Docket No. 105018.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

THE BOAR

D O F EDUCATION, JOL IET TOWNSHI

P HIGH SCHOOLDISTRI CT No. 204, Appellee, v. TH E BO ARD OF EDUCATION, LI

NCOLN WAY C OMMU NITY HI GH SCHOOL DIST RICT

No. 210 et al. (T h e Illinois State Board of Educa tion et al ., Appellants).

Opinion filed October 17, 2008.

JUSTICE GARMAN del ivered t

he judg ment of the

court, with opinion. Chief Justice Fitzgerald and Justices Thomas, K ilbride, Karmeier, and Burke concurred in the judg ment and opinion. Justice Freeman specially concurred, with opinion.

OPINION

In1998, the registered voters of a 320-a cre parcel of

land in Will County filed a p etition to d

etach th e parce l from Joliet Township High School Dis trict No. 204 and annex it to Lincoln Way Comm unit y High School District No. 210, pursuant to section 7–2b of the Illinois School Code (105 IL CS 5/7–2b (West 1998)). District 20 4 objected to the petition and argued inter alia that section7–2 b violates the Equal Educational Opportunities Act of 1974 (EEOA) (20 U.S.C. §1701 et seq. (2000)). The hearing office r for the Illinois-2- 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 cla

imwas not considered when the hearing officer made this recommendation, as the hearing offic er found that the claim was outside the scope of the B oard ’s authority under se ction 7–2b. The Board accepted the hearing

officer’s findings and gr

anted the petition for detachment/annexation. The circuit court of Will County af firmed the Board’s order and found that the orde r d id no t violate the constitution or federal statute. On appeal, the appellate court found that section 7–2b was preempted by the EEOAand was , therefore, unconstit utional. 373 Ill. App. 3d 563. The appellate court remanded the cause to the Board to consider District 204’s EEOA c laim. 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 rev erse t he judgment of the appellate court and remand the cause t o th e circuit c ourt for

consider ation of D istrict 20 4’s EEOA claim.

BACKGROUND InJuly of 1998, four individuals who made up all of the registered voters of a cont

iguous 3 20-acr

e parce l of farm

land in Will Co

unty filed a petition with the Illinois State Board of Education (Boar d) to detach their property f

romJoliet Township High School District No. 204 (District 204) and att ach it to Linco ln Wa y Commun ity High School District No. 210, p ursuant to section 7–2b of the

Illinois School Code (105 IL CS 5/7–2b (West 1998)). The parcel

of land in

question i s situated

in an are a of the s tate where the grade schools and high s chools a re split in

to separ ate school distr icts a

nd the boundaries of these districts are not cotermin ous. The children who reside on the disputed parcel of land

curr ently a ttend grade school in the New L enox Elementary School District No. 122. The high sch ool district that generally serves the NewLenox Elementary

School District is Lincoln Way Community High School DistrictNo. 210. However, the parcel of land in question do es not f

all within t

he bounda

ries of H igh Scho ol District 210, it falls within the

boundar ies of Jolie

t High School Dis tr ict No. 204. Thus the children who reside on the p arcel w il l not atten d the same high sch ool as the majority of their f ormer g rade school clas smates.1 Section 7–2b has subsequently been amended to reduce the per centa ge of both value and land mass that m ay be detached. Under the new law, the land to be detached m

ay constitute no m

ore than 5% of the assessed v alue and territor y of the district. 105 ILC S 5/7–2 b (West 2 006). This change has no impact on this decision.

-3- Section 7–2b allows for the detachment of land from one district and annexation to anothe

r where the aff ected la nd lies wi thin elementary and

high school districts with noncoter minous 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 whichdistrict they leave a nd which they join. 105 I LCS 5/7–2b(a) (West 1998). A p arcel of landis eligible for detachment and annexation only if (1) it repr esent s 10% or less of the equalized assessed value of the district; (2) the parcel constitutes 10% or less of the territory of

the distri ct; 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 h igh schoo l districts for the affected parcel identica l. 105 I LCS 5 /7–2b(a) (West 1998). Before this cour t, neithe r party disputes that these

four con ditions ar e met. Before the Board’s hearing off icer, District 204 argued inter alia that the detachment and annexation of the p a rcel increased segre gation i

n violation of the Equal Educational Opportunities Act of 1974. 20 U.S.C. §1701 et seq. (2000). T he EEOA p

rohibits a state f romdeny ing “eq ual educ ational o

pportunit y to an individ

ual o n account of his or her race, color, sex, or nation al orig in.” 20 U. S.C. §1703 (2000). The EEOA delineates a number of a ctivities that constitute discrimination. Among these are th e assignment of a studentto a school within the district in which he or she resides other thanthe one c losest

to his or her residence “if the assignment results ina greater

degree of segr

egation.” 20 U.S.C. §1703(c) (2000). The EEOA also proh

ibits the tr

ansfer of a stude

nt f ro m one scho ol to another if “the p urpose a nd effe ct o f 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 segre gation b ecause the four individuals who petitioned for annexation are white while the population of District 204, from which2 Because of the procedu ral history of this case, District 204 has never had the opp ortunity

to esta blish th e truth of these

statem ents. Wh ile this court takes no position on the veracity of these assertions, we include them to illustrate the basis of District 204’s EEOA claim

.

3 Public Act

91–46, which be came effective on June 30, 1999, ch anged the body responsible for reviewing a section 7–2b petition from the Illin ois State Board of Education to the Regi onal Bo ard of Sch ool Trust

ees. Thi s modification has no

bearing on this o

pinion.

-4- they seek to be detache d, is “60% minority.” 2 District 204 further

as ser ted that allow

ing the “ land to be

detache d *** from

a larg ely minority school district (60%) and anne xed to an al

most comple

tely white school district”

would increase

segregation based on ra

ce. On this basis, District 204 described section 7–2b as a “me chanism for ‘white flight’ ” and

stated tha t it foster ed “divis ion among

the rac es” in violation of the EEOA. The hearing officer ref

used to hear District 204’s EEO A claim b ecause section 7

–2b conta

ins a limitin

g claus e that pr

ohib its th e Boa rd fr om hearing any

evidence or considering any issue except those necessa

ry to deter mine if the

four con dit ions o f section 7–2b have been met. See 105 ILCS 5/7–2b (West 199 8) (“The [Board] shallhave no a

uthority or discretion to hear any

evidence or consider any issuesexcept those that may be nec essary to dete rmine whether the limitations and conditions of this Section hav e been met”). The hearing officer expressly

stated in his proposed findi ngs o f fact and conclusions of law that District 204’s EEOA claim was “bey ond the scope o f the [Board’s], and by e xtension the Hearing Officer’s authority.” 3 The Board

accepted the hearing officer’s finding s of fact and co nc lusions of law and granted the section 7–2b petition. Thereafter, District 2 04 filed a complaint for administrative review with the c ircuit co

urt. Onadministrative review, the circuit court confirmed the Board’s decisionto grant the petition, noting that there was “no Constitutional problemwith the actions o f the [Boa rd].” The circuit c ourt also

stated that “mere s uspicion” is not suff

icient to e stablish

racial motivation. Dist rict 2 04 app ealed t his ru ling.-5- Onappeal, the appellate court affirmed that

the EEOA claim was beyond the Board’s authority

, but vaca ted the c ircuit

court’s ruling on the merits of the EEOA claim and remanded the cause to the hearing office r to deve lop a rec ord on the EEOA cla

