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OF CHICAGO, et al.,


No. 16-CH-13159
The Honorable Michael T. Mullen


Dated: January 6, 2017

Respectfully submitted,
s/ Sean Morales-Doyle
One of Plaintiffs’ Attorneys

Thomas H. Geoghegan
Michael P. Persoon
Sean Morales-Doyle
Despres, Schwartz & Geoghegan, Ltd.
77 West Washington Street, Suite 711
Chicago, Illinois 60602
(312) 372-2511
Cook County Attorney No. 70814

Plaintiffs are filing just one brief in response to the motions to dismiss and briefs filed in
opposition to plaintiffs’ motion for a preliminary injunction. To restate the case: plaintiffs seek a
preliminary injunction to require defendants to put in place rules and regulations for a direct
election of members of the Board in April 2017, the same date that all other Illinois citizens have
the right to elect members of these important local government bodies. In the alternative,
plaintiffs seek to advance this case for a hearing on the merits of two of their three principal legal
The Illinois School Code makes all local school boards in Illinois elective but one: the

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defendant Board of Education of the City of Chicago. In Chicago, by a 1995 law amending the
Code (the “1995 Act”), the Mayor has the exclusive authority and responsibility to select every
member of the Board without any approval or consent of any representative body. Plaintiffs
make three claims that this violates the Illinois Constituion.
First, out of all Illinois citizens, only Chicagoans are denied the right to vote for the
people who govern their children’s education. Under well-established Illinois case law, the right
to vote is a fundamental right, and a State law that does not grant that right equally violates the
guarantees of equal protection in Article I, Section 2 and equal elections under Article III,
Section 3 unless it survives strict scrutiny. In their motions to dismiss, defendants do not even
attempt to meet this strict scrutiny standard. Instead they argue that the Constitution does not
provide an inherent right to vote for school boards, so plaintiffs may not complain if the right is
not granted equally. Plaintiffs do not dispute that the State may make all school boards in the
Illinois appointive without violating the equal protection and equal elections clauses. But Illinois
case law makes clear that school boards are not treated differently under these clauses; the
State’s decisions about granting the right to vote for school boards are subject to strict scrutiny

under these clauses just as decisions regarding any other governmental body. See Fumarolo v.
Board of Education, 142 Ill.2d 54, 73 (1990). The case law defendants cite to the contrary is no
longer good law. Therefore, since Illinois has chosen to make school boards elective, its decision
to deny that right only to Chicagoans violates the Constitution.
Second, by subjecting Chicagoans to billions a year in taxes against their property levied
by a body that has no accountability to any elected, representative government, the Illinois
School code violates plaintiffs’ rights to due process. The primary case upon which defendants
rely, Latham v. Board of Education, 31 Ill. 2d 178 (1964), actually supports plaintiffs as it
expressly upheld a former incarnation of the appointed Chicago school board on the ground that
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the City Council, not the school board, actually levied the taxes to pay for schools. Moreover, the
City Council actually had the power to approve or reject the mayor’s nominees to that version of
the school board. Defendants cannot cite to a single Illinois case that upholds the delegation of
the General Assembly’s taxing authority to body that has zero accountability to elected,
representative legislators.
Third, plaintiffs argue that the 1995 Act violates the home rule provisions of the
Constitution because it attempts to impose new powers and responsibilities on the City, a home
rule unit, that are outside the powers given home rule units by the Constitution. The 1970
Constitution greatly expanded the powers of home rule units, and provided them the same power
to design their own forms of government that the General Assembly itself has. But even
defendants do not contend that it gave the City the power to take over new functions and separate
governments. Indeed, the defendants argue explicitly that the constitution does not give the City
the power to make decisions about public schools. The Constitution gives the General Assembly
the power to limit or deny the City’s home rule powers, not expand them, so this expansion of


