Quinn et al v. Board of Education of the City of Chicago et al

Filing 50

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 2/13/2017. Mailed notice. (mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Patrick Quinn, Irene Robinson,
Antwain Miller, Marc Kaplan,
Christopher
Ball,
Daniel
Morales-Doyle, and Jitu Brown,
Plaintiffs,
v.
Board of Education of the City
of Chicago, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. 16 C 9514

Memorandum Opinion and Order
In this action, a group of registered voters in the
City of Chicago, several of whom are parents or grandparents
of Chicago Public Schools students and/or have served on
Local School Councils (“LSCs”), challenge Section 34-3 of
the Illinois School Code, 105 ILCS 5/34-3, also known as the
Chicago

School

Reform

Amendatory

Act

of

1995.

Plaintiffs

allege that the appointive process Section 34-3 establishes
for selecting members of Chicago’s Board of Education (the
“Board”) violates their constitutional due process rights
and equal protection guarantees, and also violates Section 2
of the Voting Rights Act and Title VI of the Civil Rights
Act

of

1964.

Before

me

are

plaintiffs’

motion

for

a

preliminary injunction and two motions to dismiss, one by
the Board and the City of Chicago (the “City defendants”),
and the other by the individual members of the Illinois
State Board of Education (“ISBE members”) and the State of
Illinois

(together,

defendants’

motion

the

“State

also

defendants”).

seeks,

as

an

The

State

alternative

to

dismissal, a stay on abstention grounds. For the reasons
that follow, defendants’ motions to dismiss are granted and
plaintiffs’ motion for preliminary injunction is denied as
moot.
I.
Plaintiffs’
school

complaint

districts

in

states

that

Illinois,

only

of

the

859

one—the

public

district

coextensive with Chicago’s city limits—has a school board
whose

members

are

appointed,

rather

than

elected.

They

assert that unlike citizens residing in every other Illinois
school district, who “have an unimpaired right to elect the
members of school boards,” Chicago’s citizens are deprived
of this right because “the Mayor of the City of Chicago has
the sole and exclusive authority to appoint the members of
the Board, at his pleasure, without any oversight.” Cmplt.
at ¶¶ 18-22. Plaintiffs claim that under this system of
unfettered

mayoral

control

of

the

Board,

corruption

and

mismanagement of Chicago’s public schools have flourished.
2

They highlight year-to-year financial crises and the Chicago
Public Schools’ looming bankruptcy; the criminal fraud of a
recent

Board

conflicts

CEO;

of

contracts

interest;

plagued

and

by

chronic

Board

member

underfunding

of

education, among other problems. Id. at ¶¶ 76-80.
Plaintiffs situate their claims in a historical context
dating

back

to

first

created

1872,

the

when

Board

of

the

Illinois

Education.

General

Beginning

Assembly
at

that

time, and for more than the century that followed, Board
members were appointed by the mayor, but they had to be
confirmed

by

Chicago’s

City

Council,

which

also

had

to

approve the Board’s budget. Cmplt. at ¶¶ 31-33. Then, in
1988, the General Assembly enacted the Chicago School Reform
Act of 1988, which enhanced Chicago citizens’ ability to
influence the selection of Board Members, as well as to
participate in local school governance. In particular, the
1988 Act authorized the election of Local School Councils to
oversee certain aspects of local school administration, and
it also created a School Board Nominating Commission that
included parent and community representatives from the LSCs
and was responsible for providing the mayor with a slate of
candidates for appointment to the Board. Id. at ¶¶ 34-39.
Plaintiffs allege that the 1988 Act was designed to, and
did, increase the ability of parents whose children were
3

served by the Chicago Public Schools—the vast majority of
whom

were

non-white—to

control

the

operation

of

those

increased

electoral

schools. Id. at ¶¶ 42-46.
In

1995,

activity
passed

of
the

however,
minority

Chicago

following
race

the

School

voters,
Reform

the

General

Amendatory

Assembly

Act,

which

included the challenged mayoral appointment provisions of
Section 34-3. Although the purported objective of the 1995
Act was to address Chicago’s “alleged educational crisis,”
plaintiffs
used

state

“wild

that

and

prominent

overheated

commentators

language”

at

the

including

time

“racially

charged statements” that incorrectly impugned the “all-black
Chicago public schools as the worst in the nation,” which
statements

were

legislators.”
eliminated

the

extinguishing

Id.

“expressed
at

¶¶ 67-68,

School
the

or

role

Board

believed

70.

The

Nominating

of

LSC

by

1995

white

Act

also

Commission,

thus

representatives

in

the

appointment of Board members, and it further eliminated the
requirement that the mayor’s school board appointments be
confirmed by the City Council. In this fashion, the 1995 Act
gave the mayor—who then and at all times since has been a
white person—unprecedented control over the public schools.
Cmplt. at ¶¶ 47-51, 53.