im. The appella

te court agree d that the

limiting c lauseof section

7–2b prohibited

the Boa rd from hearin g o r considering District 204’s EEOA cla im. Specifically, the appe llate court held that the Board “acted in accord with its mandate when it refused to determine whether sect ion 7–2b or the proposed detachmen t/annexation violated the [EEOA].” 373 Ill. App. 3d at 568. The a ppellat e court went on to conclude that section 7–2b not only stripped the Boa rd of jur isdiction over the E EOA clai m, but also d enied jurisdiction over the claim to the circuit court un de r administrative review

law. The appella te court not

ed that th e circu

it court’s power

to revie w the dec isions of a

dministra tive ag encies i s limitedin scope to the statutory power s pr ovided by the Gene

ral As se mb ly. 373 Ill. App. 3d at 569, quoting Ill. Const. 197 0 , ar t. VI, §9 (“Circuit Courts sha ll ha ve such power to review administrative actionas provide d by law”). T he Code of Civil Procedure provides that a heari ng for a dministra tive review is limited to questions of law and fact that are presented to the court by the record . “No new or additio nal ev idence * ** shall be heard by

the cour t.” 735 I LCS 5/3–110 (West 2006 ). The a ppellate court re asoned that beca use section7–2b limi ted the Bo ard’s authority to reviewing only the procedural require

ments for a petiti on for detachment an d annexation, the circuit court’s aut

horit y on administr

ative re view was similarly

“ limitedto deter

mining whether th e Boar d erred in finding

th os e require ments met.” 373 Ill. App. 3d at 570. Accord

ingly , the appe llate court vacate d the cir

cuit cour t’s deter mi nat ion that the Board’s actions did not violate federal law, reasoning that the Board itself “d id nothave jurisdiction to even develop a

record which the circuit court could then rel y up on in formulating any

constitutional decision.” 373 Ill. App. 3d at

570. Thus, the “cir

cuit court lacked both the jurisdiction and the evidence to make suchan independent finding.” 373 Ill. App. 3d at 569. Fi na ll y, t h e appellate court found that section 7–2b was preempted

by the EEOA a

nd remand ed the c ause to th e Boar d to conduct a hearing on

District 204’s EEOA claim. The appellate court-6- noted that “ ‘state law is nullified to the extent t hat it act

ually conflic ts with federal law.’ ” 373 Ill. App. 3d at 572 , quot ing Fidelity Federal Savings &

Loan Ass’nv. de la Cu esta , 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 pr ovided in the EEOA, could not be nullified by state action. Thus, the court reasoned that section 7–2b’s “restri cti ng t he Board’s ability to hear claims of racial segre gation, ‘ “stands as an

obstacle to the accomplishment and execution of the full purposes and objectives of [the EEOA.]” ’ ” 373 I ll. Ap p. 3d at 572, quot ing Fidelity Federal Savings & Loan Ass’n , 458 U.S. at 153, 73 L. Ed. 2d

at 675, 102 S. Ct . at 30 22, qu otin g Hines v. Davidowit z , 312 U.S. 52, 67-68, 85 L. Ed. 581, 587, 61 S. Ct. 399, 4 04 (1941). Therefore, the appe llate cou rt found t hat s ecti on 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 I ll. App. 3d at 573. Init s petition for leave to appeal to this court, the Board arg ues tha tthe appellate court erred in holding that section 7– 2b wa s preempted

by the EEOA. We g

ranted the Board’s pet

itio n. For the following reasons , we rev erse the

decision of the ap pellate c ourt.

QUESTION PRESENTED Both parties agree

that District 204’s EEOAclaim must be heard and decided by a

body of competent jurisdiction. The parties disagree over t he pro per mea ns of e ffectu ating t his h earing. The Board, as appellant, takes the position tha t the EEOA does notrequire the Board to review EEOA cla ims and tha t these c laims

are better developed in and decided by th e c ir cu it co ur t. Co nv er se ly, District 204 argues that the EEOA mandates that an “ educational agency ,” inthis case the Board, consider its EEOA claim. Therefore, District 204 asserts that the a ppellate court was correct and that section7–2b must be pr

eempted because it conflicts with the EEOA by prohibiting

the Boa rd from h earing

the EEOA

claim. District 204 further argues that the Boa rd’s position is infeasible,

as the circ

uit court i s prohibite d from consider ing its EE OA claims because administr ative re view is the exclusive means of reviewing an-7- administrative decision

and sect ion 7–2b pr

events th e 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 beca

use it is int

entional ly c

rafted to make it “impossibl e for a fa

ctual re cord re gardin

g the ef fect of segre gation t

o be consider

ed when d

etermini ng whet her to g rant a pe titi on for de tachment.” District 2 04 notes that “[s]tate s have an affirma tive dut y to take mea sures to c omply with the mandate set

forth in the EEOA,” and that the curre nt legislative framework repre sents the General Assembly’s“naked attempt to sidestep the federal mandate set forth in the EEOA.” There are then

two area s of disput

e between the parties. First, the parties argue whether the

EEOA requires that the Board consider the EEOA in granting a petition for detachment/annexa tion. Second, if the Board d

oes not ha

ve to cons ider the

EEOA, the

parties d ispute whether the circ uit court c an revie

w an all eged viol ation 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 ag ree with District 204’s interpretation of the EEOA. Therefore, the initial question presented for the first argument is a question of statutory interpr etation, as this court must determine what the EEOA mandates of an “educa tional agency .” The second argumen

t prese nts a ques tion of pr eemption , as this court must determine whether the current legislative f ramework

cre ates 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 . Kin kel v . Cingular Wire less, L LC , 223 Ill. 2d 1, 15 (2006), citing Schultz v . Northeas t Illinois Regional Commuter R.R. Corp. , 201 Ill. 2d 260, 288 (2002). Si mi la rl y, questions of statutory interpreta tion present questions of law and are therefore revie wed de novo

. Harshman v. DePhillips , 218 Ill. 2d 482, 490 (2006).-8- ANA LYSIS The underlying

basis of both arguments is preemption. T h e preemption

doctrine originates with the s upremac y c lause 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 ev er y S tate shall be bound thereby , any Thing in the Constitution or laws of any State to the Con tr ar y notwithstanding.” U.S. Co nst., art. VI, cl. 2. Thus, when state la w conflicts with a federal statute, s tate law

is preempted by

the supre macy clause a nd its applicationis unconstitution al. Crosby v. National Foreign Trade Council , 530 U.S. 363, 388, 147 L. Ed. 2d 352, 371, 120 S. Ct. 2288, 2302 (2000); s ee 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 pr eempted in three situations. F ir st, a statute may bepreempted through the express languag e of a congressionalenactme

nt. Lorillard Tobacco Co. , 533 U.S. at 540-41, 150 L. Ed. 2d at 550, 121 S. Ct. at 2414, citi ng 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 pr eempted where the “depth and brea dth of a cong ressiona l scheme” implies that Congress “occupies the legislative field.” Lorillard Tobacco Co. , 533 U.S. at 541, 150 L. Ed. 2d at 550, 12 1 S. Ct. at 24 14; se e also Fidel ity Fede ral Saving

s & Loan Ass’n v. d

e la Cuesta , 458 U.S. 14 1, 73 L . Ed. 2d 664 , 102 S. Ct. 3014 (198 2). Fina

lly, a statute

may be pree mpted whe

re the sta te law presents a “conflict with a congre ssional en act ment.” Lorillard T obacco Co. , 533 U.S. at 541, 150 L. Ed. 2d at 550, 121 S. Ct. a t 2414; see also Geier v. American Honda Motor Co. , 529 U.S. 861, 146 L. Ed. 2d 914, 120 S. Ct. 1913 (2000). Inthe pres ent case , only

the latte r form o f preempt ion, conflict preemption , is at issue. Conflict preemption occurs where “ ‘under the circumstances of [a] par ticular case, [the challenged state law] stands as an obst

acle tothe 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 suffic ient to find p reemption when a s tate law would operate in a way that a fe deral sta

tute, whe n considered as a whole, would be rendered ineffective and its purpos e and inte nded eff ects-9- frustrated. Crosby , 530 U.S. a t 373, 147 L . Ed. 2d at

361, 120 S. C t. at 2294 ( citi ng 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). Inthe present case, the Board asserts that the appellate court erred infindi ng p r eemption on two bases. First, that the EEOA does not require that the Board, as an “educational ag enc y,” consider the segregative

effec t that a se ction 7–2b petition w ould

have on the parties. Second, that

review of District 204’s EEOA claim can be had out side of adminis trative r eview un der the c ircuit co

urt’s ori g ina l jurisdiction. We will address each argument in turn.