the Mayor’s authority over public schools violates the constitution. Alternatively, if this is a
proper power for the City to exercise, then Chicago, as a home rule unit, has the power to alter
this form of government by referendum even if it conflicts with previous enactments by the
General Assembly. Plaintiffs therefore request a declaration that they may change the process by
which they select their representatives on the school board by referendum.
Finally, defendants’ arguments in response to plaintiffs’ motion for a preliminary
injunction largely parrot their merits arguments because if plaintiffs are correct that they have
been denied the right to vote, there can be no question of irreparable harm. The defendants offer
no evidence to support their analysis of the balance of the harms and have not pointed to a single
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disputed fact at issue. Thus, should plaintiffs prevail on defendants’ motions to dismiss, they
submit that they are entitled to permanent injunctive relief in their favor.

The motions to dismiss should be denied.

Illinois law subjects a denial of the equal right to vote for a school board to
strict scrutiny, and Latham and Sailors are not good law to the extent they
suggest otherwise.

In their motions to dismiss, Defendants rely principally on one U.S. Supreme Court case,
Sailors v. Board of Education of Kent County, 387 U.S. 105 (1967), and one Illinois Supreme
Court case, Latham v. Board of Education, 31 Ill. 2d 178 (1964). They cite both of these old
authorities for the proposition that the State’s decision to make school boards appointive as
opposed to elective is not subject to scrutiny under the equal protection provisions of the federal
and state constitutions. Both of these cases from the 1960s say that the State has unlimited legal
freedom to structure “non-legislative” governmental bodies and municipal corporations as it sees
fit. But long ago, both Sailors and Latham were superseded by a number of federal and Illinois
cases that make quite clear that the State’s freedom to structure subordinate governments is

limited by the constitutional right to an equal vote. See Hadley v. Junior College Dist., 397 U.S
50 (1970); Avery v. Midland County, 390 U.S. 474 (1968); Tully v. Edgar 171 Ill. 2d 297, 308
(1996); Fumarolo v. Board of Education, 142 Ill.2d 54 (1990); Pittman v. Chicago Board of
Education, 64 F.3d 1098, 1102-03 (7th Cir. 1995) (discussing generally when there is heightened
scrutiny under the Fourteenth Amendment of election arrangements for school districts and other
units of local governments). Indeed, since Latham, Illinois courts have been more emphatic than
federal courts that the equal right to vote is a “fundamental” constitutional right, especially in
school board elections, and any impairment of the equal right to vote is subject to strict scrutiny.
See, e.g., Tully, 171 Ill. 2d at 308; Fumarolo, 142 Ill.2d at 73.
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As to Sailors, it was all but formally overruled a short while later in Hadley and Avery.
The holding of Sailors—that local units of government are exempt from the principle of an equal
right to vote—is no longer good law. The case cannot be cited as a general license to have any
kind of electoral structure that the State chooses to have regardless of the Fourteenth
Amendment. Furthermore, Sailors in the first place was not a challenge to an “appointed” board
of education. In Sailors, the plaintiffs were challenging not the indirect election of the county
board by local elected boards, but the weighting of the votes in making that selection. Sailors
held that the principle of one-person, one-vote did not apply to this indirect voting method for
Michigan’s county school boards, or indeed to any local unit of government, under any
Without question, Hadley was a near complete reversal of course, where the Supreme
Court made clear that the principle of one-person, one-vote set out in Reynolds v. Sims, 377 U.S.
33 (1964), definitely applied to units of local government—the exact opposite of the ruling in
Sailors. While not formally overruling it, Hadley did no more than cursorily note its existence.


