IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CHANCERY DIVISION

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1 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CHANCERY DIVISION MOSE VINES ACADEMY LOCAL ) SCHOOL COUNCIL, et al. ) ) Plaintiffs, ) ) v. ) Case No. 08 CH 4912 ) THE BOARD OF EDUCATION OF ) THE CITY OF CHICAGO, et al. ) Judge Sophia H. Hall ) Defendants. ) MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF S EMERGENCY MOTION FOR TEMPORARY INJUNCTION Plaintiffs, Local School Councils of Mose Vines Academy ( Vines LSC ), the School of Technology ( Technology LSC ), and the School of Entrepreneurship ( Entrepreneurship LSC ), and Reverend Charles Walker, in his official capacity as LSC member and individually as community member (collectively Plaintiffs ), by and through their attorneys, Elaine K.B. Siegel and Associates, P.C., submits this Memorandum of Law in Support of Plaintiff s Emergency Motion for Preliminary Injunction against Defendants, Board of Education of the City of Chicago (hereinafter Board or CPS ), and Arne Duncan, in his official capacity as Chief Executive Officer of CPS (collectively Defendants ). DEFENDANTS ARE INFRINGING ON PLAINTIFFS FUNDAMENTAL RIGHT TO VOTE IN VIOLATION OF THE SCHOOL CODE Local school council ( LSC ) elections are coming up. 105 ILCS 5/34-2.1(c). Plaintiffs seek to hold elections, as the School Code mandates. Complaint _47. Defendant CPS is refusing to carry out this statutory obligation. Complaint _47.

2 Defendant CPS s actions block Plaintiff Reverend Walker (and similarly-situated community members throughout the City of Chicago) from running for LSC office, or from voting for representatives to the LSC. Complaint 41, 44. Defendant CPS is violating Plaintiffs fundamental rights to vote and to participate in elections. Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54 (1990); Tully v. Edgar, 171 Ill. 2d 297 (1996). Defendant CPS s wrongful conduct must be enjoined, and timely elections must be ordered. In 1987, in an effort to make the individual local school the essential unit for educational governance and improvement and to establish a process for placing the primary responsibility for school governance and improvement in furtherance of such goals in the hands of parents, community residents, teachers and the school principal at the school level, the Illinois General Assembly passed the Illinois School Reform Act (the Act ), now codified in the Illinois School Code (the School Code ). The Act, inter alia, created local school councils ( LSCs ) for every Chicago Public School. Complaint _18, 19; 105 ILCS 5/ B. LSCs are composed of twelve public officials, including six elected parent representatives, two elected community representatives, two appointed teacher representatives, the school principal, and, in high schools, one appointed student member. As the legislature envisioned, LSCs play a central role in each school and its community. The Illinois Supreme Court has stressed, We hold that the local school councils are essential units of educational governance, empowered to make important budgetary, educational and administrative decisions regarding the Chicago public school system, and that the statutory scheme which denies or dilutes the vote of certain citizens

3 must therefore be necessary to advance a compelling state interest. Fumarolo, supra, at 74 (emphasis added). The School Code provides that Defendant CPS must hold biennial LSC elections for every CPS school: Elections shall be conducted as provided herein by the Board of Education in consultation with the local school council at each attendance center. 105 ILCS 5/34-2.1(c) (emphasis added). The only limited exception to Defendant CPS s non-discretionary obligation to hold statutory LSC elections relates to certain alternative and newly-established small schools. 105 ILCS 5/34-2.4b However, that exception is narrowly tailored. The School Code stipulates that the [small school] designation is not applied to a school building that has in place a legally constituted local school council. 105 ILCS 5/34-2.4b (emphasis added). Plaintiff LSCs serve small schools that are located in school buildings that previously ha[d] in place a legally constituted local school council, and, therefore, Defendant CPS had no authority to supplant their LSCs with some alternative form of governance that Defendant CPS prefers to the statutory scheme. Defendant CPS has the obligation to recognize Plaintiff LSCs in accordance with the School Code, and to hold the elections required by statute. Plaintiff Reverend Charles Walker is a Vines LSC community representative. In accordance with the School Code, Reverend Walker has a right to submit nominating papers, to run for LSC election, and to appear on the ballot. 105 ILCS 5/34-2.1(f). Furthermore, Reverend Walker has the right to cast votes for LSC parent and community representatives from the attendance areas in which [he] live[s]. 105 ILCS 5/ et seq. Fumarolo, supra, at 81.

