                             2014 IL App (2d) 131016
                                  No. 2-13-1016
                          Opinion filed December 3, 2014
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

J. LYELL CLARKE and STEVEN SCHULZE, ) Appeal from the Circuit Court
                                       ) of Kane County.
      Plaintiffs-Appellants and        )
      Cross-Appellees,                 )
                                       )
v.                                     ) No. 11-CH-1250
                                       )
COMMUNITY UNIT SCHOOL DISTRICT )
303,                                   )
                                       ) Honorable
      Defendant-Appellee and           ) David R. Akemann,
      Cross-Appellant.                 ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SPENCE delivered the judgment of the court, with opinion.
       Justice Zenoff concurred in the judgment and opinion.
       Justice McLaren dissented, with opinion.

                                             OPINION

¶1     Plaintiffs, J. Lyell Clarke and Steven Schultze, appeal the trial court’s issuance of a writ

of mandamus with respect to the reorganization of two schools.         Plaintiffs argue that the trial

court erred by issuing a writ of mandamus that did not reinstate the boundaries of the two

schools to their original status prior to the reorganization.    In the alternative, plaintiffs argue

that the trial court erred by issuing a writ of mandamus that did not order a major restructuring of

the two schools.   Defendant, Community Unit School District 303, cross-appeals, arguing that

the trial court erred by ordering the relief it did in the writ of mandamus.   Defendant also moves
2014 IL App (2d) 131016


to vacate the trial court’s order and dismiss the appeal as moot based on a waiver of certain

provisions in the No Child Left Behind Act of 2001 (NCLB) (20 U.S.C. § 6301 et seq. (Supp. I

2001)).     We affirm in part, vacate in part, and remand the case with directions.

¶2                                       I. BACKGROUND

¶3        This case involves the reorganization of two schools, Davis Elementary and Richmond

Elementary, that both, prior to the 2011-12 school year, served students in kindergarten through

fifth grade. Plaintiffs are parents of students who originally attended Davis. Defendant is a

school district organized under the Illinois School Code (School Code) (105 ILCS 5/1-1 et seq.

(West 2010)). Beginning in the 2011-12 school year, defendant reconfigured the schools so that

Davis served students in kindergarten through second grade and Richmond served students in third

through fifth grade (2011 Plan).

¶4        This case comes before us a second time after we held that plaintiffs’ complaint contained

sufficient allegations for a writ of mandamus based on violations of the School Code and its

regulations and we remanded the matter to the trial court. Clarke v. Community Unit School

District 303, 2012 IL App (2d) 110705, ¶¶ 25, 41 (Clarke I). Consistent with Clarke I, the trial

court issued a writ of mandamus. The court found that the 2011 Plan failed to comport with the

NCLB and the specific provisions of the School Code (105 ILCS 5/2-3.25d (West 2010)) and its

regulations implementing the NCLB. However, the remedy ordered by the court left intact the

reconfiguration of the two schools, despite plaintiffs’ request that the court reinstate the schools’

boundaries to their original status prior to the implementation of the 2011 Plan.

¶5        We begin with a discussion of the relevant federal and state statutory provisions.

Beginning with the NCLB, its overarching goal is “to ensure that all children have a fair, equal,

and significant opportunity to obtain a high-quality education and reach, at a minimum,



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proficiency on challenging State academic achievement standards and state academic

assessments.” 20 U.S.C. § 6301 (Supp. I 2001). In addition, the NCLB seeks to close the

“achievement gap between high- and low-performing children, especially the achievement gaps

between minority and nonminority students, and between disadvantaged children and their more

advantaged peers.” 20 U.S.C. § 6301(3) (Supp. I 2001). The NCLB requires states to establish

and enforce learning standards and to achieve adequate yearly progress (AYP) toward those

standards, as measured by federally approved standardized tests. See 20 U.S.C. § 6311 (Supp. II

2002).

¶6       Under several of its provisions, the NCLB provides for federal educational grants to states

and schools, known as “Title I” funds. 20 U.S.C. § 6301 et seq. (Supp. I 2001). Specifically,

Title I funds are used to supplement the educational needs of disadvantaged students. Id. The

Secretary of Education has the authority to withhold federal funds if a recipient of funds fails to

comply substantially with the NCLB’s requirements. See 20 U.S.C. § 1234c (Supp. II 2002).