397 U.S. at 58 (expressly holding out possibility that a State’s choice “to select members of an
official body by appointment rather than election” may “itself offend the Constitution”). The
Hadley Court makes clear that states like Illinois cannot be creative in designing whatever kind

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of local government system they want, stating:
Appellants in this case argue that the junior college trustees
exercised general governmental powers over the entire district and
that under Avery the State was thus required to apportion the
trustees according to population on an equal basis, as far as
practicable. Appellants argue that since the trustees can levy and
collect taxes, issue bonds with certain restrictions, hire and fire
teachers, make contracts, collect fees, supervise and discipline
students, pass on petitions to annex school districts, acquire
property by condemnation, and in general manage the operations
of the junior college, their powers are equivalent, for
apportionment purposes, to those exercised by the county
commissioners in Avery. We feel that these powers, while not fully
as broad as those of the Midland County Commissioners, certainly
show that the trustees perform important governmental functions
within the districts, and we think these powers are general enough
and have sufficient impact throughout the district to justify the
conclusion that the principle which we applied in Avery should
also be applied here.
Id. at 53-54. Significantly, the Supreme Court in Hadley rejects the legislative and
“administrative” distinction put forward in Sailors, and adopted in Mixon v. Ohio, 193 F.3d 389
(6th Cir. 1999), and Moore v. Detroit Sch. Reform Bd., 293 F.3d 352 (6th Cir. 2002). The Hadley
Court states:
It has also been urged that we distinguish for apportionment
purposes between elections for “legislative” officials and those for
“administrative” officers. Such a suggestion would leave courts
with an equally unmanageable principle since governmental
activities “cannot easily be classified in the neat categories favored
by civics texts,” and it must also be rejected. We therefore hold
today 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 an equal opportunity to participate in that election, and when
members of an elected body are chosen from separate districts,

each district must be established on a basis that will insure, as far
as is practicable, that equal numbers of voters can vote for
proportionally equal numbers of officials. It is of course possible
that there might be some case in which a State elects certain
functionaries whose duties are so far removed from normal
governmental activities and so disproportionately affect different
groups that a popular election in compliance with
Reynolds…might not be required, but certainly we see nothing in
the present case that indicates that the activities of these trustees fit
in that category. Education has traditionally been a vital
governmental function…”
Id. at 55-56 (quoting Avery, 390 U.S. at 482) (internal citation omitted, emphasis added); see
also id. at 61-62 (Harlan, J., dissenting) (noting direct conflict with Sailors).
To be sure, there are differences between one-person, one-vote cases that the Court

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addresses in Hadley and Sailors and the denial by Illinois of the equal right to vote in State-wide
elections for local school districts. However, as set out in Hadley, Illinois has “decide[d] to select
persons by popular election to perform governmental functions” and, contrary to Hadley, it has
not allowed “each qualified voter…an equal opportunity to participate.” Id. Accordingly, it is
just wrong that “anything goes” as set forth in Sailors and that there is no heightened review ever
under the Fourteenth Amendment. No such principle can be extracted from Hadley's nearreversal of Sailors and later cases that uphold the equal right to vote for local offices. While it
may not technically an issue of one-person, one-vote within the meaning of Reynolds v. Sims, it
is a restriction on a right to vote generally extended to all Illinois voters.
As noted above, Illinois courts under the 1970 Constitution have made it even more clear
that the right to vote in school board elections is a “fundamental” right, and the State cannot use
“creative” schemes to impair the equal right to vote and then expect judicial deference. In
Fumarolo the Illinois Supreme Court struck down the State’s decision to structure Local School
Councils where state law excluded or denied the right to vote to some citizens, without a
compelling state purpose. 142 Ill. 2d at 73 & 89-90. Following Hadley and Avery, the Court