4

Plaintiffs highlight Chicago’s modern history of racial
discrimination

and

segregation

in

its

public

schools,

pointing to a desegregation order and consent decree entered
as a result of litigation filed in 1980. Cmplt. at ¶¶ 58-59.
They assert that since Section 34-3 was enacted, there has
been “no significant increase in the educational achievement
of

the

isolated

Black

student

population,”

and

segregated

at

least

who
in

“remain
part

racially

because

[of]

indifference to racial segregation by the appointed Board.”
Id.

at

¶¶ 71-72.

In

this

connection,

plaintiffs

allege

demographic statistics, including that in 2015, while 38.9%
of Chicago’s public school students were Black, the student
population of about 38% of the City’s public schools was
over 90% Black, while in almost a third of the schools, the
student population was less than 10% Black. Id. at ¶ 83.
Plaintiffs also note that the mayorally-appointed Board has
closed over 100 neighborhood schools since 2001, nearly all
of

which

served

almost

exclusively

African-American

students. Id. at ¶ 84. Meanwhile, since Section 34-3 was
enacted,

the

tax

rates

on

Chicago’s

predominantly

white-

owned property have fallen to among the lowest in the sixcounty Chicagoland area, and at times have been among the
lowest in the state. Id. at ¶ 75.

5

Plaintiffs’

complaint

includes

four

counts.

Count

I

alleges discrimination in violation of the Equal Protection
Clause of the Fourteenth Amendment and the First Amendment
on the ground that Section 34-3 deprives Chicago residents
of the right enjoyed by Illinois citizens living outside of
Chicago to vote for members of their district’s board of
education. Count II asserts that pursuant to Section 34-3’s
mayoral appointment system, the Board unlawfully exercises
the power of taxation without representation in violation of
the

Equal

Protection

and

Due

Process

Clauses

of

the

Fourteenth Amendment and of Article IV, section 4 of the
Constitution. Count III asserts that Section 34-3 amounts to
an electoral scheme resulting in the denial of the right to
vote on account of race or color in violation of Section 2
of the Voting Rights Act. Finally, Count IV asserts claims
under 42 U.S.C § 1983 for the denial of the right to vote on
account of race or color in violation of the Fourteenth and
Fifteenth Amendments and in violation of Title VI of the
Civil Rights Act of 1964. Plaintiffs seek declaratory and
injunctive relief, including an order that defendants must
prepare a plan for the direct election of the Board, and for
an adequate remedy for the alleged violations.
II.

6

All defendants argue that the complaint fails to state
a claim on which relief may be granted, and they move to
dismiss the complaint on that basis under Fed. R. Civ. P.
12(b)(6). In evaluating this ground for dismissal, I accept
the complaint’s well-pleaded factual allegations as true and
draw all reasonable inferences in plaintiffs’ favor. Bell
Atlantic

Corp.

v.

Twombly,

550

U.S.

544,

555–56

(2007).

Plaintiffs need not allege detailed facts, but they must do
more than speculate. Taken as true, their allegations “must
be enough to raise a right to relief above the speculative
level.” Id. at 555.
The City defendants also seek to dismiss the complaint
under

Rule

standing,

12(b)(1)

and

individual

the

members

on

State
of

the

ground

that

plaintiffs

defendants

seek

to

the

ISBE,

sued

in

lack

dismiss

their

the

official

capacities, based on Eleventh Amendment immunity. Finally,
as an alternative to dismissal, the State defendants ask me
to abstain from adjudicating the case under either Colorado
River Water Conservation Dist. v. United States, 424 U.S.
800

(1976)

or

the

Wilton-Brillhart

doctrine,

named

for

Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995), and
Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942).

7

A. Standing
Because
prerequisite

a
to

plaintiff’s
the

constitutional

exercise

of

standing

federal

is

a

subject-matter

jurisdiction, it is normally a threshold question that must
be resolved before proceeding to the merits. Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 88 (1998).
In this case, however, the City defendants treat the issue
as an afterthought to their argument that plaintiffs fail to
state

an

actionable

claim.

Indeed,

the

eight

lines

they

devote to standing at the end of their eleven page brief
reveal that the two arguments are essentially coextensive.
See City Def.’s Mot. at 11, DN 38 (“Here, the Plaintiffs do
not establish standing because, as articulated

above, they

possess no “right” to an elected school board.”). As the
Court

explained

in

Steel

Co.,

“[d]ismissal

for

lack

of

subject-matter jurisdiction because of the inadequacy of the
federal

claim

is

proper

only

when

the

claim

is

so

insubstantial, implausible, or foreclosed by prior decisions
of this Court, or otherwise completely devoid of merit as
not

to

involve

a

federal

controversy.”