4 According to the School Code, Defendant CPS is a statutory entity, granted only limited and enumerated statutory powers subject to the limitations in this article. Complaint _19; 105 ILCS 5/ In Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982), the U.S. Supreme Court held that school boards, as creatures of the State, obviously must give effect to policies announced by the state legislature. Id. at 476. Defendant CPS is in direct contravention of the School Code for its refusal to recognize the statutory authority of Plaintiff LSCs, and has promulgated wrongful and ultra vires polices in an attempt to cloak its violations of law with the semblance of authority. Defendant CPS is denying and obstructing Plaintiffs rights to hold and participate in LSC elections that are statutorily required. In accordance with their ultra vires policy, and in flagrant violation of the School Code, Defendant CPS declares that Plaintiff small school LSCs are advisory only, not LSCs with full statutory authority under the School Code. Defendant CPS posits that they alone are entitled to select the parent and community representatives to sit on the LSC, not members of the school community, as the School Code requires. By taking their unlawful actions, Defendants are disenfranchising Plaintiffs. Defendant CPS is denying Plaintiffs their legal and statutory right to participate in and run for elections, to appear on the ballot, and to serve on an LSC with full statutory authority. Defendant CPS is denying Plaintiffs their important and fundamental right to elect members to their local school councils, who stand for their interests. Defendant CPS s actions are contrary to the clear language of the School Code, and to well-established Illinois law. The Illinois Supreme Court has held that anything less than statutory compliance with the School Code s requirements for LSC elections is

5 unconstitutional. Fumarolo, supra, at 84. FACTS On February 7, 2007, Plaintiffs filed their three-count Verified Complaint for Declaratory Judgment and Other Relief (the Complaint ). Plaintiffs Complaint alleges, inter alia, that Defendant CPS is refusing to hold elections for Plaintiff LSCs in April 2008, in violation of the School Code. Specifically, Plaintiffs allege: Complaint _ 9 (a)-(c)). Defendant CPS is wrongfully failing and refusing to hold elections in April 2008, for parent and community representatives to Plaintiff LSCs, as mandated by Section of the School Code, 105 ILCS 5/ et seq.; Defendant CPS is wrongfully preventing Plaintiff LSCs from exercising their statutory authority, as set forth in 105 ILCS 5/ et seq.; Defendant CPS is acting pursuant to policies it has promulgated in contravention of the School Code. CPS policy Governance of Alternative and Small Schools (the 2007 Policy ), violates ß et seq. of the School Code, because it strips all LSCs in so-called small schools of the authority vested in them under the School Code, and abolishes LSC elections mandated by the School Code. 105 ILCS 5/ et seq; On or about 1995 the School Code was amended to, inter alia, allow CPS to create small schools. In 1995, the Board of Education passed the Small Schools Resolution, and began to create a number of small schools in the CPS system. On information and belief, there are currently over ninety alternative and small schools within CPS. Three such small schools are the Mose Vines Academy, the School of Technology and the School of Entrepreneurship, which opened between 2003 and Similar to many other CPS small schools, these three schools are now located in school buildings that