I The first argument

presented by

the Board that the appellate court erred infinding that the EEOA preempts section 7–2b is that “nothing inth e E EO A s pe ci fi ca ll y r eq uires [EEOA] claims to be decided by the [Board], rather than by a circuit court.” Under

the Board’s view, the two statut

es do not d irectly conf

lict and, therefore, the limiting clause o f section

7–2b is con stitutiona

l. District 204, in reply, arg

ues that the EEOA requires an “educational agenc

y” to consider racial segreg ation in making school assignment

decision s. Thus, Di strict 20 4 argues that section 7–2b’s limiting clause prevents the Board from con sideri ng the EEOA and is thus preempted. Both parties agree that section 7–2b’s limiting clause pre vents the Board from con sidering

the EEOA

in making

decis i ons 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 consid

er any issues exc ept those

that may be nece ssary

to determine whether the limitations and conditions of this Section have been me t. ” 1 05 ILC S 5 /7 –2 b ( We st 19 98 ). As no te d p re vi ou sl y, section 7–2b contains four provisions that must be met before a petition for d etachment/annexation can be granted. EEOA complianc e is not among these four factors. See 105 I LCS 5/7–2b (West 1998). However, the parties disag ree as to what the EEOA requires of “educational agencies.” District 204 cites to section 1703 of the4 The parties agree that the Board is an “educational agency” as defined by the EEOA and the Elementary and Secondary Education Act of 196 5. See 20 U.S.C. §172 0(a) (2000), and 20 U. S.C. §7801(26)(A ), (26)(E) (Supp. 2005).

-10- E EOA to support

its conclu sion that e ducational age ncie s are require d to enfor ce the EE OA. Secti on 1703 sta tes: “No State shall deny equal e ducational opportunity to an individual on account of his or her race, color, sex, or national

or ig in , b y– (a ) the deliberate segreg ation by an educationa l agency of studen

ts on the basis of race, color, or national origin a mong or w

ithin scho ols; *** (c) the assignmen

t by an educational agency of a studentto a school, other than the one closest to his or her place of resid

ence wi thin the sc

hool distri ct in wh ich he

or she resides, if the assignment resu lts in a greater deg

ree of segre gation * ** than wo

uld resul t if such students were assigned to the school closest to his or her place of

r esidence ***.” (Emphases added.) 20 U.S.C. §1703 (2000). District 204 read s section

1703 as a requirement that the Board, as an educational ag en cy, 4 not only refra in from en gagi ng in discriminatory conduct, but affi rmativel y c onsider w

hether a

propose d detachment/annexation petition would violate the EEOA. The resolu

tion of this argument rests on statutory interpretation ground s, as this c ourt must de cide whe ther Cong

ress inte nded to charge “educational agencies” w ith an affirmative duty to c onsider the EEOA before making an administrative de cision. The goal of

statutory interpreta

tion 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 lang uage itself and give the words the ir

plain and ordinary

meaning. Illinois Graphics Co. v. Nickum , 159 Ill. 2d 469, 479 (1994). A statute m ust be re ad in its

en ti re ty, keeping in mind the subject it addresses and the legislature’s apparent objec tive i n enact ing i t. Gill v. Miller , 94 Ill. 2d 52, 565 The defin it ions of “local educational a gency” and “State educational agency” have subsequen

tly been recodified m

ultiple times. The definition s are now available at 20 U.S.C. §7801 (Supp. 200 5).

-11- (1983). Where the

langua ge of the statute

is clear and unamb iguous, it must be applied as written, without resort to other tools of statutory construction. Raintree Homes, Inc. v. Village of Long Grove , 209 I ll. 2d 248, 255 (2004). The EEOA is a

remedia l statute d esigne d to “specif

y a ppropria te

r emedies for the orderly

removal of the vestiges of the dual schoo l system.” 20 U.S.C. §1701(b) (2000). A “ dual school system” is one “in which stud

ents are ass igned to

schools so lely

on the basis of race, color, sex, or national origin.” 20 U.S.C. §1702(a)(1) (200 0 ). The remedies specified by Cong ress as part of the EEOA are “not intended to modif y or diminish the authority of the courts of the United States.” 20 U.S.C. §1702(b) (2000). Sec tion 1703 of the EEOA expressly for bids the states from denying equal educational opportunity when it states that“[n]o State shalldeny equa

l educati onal oppo rtunity

to an individual on account of his or her race, color, sex, or national origin.” 20 U .S.C. §170 3 (2000). The EEOA

goes on to list a numbe

r of way s that a sta

te can deny equal ed

uca tional opportunity. Each of these examples anticipates that an “ educati onal ag ency ” has und

ertake n th e di scriminatory

action or

failed to rectify previous discriminator y actions. ( I.e. , “the failure of an educational ag en cy *** to take affirmative steps *** to rem ove the ve stiges o f a dual s chool sy stem” (20 U.S.C. §1703(b) (2000)) and “d iscrimination by an educa tional agenc y * ** in the employment, employ ment conditions, or assignment

to schools

of its fac

ulty or staff ” (20 U.S. C. §1703(d ) (2000)).) The EEOA views “educational agenc ies” as the political sub division of the state that is either engaging in discrimination o r failing to rectify pa s t discrimination. The EEOA defines an “educational age ncy” a s “a loca l educat ional ag ency

or a ‘Sta

te ed ucational agency ’ as defined by section 801(k) of the Elemen tar y and Secondary E ducationAct of 1965.” 20 U.S.C. §1720 (2000). 5 A “local e ducational age

ncy ” is defined as:-12- “[A] publi c boar d of educ ation or o ther publ ic author ity legall y constitute d within a St

a te fo r either administrative

co ntrol or direction of, or to perform a service func tion for, pub lic elementa

ry schools or

seconda ry schools in

a cit y , co un ty, township, school district, or other political subdivision of a State , or of or for a combination of school districts or counti es that is recognized in a State as an administrative age ncy for its public elementary schools or seconda ry schools.” (Emphases add ed.) 20 U .S.C. §7801(26)(A) (Supp. 2005). A “State educational agency ” is similarly defined as “ the St ate educational agency

in aState in

which the State educational agency i s the sole educational agency for all public schools.” 20 U.S.C