¶7       To comply with the NCLB, the Illinois General Assembly amended sections of, and added

sections to, the School Code (Pub. Act 93-470, § 5 (eff. Aug. 8, 2003)). Most notably, Public Act

93-470, section 5, significantly amended section 2-3.25d of the School Code (105 ILCS 5/2-3.25d

(West 2010)).     Section 2-3.25d(a) provides that a school that fails to meet AYP for two

consecutive years is placed on “academic early warning status for the next school year.” 105

ILCS 5/2-3.25d(a) (West 2010). If the school fails to meet AYP for a third consecutive year, it

remains on academic early warning status. Id. If the school fails to meet AYP for a fourth

consecutive year, it is placed on “initial academic watch status.” Id. If the school remains on

academic watch status after a fifth year, the school district must develop a restructuring plan for the

school. Id. Section 2-3.25d(a) provides, “A school district that has one or more schools on



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2014 IL App (2d) 131016


academic early warning or academic watch status shall prepare a revised School Improvement

Plan [(SIP)] ***.” Id. Further, section 2-3.25d(c) provides that a SIP “shall be developed in

collaboration with parents ***. *** The *** [SIP] shall address measurable outcomes for

improving student performance so that such performance meets [AYP] criteria ***.” 105 ILCS

5/2-3.25d(c) (West 2010).

¶8       In this case, for four consecutive school years, 2007-08 through 2010-11, Richmond failed

to achieve AYP. Richmond failed to achieve AYP because some of its students were “limited

English proficient” (LEP).     Once Richmond failed to make AYP for the second consecutive

school year, 2008-09, defendant developed a SIP for Richmond in 2009.              Defendant was

required to notify the parents of Richmond students of the AYP issue and to offer those parents

the option to enroll their children in higher performing schools within the district (this option is

known as “choice”).      By the following school year, 2010-11, 117 Richmond students had

transferred to other schools in the district and the enrollment at Davis had increased by 19

students. Davis had achieved AYP every school year prior to 2010-11.

¶9       On February 7, 2011, a “robocall” went out to the parents of students at Richmond and

Davis, informing them of significant changes at the two schools.      Parent open-house meetings

were held on February 9 and 10, 2011, and the 2011 Plan to combine Richmond and Davis was

adopted by defendant in March 2011. The 2011 Plan reconfigured Richmond and Davis, both

Title I schools, from two independent elementary schools, serving students in kindergarten

through fifth grade, into interdependent elementary schools, with Davis serving students in

kindergarten through second grade and Richmond serving students in third grade through fifth

grade.    After the fall of 2011, the parents of Richmond students no longer had the option of

transferring their children to higher performing schools, because choice was no longer available.



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¶ 10   Plaintiffs filed a complaint alleging that defendant’s 2011 Plan was an unlawful SIP under

the School Code and its regulations. Clarke I, 2012 IL App (2d) 110705, ¶¶ 10-12. Defendant

moved for judgment on the pleadings; the trial court granted defendant’s motion; and plaintiffs

appealed. Id. ¶ 1. We reversed in part, stating that there was a genuine issue of material fact

regarding whether the 2011 Plan was a SIP under the School Code. Id. ¶¶ 39, 41. Further, we

held that plaintiffs had alleged sufficient facts to support a cause of action for a writ of mandamus,

and we remanded the case to the trial court. Id. ¶¶ 25, 41.

¶ 11   On remand, plaintiffs filed a third amended complaint to include a cause of action for a

writ of mandamus.     Defendant answered plaintiffs’ complaint, filed an amended answer with an

affirmative defense, and also filed a counterclaim against plaintiffs and a third-party complaint

against the Illinois State Board of Education (ISBE). Defendant sought a declaratory judgment

finding that the 2011 Plan (1) was not a SIP and was not required to be a SIP pursuant to the School

Code, and (2) did not violate section 2-3.25d of the School Code and regulations implementing the

School Code. In addition, defendant argued that the 2011 Plan was within its “discretionary

authority granted to it by the General Assembly to act as a policymaking body.” On January 28,

2013, the trial court granted plaintiffs’ motion to strike defendant’s affirmative defense. On May

24, 2013, the trial court granted plaintiffs’ and the ISBE’s motion to dismiss defendant’s

counterclaim and third-party complaint pursuant to section 2-615 of the Code of Civil Procedure

(735 ILCS 5/2-615 (West 2012)).

¶ 12   The court heard testimony, admitted other evidence, and heard argument of counsel

during a seven-day trial held from July 24 through August 1, 2013.       In its September 18, 2013,

modified opinion and judgment order, the court first addressed the issue of whether the School

Code and its regulations relating to the NCLB applied to defendant’s 2011 Plan.         According to



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2014 IL App (2d) 131016


the court, the 2011 Plan had many elements of a revised SIP, and defendant was required to

comply with section 2-3.25d of the School Code and its regulations when implementing the 2011

Plan, but defendant did not do so.     The court stated: “The District is required to adopt a Plan

which will assist or otherwise benefit the failing subgroups.      The 2011 Plan contained no

measures whereby the failing subgroups were addressed.”