6 formerly housed a single administration, in this case, Orr and South Shore High Schools. Complaint 24, 26. During their existence, both Orr and South Shore High Schools had legally constituted LSCs, with full statutory powers pursuant to ILCS 5/ et seq; Complaint 20,21. When Defendant CPS converted Orr and South Shore High School buildings to house the new small schools, Defendant CPS wrongfully dismantled the LSCs for these buildings, and then, in clear violation of the School Code, failed and refused to create LSCs to exercise statutory authority over the resulting small schools. Complaint _ 37. In April 2006, citywide LSC elections were held. Uninformed of CPS s plan to dismantle its LSCs and create so-called advisory LSCs for their schools, the Mose Vines Academy, School of Technology and School of Entrepreneurship communities elected members to their LSCs, in accordance with 105 ILCS 5/ et seq. To the present time, CPS has denied these LSCs their legal right to exercise their statutory decision-making authority (for example, by selecting a principal for their school). Defendants have enacted a series of wrongful policies, such as the 2007 Policy, which state that these LSCs are only advisory bodies, not traditional LSCs with full statutory authority. Complaint _ 37. The composition and power of these advisory LSCs is markedly different from what the School Code requires. These LSC s advisory status prevents them from exercising their statutory functions. Defendant Board is not granted the authority under the School Code to arbitrarily modify the statutory scheme for LSCs. I. PLAINTIFFS MEET THE CRITERIA FOR THE ISSUANCE OF A PRELIMINARY INJUCTION

7 To obtain a preliminary injunction, a plaintiff must establish by a preponderance of the evidence that: Plaintiff has a clearly ascertainable right that needs protection; Plaintiff will suffer irreparable harm without the protection of an injunction; There is no adequate remedy at law to redress plaintiff s injury; and Plaintiff has a substantial likelihood of success on the merits in the underlying action. Delcon Group, Inc. v. Northern Trust Corp., 159 Ill.App.3d 275 (3rd Dist. 1987). Plaintiffs meet each aspect of this burden. provides LSCs requires Defendant CPS to hold elections in accordance with 105 ILCS 5/ et seq. The School Code states that [e]lections shall be conducted as provided herein by the Board of Education in consultation with the local school council at each attendance center. 105 ILCS 5/34-2.1(c) (emphasis added). Plaintiff LSCs respectfully request this Honorable Court to grant them a preliminary injunction, so they can exercise their statutory rights established under law to hold LSC elections, and perform their full range of statutory functions. Plaintiff Reverend Walker additionally seeks an injunction allowing him to file nominating papers and to run for community representative to the Vines LSC, and to appear on the ballot, and to allow him to vote in the upcoming LSC elections. A. PLAINTIFFS HAVE A CLEARLY DEFINED RIGHT THAT REQUIRES PROTECTION To establish a certain and clearly defined right or interest that requires protection,

8 Plaintiffs need only raise a fair question as to the existence of the right which it claims. Stenstrom Petroleum Services Group, Inc. v. Mesch, 375 Ill.App.3d 1077 (2nd Dist. 2007); Rapp Ins. Agency, Inc. v. Baldree, 231 Ill. App. 3d 1038 (5th Dist. 1992). Plaintiffs right to hold elections and to vote is certain and clear; indeed, these are fundamental rights, which must be judicially protected. Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54 (1990) (emphasis added). Defendant CPS may encroach on Plaintiffs fundamental rights to hold elections and to vote only if Defendants can establish a compelling state interest, which is subject to strict scrutiny. Fumarolo, supra, at 74. Defendant CPS cannot do so. The policy of the States is set forth by the General Assembly in the School Code. 105 ILCS 5/34-2.1(c) mandates that Defendant CPS shall hold LSC elections every even numbered year on the second semester Parent Report Card Pickup day at each attendance center. 105 ILCS 5/34-2.1(c) (emphasis added). Defendant CPS is refusing to hold the requisite statutory elections for Plaintiff LSCs. Complaint On Plaintiff LSCs election day, Defendant CPS intends to merely stage an advisory poll to nominate parent members, for appointment by Defendant CPS to an advisory LSC. Complaint _42. For community representatives, there will be no election at all advisory or otherwise. Complaint _42. Defendants will merely appoint whomever they choose. Complaint _42. Defendant CPS, moreover, will appoint certain advocates that are nowhere contemplated in the School Code. _42. Far from representing a compelling state interest, Defendant s 2007 Policy repeatedly contradicts the interests set forth both in the School Code, as interpreted by the Illinois Supreme Court in Fumarolo. Complaint _42; Fumarolo, supra, at 78; 105