. §7801(26)(E) (Supp. 2005). Th e combinat

ion of the EEOA’s prohibition

on states deny in g individua ls access to equal educational opportunity and the definition of an “edu cationa l agenc y” as a polit

ic al subdivi sion of the

state demonstrates that Cong

ress inte nded that states and their “educat ional agenc ies” not eng age in d iscrimina tory conduct. This point i s rein forced

by District 204 when they cite Gomez v. Illinois St a t e Board of Education , 811 F.2d 1030 (7th Cir. 1987), to suppor t its contentionthat the Board

is responsible for enforcement of the EEOA

as well as the courts. Gomez , 811 F.2 d at 103 8 (“relief is to be obtai nedf

rom the state and its agencies”). Howe ver, the quotation used by District 204, taken in context, s ho ws that relief was “to be obtained from the s tate and

its age ncies” i n court. The pas sage from Gomez c ited by District 204 went on to include the 7th Circui t’ s hold ing, which was that “Cong ress inte nded to abrogate

the state s’ Eleventh Amendment

immunity

to the exten

t such immun

ity would forecl ose recovery

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

stands f or the pr oposition that the EEOA allows the courts to hold the state and its age ncies lia ble for p ast

discriminatory actions. It does not stand for the idea tha

t the Boa rd must ad

judicate

or even c onsider t

he raci ally

discriminatory

impact of

its action s. The prohibition on actin

g in a dis criminat

ory way is not the sa

me
as an affi rmative mandate

to take certain actions or to conduct formal procee dings to ensure that the actions taken are not dis cr im in at or y. There is no language in the EE OA tha t prescribes that any state or-13- “educational agency

” tak e any aff

irmative step to consider the segre gative

effec ts of their

actions prior to ta

king the m. Whatthe EEOA d oes 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 volunta

r y st eps to re medy the past d

iscrimina tion (20 U. S.C. § 1716 (2000)) or in the absence of action that these a gencies are liablein court (20 U.S.C. §§1712, 1713, 1714, 1716, 1717, 1718 (2000)). Ce rt ai nl y, a stat e can c hoose to mandate that its “educational ag en cy” consider the EEOA in granting a p e tition for detac hme nt/annexation. However, the EEOA does not require that states mand ate educ ational a gencie s to consid

er the EE OA or ves t them with the pow er to consider the segreg ative effect of detachment/annexation

petitions. Preemption requi res an actual conflict such that “it is impossible *** to comply with both state and federal law” and where the challenged

law “sta nds as an o

bstacle to the accomplishment

and execution of the full purposes and objectives of Congress.” Crosby , 53 0 U. S. at 3 72- 73, 147 L. Ed. 2d at 361, 120 S. Ct. at 2294. That is not the case here. The EEOA uses the term “educational age ncies” to describe potential discriminatory

actors, but ultimat

ely it is the discriminatory actions of the state and its agencies that are to be corrected by

the court. I t is the state that must provide relief for the discriminatory actions of its subdivisions. Under the suprema cy clause, “state c ourts share responsibility for the application and e nforcemen

t of federal law” ( Howlett v. Rose , 496 U.S. 356, 372-73, 110 L. Ed. 2d 332, 351 110 S. Ct. 2430, 2441 (199 0)) and a state co urt cann ot refus e 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 in

vali dation of agency

actions. See, e.g. , Board of Education v. Cady , 369 Ill. App. 3d 486 (2006), and Chicago Sc hool Reform Bo ard of Trustees v. Illi nois Educ ational La bo r Relations Board

, 315 Ill. App. 3d 522 (2000). The refore , the cour ts6 This does not ex clude the po ssibility that a f ederal c laim i s initial ly considered

and decided by

anadministrative tribunal and come s before the court onl y under an exerc ise of the court’s statutory power for administrative rev

iew.

-14- of Illinois have an obligation to review a nd enforce the EEOA. 6 It is this oblig ation tha

t we dire ct our at

tention to next.

II The second argument presented by the Board to re fute th e appella te court’s finding of pree mption is that

administrative review is not the exclusive means of challenging the B oard’ s decisio n to grant a petition for detachment/ann exation . The Board argues that District 204’s EEOAclaim may be broug ht under the circuit court’s original jurisdiction. District 204 count

ers that t he EEOA r

equires s tates to take affirmative steps to “remove vestiges of a dual scho ol sy stem” and to not“deny e qual educational opportuni ty to an individual on account of his or her race, c olor, sex, or national origin.” 20 U.S.C. §1703 (2000). District 204 asserts that administrative rev ie w is the exclusive

means of reviewing

the Board’s decision because the a dministrative review law states that “[e]very ac tion to review a final administrative decisionshall be commenced by the filing of a complaint and the issuance of summons.” 735 IL CS 5/3–103 (West 2006). In t he p resent case, District 204 seeks review of a final decision of anadministrative ag en cy. Further, District 204 notes that on administrative review, the circuit court is limited to the record develop e d before the administrative body (see

735 I LCS 5/3 –110 (West

2006)) and section 7–2b prohibits the Boa

rd from consider

ing the EEOA. Thus , if administrative re view i s the exclusive means of challenging the Board’s decision, then section 7–2b, in conjunction with the scope of the circuit c ourt’s jur

isdiction on administ

r ative re view, wou

ld effec tively

prohibit t

he s tate from stopping a potenti ally discriminatory

action un der t he EEOA. Thus, the EEOA wou

ld preempt section7–2b, as the EEOA mandates that the state must not allow discriminatory action.-15- Thus, District 204 asserts that either section 7–2b’s limiting clause or the ad ministrati ve revie w st atute must be invalidated and ther eby allow for

consider ation of it s EEOA cl aim. Howe ver, th i s pr obl emexists only if administrative review is the exclusive means of challenging the Boa

rd’s decision. The Board a sserts that the way to both obtain a hea ring on the Board’s decision and avoid declaring a statute unconstit utional is t

o allow District 204 to bring the EEOA cla imas an inde

pendent c ause of action un

der the c ircuit co

urt’s ori ginal ju

risdiction. This would al low District 204 to bring its EEOA claim in the circuit court an d develo p a factual record before the circuit court. Under the Boar d’ s argument this action could ei

ther pro gress i ndependently or be consolidated

with an action for administrative re v iew. The Board notes, and Distr

ict 204 doe s not disput

e, that un der th is appro ach there is no preemption issue. In this way , District 204’s EEOA cla

im

can be fully litigate d, and this

court avoids invalidating a statute. For the following reasons, we believe that this is the corre ct 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 w

ithin the law pu

rsuant to which it was created.” Delgado

v. Board of Election Commission ers , 224 I ll. 2d 481, 485 (2007). As previous ly

noted, se ction 7–2b ’s limitati on clause serves t o severe ly 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 ri ght to equal educational opportunity can be vindicated, however, the wisdom of t

he Gene ral Asse mbly ’s choic e 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 cour t. No newor additional evidence *** shallbe heard by

the court .” 735 IL CS 5/3–110 (West 2006). Therefore, to the ex ten t that section 7–2b restricts the evidence that the Board may

place in the rec ord, the c ircuit c ou rt is simila rly restricted in its administrative review. Thus , t he circuit court on administrative review i s n o better able to address District 204’s EEOA claims than the Board was in the first instance.-16- The Illinois Constitu

tion of 197 0 vests the

circuit co urts with original jurisdict

ion over “ all ju stici able matters except when the Supreme Court has origina

l and exclu sive juris diction.” Ill. Const. 1970, art. VI, §9. As this court has noted,