523

U.S.

at

89

(internal quotation marks and citation omitted). The City
does not argue, nor do I conclude, that that standard has

8

been met. Accordingly, I am satisfied that federal subjectmatter jurisdiction is secure.1
B. Eleventh Amendment Immunity
Resolution of State defendants’ argument that the ISBE
members are immune from suit under the Eleventh Amendment is
facilitated by plaintiffs’ apparent acquiescence to the view
that the IBSE members lack a sufficiently close connection
to the enforcement or implementation of Section 34-3 to be
sued for injunctive relief under Ex parte Young, 209 U.S.
123, 159–160 (1908). Indeed, plaintiffs did not respond to
this argument in their opposition brief, and at the hearing
on December 5, 2016, after defense counsel asserted that
“the members of the state board of education are really not
proper

parties

to

be

involved,”

plaintiffs’

counsel

responded, “[f]rankly, Judge, if it’s the State of Illinois
1

I note in this connection that while the State defendants
move for dismissal only under Rule 12(b)(6), they argue in
reply that that plaintiffs lack “standing” to bring their
Title VI claim. It is clear from their arguments and
authorities, however, that the issue they raise is one of
statutory standing, i.e., “whether a particular plaintiff
has been granted a right to sue by the specific statute
under which he or she brings suit,” and does not implicate
the court’s subject-matter jurisdiction. AlohaCare v. Hawaii
Dept. of Human Servs., 567 F. Supp. 2d 1238, 1246 (D. Haw.
2008) (citation omitted); see also Miller v. Phelan, 845 F.
Supp. 1201, 1207 (N.D. Ill. 1993) (dismissing Title VI claim
for failing to state a claim on the ground that the
plaintiff was not within the statute’s scope). Because I
conclude that plaintiffs fail to state an actionable Title
VI claim for other reasons, I need not reach the question of
whether they are proper plaintiffs under the statute.
9

defending it or the state board of education defending it,
it’s

not

Because

that

important

plaintiffs

to

have

us.”

not

Tr.

of

articulated

12/05/16
any

H’rg.

basis

for

disputing the ISBE members’ assertion of immunity, they have
conceded the argument. Bonte v. U.S. Bank, N.A., 624 F.3d
461, 466 (7th Cir. 2010).
C. Equal Protection and Voting Rights Act
In

the

main,

plaintiffs’

claims

and

legal

theories

under the Equal Protection Clause and the Voting Rights Act
are

not

novel.

To

the

contrary,

they

cover

well-trodden

ground, having been examined, on materially similar facts,
in Mixon v. State of Ohio, 193 F.3d 389 (6th Cir. 1999), and
Moore v. Detroit School Reform Bd., 293 F.3d 352 (6th Cir.
2002). As discussed below, the court in each case soundly
rejected

claims

that

legislation

providing

for

mayoral

appointment of the board of the state’s largest urban school
district

violated

the

Constitution

and

Section

2

of

the

Voting Rights Act.
1. Equal Protection and First Amendment
Plaintiffs’

complaint

articulates

several

species

of

equal protection violations. In Count I, plaintiffs allege
that Section 34-3 violates the Equal Protection Clause (as
well as the First Amendment) by denying Chicago citizens the
same right as other Illinois citizens to vote for members of
10

the Board. In Count II, they claim that the statute violates
the Equal Protection Clause (and the Due Process Clause,
addressed

in

a

later

section)

because

it

authorizes

an

unelected Board to levy taxes. And in Count IV, plaintiffs
assert

that

Section

34-3

discriminates

against

African-

Americans by denying them the right to vote on account of
their race in violation of the Equal Protection Clause of
the

Fourteenth

threshold

Amendment

issue

in

and

evaluating

the

Fifteenth

each

of

Amendment.

plaintiffs’

A

equal

protection claims is the level of scrutiny to which Section
34-3 is subject.
“Under the Equal Protection Clause of the Fourteenth
Amendment,

courts

apply

strict

scrutiny

to

statutes

that

involve suspect classifications or infringe upon fundamental
rights.” Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 368
(6th Cir. 2002). That means that the legislation must be
“narrowly tailored to serve a compelling state interest.”
Id.

(citation

omitted).

By

contrast,

legislation

that

involves neither a suspect class nor a fundamental right is
subject to “rational basis” review, meaning that it will be
upheld

if

the

legislative

classification

is

“rationally

related to a legitimate state interest.” Id.
On its face, Section 34-3 applies to “cities with more
than 500,000 inhabitants.” Legislative classifications that
11

are

based

on

geographical

or

population

criteria

do

not

involve inherently suspect classes, and thus are generally
subject to rational basis review. See Hearne v. Bd. of Ed.
of

City

of

(applying
violated

Chicago,

Equal

F.3d

770,

basis

rational

185

test

to

Protection

Clause

774

(7th

Cir.

claim

that

Article

due

to

1999)
34

“geographical

discrimination”).
In

Mixon

and

Moore,

the

Sixth

Circuit

applied

the

rational basis test to state statutes providing for mayoral
appointment

of

school

board

members

in

the

cities

of

Cleveland and Detroit, respectively. Like the plaintiffs in
this case, the Mixon plaintiffs argued that the legislation
violated

the

Equal

Protection

Clause

because

it

denied

residents of Cleveland school districts the right to elect
their

school

districts

boards,

enjoyed

that

while
right.

residents
The

court

of

other

school

determined

that

rational basis review was appropriate because “there is no
fundamental right to elect an administrative body such as a
school board, even if other cities in the state may do so.”
Mixon, 193 F.3d at 403 (citing Sailors v. Bd. of Educ., 387
U.S. 105, 108 (1967)). The court further explained:
When determining which standard applies in cases
that
address
educational
policy,
the
very
complexity of the problems of financing and
managing a statewide public school system suggests
that there will be more than one constitutionally
12

permissible method of solving them, and that,
within the limits of rationality, the legislatures
efforts to tackle the problems should be entitled
to respect.
Id.

at

402

(citation,

alterations

omitted).