rejected the notion espoused by the Sailors Court that school boards did not exercise the type of
powers that would subject them to that principle. Id. at 75-76. In Tully, the Court reaffirmed this
holding. 171 Ill. 2d at 308. In both Fumarolo and Tully, the Court applied a strict scrutiny
analysis, holding the right to vote to be a fundamental right. Under the Fourteenth Amendment,
by contrast, courts are to shift their level of scrutiny along a sliding scale depending on the
severity of the burden placed on the right to vote under Burdick v. Takushi, 504 U.S. 428, 434
(1992), and Anderson v. Celebrezze, 460 U.S. 780 (1982). Under the federal cases, strict scrutiny
only applies to “severe” restrictions. Of course, because this case involves an outright denial of
the right to vote, even federal cases like Burdick would require strict scrutiny, but Illinois cases
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do not even use a so-called “sliding scale.”
To be clear, if Illinois wishes to have appointed boards on a statewide basis, there is no
equal protection issue: all citizens are equally denied the right to vote. Moreover, if Illinois
wishes to empower some citizens to vote and some not to vote, it may do so, but its decision to
do so much survive strict scrutiny. That is, the permanent use of mayoral appointment only in
Chicago must be necessary to serve a compelling state purpose and the statute implementing it
must be narrowly tailored and use the least restrictive means to achieve that purpose. Fumarolo,
142 Ill. 2d at 73.
Defendants do not cite any interest at all justifying Section 34-3, much less a compelling
one. And they do not attempt to show that the denial of the right to vote is “necessary” to serve
that interest, let alone that it is narrowly drawn to do so. In the motions to dismiss, they do not
even try to meet the standard of strict scrutiny. Nor could they, because the General Assembly
has never given any explanation, in any law, whether the 1995 Act or the 1988 Act or any prior


law, why this denial of the right to vote is “necessary” or what “compelling interest” it is
supposed to serve.
It may be that the office of the school board member is not inherently appointive or
elective, but the State cannot selectively designate the same office as appointive in one case, and
elective in the next, without some compelling purpose, where that designation is nothing more
than a classification in the equal right to vote under Article I, section 2, and Article III, section 3.
That is, the designation being made in the Illinois School Code is not a decision that is being
made independently of a decision as to which Illinois citizens are mature or trustworthy enough
to have the right to vote and which Illinois citizens are not. Even on minimal rationality grounds,
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the real decision being made here is capricious in that respect; and there is no evidence that
appointed school boards in Illinois or any other state do better in either financial management or
educational achievement. Whether one might have plausibly thought so at the time that mayoral
control was initiated, no one can make a plausible case that the experience of the last twenty
years since enactment of mayoral control has led to any remarkable improvement in public
education, especially for African American children. Furthermore, there is no standard—no
experience with an elected board in the history of the City of Chicago—by which one could even
make such a comparison.
The School Code is utterly opaque as to why there has never been an appointed board,
and if it were superior to an elected board system, it is equally unclear why it has not been
extended to other school districts. While a distinction between big cities and small ones might be
rational in some situations, it surely cannot be when it comes to the right to vote. What
explanation is there for trusting everyone to elect their school boards but Chicagoans? One is left
to infer that there is some other, illegitimate purpose, a desire to harm or stigmatize the low-


income citizens whose children use the schools almost exclusively, or the minority-race
population that the schools serve. A possible legitimate purpose does not justify a classification
that is far more likely to be related to an illegitimate one, namely, the stigmatizing of “Chicago
people” as different from other Illinois citizens and not entitled to the same right to vote.
But this Court need not even consider the defendants’ weak and undeveloped arguments
that this classification is rational, because they have not even tried to meet the applicable
standard: strict scrutiny. For these reasons, the motion to dismiss the Equal Protection claim
should be denied and plaintiffs are entitled to a finding that they are likely to succeed on the
merits for purposes of their motion for a preliminary injunction.
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Latham supports plaintiffs’ claim that mayoral appointment violates due

Plaintiffs claim that by delegating the power to tax, which is vested by the Constitution in
the General Assembly, Ill. Const. Art. IX, § 1, to a body that is not only unelected but that is not
even appointed by or in any way accountable to a legislative or otherwise elected and
representative body, the Illinois School Code deprives them of due process. No Illinois court has
ever approved this kind of delegation of the power to tax to be exercised by a governmental body
that is not elected by the people or accountable to a unit of government that is popularly elected.
In this case, unlike previous versions of appointed boards, the Board of Education levies billions
a year in taxes without having to receive approval of those decisions by either the City Council,
the General Assembly, or the voters who are being taxed. There has never been a case approving
such a completely unaccountable form of taxation without representation—something that the
Seventh Circuit properly called “abhorrent” to Americans. See 64 F.3d at 1102-03 (7th Cir.
1995). In response, the defendants rely principally on Latham, a case which actually provides