9 ILCS 5/ et seq. Defendant CPS cites Section 5/34-2.4b of the School Code to justify its wrongful usurpation of the authority vested in Plaintiff LSCs. Yet Section 5/34-2.4b specifically and unambiguously entitles Plaintiff LSCs to exercise the full statutory authority accorded to LSCs generally. That subsection of the Code provides for fullyempowered LSCs at all small schools located in school buildings that previously had local school councils. Defendant CPS is only allowed to impose an alternative governing structure at certain small schools, provided that the [small school] designation is not applied to a school building that has in place a legally constituted local school council. The limited exception to the School Code s requirements for LSCs do not apply to Plaintiff LSCs, as Section 5/34-2.4b clearly and unambiguously states. Defendant has wrongfully failed to recognize Plaintiff LSCs with full statutory authority, and is denying them their right to have elections and take part in the governance of their local schools. Plaintiffs have a clearly ascertainable and important legal right that is in need of protection. Few rights are more important than the right to vote. The Illinois Supreme Court holds that the right to vote is a fundamental constitutional right, and has stated that in the electoral context, a law limiting the right to vote will be upheld only if it withstands a strict scrutiny analysis. Tully v. Edgar, 171 Ill. 2d 297 (1996)(emphasis added). The Court further admonishes: election Our cases support the view that legislation that affects any stage of the process implicates the right to vote. Thus, this court has determined that the right to vote is implicated by legislation that restricts a candidate s effort to gain access to the ballot. Anderson v. Schneider, 69 Ill. 2d 165 (1977). It has also held that the right to vote is implicated by legislation that limits the

10 people s right to nominate candidates. People v. Fox, 294 Ill. 263 (1920). (Emphasis in original). Id. at 307. Under the clear authority of Tully, injunctive relief must be granted. The U.S. Supreme Court has held that entitlement to a public education rises to the level of a protected property interest. Goss v. Lopez, 419 U.S. 565 (1975). The Plaintiffs rights to vote, to hold elections, to run for office, and to participate in the work of the LSC are tightly intertwined with this fundamental educational entitlement. The School Code gives parents and community members the invaluable right to have a say in the operation of their local schools by running for office, electing members to the LSCs in their community, and serving on LSCs with the full complement of statutory powers. Both the U.S. and the Illinois Supreme Courts have taken a clear stand against the erection of barriers, large or small, to the right to vote. Illinois highest court holds that, "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Craig v. Peterson, 39 Ill. 2d 191, 195 (1968), quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964). In Tully, the Illinois Supreme Court stated: Tully, 171 Ill. 2d at Suffrage -- the expression by the people of their will -- is fundamental to a viable democratic form of government. Article III, section 1, of the 1970 Illinois Constitution reaffirms the principle that all qualified citizens have a constitutionally protected right to vote and to have their vote counted. [N]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. The Constitution of Illinois, Article III, Section 3, guarantees free and equal elections and provides that no citizen shall be deprived of equal protection of the laws.

11 Ill. Const. 1970, Art. I, ß2. Article III, ß3 states that "[a]ll elections shall be free and equal." Id. The Illinois Supreme Court has interpreted this section to import the guarantees of the Equal Protection Clause of the U.S Constitution s Fourteenth Amendment into Illinois elections. See Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, (1990). The free and equal election clause guarantees the right to vote in Illinois, and reflects a broad public policy to expand the opportunity to vote. See McDunn v. Williams, 156 Ill. 2d 288, 330, (1993); Craig, 39 Ill. 2d at 195; Anagnost v. st Layhe, 230 Ill. App. 3d 540, 544 (1 Dist. 1992). This clause requires that "each voter have the right and opportunity to cast his or her vote without any restraint and that his or her vote has the same influence as the vote of any other voter." Goree v. Lavelle, 169 Ill. App. 3d 696, 699 (1988). Fumarolo makes clear that of voting in any election implicates the same fundamental right: [T]he right to equal voting participation is impaired just as much when he votes for a school board member as when he votes for a state legislator. While there are differences in the powers of different officials, the crucial consideration is the right of each qualified voter to participate on an equal footing in the election process. Fumarolo, 142 Ill.2d at 76, quoting Hadley v. Junior College District, 397 U.S. 50, 55, 90 S.Ct. 791, 794 (1970). Defendant CPS actions violate the Constitution and must be enjoined; elections must be ordered; and Defendant CPS s unconstitutional 2007 Policy must be stricken. B. PLAINTIFFS WILL SUFFER IRREPERABLE HARM Absent an injunction compelling Defendants to schedule and hold elections, and immediately recognize their LSCs in accordance with the School Code, Plaintiffs will suffer an immediate and irreparable injury. The School Code requires that citywide