Legislature

had

internal

The

court

considered

quotation
noted

evidence

marks,

that

that

the

the

and
Ohio

Cleveland

School District’s “financial and operational woes” made an
appointive

system

desirable

because

“the

elected

school

board members were often inadequately qualified and there
was a high turnover rate,” and because “appointed school
boards had proven successful in other large cities around
the country.”

Id. at 403. The court went on to conclude

that the statute did not violate equal protection because
“[s]tate legislatures need the freedom to experiment with
different techniques to advance public education and this
need to experiment alone satisfies the rational basis test.
Id. (citing Sailors, 387 U.S. at 110-11).
In

Moore,

the

court

examined

a

Michigan

statute

providing for the appointment of a school reform board in
any

school

district

classification

that

serving

applied

over

100,000

exclusively

to

students—a
the

Detroit

school district. 293 F.3d at 354. The court again applied
rational
challenges

basis
and

review
upheld

to

the

the

plaintiffs’

statute,

13

constitutional

explaining,

“[t]he

Michigan Legislature was entitled to believe that the MSRA
would address the problems that the legislators perceived to
exist

in

school

the

DPS.

district

Indeed,

as

the

compared

very
to

size

other

of

the

Detroit

districts—180,000

students versus 27,000 students for the next largest system—
provides a rational basis for adopting a different approach
to governance.” Id. at 371.
As these cases illustrate, the Equal Protection Clause
“does not prohibit legislation merely because it is special,
or limited in its application to a particular geographical
or political subdivision of the state.” Holt Civic Club v.
City of Tuscaloosa, 439 U.S. 60, 70–71 (1978). Indeed, the
Seventh

Circuit

has

observed

that

“the

Illinois

statute

books are riddled with laws” that treat Chicago differently
from

Illinois’

smaller

cities.

Hearne

185

F.3d

at

774.

Applying the rational basis test, the Hearne court rejected
the

plaintiffs’

“Chicago-only”

equal

protection

provision

of

the

challenges
Illinois

to

another

School

Code,

explaining that “[w]ith respect to public schools, it was
entirely rational for the legislature to believe that the
logistics
431,085

of

running

students

(the

a

school
number

system
of

designed

students

to

serve

enrolled

in

Chicago’s public schools for the 1997–98 school year) were
far different from those implicated in systems serving less
14

than a tenth of that number.” Id. at 774-75. These same
considerations
Assembly’s

rationally

determination,

relate
in

to

the

1995,

Illinois

that

General

streamlining

the

Board appointment process (for, unlike in Mixon and Moore,
the effect of Section 34-3 was not to transition from an
elected

to

an

appointed

school

board,

but

rather

to

eliminate the City Council confirmation step of an alreadyappointive

process)

was

desirable

for

the

effective

administration of Chicago’s massive school system.
Plaintiffs

concede

that

“there

is

no

inherent

affirmative right of any citizen, black or white, to vote
for members of the school board,” echoing a cornerstone of
the Mixon/Moore equal protection analysis. See Mixon, 193
F.3d at 403 (citing Sailors 387 U.S. at 108); Moore, 293
F.3d at 365 (same). Nevertheless, they urge me to apply
heightened

scrutiny

and

conclusion

in

cases

those

to

reject

that

a

the

Sixth

statute

Circuit’s

establishing

a

mayoral appointment scheme for a large, urban school board
is consistent with the Equal Protection Clause.
Plaintiffs’ lead argument is that Sailors “is no longer
good law” and should not be followed. Sailors concerned a
challenge

brought

by

registered

voters

in

Kent

County,

Michigan to the “basically appointive rather than elective”
process for selecting the county’s school board. 387 U.S. at
15

109. The Court described the question before it as “whether
Michigan

may

appointed.”
noting

allow

Id.

the

It

its

county

answered

broad

school

this

latitude

boards

question

states

and

to

be

affirmatively,

their

political

subdivisions enjoy in devising mechanisms for carrying out
governmental functions: “Viable local governments may need
many

innovations,

numerous

combinations

of

old

and

new

devices, great flexibility in municipal arrangements to meet
changing

urban

conditions.

We

see

nothing

in

the

Constitution to prevent experimentation.” Id. at 110-11.
Plaintiffs argue that Sailors has been “superseded in
its central holding,” which they describe as setting forth
an

“anything

goes”

regime

in

which

“local

units

of

government are exempt from the principle of one-person, onevote.” Pl.’s Opp. at 6, 4. Plaintiffs point to Hadley v.
Junior

College

Midland

Dist.,

County,

390

397

U.S.