“Our current constitution does not defi ne t he term ‘justicia ble matters,’ nor did our f

ormer constitution, in which this term fir st appea

red. See Ill. Const . 1 970, art. VI, § 9; Ill

. Const. 1870, art. VI, §9 (amende d 1964). Generally , a ‘justicia ble matter’ is a contr

oversy appropr iate for review by the court, in that it is definite and con crete, as oppose d 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). Inthis case , there i s a contr oversy betwee n private citiz ens who wish to detach proper

ty f rom a governmen

t en ti ty, the Board who wishes to defend

the law, and a second government body that opposes the proposed action. Th ere is nothing abstract or moot about the

co nt ro ve rs y. It affects the leg al relationship between the parties and the pa rties have adverse legal intere sts. Therefore, the current ca s e constitutes a “justiciable matter” under the Il linois Constitution’s grant of original jurisdiction to the c ircuit courts. In addition to the

casefalling

within the

circuit c ourt’s or

iginal ju risdiction, this ca se may also be handled as an

independent action because the traditional

ru le s o f f or fe it ur e d o n ot ap pl y. Ordina ri ly, any issue that is not raised bef ore the administrative ag en cy, even constitutional issues that the age ncy lacks the authority to decid e, wil l be fo rfeit ed by the p arty fail ing to ra is e th e is sue . In Carpetland

U.S.A., I

nc. v. Il linois Dep artment o

f Employment Security , this cour

t refuse d to addre ss a claim that the Department of Employment

Security had violated the

due process clauses of both the United States Constitution and I llinois Constitution because the issue had not been raised at the first opportunity , before the administrative ag en cy. Carpetland

U.S.A., I nc. v. Il l inois Department of

Empl oyment Security , 201 I ll. 2d 351, 3 96-97 (20 02) (“c onstitutional claim i s [forfeited] for

failure to raise i t at the fi rst oppor tunity ”). Thishas led th is court to adm onis h lit igants to “as sert a const itut ional chall enge
on the record befo re the admin istrative tribunal, because-17- administrative review is confined to the proof of fe red before the agency .” Carpetland U.S.A., Inc. , 201 Ill. 2d at 397. Seealso TexacoCities Service Pipeline Co. v. McGaw , 182 Ill. 2d 262, 2 78 (1998). (“It is well-re cognize d that a lit igant’ s right to

question the validity of a statute is subject to [forfeiture] by ac t or omission”). However, in this instance, the ordi na ry f orfeiture rules do not apply because section 7–2b prohibits the deve lo pment of a record with regar d to the EEOA claim. The limiting clause of section 7–2b denies District 2 04 all opportunity to develop a

record with reg ard to

anEEOA violation before the administrative agenc y. Thus, there c an be no forfeiture, bec ause there was no opportunity to present the issue. In essence, ther

e was no “first opportunity.” Similarly , the exclusivity of the administrative review law doe s notapply where , as described above, theissue being raised cannot be i ntroduced

before the administrative agency . In the presen t case , section7–2b operates as a comp lete 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 statut es of

this state. As this court held in Chestnut v. Lodge , “[t]he Administrative Review Act is a salutary ac

t to provide

a simple sing

le review f

rom spec ified ad

ministrati ve decis ions, but it

was not intended to be a trap for the unwa ry to establi sh a bar t

o relief.” Chestnut

v. Lodge , 34 Ill. 2d 567, 571 (1966). District 204’s EEOA claim is b ey ond the scope of the hearing office r, beyond the scope of the Board’s administrative decision, and theref o re be yond the scope of the administrative review law. T he Board points out that handling the EEOA claim as a n independent

action under the circuit court’s ori ginal juri sdiction is not withoutprecedent. In Board of Education of Rich T ownsh ip High School District No . 227 v. Br

own , the appellate court allowed a constitutional challenge to section 7–2b to be br ought as an independent

action in the circ uit cou rt. Indoing so, the appellate court rejected an expansion of

the Board’s power, holding that the limiting clause of sect ion 7–2b expressly placed the issue outside of the Board’s authority and outside the court’s statutory

authority to review the decision s of admin

istrative agenc ies. Board of Education of Rich TownshipHigh Scho ol District No. 227 v. Brown , 3 11 Ill. App. 3d 478 (1999). However, the court noted that while the issue may be7 In Rich To wnship , the circuit court did no t ultimately ha ve to develo

p this record be cause the record had been ad equately develo

ped before the Boar d, the lim

itations of sect ion 7–2b not w

ithstand ing. Howev

er, th i s holdingis not di c ta because regardless of where the factual record was developed, the circ

uit cour t still h ad to ha

ve juris diction

to cons id er and enter judgment in the case.

-18- outside the scope of the administrative agency ’s authority, and

ou t side the scope of administrative review, it was not outside the scope of the ci rcuit court’s origina l jurisdic tion under

the I llinois Constitution. Therefore, the cou rt held that

the circ uit court c ould develop the rec ord nece ssary to decide the const ituti onal c halle nge under an exercise of the circuit court’s original jurisdiction. Ric h Township , 311 Ill. App. 3d at 491. 7 District 204 contends that adopting this ap proach will allow school district boundaries to be “redrawn without considering the effect of such a maneuve r on educ ational se greg ation.” N either p arty disputes that District 204’s EEOA claim must be c onsid ered and decided by a court of

competent

jurisdiction. Through the exercise of the circuit court’s origina l jurisdic tion, the c ircuit

courts may conduc

t procee dings, receive evidence, and fully adjudicate District 204’s EEOA claim. F urther, given the natur e of this claim, there is no

reason why a plaintiff c ould not seek an injunction pending resolution of this claim in the circuit court. See Ardt v. Illinoi s Department of Professional

Regulation , 154 Ill. 2d

138, 148 ( 1992) (“ Circuit c ourts have traditionally used mandamus , certior ari , injun ction and other actions as a means of reviewing the dec isions of administrative agencies”).

CONCLUSIO N Becau se District 204’s EEOA claim is subject to adjudication by the circuit c ourt as a

matte rof original jurisdiction, there is no preempt io n, a s section 7–2b does not present an obstacle to the “accomplishment

and execu

tion of the

full purp oses and o

bjective s” of t he EEOA. Accordingly, we reverse that portion of the appel lat e-19- decisi on that held section 7–2b was preempted by the EEOA. W e remand t he matter to the cir cuit cour t.

Reversed and remanded.

JUS TICE FRE EMAN, speci ally conc urrin g: 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)). Co ns eq ue nt ly, this court further holds that the EEOA does not preempt and rend

er uncon stitutiona

l section 7

–2b of the

Illinois School Code (105 IL CS 5/7–2b (West 1998)). Slip op. at 18-19. Ifully agree with the c ourt’ s reason ing and result. I write separa tely to urge the Gene

ral Asse mbly to amend section 7–2b of the School Code to allow a school board to hear disputes regarding equal ed ucational opportunity when deter mining section 7–2b petitions

. Such disputes s hould be h eard ini tially by a school boa

rd and no t a court. Also, I caution the circuit court in this case , on reman d, to base its findings on sufficient evidence and not conjecture.