strong support for plaintiffs’ claim that Illinois courts insist on some kind of accountability to a
legislative body before such taxation can be imposed.
It is true that the Illinois Supreme Court dismissed a similar claim that the General
Assembly had engaged in an unconstitutional delegation of the taxing power to the unelected
Chicago Board of Education, and that such delegation violated due process. However, the Court
was clear that its ruling was contingent on the fact that the Illinois School Code at the time, did
not vest the power to levy taxes in the Board, but rather in the City Council. Id. at 181-82.
Moreover, at the time, the Board was accountable to the City Council in another way because the
mayor’s appointments to the Board were subject to approval by the City Council. Id. at 184.
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Defendants ignore these statements by the Latham court and instead focus on its
statement that the legislature may “create any conceivable kind of a corporation it sees fit for the
more efficient administration of public affairs and endow such corporation with such powers and
functions as it deems necessary and proper for the administration of such corporate powers and
affairs.” Id. at 186-87. However, as set forth above in the arguments concerning the Equal
Protection Clause, whatever truth there was to that statement under the Constitution of 1870, it is
no longer true that the legislature has such freedom. At least when it comes to the right to vote,
the current constitution requires courts to strictly scrutinize the General Assembly’s structuring
of bodies that engage in the governance of schools. See Fumarolo; Tully. Moreover, the Latham
court’s statement was made in the context of its earlier holding that the Board had not actually
been delegated the power to tax. Latham, 31 Ill. 2d at 187 (noting that the “Board’s powers are
not absolute” and referencing “what we have said with reference to” the Count concerning the
delegation of the tax authority).


For the same reason, plaintiffs’ claim does not conflict with Hoogasian, which allowed a
very limited and restricted delegation of the tax authority to the Regional Transportation
Authority (RTA), a body that, like the school board in Latham, is appointed by members of
legislative, representative bodies, subject to the one-person, one-vote principle. As the court in
Stroger v. Regional Transportation Authority, noted, this makes the RTA’s appointment process
much different than the appointment of the school board by a non-representative body, a process
that was stricken down in Fumarolo. 201 Ill. 2d 508, 519-20 (2002). Under both federal and state
constitutional law decisions since 1964, there are now sharp limits on legislative “creativity” that
did not exist at the time of Latham. See, e.g., Hadley v. Junior College Dist., 397 U.S. 50, 53-54
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(1970). Similarly, this Court should strike down the Board’s appointment by one single officer,
rather than elected representative legislators. Plaintiffs otherwise stand on their opening brief for
further distinctions between this case and Hoogasian. They add only that the Board is not correct
when it states that it is limited to taxing “for educational purposes” and only up to a cap of
3.07%. In fact, its authority to tax “for educational purposes” is capped at 4%, 105 ILCS 5/3453, and it also has the authority to levy capital improvement taxes, which are subject to a
separate cap, id. at § 34-53.5.
Finally, the Defendant Board of Education of the City of Chicago cites Board of
Education of Princeton v. Board of Education of Wyanet, 314 Ill. 83 (1924), for the proposition
that it is constitutional for a school board to levy taxes. Of course plaintiffs take no issue with
that holding, but defendant’s citation to this case is as ironic as its citation to Latham because this
case relies principally on another case, People ex rel. Goodell v. Chicago, Northwest Railway
Co., where the Court upheld taxation by a school district explicitly because it was an elected


board. 286 Ill. 384, 392 (1918) (holding that because the taxing board was selected by the voters
in the district “it does not…violate the rule of local self-government”).

Plaintiffs have stated a claim for violation of the Home Rule Unit provisions
of the Constitution.