U.S
474

50

(1970),

(1968),

as

and

Avery

reflecting

v.
the

Court’s “near complete reversal of course” from Sailors, and
they argue that these cases, as well as Pittman v. Chicago
Bd. of Educ., 64 F3d 1098, 1103 (7th Cir. 1995), confirm
that

Sailors

decisions

and

has
by

been
the

“rejected”

Seventh

flaws in their argument.

16

by

Circuit.

the

Court’s

There

are

later

several

To begin, Sailors does not stand for the proposition
that

“local

principle

units

of

of

government

one-person,

“assume[d]

arguendo

that

election

of

one-vote.”

local

a

are

where

a

exempt
Indeed,

State

official

from
the

provides

or

the
Court

for

an

agency—whether

administrative, legislative, or judicial—the requirements of
Gray v. Sanders and Reynolds v. Sims must be met.” 387 U.S.
at 111. The basis for the Court’s conclusion that Michigan’s
system for selecting its school board did not violate the
one-person, one-vote principle was not that the school board
was

a

“local

principle

unit

did

not

of

government,”
apply

to

the

but

instead

State’s

that

the

“basically

appointive” process. Id. at 109; Cohanim v. New York City
Bd. of Educ., 204 F. Supp. 2d 452, 454 (E.D.N.Y. 2002) (“An
accurate reading of [Sailors] reveals that it held that ‘one
person, one vote’ was inapplicable not because the board was
administrative, but because the board was appointed.”).
Nevertheless, plaintiffs seize on the Sailors Court’s
observation

that

the

county

school

board

performed

“essentially administrative” functions to argue that Hadley
implicitly overruled Sailors. It is true that in Hadley, the
Court rejected a rule that distinguished, for apportionment
purposes, between elections for “legislative” officers and
elections for “administrative” officers.
17

Hadley

held that

“as a general rule, whenever a state or local government
decides to select persons by popular election to perform
governmental functions, the Equal Protection Clause of the
Fourteenth Amendment requires that each qualified voter must
be

given

election.”

an

equal

397

opportunity

U.S.

at

56.

to
In

participate
other

words,

in

that
Hadley

affirmatively establishes the rule that the Sailors Court
assumed for purposes of argument, i.e., that the one-person,
one-vote

principle

applies

to

local

elections.

But

it

decidedly does not stand for the proposition that all local
government officers must be elected, nor does it suggest
that if a state authorizes elections for a particular office
in some jurisdictions, it must do so in all of them. In all
respects relevant to this case, Hadley and Sailors are in
harmony.2
Plaintiffs next argue that Burdick v. Takushi, 504 U.S.
428 (1992) and Anderson v. Celebrezze, 460 U.S. 780 (1982),
not Sailors, establish the correct analytical framework for
their claims. Anderson concerned a challenge to Ohio’s early

2

Even if the Sailors Court’s observation about the
“essentially administrative” functions of the county school
board were central to its holding, the Court enumerated the
school board’s functions, which included the “preparation of
an annual budget and levy of taxes”—the very functions
plaintiffs attribute to the Board in this case. Accordingly,
Sailors would continue to control this case on the facts
alleged.
18

filing

deadline

for

Presidential

candidates.

The

Court

explained that although voting implicated fundamental rights
enshrined in the First and Fourteenth Amendments, “not all
restrictions

imposed

by

the

States

on

candidates’

eligibility for the ballot impose constitutionally-suspect
burdens on voters’ rights to associate or to choose among
candidates.” 460 U.S. at 787-88. The Court thus established
a

flexible

magnitude”

framework
of

the

for

weighing

“the

injury

against

asserted

character
the

and

“precise

interests put forward by the State.” Id. at 789.
In Burdick, the Court considered a claim by a Hawaii
voter

that

unreasonably

the

state’s

infringed

association

in

Amendments.

The

prohibition
his

violation
Court

on

freedom

of

the

reiterated

write-in

of

expression

First
that

voting

and
not

and

Fourteenth
every

case

involving voting rights is subject to strict scrutiny and
applied Anderson’s “more flexible standard” to conclude that
the state’s ballot access laws did not unreasonably burden
voters’

“rights

to

make

free

choices

and

to

associate

politically through the vote.” Id. at 439.
Plaintiffs argue that under the standard articulated in
Anderson
equal

and

Burdick,

protection

and

their
First

complaint
Amendment

adequately
violations

pleads
on

the

theory that Section 34-3 amounts to a “severe burden on
19

their

equal

emphasis).

right
As

to

noted

vote.”
above,

Pl.’s

Opp.