I. BACKGROUND Four individuals who were all of the register ed v oters of a contiguous 320-acre parcel of farm land in Will County petitioned the Illinois State Board of

Educat ion (Boa

rd) to de tach the ir prope

rty fromDistrict 2 04 and an nex i t to Lin coln W ay Commu nity High School District No. 210 (District 210), pursuant to section7–2b of the School Code (105 IL CS 5/7–2b (West 1998)). Section 7–2b provides that, under specific circumstances, la nd may be automa

tically detached from one district and anne xed to another district, at either the elementa

ry or high s chool level. See M. Gue nther & B. Wrig ht, Creation, Dissolut i on, and Boundary Changes , in 1 Illinois School Law §1.11 (Ill. I

nst. for Cont. Legal Educ. 2005). The Board held an administrative hearing on the detachment and anne xation pet iti on. District 204 cl ai med, inter alia , that gr anting t he petition would violate the EEOA, which prohibits the transfer of a student from one sch ool 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 i s “60% minority,”

and District 210 is “almost completely white.” District 204 argued that granting the petiti on would in

crease racial s egregation in violation of the EEOA. The h earing officer specif ically found that District 204’s EEOA claim was bey ond its statutory and reg

ulatory

au th or it y. It is u

ndisputed that petit ioners m et section 7–2b’s four specific conditions. Accordingly , the Board granted the sec tion 7–2b petition. Slip op. at 2-4. Onadministr

ative re view, the circuit court confirmed the Board’s decisiongranti

ng the p etition. A dditionall y, t he circ uit cour t independ ently found that the Board’s decision did not “cr eate a Constitutional impediment,” or violate federal law. On appeal, the appella te c ourt: vacated the circuit court’s ruling on the mer its of District 204’s EEO A 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. AN ALYS IS Befor e this cou rt, Distri ct 204 ess entially raises two issues:

“ The current legislative framework de veloped b y th e General Assembly

is a nake d attempt [ A] to si destep the federal mandate set forth in the EEOA by stripp in g away

an agency ’s ability to consider the eff ect of detachment

on racial segregation, and

[B] then tie the hand

of the circuit courts on review throu gh application of the Administrative Review Act.” While future litigation will shed light o n the first claim, this court correctly rejects the second contention.

A. De Jure

Segre gation a

nd Equal E ducational Oppor tunity Section 7–2b of the School Code m andat es an automatic detachment

and anne

xation proc edure that expres sly prohibits consideration

of surrounding circumstances. Thi s unique au tomatic p rocedu re can potentially promote illeg al student segregation. The potential for such a consequence flies in the fac e of con sti tutional-21- principles that the U

nited State s Supreme

Court fir st

enunciated

over 50 years a go, and decisions that this court issued over a century a go, upholding the right of children to attend public schools free of de jure segregation.

1. Authority to Change School District Boundaries Within constituti onal limita

tions, the

legis la ture ultimately controls the cre ation, division, and abolishme

nt of sc hoo l districts

. People v. Wood , 411 Ill. 514, 522 (1952). This court has re peated ly recognized

that any

school dis trict est

a blishe d under enabling legisla tion is:

“ ‘entirely subject to the will of the legislature t herea fter. Wi t h 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 fa

cil ities in the district, without givingcompensa

tion there for, and

vest them in other dis tricts

or agencies. *** The area

of the district may be contra cted or expanded, it may be

divided, u

nited in whole or in par

t with another district, and

the district

may be abolished. All this at the will of the legislature.’ ” Element ary School District 159

v. Schiller , 221 Ill. 2d 130, 155 (2006), quot ing People ex rel. Dixon v. Community Unit School District No. 3 , 2 Ill. 2d 454, 465-66 (1954). This co urt has f

urther e xplained th at a scho ol distric t is a quas imunicipal 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 schooldistrict boundaries to schoo l authoriti es, who exercise that power in their discretion, guided by

statutory standar

ds. S chool District No. 79 v. County Board of Sc

hool Truste es , 4 Ill. 2d 533, 538-40 (1954). Alth ough the residents of a school district may initiate a petition for detachment

and anne

xation bec ause of personal desires or convenience, the deci sion to cha nge es t ab lished school district b oundaries rests within the discretion of the appropriate sch oo l ag en cy. Oakdale Communi t y Consolidated School District No. 1 v. County Board of School Trustees , 12 Ill. 2d 190, 193 (1957).-22- Of course, the leg islature

must exerc ise this sig

nif icant power within c ons titutional limitations. School district lines are not sacrosanct

and they must not co nflict wit

h the four teenth a mendment

. 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 re pudiate d the doctrine of “sepa rate but equal ,” which

the Court f

irst enunciated in Plessy v. Ferguson , 163 U. S . 537, 41 L. Ed. 256, 16 S. Ct. 1138 (1896). The Court in B rown ob served t hat de jure

(state-imposed) racial segre gation o f student s is in itself an evil th at tends to

frustra te the aff ected st udents “i n a way unlikely ever tobe 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 publ ic educ ation the doctrine of ‘separate but equal’ has no place . S eparat e educational facilities are i n herently unequa l. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are , by re ason of the segregation

complained of, deprived of the equal pr otec tion of the laws guara

nteed by the F ourteenth Amendment.” Brown , 347 U.S. at 495, 98 L. Ed. at 881, 74 S. Ct. at 692. Brown is significant

partly beca

use the United

States Supreme Court reversed years of constitutional history that permitted the segregation of students based on race or c olor. “It righted a legal and moral wrong. But as imp ortant–p erhaps m or e importa

nt–is that Brown ushered in anew era of b roa der educat ion al o ppo rtu nity .” 4J. Rapp, Education

Law §10.01[1], at 10–3 (2008). Today , the i dea that segregation

b ased on race or color is inherently unequal is “a statement of clear constitution a l 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 in va li da te d o nl y de jure segregation i n public schools, i.e. , segre gatio n r esulting from intentional governmentalaction. In contrast, de facto segregation occurs without any governmentalaction th at is intended to segregate. Unintentional de facto segre gation, by i tself, do es not viol ate the f ourteen th amendme nt. Dayton Board of

Education v. Brinkman , 433 U.S. 406, 413, 53 L. Ed. 2d 851, 859, 97 S. Ct. 2766 , 2772 (197 7); 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 throu gh 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 constituti onality

of raci al imbala

nce in aschool system that had “never been opera

ted under a constitutional or statutory pr ovision that mandated or permitted racial segre g ation in public education.” Keyes , 413 U.S. at 191, 37 L. Ed. 2d at 553, 93 S. Ct. at 2688. N everthe less, the Court held that where “school authorities have ca rr ied out a sys tematic

program of segregation

affecting a substantial portion of the students, schools, t

eacher s, and fa cilities w it hin the school s yst

em, 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. a t 2694. “Correction of such actions comes wit

hin the dir

ect ma n date of B rown, for it is segregation

which has developed, not fortuitously , but by governmentalactio n. Alt hough often ca lled de f acto seg regat ion, it is really ‘cover t de jure ’ segr

egation.” E. Re

u tter, The Law of Public Education

795 (3d ed. 1985). The Court emphasized that the crucial difference between de jure and de facto segre gation i s the inten t to d iscriminate. The Court endorsed a burden-shifting proce d ur e designed to adduce

the in tent necessa

ry to prove “ covert de jure ” segregation

where the law does not expressly authorize segregation. Keyes , 413 U.S . a t 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, T

reatise on Const it utional Law § 18.9(a)(ii)(1), at 490-92 (4th ed. 2008) 4 J. Rapp, Education La w §10.0 4[3], at 10- 69 th rough 1 0–70, §10.0 5[3] , at 10 –86 t hrough8 The EEOA also declares it to be a policy

of the United States that “the neighborhood

is the appropriate basis for determining p ublic school assignments. ” 20 U. S.C. § 1701(a) (2) (200 0). I t is ge nerally recognized th

at Congress enacted the EEOA in reaction to court decisions upho lding busing

as ameans of r emedying de jure segregation. See 4 J. Rapp, Edu cation Law §10.06 [5], at 10 -1 21 (2 008) ; 3 J. Coo k & J. Sobieski, Civ

il Rights Actions ¶16.19, at 16–96 throug

h 16–97 (2008). The A

ct directs federal courts not to use bu sing t

o remedy de jure segregation “ unless the court first finds tha t all alter native reme dies are

inadeq uate.” 20 U.S .C. §1 755 (20 00).