¶ 13   The court also found that defendant developed the 2011 Plan “at least in part, to resolve

[Richmond’s] AYP issue.” The court acknowledged that district personnel testified otherwise,

but the court did “not find this testimony credible.” The court stated that, although defendant

“admittedly adopted a Plan for the general good,” the 2011 Plan contained “no specific strategies

for those subgroups [at Richmond] who failed AYP.” The 2011 Plan failed to comply with the

School Code and its regulations because it failed to: (1) “provide any measurable, scientific

remedial strategies at Richmond[, which] did not pass that statewide ISAT test and failed AYP”;

(2) “address why the 2009 SIP did not improve the AYP scores of the failing subgroups”; and (3)

provide choice to the parents of Richmond students.    The court stated:

       “[O]nce Choice was implemented, the District cannot eviscerate past SIP failures by

       ‘reconfiguring the school population.’ This methodology only serves to circumvent the

       express requirements of the NCLB regulations.      ***   Under Section 5/2-3.25(d) [of the

       School Code], the District was obligated to adopt a Plan for Richmond School in 2011

       for school years 2011-2013.” (Emphasis in original.)

The court found that plaintiffs “have demonstrated that the 2011 Plan fails to comport with the

applicable statutory and regulatory mandates of the NCLB, the [S]chool [C]ode and the

regulations promulgated thereunder.”




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¶ 14    Regarding the remedy, the trial court noted that plaintiffs had requested that the 2011

Plan be declared null and void, which would “ ‘undo’ ” the reconfiguration and return the

boundaries of both schools back to their original status prior to the implementation of the 2011

Plan.   However, the court noted that this court had stated in Clarke I that a plaintiff will not be

entitled to a writ of mandamus when its effect would be to substitute the court’s judgment or

discretion for that of the public official.   Clarke I, 2012 IL App (2d) 110705, ¶ 24 (citing Lewis

E. v. Spagnolo, 186 Ill. 2d 198, 229 (1999)).       The court further noted that, while its role was to

ensure compliance with the statutory and regulatory mandates, it must not determine on its own

“whether or not the means ultimately adopted by [defendant] are wise or expedient nor interfere

with the exercise of the powers by the members of [defendant] in matters confided to their

discretion.”

¶ 15    Accordingly, the court issued a writ of mandamus but did not undo the reconfiguration

and return the schools to their original status.    Instead, the writ of mandamus stated:

                “The Defendant District is ordered, within a period of six months from the date of

        this Judgment to develop a revised Corrective Action Plan that includes Choice and

        Supplemental Services (SES) in accordance with the mandates in the NCLB, the School

        Code 105 [ILCS] 5/2-3.25d and 23 Ill. Admin. Code, Sections 1.10-1.85 for students in

        the Davis and Richmond buildings.          Without limitation to the foregoing, the Corrective

        Action Plan must be developed in collaboration with and the input of parents of students

        attending school in, and the staff serving in, the Davis and Richmond buildings.”

        (Emphasis in original.)

¶ 16    Plaintiffs moved to reconsider and clarify the trial court’s decision, requesting the court

to mandate defendant to “undo its previous action of combining the attendance areas for the



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2014 IL App (2d) 131016


students who attended school in the Davis and Richmond buildings.”              In another written

decision, the court denied plaintiffs’ request to reconsider but granted their request for

clarification.

¶ 17    Regarding the reconfiguration, the court stated that “boundary decisions are and remain

the prerogative of the [defendant] school district.” The court determined that it was “not the

reconfiguration that the [defendant] school district did that, considered in isolation, was contrary

to the mandates of the NCLB.” Rather, it was defendant’s “failure to provide the corrective

action mandates that this Court now orders” that “ran contrary to the NCLB from which the State

cannot provide a waiver.” According to the court, its function “in mandamus” was not to

“replace the quasi-legislative authority of the [defendant] district but to require that the

[defendant] district perform its mandated functions as opposed to” prohibiting it from

“performing discretionary functions.”

¶ 18    The court also declined plaintiffs’ alternative request that it mandate “restructuring as

opposed to corrective action,” based on Richmond’s AYP failure for six years.      The court stated

that the “NCLB has a progressive step schematic to reach a mandated restructure requirement.”

It stated that, in “the absence of case law” indicating that a different result was required, “the

better approach” was “to place the process on the track where it went off the track.” “In this

way, parents, staff, and the [defendant] District” could work together to achieve “the best result

for the students,” which was the “ultimate goal for any school program.”

¶ 19    Plaintiffs timely appealed, seeking reversal of the remedy in the writ of mandamus.