Stroger is distinguishable. The Illinois Constitution gives the State the power to limit or
exclude a home-rule unit from regulating areas within its purview in specific ways. Ill. Const.
Art. VII, §§ 6(g)-(h). It does not allow the State to provide home rule units with new powers that
are not bestowed upon them by the Constitution. Id. at § 6(a) (defining powers of home rule
units). In Stroger, the State had previously limited the County’s authority over public

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transportation by creating the RTA to preempt what the County might do as a home rule unit—
an act that was permitted under Article VII, section 6 of the Illinois Constituion. Then, having
limited a power that the County had as a home rule unit pursuant to Article VII, section 6, the
State later engaged in a further limitation of the County executive’s authority by removing his
power to appoint members of the RTA and vesting it in the County’s legislative branch.
Here, by contrast, the State has foisted upon the home rule unit of Chicago, and
specifically the mayor, a power that the Illinois Constitution does not give to a home rule unit:
the exclusive power to run an entirely separate governmental entity that controls public schools.
Section 6(g) allows the General Assembly to “deny or limit any…power or function of a home
rule unit…,” but not to add new ones. But the City of Chicago has no specific home rule
authority under the Illinois Constitution or its charter to function as a local school district or to
operate a local school district as part of its home rule powers. That power to operate a separate
unit of government, namely, the Board of Education, exists entirely by virtue of a state law,
namely, Article 34 of the Illinois School Code—an addition or an imposition of a power and not
a “limitation” pursuant to Article VII, section 6 on the City’s home rule authority. Nor is such a

“function” of providing for public education in the charter or governing documents of the City of
Chicago—other than in the Illinois School Code. Nor is there any legal warrant to operate a
separate unit of government.
Furthermore, the 1995 Act made a radical change in the distribution of authority between
the City Council and the Mayor with respect to public education. To be sure, at one time, as set
out in Latham, the Mayor did nominate the members of the Board of Education, but the City
Council had the power to confirm these appointments, as well as to approve the budget. In
particular, under home rule authority, the Mayor never had the power to have unilateral control
over the appointment of the Board of Education. To that extent the 1995 Act (1) changed the
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form of government of the City of Chicago, without the consent of the people, and (2) conferred
a new and extraordinary legal power upon the Mayor that the people of the City never approved.
None of this is a limitation on home rule authority, as in Stroger, but an extension of home rule
authority that has never been approved and almost certainly in its present form would not be
approved in a popular referendum. Indeed, there has never been a referendum to approve the
powers conferred on the City, despite its home rule status, by the Illinois School Code.
Section 6(f) gives home rule units the same power to design and change their own form
of government as the General Assembly itself has unless the General Assembly limits it under
Sections 6(g) or (h). See Board of Trustees v. Mathias, 109 Ill. App. 3d 894, 896-97 (1982)
(quoting Urbana v. Houser, 67 Ill. 2d 268, 273 (1977)); McLorn v. East St. Louis, 105 Ill. App.
3d 148, 153 (1982). In this sense, the 1970 Constitution marked a drastic departure from the
traditional relationship between States and local governments in Illinois and elsewhere. Id.
Indeed, Chicago can by referendum change its governmental form even if such change conflicts
directly with a provision of the Illinois Municipal Code. Clarke v. Arlington Heights, 57 Ill. 2d