-24- 10–90 (20 08) ; 3 J. Cook & J. Sobieski, Civil Rights Actions ¶16.02, at 16–8 through 16–12 (2008). Keyes exemplif ies that “the Equal ProtectionClaus e [is] aimed at all official actions, not just those of state legisla

tures. ** * Even ac

tions of sta

te age nts that may

be illegal

u nder st ate law are attributable to the State.” Columbus Board of Ed ucation v. Penick

, 443 U.S. 449, 457 n.5, 61 L. Ed. 2d 666, 67 6 n.5, 99 S. Ct. 2941, 2946 n.5 (1979).

3. Equal Educational Opportunities Act of 1974 The EEOA

is a multipur

pose stat ute. The Act dec lares it

to be a policy of the Un

ited State s that “a

ll childre n enrolle d in publi c schools are entitled

to equal educational opportunity without reg ard to race, color, sex, or national origin.” 20 U.S.C. §1701(a)(1) (2000). 8 To effe ctuate th

is policy , the EEOA

prohibits i

n pertine nt part: “No State shall deny equal e ducational opportunity to an individual on account

of his or her race, color, sex, or national

or ig in , b y– * * * (c) the assignment by

an educational agency

of a studentto a school, other than the one closest to his or her place of reside nce w ithin the school district in which he

or she resi des, if

the assignment

results in a greater deg

ree of segregation

of students on the basis of race , col or, s ex,
or national origin among the schools of such ag ency than would result if s uch s tudent were assigned to the school closest to his or her place of residence within the scho ol-25- dist rict o f such agency

providing the appropriate gra de level an d ty pe of edu cation f or such st udent;

*** (e) the transfer by

an educational agency

, wh et her voluntary or otherwise, of a

s tudent fr

om one school to another if the purpose and effect of suc h transf

er is to increa se segregation of students on the basis of ra ce,
c olor, or national orig in among the schoo ls of su c h agency .” 20 U.S.C. §1703 (2000). Withre sp ec t t o r ac ia l d es eg re ga ti on , t he EE OA is es se nt ia ll y a restatement

of preexisting ca se law, a nd its prohib itions are

mostly coextensive with the e qual p rot ection c lause of the four teenth amendme nt. 4 J. Rapp, Educ a tion Law §10.02[3], at 10–19 (2008); 3 J. Cook & J. S obie ski, Civil Rights Actions ¶16.19, at 16–99 (2008).

4. Segrega tion in Illin ois School s De jure racial s egregation existe d in Il linois at t he time of

the

r atification

of the fourteenth amendment. I n 1825, the Ge nera l Assembly provided for the e stabli sh ment of public schools, which

were “open and freeto every c lass of white citizens, between the ages of five and twenty- one years.” (Emphasis added.) 1833 Ill. La ws 556. The 1857 School Code

did not express ly

exclude black children from public schools but, rather, impliedly limited pub lic schoo ls to white children

. 1 857 I ll. La

ws 260, §7 (

requirin g state superint endent to periodic ally

report to Governor on, inter

alia , “the num

ber of w hite persons in each co

unty under tw enty-one y

ears of age” ), 1857 I

ll. Laws 263, §16 (

requirin g schoo l commissi o ner to ap portion sta

te funds among sc

hool distri cts in

county based on, in part, “the number of white childr en, u nder twenty- one yea rs of age”), 1857 Ill. Laws 292, §80 (“In townships in which there sha ll 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 res pective tow nships”); see generally B. Reams & P. Wilson, Segregation and The Four teenth Amendment i

n the States 138 -54 (1975 ); D . Dougla s, The Limits of Law in-26- Accomplishing

Raci al C hange: S chool Seg regation i n the Pre- Brown North , 44 UCLA L . Rev. 677, 695-96 (1997). In1867, the

Genera l Assembly ratified the fo urteent h amendme

nt. In 1874, the legislature

enacted legislation that expressly prohibited the exclu sion of any

child from a public

school ba sed on ra

ce. I ll. Rev. Stat. 1874, ch. 122, par. 100. In a series of dec isions beginning in1874, this c ourt r epea tedly ruled ag ainst rac ial seg regat ion in education inthe 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. 3 08 (1882) ; People e x rel. Pe air v. Boa rd of Education

of U pp er Alton School District , 127 Ill. 613 (1889); People ex rel. B ibb v. May

or & Common Cou ncil , 193 Ill. 309 (1901). Agains tthis back

drop, I turn to ar ticle 7 of the Illinois School Code.

5. Detachm ent and An nexation : Overa ll Benefit “The most ty

pical” s chool bou

ndary chang es are t

he resul t of the detachment

of a portion of school district territory and its annexation to a nother

school district. See C. Russo & R. Mawdsley, Educa tion Law §1.04[3], at 1–19 through 1–20 (2008). In Illinois, school district boun d aries may be cha

nged by detachment, annexation, division, dissolution, or by any

combination of those metho ds pursu ant to article 7 of the School Code. 105 IL CS 5/7–02 (West 20 06). The general method for d etac hment and annexation involves a petition process , administr

ative he arings , and the potential for judicial review pursuant to the Admi

nistrativ e Review Law (735 I LCS 5/3–101 et seq. (West 2006)). See 105 IL CS 5/7–1, 7–2, 7–6, 7–7 (West 2006). At the admin

istrative hearing on a deta

chment 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 a

djacent thereto and as to the ability of

the districts affected to meet the standards of recognition

as presc ribed by th e State Board of Education, and shall take into consideration the d ivision of funds and assets which will result from the c hang e of boundaries and shalldetermine whether it is to the best inte rests of the schools of the area

and the educational welfare of the pupils-27- that such change in boundaries be granted ***.” 105 I LCS 5/7–6(i) (West 2006). Based on the language of section 7–6, a petition for detachment and

anne xa tion should be granted only where the overall benefit to th e annexing district and the detachment area c learl y outweig hs the resulting detrime

nt 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) (colle cting cases). Inapplying this bene fit-detriment test, the hearing board, and the courts reviewing the board’s decision, are to consider diff

erences between sch ool facilities and curricula, the distances from the petitione rs’ homes to th e respe ctive schools, the effect detachment would have on the ability of e ither district to meet state standards of recognition, and the impact of the propo sed bo undar y change on the tax revenue s of both

districts. Carver , 146 Ill. 2d at 356. The hearing board may also cons ider the

closely relate d “who le child” and “communi

ty of interest” factors. The “whole child” factor “recog nizes that extracurricular participation in social, religious and eve n
com mercia l activitie s is importa nt in a chi ld’s deve lopment a s a benefic ial supple

ment to the child’s academic involvement.” Board of Education of Golf School District No. 67 v. Reg ional Board of School Trustees o

f Cook Count

y , 89 Ill. 2d 392, 3 97 (198 2). The “communi

ty of interest” factor ascertains whe ther the p etit ioning area is identified with the school district and the community to which annexation is requested. If a c hild attends school in his or her natural

co mm un it y, it

not only enhance s the child’s e ducational opport unity butencoura

ges the child’s partic ipation in social and other extracurricular

activities that figure importantly in the “whole child” concep t. Golf

, 89 Ill. 2d at 397-98. Further, c onsiderationof the racial impact of a school di strict boundary cha nge is relevant to a detachment

and anne xation proc eeding

“to ensure that a dual school system based upon rac e, national orig in, or col or does no t result.” C. Russo & R. Mawdsley, E ducation Law §1.04[3], at 1–19 , 1–20 (2008). See, e.g. , In re Pet ition for Au thori

zat ion to Condu ct a Referendum on the W

ithdrawa l o

f 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, 5 55 N.E.2d 931, 934 n.5 (1990). Indeed, it is r ecogn

ized that “ Illinois is exceptionally active in detachment

procee dings. *** A review of Illinois detachment c ases
over the past two decade s indicat es that the judicial e

mphasis is consiste ntly focu sed o n the concepts of the ‘whole child,’ the ‘communit

y of interests’ and ‘the educational welfar e of the students.’ ” J. Menacker, Illinois Detachment Legislation: A Device for Creatin

g Manageable Urba n School D istricts , 81 Educ. L. Rep. 411, 414-19 (1993). However, in enacting the automatic detachment procedure in section

7–2b of the

School Co de, the legislature pointedly rejecte d this well-settled holistic approach.