12 biennial LSC elections be held, which will occur in April 16, 2008, and obligates Defendant CPS to hold elections for every attendance center, so that each school can elect members to their respective LSCs. If this Court does not grant them a preliminary injunction, Plaintiffs will not be able to submit nominating papers, will not have LSC elections in accordance with the School Code, will not have the necessary time to organize or campaign for LSC elections, and their LSC members will be appointed by Defendant CPS instead of being democratically elected by the school community. Named Plaintiff, Reverend Charles Walker, will be unable to run for LSC office, to appear on the ballot, or to vote for a community representative for the LSC. The LSC electoral process and function is vitally important to members of these communities. Plaintiffs injury involves the deprivation of their fundamental constitutional rights to vote and take part in the electoral process. Furthermore, the injury to Plaintiff LSCs is ongoing, because Defendant CPS has and will continue to deny Plaintiff LSCs from exercising their authority under the School Code. "Irreparable injury" does not mean that harm is beyond possibility of repair, beyond compensation in damages or that injury must be great, but rather, denotes transgressions of continuing st nature. Prentice Medical Corp. v. Todd, 145 Ill. App. 3d 692 (1 Dist. 1986); Greenspan v. Mesirow, 138 Ill. App. 3d 294 (1st Dist. 1985). The Seventh Circuit held in regards to irreparable injury: all it means is that plaintiff is unlikely to be made whole by award of damages or other relief at end of trial. Vogel v. American Soc. of Appraisers, 744 F.2d 598 (1984). This Court should thus conduct an analysis of what each party to the case has at stake, as follows

13 When addressing motion for preliminary injunctive relief, court appraises the risk of irreparable harm to the parties not simply by reference to what they will lose by an unfavorable ruling on motion, but rather by reference to the harm of error, looking to what irreparable harm denial of a preliminary injunction will cause movant and the public if trial reveals that movant is entitled to relief, and to what irreparable harm the granting of an injunction will do to nonmovant and the public if the trial reveals that movant is not entitled to relief; once those evaluations are made, the court balances likelihood of success and the risk of irreparable harm on a sliding scale, in that the better a party's chances of winning at trial, the less the balance of harms needs to favor that party. th AM General Corp. v. DaimlerChrysler Corp., 311 F.3d 796 (7 Cir. 2002). Here the balace of harms strongly favors the Plaintiffs, who stand to suffer injury that cannot be remedied after trial. C. PLAINTIFFS HAVE NO ADEQUATE REMEDY AT LAW Plaintiffs have no adequate remedy at law in the case at bar. They cannot be compensated by the legal remedy of money damages, they cannot buy the right to run for LSC office, nor pay to participate democratically in the governance of their local schools. th The Seventh Circuit, in FoodComm Intern. v. Barry, 328 F.3d 300 (7 Cir. 2003), held that inadequate remedy at law does not mean wholly ineffectual; rather, the remedy must be seriously deficient as compared to the harm suffered. Id. As previously discussed, Plaintiffs have a fundamental right and protected interest to participate in the electoral process. The First District has held that once a protectable interest has been established, there is a presumption that injury to the party seeking a preliminary injunction will follow if the interest is not protected. Mohanty v. St. John st Heart Clinic, S.C., 358 Ill.App.3d 902 (1 Dist. 2005). Furthermore, the Appellate Court has held that it is important to consider whether there is a private or public interest involved in determining whether a plaintiff needs to establish inadequacy or remedy at st law. Village of Riverdale v. Allied Waste Transp., Inc. 334 Ill. App. 3d 224 (1 Dist.