50, 53-54 (1974) (citing People ex rel. Hanrahan v. Beck, 54 Ill. 2d 561 (1973); Kanellos v.
County of Cook, 53 Ill. 2d 161 (1972)). Surely, the City cannot by referendum unilaterally give
itself control over another governmental body. In fact, that is the entire basis of the State
Defendants’ argument to dismiss this count—that this is not a power reserved to home rule units.
So, then, neither can the General Assembly.
In the alternative, should the Court find Stroger dispositive, plaintiffs seek leave to
amend their request for relief by seeking a declaration that the City may revoke mayoral
appointment power by referendum. As noted above, the Illinois Supreme Court has repeatedly
held that a home rule unit may change its form of government after the 1970 Constitution,
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including changing the appointment and election processes for certain officials, even to the
extent that such changes conflict with preexisting provisions of the Illinois Municipal Code.
Clarke, 57 Ill. 2d at 50-51 & 53-54 (citing Beck). Although the State and home rule units may act
concurrently, the State can only limit a home rule unit’s powers by three-fifths majority and it
must do so explicitly. Ill. Const. Art. VII, § 6(g). Similarly, the State can only preempt a home
rule unit power entirely by explicitly declaring that it is taking exclusive control over that power.
Id. at § 6(h). The State has not done either in this case. The 1995 Act therefore cannot deny a
home rule unit a power that it is given by Article VII, Section 6(f) of the Constitution. See
Mathias, 109 Ill. App. 3d at 897 (quoting Stryker v. Village of Oak Park, 62 Ill. 2d 523, 528
(1976)); see also Urbana, 67 Ill. 2d at 272-74. Plaintiffs seek a declaration that they may,
pursuant to Section 6(f), alter or repeal this form of government and institute a new one,
including by instituting an elective process for selecting Board members. Plaintiffs note that this
was a power reserved to the voters in the cases defendants cite to support the legitimacy of
appointed school boards. Sailors v. Bd. of Educ., 387 U.S. 105, 107 n.2 (1967); Moore v. Detroit


Sch. Reform Bd., 293 F.3d 352, 355 (6th Cir. 2002) (opportunity to change structure after a
sunset period of five years); Mixon v. Ohio, 193 F.3d 389, 396 (6th Cir. 1999) (same).

Plaintiffs’ claims for prospective relief from constitutional violations are not
barred by the State Lawsuit Immunity Act.

The State Defendants pursuant to Section 2-619 on the ground that this suit is barred by
sovereign immunity. This argument ignores, however, that plaintiffs seek injunctive relief from
unconstitutional conduct. There is no constitutional defense of sovereign immunity in Illinois to
a constitutional claim, as it was abolished by the 1970 Constitution. Ill. Const. Art. XIII, § 4. The
doctrine has been reinstated somewhat by the General Assembly through a state law, the State

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Lawsuit Immunity Act, which provides that, with certain exceptions, the State “shall not be made
a defendant or party in any court.” 745 ILCS 5/1. However, the Illinois Supreme Court has “long
recognized the presumption that the State, or a department thereof, cannot violate the
Constitution and the laws of the State.” Herget Nat’l Bank v. Kenney, 105 Ill. 2d 405, 411
(1985). It would be bizarre to hold otherwise, for it would mean that when the 1970 Constitution
abolished sovereign immunity, it gave the General Assembly the power through statute to
reinstate it in a form that allows the State to ignore the Constitution itself. See id. (allowing a
claim for a damages against a State defendant in a takings case because to hold otherwise would
allow the immunity statute to supplant the constitutional requirement that just compensation be
determined by a jury). That would frustrate the intent of the drafters of the 1970 Constitution of
abolishing sovereign immunity as a constitutional defense. It would also raise serious questions
about the constitutionality of the State Lawsuit Immunity Act, as an unlawful impairment of
legal remedies for breaches of the Illinois Constitution.
With this presumption in mind, the Illinois Appellate Court has recognized a “prospective
injunctive relief exception” to the State Lawsuit Immunity Act “where a plaintiff seeks to enjoin

a State agency or official from taking actions in excess of their statutory or constitutional
authority.” Rockford Memorial Hosp. v. Department of Human Rights, 272 Ill. App. 3d 751, 75556 (1995) (citing Landfill, Inc. v. Pollution Control Bd., 74 Ill. 2d 541, 552 (1978) (applying the
same principles to a case seeking declaratory relief)). The Supreme Court has recognized that in
determining whether the act applies, the “formal identification of the parties…is not dispositive”
and “substance take precedence over form.” Leetaru v. Bd. of Trs. of the Univ. of Ill., 2015 IL
117485 ¶ 44. Thus, not only may a claim that is nominally against a state official be construed as
one against the State, but “[b]y the same token, the fact that a named defendant is an agency or
department of the State does not mean that the bar of sovereign immunity automatically applies.”
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Id. (citing, inter alia, Landfill and Rockford Memorial Hosp.). Because all of plaintiffs’ claims
seek injunctive and declaratory relief from the unconstitutional acts of defendants, their claims
are not barred by the State Lawsuit Immunity Act—a statute, which cannot possibly allow the
State to circumvent the Constitution.

