between the parties and

the parties have adverse legal interests. Therefore, the current case

constitutes a “justiciable matter” under the Illinois Constitution’s

grant of original jurisdiction to the circuit courts. In addition to the

case falling within the circuit court’s original jurisdiction, this case

may also be handled as an independent action because the traditional

rules of forfeiture do not apply.

Ordinarily, any issue that is not raised before the administrative

agency, even constitutional issues that the agency lacks the authority

to decide, will be forfeited by the party failing to raise the issue. In

Carpetland U.S.A., Inc. v. Illinois Department of Employment

Security, this court refused to address a claim that the Department of

Employment Security had violated the due process clauses of both the

United States Constitution and Illinois Constitution because the issue

had not been raised at the first opportunity, before the administrative

agency. Carpetland U.S.A., Inc. v. IllinoisDepartment ofEmployment

Security, 201 Ill. 2d 351, 396-97 (2002) (“constitutional claim is

[forfeited] for failure to raise it at the first opportunity”). This has led

this court to admonish litigants to “assert a constitutional challenge

on the record before the administrative tribunal, because
-17-

administrative review is confined to the proof offered before the

agency.” Carpetland U.S.A., Inc., 201 Ill. 2d at 397. See also TexacoCities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278 (1998).

(“It is well-recognized that a litigant’s right to question the validity of

a statute is subject to [forfeiture] by act or omission”).

However, in this instance, the ordinary forfeiture rules do not

apply because section 7–2b prohibits the development of a record

with regard to the EEOA claim. The limiting clause of section 7–2b

denies District 204 all opportunity to develop a record with regard to

an EEOA violation before the administrative agency. Thus, there can

be no forfeiture, because there was no opportunity to present the

issue. In essence, there was no “first opportunity.”

Similarly, the exclusivity of the administrative review law does

not apply where, as described above, the issue being raised cannot be

introduced before the administrative agency. In the present case,

section 7–2b operates as a complete bar to the Board’s even receiving

evidence on anything outside of section 7–2b’s requirements. Neither

the parties nor this court have found any similar limitation anywhere

else in the statutes of this state. As this court held in Chestnut v.

Lodge, “[t]he Administrative Review Act is a salutary act to provide

a simple single review from specified administrative decisions, but it

was not intended to be a trap for the unwary to establish a bar to

relief.” Chestnut v. Lodge, 34 Ill. 2d 567, 571 (1966). District 204’s

EEOA claim is beyond the scope of the hearing officer, beyond the

scope of the Board’s administrative decision, and therefore beyond

the scope of the administrative review law.

The Board points out that handling the EEOA claim as an

independent action under the circuit court’s originaljurisdiction is not

without precedent. In Board of Education of Rich Township High

School District No. 227 v. Brown, the appellate court allowed a

constitutional challenge to section 7–2b to be brought as an

independent action in the circuit court. In doing so, the appellate court

rejected an expansion of the Board’s power, holding that the limiting

clause of section 7–2b expressly placed the issue outside of the

Board’s authority and outside the court’s statutory authority to review

the decisions of administrative agencies. Board of Education of Rich

Township High School District No. 227 v. Brown, 311 Ill. App. 3d

478 (1999). However, the court noted that while the issue may be
 

7

In Rich Township, the circuit court did not ultimately have to develop

this record because the record had been adequately developed before the

Board, the limitations of section 7–2b not withstanding. However, this

holding is not dicta because regardless of where the factual record was

developed, the circuit court still had to have jurisdiction to consider and

enter judgment in the case.

-18-

outside the scope of the administrative agency’s authority, and

outside the scope of administrative review, it was not outside the

scope of the circuit court’s original jurisdiction under the Illinois

Constitution. Therefore, the court held that the circuit court could

develop the record necessary to decide the constitutional challenge

under an exercise of the circuit court’s original jurisdiction. Rich

Township, 311 Ill. App. 3d at 491.7

District 204 contends that adopting this approach will allow

school district boundaries to be “redrawn without considering the

effect of such a maneuver on educational segregation.” Neither party

disputes that District 204’s EEOA claim must be considered and

decided by a court of competent jurisdiction. Through the exercise of

the circuit court’s original jurisdiction, the circuit courts may conduct

proceedings, receive evidence, and fully adjudicate District 204’s

EEOA claim. Further, given the nature of this claim, there is no

reason why a plaintiff could not seek an injunction pending resolution

of this claim in the circuit court. See Ardt v. Illinois Department of

Professional Regulation, 154 Ill. 2d 138, 148 (1992) (“Circuit courts

have traditionally used mandamus, certiorari, injunction and other

actions as a means of reviewing the decisions of administrative

agencies”).

CONCLUSION

Because District 204’s EEOA claim is subject to adjudication by

the circuit court as a matter of original jurisdiction, there is no

preemption, as section 7–2b does not present an obstacle to the

“accomplishment and execution of the full purposes and objectives”

of the EEOA. Accordingly, we reverse that portion of the appellate
-19-

decision that held section 7–2b was preempted by the EEOA. We

remand the matter to the circuit court.

Reversed and remanded.

JUSTICE FREEMAN, 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)). Slip op. at 18-19.

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
-20-

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. Slip op. at 2-4.

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. Slip op. at 4-5.

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
-21-

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 quasimunicipal 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).
-22-

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).
-23-

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

¶16.02, 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 schoolsystem,

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
 

8The 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).

-24-

10–90 (2008); 3 J. Cook & J. Sobieski, Civil Rights Actions ¶16.02,

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)(1) (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
-25-

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 ¶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 & P. Wilson, Segregation and The Fourteenth Amendment in

the States 138-54 (1975); D. Douglas, The Limits of Law in
-26-

Accomplishing RacialChange: School Segregation in the Pre-Brown

North, 44 UCLA L. Rev. 677, 695-96 (1997).

In 1867, the General Assemblyratified 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
-27-

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.
-28-

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 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); slip op. at 3.

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
-29-

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 primaryresponsibility 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
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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. Slip op. at 13-14, 16-18. 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
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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 naïve 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
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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.