6. Section 7–2b: Automatic Procedu re Section 7–2b of the School Code provides for the detachment and annexation of noncoterminous land from an el ement ary or high school district. In con

trast to the procedure for detachment and

anne xat ion generally , section 7–2b mandates that a detachment and annexation petition “ shall”be granted if the affec ted land constitutes 10% or less of the district’s equalized asses sed valu e and of i ts te rr it or y; two-thirds of the registered voters in affected area support the petition; a

nd the ann

exati on will make the boundaries of the elementar y school and high school districts for the affected land identical. 105 IL CS 5/7–2b(a) (West 1998); slip op. at 3. The legi slature origina

lly a dded this procedur

e to the Sc hool Cod e in1991. Pub. Act

87–667, eff. September 20, 1991 (adding Ill. Rev. Stat. 1991, ch. 122, par. 7–2b). Further, to ensure that this proce dure is truly automatic, the legislature subsequent ly added a directiv e to section7–2b, whic

h at the time of these

procee dings re ad as fol lows: “The regional board of school trustees shallhave no a

uthority

or discretion to hear any

evidence or consider any issues except those that

may be nec essary to dete rmine whether the limitations and conditions of this Sec tion have been met.” Pub. Act 87–1270, §2, eff. March 3, 1993 (amending Ill. Rev. Stat. 1991, ch. 122, par. 7–2b). Among the issue s that th e legislature expressly excludes from consideration

is w hether

granting a detachment and a nnexation-29- petition would deny pu

blic school children the equal educational opportuni ty guaranteed by

the eq ua l protection clause of the fourteenth amendment. Obviously , such a result is untenable. School authoriti es have t

he prim ary r espon sibi lity for e lucid ating,

asses sing, and solving the problem of unconstitutional racial discrimination in public education. Br ow n v. Board of Education ( Brown II ), 349 U.S. 294, 299, 99 L. Ed. 1083, 1105, 75 S. Ct. 753, 756 (1955). I

t is recognized

that detachment and annexation of school districtterritory ca

n operate to perpe tuate segre gation. See C. Russo & R. Mawdsley, Educa

tion Law §1.04[3], at 1–1 9, 1–20 (2008). Surprisin gl y, the General Assembly expressly prohibits the Board fromeven considering this constitutional issue when presented with

a section 7–2b petition. In a case prese nting a more blatant example of legislative obstructionism, the United States Supreme Court declar ed as fol lows: “[T]he prohibitions of the Fourteenth Amendment extend to all action of

the State deny ing equal protec tion of the laws; whatever the a gen cy of the State takin g the acti on [ci tations];

or whateve r the gu ise in whic

h it is taken [cit

ations]. I n short, the constituti onal rig

hts of c hildren not to be discriminated

a ga inst in school admission on grounds of race or color declared by thi s Court in the Brown case can neither be nul lified openly

and dire ctly

by s tate legislators or state executive or judicia

l office rs, nor nullified indirectly by them throu gh evas iv e schemes for segreg ation whether attempted ‘ingen iously 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 su re , the general detachment and a nnexation procedure, with its petition pro cess, administrative hearings, and potential for judicial review, can be described as “ cumbersome.” J. Menacker, Illinois Detachment Legislation: A Device for Creatin

g Manageable Urban School Di

stricts , 81 Educ. L. Rep. 411, 413 (1993). This court long ago admitted that the applicable standards “ar e general ra ther thanspecific in nature. However, it would be both impossible and undesira ble for the le gislatu

re to dra

ft r igi d nondiscretionary-30- standards which would embrace each and every school district boundary change, for conditions surrounding the changes are seldom th e same.” District No. 79 , 4 Ill. 2d at 537-38. Further: “ ‘ The judiciary is ill equipped to act

as a super school board in assay ing the complex factors involved in determining the be st in terest of the schools an d t he pu pi ls af

fe ct ed 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

educati onal oppo

rtunity obviously

must be he ar d i n t he fi rs t i ns ta nc e b y some p ublic 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 petit

ions.

B. Safe guard

ing Equa l Educati onal Opportunity Of course, this legislative overs ight cannot prevent judicial intervention to safeguard the fundamental goal of equal educational op po rt un it y. Th is co ur t c or re ct ly holds that the c ircuit co urt of Will County has original juris diction to a djudicat e District 204’s E EOA claim. Slip op. at 13-14, 16-18. Indeed, the c ircuit court has jurisdiction to hear not

only the EEOA

claim, but all claims brought under the full panoply of fe deral 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 inhe rent authority to adjudic ate fed

eral cla ims and tha

t Congre ss mu s t affirmatively dive st state courts of their concurrent jurisdiction). Onremand, the circ

uit court will have the obligation to hear any claim that District 204 may bring , and to receive releva nt eviden ce in support thereof. Surprisingly , the circuit co urt m ade the following independent

finding in confirming the Board’s g rant o f the section 7–2b petition:

“While one may

have susp ic ions as to w hy property

owners may

want to de

tach the ir land from one district and attach it to another, mere suspicions are not enough . There

is nothing i n thi s record

to establish any ty

pe of racial motivation on the part of the parties seeki ng disconnection. Onthe record before the Hea ring Officer it appe ars that the-31- reason for the disconne ction was to proper ly align elementary and high school boundaries so thatstudents who attend New Lennox Grade Sc hool Distr ict 122 co uld attend [h]igh school at Lin colnway with their

friends

. Now, th is cour t is not so naïve as to not understand that there may well be a

n economic b enefit

to a developer going fromone scho ol distric t to anoth er. C learly , this land

in question will be use d for dev elopme nt purposes. However,

even if that is the motivation, which i s unclear from the record , that in and of itself does not create a Con stitutional impedimentor

a violation of Federal law. The Court finds no Constitutional problem w iththe 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 th e School Co de prohib ited the B oard fr om rece iving suc h evidence. “It is essential to the sufficiency of findings of a court that they be sustained by the evidenc e.” Hanaman v. Davis , 20 Ill. App. 2d 111, 115 (1959). I

n this cas e, it

was impossible for the circuit court to find

no constitutional or statutory violation because s ec tion 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 ci rcu it court will provide an anal ys is based on the relevant evidence presented by the parties, rather than conjecture base d on no evidence at all.

III. CONCL USION The enduring legacy

of Brown v. Board of Ed uc ation is that the doctrine of “sepa

rate but equal” has no plac e in the f ield of pu bli c ed ucation. Segre gation b ased on r ace, co lor, or na

tional o rigi n deprives stud ents o f the eq ual pr otect ion o f the l aws gu arantee d by the fourteenth amendment. Brown , 347 U.S. at 495 , 98 L. Ed. at 881, 7 4 S. Ct . a t 6 92 . I r ec om me nd th at th e G en er al As se mb ly a men d section7–2 b o f the School Code to effectuate this constitutional-32- requirement

more efficiently . Meanwhile, on remand, Iam confident that the circ uit court w

ill fully and fair ly deci de the merits of any claim s that Dist rict 2 04 cho oses t o brin g.