however,

at

2

plaintiffs

(original
have

no

fundamental right to vote in school board elections as a
matter of law, and the fact that residents of other Illinois
jurisdictions have the privilege of voting in such elections
in

their

districts

does

not

confer

such

a

right

upon

residents of Chicago. Nothing in Burdick or Anderson is to
the contrary. Indeed, none of plaintiffs’ cited authorities
supports the theory that the First or Fourteenth Amendment
is

violated

different

when

rights

different
with

classes

respect

to

of

individuals

different

school

have
board

selection processes.
Moreover, there is no dispute that Section 34-3 applies
equally to all individuals falling within its scope: none
has the right to vote for Board members. Accordingly, it is
not a law that “grants the right to vote to some residents
while denying the vote to others.” Mixon, 193 F.3d at 402.
Indeed, it is unlike the legislation at issue in cases such
as Kramer v. Union Free School Dist. No. 15, 395 U.S. 621
(1969),
otherwise

that

excluded

qualified

“some
by

district

age

and

residents

who

citizenship”

are
from

participating in school board elections in certain school
districts, id. at 625-26, and Fumarolo v. Chicago Bd. of
Educ., 566 N.E. 2d 1283 (7th Cir. 1990), which gave “unequal
20

weight” to different categories of voters participating in
local school council elections. Id. at 1291. In these cases,
the court applied strict scrutiny and determined that the
statutes

violated

different

classes

Equal
of

Protection

voters

because

differently

in

they
the

treated
elections

before them. Section 34-3 does not have a comparable effect.
For these reasons, I am satisfied that rational basis
review is appropriate and that Section 34-3 easily satisfies
that standard. The Illinois legislature’s stated objective
in providing for special treatment of Chicago’s schools was
to “achieve the primary purpose of schooling in elementary
and

secondary

schools...in

cities

of

over

500,000

inhabitants.” 105 ILCS 5/34-1.01. Numerous courts, including
the Seventh Circuit and the Supreme Court of Illinois, have
examined

the

specifically

propriety
to

large,

of

education

urban

school

statutes

that

districts

apply

and

have

uniformly acknowledged that the particular needs of these
districts

justifies

classification.

See

a

Hearne,

population-based
185

F.3d

at

774

legislative
(finding

it

“entirely rational for the legislature to believe that the
logistics

of

running

a

school

system

designed

to

serve”

Chicago’s student population “were far different from those
implicated in systems serving less than a tenth” the size of
Chicago’s); Moore, 293 F.3d at 371 (“the very size of the
21

Detroit

school

district

as

compared

to

other

districts—

180,000 students versus 27,000 students for the next largest
system—provides a rational basis for adopting a different
approach to governance”); Latham v. Bd. of Educ. of City of
Chicago, 201 N.E. 2d 111, 115 (“this court takes judicial
notice that the problems inherent in the supervision and
management of a school system in a metropolitan area of
500,000 or more, and particularly, in the city of Chicago,
are far more complex and may well require different modes of
operation than a system in an average-size district”).
2. Voting Rights Act
In Count III of the complaint, plaintiffs allege that
Section 34-3 violates Section 2 of the Voting Rights Act,
both because it was motivated by a discriminatory intent,
and because it has a discriminatory effect. They argue that
the mayoral appointment process for the Board “is a per se
violation

of

Section

2

of

the

Voting

Rights

Act…because

under this general state law, defendant State of Illinois
allows far more of its white citizens than Black or Latino
citizens to have ‘representatives of their own choosing.’”
Pl.’s Opp. at 1. Mixon and Moore again provide the rationale
for disposing of this claim.
Like Section 34-3, the legislation at issue in Mixon
was directed to a school district with a long history of
22

race

discrimination

Chicago,

Cleveland

and

racial

had

been

segregation.

subject

to

a

Indeed,

consent

like

decree

requiring it to implement a judicial order of desegregation
in the period leading up to the enactment of the challenged
state. Compare Cmplt. at ¶¶ 58, 59, 111 (Chicago consent
decree) with 193 F.3d at 394 (Cleveland). It was in this
context

that

the

extinguishment
school

board

of

Mixon

plaintiffs

Cleveland

elections

claimed

residents’

violated

right

Section

2

that
to

of

the

vote

the

in

Voting

Rights Act.
The court examined the plaintiffs’ Section 2 claim and
concluded that it failed on the ground that Section 2 had no
applicability
selection
federal

at

all

process.
courts

determined

that

in

the

Indeed,

that

have

Section

appointive, systems.”

2

the

context
court

of

observed

addressed
only

an

appointive
that

this

issue

to

elective,

applies

Id. at 406 (citing

“all
have
not

African–American

Citizens for Change v. St. Louis Bd. of Police Comm’r, 24
F.3d 1052, 1053 (8th Cir. 1994); Irby v. Virginia State Bd.
of Elections, 889 F.2d, 1352, 1357 (4th Cir. 1989); Dillard
v. Crenshaw County, 831 F.2d 246, 251 (11th Cir. 1987);
Searcy v. Williams, 656 F.2d 1003, 1010 (5th Cir. 1981),
aff’d, Hightower v. Searcy, 455 U.S. 984, 102 S. Ct. 1605
(1982);

African–American

Legal
23

Defense

Fund,

Inc.

v.

New

York, 8 F. Supp. 2d 330, 339 n. 14 (S.D.N.Y. 1998); African–
American Voting Rights Legal Defense Fund, Inc. v. Missouri,
994 F. Supp. 1105, 1122 (E.D. Mo. 1997), aff’d. per curiam,
133 F.3d 921 (8th Cir. 1998); Prewitt v. Moore, 840 F. Supp.
436,

440

(N.D.

