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, )

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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

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