14 2002). In Village of Riverside, the court held that the village did not need to plead and prove an inadequate remedy at law in order to obtain an injunction against the garbage company, and others, to prevent them from operating a waste disposal, storage, and recycling facility without a permit. The action did not involve private parties seeking to enforce solely private rights, but rather was brought by a public body on behalf of the public. The court also held that for a legal remedy to be adequate to support the denial of a preliminary injunction, it must be clear, complete, and as practical and efficient to the ends of justice in its prompt administration as the equitable remedy. Id. at 228. As in Village of Riverside, the Plaintiffs here meet the requirements. D. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS Plaintiffs are likely to succeed on the merits of their case after a hearing. As articulated in their Complaint, Plaintiffs establish that Defendant Board of Education is violating the School Code. The School Code specifically mandates that small schools located in school buildings that ha[d] in place legally constituted local school councils are required to have local school councils. Defendants refuse to hold LSC elections for the Plaintiffs, or to recognize Plaintiff LSCs as LSCs with full statutory authority. Defendant CPS is preventing Plaintiffs from being placed on the ballot, or from participating in elections. To support their actions, Defendant CPS has promulgated wrongful policies that violate the School Code and are ultra vires. With limited exceptions, the School Code requires Defendant Board of Education of the City of Chicago to hold biannual elections for every attendance center, and to recognize LSCs as having the authority granted according to the School Code. The Illinois Supreme Court stated that when considering how to properly interpret a statute, a

15 court needs to ascertain the intent of the legislature by considering not only the language used but also the evil to be remedied and the object to be attained. People ex rel. Simpson v. Funkhouser, 385 Ill. 3d 96, 403(1944). st Directly on point is Read v. Sheahan 359 Ill. App. 3d 89 (1 Dist. 2005). In Read, the court affirmed the trial court s decision ordering the removal of the director of the county corrections department, who had been appointed by Sheriff Sheahan, because the statute required that the sheriff shall appoint the director from a list of three persons nominated by the county board of corrections. The individual the sheriff appointed was not on the list. The court ordered the position vacated, because the sheriff had no authority to disregard the list. The School Code specifically states how the composition and election of LSC members should occur and, the following procedures shall apply to the election of local school council members at each attendance center. 105 ILCS 5/34-2.1(c) (emphasis added). The School Code cannot be reconciled with Defendant CPS s claims that it has the right to select LSC members of its choosing. Similarly in Tully, the Court struck down state legislation as unconstitutional, because it impaired the right to vote. As the Court stated: We must vigilantly ensure that our constitution protects not just the right to cast a vote, but the right to have a vote fully serve its purpose. Tully, supra, at 308. In this case, we have merely a Board policy, which violates state and is, very simply, ultra vires. Defendant CPS is not above the law. They cannot summarily disenfranchise the individuals in these communities. Tully, supra, 171 Ill. 2d 297. A preliminary injunction should issue forthwith. CONCLUSION

16 For the reasons set forth above, in Plaintiffs Verified Complaint, and in its Motion for Preliminary Injunction, Plaintiffs respectfully request this Honorable Court to grant the following relief: Order Defendant CPS to hold elections for Plaintiff LSCs on April 16, 2008, in accordance with 105 ILCS 5/ et. seq.; Enter an Order enjoining Defendant Board of Education to allow Plaintiff Reverend Walker to submit nominating papers, run for office as community representative and allow him to be on the ballot for Mose Vines Academy LSC; Enter a Preliminary Injunction pursuant to 735 ILCS 5/11-102, enjoining and compelling Defendant Chicago Board of Education to immediately recognize Plaintiff LSCs as local school councils with full statutory authority in accordance with 105 ILCS 5/ et seq.; Set aside Defendant CPS Policies that violate the School Code, including, but not limited to the 2007 Policy; Issue the forgoing Preliminary Injunction instanter and without bond; Order that this Preliminary Injunction become a Permanent Injunction after a final hearing and a determination on the merits; Award Plaintiffs legal fees and costs in the bringing and prosecuting of this action; and Any further relief that this Court deems just and equitable. DATED: March 6, 2008 Respectfully submitted,

17 OF COUNSEL: Elaine K.B. Siegel Benjamin P. Kailin Elaine K.B. Siegel & Assoc., P.C. 39 South LaSalle Street, Suite 617 Chicago, IL (312) Attorney No By: One of Plaintiff s Attorneys