Miss.

1993);

Williams

v.

State

Bd.

of

Elections, 696 F. Supp. 1563, 1568–69 (N.D. Ill. 1988)). See
also Moore, 293 F.3d at 364-65. Joining its “sister circuits
and

all

of

the

district

courts

that

have

addressed

the

issue,” the Mixon court concluded:
The plain language of Section 2 refers to the
nomination of “representatives,” whom the Supreme
Court has defined as “winners of representative,
popular elections” or “someone who has prevailed
in a popular election.” Chisom [v. Roemer, 501
U.S. 380, 404, 399-400 (1991)]. We fail to see how
appointed school board members fall under this
definition.
193 F.3d at 407.
Plaintiffs

try,

using

broad

brush

strokes,

to

distinguish the ample authority defendants cite, pointing
out

differences

either

in

the

nature

of

the

violations

asserted or in the type of relief requested. Those issues,
however, do not bear on the threshold requirement that an
“elective”

system

be

at

issue.

Plaintiffs

cite

Frank

v.

Walker, 768 F.3d 744 (7th Cir. 2014), and Frank v. Walker,
819 F.3d 384 (7th Cir. 2016), which concerned a Section 2
challenge to a Wisconsin voter identification law alleged to

24

have

a

disparate

effect

on

minorities,

and

Farrakhan

v.

Gregoire, 623 F.3d 990 (9th Cir. 2010), which concerned a
state felon disenfranchisement law similarly alleged to have
a disproportionate impact on minorities. But these cases,
which

addressed

voting

requirements

or

restrictions

that

interfered with the plaintiffs’ ability to exercise their
right to vote in elections before them, do not suggest that
Section 2 of the Voting Rights Act can be used as a vehicle
to compel elections for offices that the state legislature
has

determined

process,

and

would

which

be

do

filled

not

through

implicate

an

appointive

fundamental

voting

rights.
D. Due Process
In Count II of the complaint, plaintiffs claim that
Section 34-3, together with unspecified “other provisions”
of Article 34 authorizing the Board to levy taxes, violate
constitutional due process by delegating the power to tax to
an unelected entity. They acknowledge that in Latham, the
Supreme Court of Illinois “dismissed a similar claim that
the

General

delegation

Assembly

of

the

had

taxing

engaged
power

to

in

an

the

unconstitutional
unelected

Chicago

Board of Education,” but argue that the court’s decision in
that case turned on the fact that at the time, the Board’s
taxing

power

was

“not

absolute,”
25

as

it

was

subject

to

approval by the City Council. Pl.’s Opp. at 16-17 (citing
Latham, 201 N.E. 2d at 113). In plaintiffs’ view, Section
34-3 authorizes the kind of taxation without representation
that

the

Seventh

Circuit

characterized

as

“abhorrent”

in

Pittman v. Chicago Bd. of Educ., 64 F.3d 1098, 1102 (7th
Cir. 1995).
While
expanded

plaintiffs

the

Board’s

may

be

taxing

correct
authority

that

1995

Act

eliminating

by

the

the

requirement of City Council approval, their suggestion that
the Board now enjoys plenary taxing authority “without any
accountability at all,” ignores the constraints that still
exist under the current School Code. Indeed, the statute
establishes a statutory cap on the tax rate and further
provides

that

any

increase

in

annual

rates

“must

be

submitted to the voters of such district at any general or
special

election.”

remains

indirectly

taxpayers
elected

for

mayor.

all

105

ILCS

5/34-53.

accountable
of

its

Plaintiffs

Moreover,

to

Chicago

actions

through

offer

no

the

Board

residents
the

persuasive

and

popularlyreason

to

distinguish, for due process purposes, between taxation by a
Board accountable to the City Council and taxation by a
Board

accountable

to

the

mayor.

Certainly

nothing

in

Pittman—which held that the one-person, one-vote principle
did not apply to LSCs and rejected all of the plaintiffs’
26

constitutional challenges to the 1995 Act—supports such a
distinction.
E. Race Discrimination
Count

IV

of

the

complaint

alleges

race-based

discrimination in violation of the Equal Protection Clause
of the Fourteenth Amendment, the Fifteenth Amendment, and
Title

VI

of

the

Civil

Rights

Act

of

1964.

Plaintiffs

acknowledge that to prevail on any of these claims, they
must plead and prove intentional discrimination. See Moore,
293 F.3d at 369 (citing

Village of Arlington Heights v.

Metro. Housing Dev. Corp., 429 U.S. 252, 264–65 (1977)). As
the Seventh Circuit explained in Hearne, that means that
they

must

show

that

the

statute

was

motivated

by

a

discriminatory purpose, noting that:
“Discriminatory
purpose”...implies
more
than
intent as volition or intent as awareness of
consequences. It implies that the decisionmaker,
in this case a state legislature, selected or
reaffirmed a particular course of action at least
in part “because of,” not merely “in spite of,”
its adverse effects upon an identifiable group.
Hearne, 185 F.3d at 776 (quoting Personnel Administrator of
Massachusetts

v.

Feeney,

442

U.S.