Plaintiffs are entitled to injunctive relief.
As plaintiffs set out in their original brief, they have met each of the requirements for a

preliminary injunction. As there is substantial overlap between their arguments about their
likelihood of success on the merits and their arguments regarding the defendants’ motions to
dismiss above, they will not rehash these arguments here. Defendants offer little argument
regarding the other factors.
The Chicago Board of Education offers nothing of substance regarding plaintiffs’ claim
of irreparable injury or that they lack an adequate legal remedy other than to restate its belief that
plaintiffs do not have a right to vote. The State Defendants argue that plaintiffs cannot be
suffering irreparable harm because the 1995 Act has been in effect for over 20 years. Of course,
the question at issue is not whether plaintiffs are suffering a new harm, but whether it is

irreparable. The defendants cannot and do not truly dispute the notion that if plaintiffs have a
right to vote for the school board, that harm cannot be retroactively repaired or remedied at the
conclusion of this litigation.
Neither do the defendants point to any specific or substantial harm that will result to them
from the granting of a preliminary injunction. The State Defendants simply offer the general
proposition, without support, that “requiring the State to draft procedures for an April 2017
election…will certainly interfere with the State’s operations in other areas of government which
require immediate action and attention, and thus will harm the public.” While some effort would
be required of the State, this unsupported general statement is insufficient to establish that the
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harm to the State outweighs the ongoing deprivation of the right to vote, which is the
“preservative of all rights.” Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667 (1966)
(quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). The Chicago Board of Education offers
a parade of horribles that will supposed result from the issuance of a preliminary injunction,
suggesting it will “destabilize the governance of Chicago’s school system, disrupt the Board’s
ongoing operations, compromise its financial stability, and erode its ability to ensure that critical
labor relations remain stable,” and thereby “imperil almost 400,000 school children, as well as
teachers and parents.” Yet the Board offers absolutely nothing to explain how merely requiring
the drafting of election procedures would cause such immense upheaval.
Finally, the Chicago Board of Education suggests that plaintiffs’ motion is insufficient
under Rule 65 for two additional reasons. First, the Board argues that plaintiffs must join or give
notice to the officials that would carry out an election. Plaintiffs disagree that these parties must
be party to an order that the State draft procedures for holding an election. They assume that if
defendants are ordered to develop plans for holding an election as soon as possible, and find it


useful to consult these officials, they will do so. This argument seems directed more to the
question of whether these parties would be necessary to effect full relief if a permanent
injunction requiring an election is issued. Plaintiffs assume these officials will comply with the
State’s plans for holding an election. But, should their joinder become necessary, plaintiffs do
not object to joining them.
Second, the Board argues that plaintiffs must post a bond to cover the “enormous” costs
and damages that will be sustained by the Board if the preliminary injunction is wrongly granted.
Again, the Board seems to be confusing the preliminary relief requested by plaintiffs—the
drafting of election procedures—with the permanent relief sought. As noted above, the Board
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has offered no support for its claim that it will sustain any damages at all if a preliminary
injunction issues.
For these reasons, Plaintiffs respectfully request that the Court enter a preliminary
injunction requiring defendants to draft procedures for an election of members of the Board of
Education while this suit is pending in order to allow for an election on April 4, 2017. In the
alternative, as defendants do not and cannot dispute any of the facts upon which plaintiffs’
claims are based, plaintiffs ask this Court to convert their motion for preliminary relief into one
for a permanent injunction to decide what is a pure question of law.


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