256,

279

(1979)).

The

court emphasized that allegations to that effect are not
“automatically enough” to defeat a motion to dismiss on the
pleadings. Id.

27

In Hearne, the plaintiff claimed that Article 34 of the
Illinois

School

Code

was

“intentionally

crafted”

to

discriminate against African Americans. The Seventh Circuit
upheld dismissal of the claim, concluding:
There is nothing here to indicate that the
Illinois General Assembly structured the Chicago
school reform legislation specifically because it
wanted to disadvantage African Americans. There
are substantial numbers of African Americans in
many other cities in the state, and it is simply
too great a stretch to say that the population
represented by the Chicago school system is such a
good
proxy
for
African
Americans
that
the
ostensibly neutral classification is an obvious
pretext for racial discrimination.
Id. at 776.
Although plaintiffs’ claims target a different section
of the same Chicago school reform legislation, they urge me
to conclude that unlike in Hearne, their allegations raise a
plausible inference of discriminatory purpose based on the
“historical background” of the legislation, the “specific
sequence of events” leading up to its enactment, and the
presence of “racially-charged” remarks in the legislative
history.

But

their

allegations

are

too

speculative

to

support that inference.
For instance, plaintiffs point generally to allegations
directed

to

Chicago’s

ensuing

consent

between

these

history

decree,
facts

and

but
the
28

of

they

school
do

segregation

not

legislature’s

draw

any

enactment

and
link
of

Section 34-3. Instead, they make the sweeping argument that
“[j]ust

as

political

African

control

Americans

while

became

Harold

independent

Washington

was

of

white

mayor,

and

just after a Democratic-controlled General Assembly in 1988
had given more control to African American voters through
LSCs,

a

adopted

different
Section

and

34-3

hostile

which

General

stripped

Assembly

African

in

1995

Americans

of

these new rights.” Pl.’s P.I. Br. at 24. But if plaintiffs’
observations about the “independence” of Black voters under
Mayor Washington and the “hostility” of the General Assembly
in 1995 are supported by specific facts or analysis, the
complaint does not hint at it. Even if true, these generic
trends are a far cry from the “specific sequence of events”
the Court suggested in Village of Arlington Heights might
reflect

a

discriminatory

motive.

See

429

U.S.

at

267

(speculating that a sudden re-zoning of land in response to
a real estate development project likely to attract minority
tenants

might

support

an

inference

of

intentional

race

discrimination). It bears emphasizing that, as plaintiffs
concede,

Chicago’s

school

board

has

never

been

elected.

Their argument that the legislature enacted a “switch to an
even

less

democratic”

discriminating

against

process
African

with
Americans

speculative to support their claims.
29

the
is

purpose

of

simply

too

Next, plaintiffs argue that “racially charged” comments
by white legislators suggest that the statute was motivated
by a discriminatory purpose, citing 89th Ill. Gen. Assem.,
House Proceedings, May 24, 1995, at 48 (statement of Rep.
Murphy) and 55-56 (statement of Rep. Mitchell). Pl.’s P.I.
Br. at 9. I have reviewed the cited pages, however, and can
find

no

“coded

statement
racial

that

language.”

can

remotely

Id.

at

be

8.

characterized

In

fact,

the

as

only

reference to race in these pages is explicit: Rep. Murphy
states, “[t]his is about leadership and 410,000 children of
Chicago.

It

is

not

getting...addressing
children

of

Chicago

the

about

race.

need

when

we

dropping

out,

the

It
have

is

about

50%

of

the

remainder

in

the

bottom 1% of national scores.” Id. at 48. These statements
may be incorrect or wildly exaggerated, and they may even
reflect racial stereotypes. They do not, however, reasonably
suggest

that

Section

34-3

was

motivated

by

race

discrimination.
Lastly,
districts

plaintiffs

outside

of

confront

Chicago

that

the

fact

likewise

that

school

serve

largely

minority race students, such as Harvey, Riverdale, and East
St. Louis have elected school boards (a fact that militates,
one might suppose, against an inference that the legislative
classification in Article 34 was a pretext for intentional
30

discrimination), with the theory that the Illinois General
Assembly

“was

motivated

by

the

concern

that

the

massive

property wealth of Chicago, relatively little of which is
owned by people of color, would be taxed to pay for the
education of children of color.” Pl.’s Opp. at 11. But, as
the City defendants point out, plaintiffs do not allege that
the Board has declined to use its taxing authority to the
fullest, and they offer no factual basis from which to infer
that the appointive process established in Section 34-3 was
designed to minimize the property tax exposure of Chicago’s
white

residents

or

to

deprive

minority

children

of

adequately funded schools. Indeed, as discussed above, the
Board’s taxing authority in this respect is subject to a
statutory cap, which applies regardless of whether the Board
is elected or appointed.
III.
For

the

foregoing

reasons,

defendants’

motions

to

dismiss are granted. Plaintiffs’ motion for a preliminary
injunction is denied as moot.
ENTER ORDER:

Elaine E. Bucklo
United States District Judge
Dated: February 13, 2017
31