Defendant timely cross-appealed and sought reversal of the writ of mandamus.          In particular,

defendant appealed the court’s finding that defendant “failed to comply with certain legal




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mandates” and the order that, “within six months of the date of judgment,” it “must develop a

revised Corrective Action Plan that includes Choice and Supplemental Education Services.”

¶ 20   During the pendency of this appeal, the United States Department of Education approved

Illinois’s request for a waiver from the mandates of the NCLB (2014 waiver), which is effective

for the 2014-15 school year. In a motion taken with the case, defendant relies on the 2014 waiver

in urging this court to vacate the trial court’s order and dismiss the appeal and cross-appeal as

moot. Plaintiffs have filed an objection to defendant’s motion, and we address the merits of the

motion in the context of the arguments raised on appeal.

¶ 21                                      II. ANALYSIS

¶ 22                                    A. Reconfiguration

¶ 23   Plaintiffs do not challenge the findings of the trial court but argue only that the trial court

erred in choosing a remedy.     Plaintiffs question why the trial court viewed the reconfiguration

part of the 2011 Plan in isolation and urge this court to reverse the remedy ordered by the trial

court and order defendant to return Davis and Richmond to their status before the reconfiguration

in the 2011 Plan took effect.   Plaintiffs argue that the trial court’s remedy is erroneous because

it allows the 2011 Plan to remain intact, even though the trial court found the plan in violation of

the School Code and its regulations.

¶ 24   Defendant counters that it had the discretion to reconfigure the schools and that there is

nothing in the School Code or its regulations implementing the NCLB that prohibit it from

reconfiguring a school or schools either before or after a school has failed to make AYP.

¶ 25   Mandamus is an extraordinary remedy to enforce the performance by a public officer of

nondiscretionary official duties. Noyola v. Board of Education of the City of Chicago, 179 Ill. 2d

121, 133 (1997). The remedy provides affirmative rather than prohibitory relief and can be used



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2014 IL App (2d) 131016


to compel the undoing of an act. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 193 (2009).

Where public officials have failed to comply with mandatory statutory requirements, the purpose

of mandamus is to compel public officials to do so. Id. Although mandamus may be used to

compel a public officer to perform a duty that does not involve the exercise of discretion by the

officer, mandamus will not issue to direct the manner in which a discretionary act is performed.

Turner-El v. West, 349 Ill. App. 3d 475, 479-80 (2004).

¶ 26      Ordinarily, we will not disturb a trial court’s decision to grant or deny a writ of mandamus

unless its decision is against the manifest weight of the evidence.           See 1350 Lake Shore

Associates v. Healey, 223 Ill. 2d 607, 614 (2006). However, in this case, the parties do not contest

the trial court’s findings of fact but contest only the trial court’s conclusions of law. Accordingly,

the parties agree that our review is de novo. See id. (conclusions of law are reviewed de novo).

Also, we are required to construe the School Code, and questions of statutory interpretation

present questions of law. Board of Education, Joliet Township High School District No. 204 v.

Board of Education, Lincoln Way Community High School District No. 210, 231 Ill. 2d 184, 194

(2008).

¶ 27      As we explain, the trial court properly issued a writ of mandamus that did not reinstate

the school boundaries to their original status prior to the implementation of the 2011 Plan.

Because the reconfiguration was within defendant’s discretion, it would not have been proper to

order mandamus relief to undo that part of the 2011 Plan.            See Burnidge Brothers Almora

Heights, Inc. v. Wiese, 142 Ill. App. 3d 486, 490 (1986) (mandamus does not issue to compel

action that is discretionary).

¶ 28      The School Code contains both general, discretionary powers granted to school boards by

the legislature (see 105 ILCS 5/10-20 (West 2010)) and mandatory regulations that specifically



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address a school district’s duties as required by the NCLB (see 105 ILCS 5/2-3.25d (West

2010)).     Clarke I, 2012 IL App (2d) 110705, ¶ 29.         As we stated in Clarke I, the general,

discretionary powers include the authority: “[t]o adopt and enforce all necessary rules for the

management and government of the public schools” (105 ILCS 5/10-20.5 (West 2010)); “[t]o

establish one or more attendance units within the district” (105 ILCS 5/10-21.3 (West 2010));

“[t]o assign pupils to the several schools in the district” (105 ILCS 5/10-22.5 (West 2010)); “[t]o

have the control and supervision of all public schoolhouses in their district” (105 ILCS

5/10-22.10 (West 2010)); and “[t]o decide when a site or building has become unnecessary,

unsuitable or inconvenient for a school” (105 ILCS 5/10-22.13 (West 2010)).         Clarke I, 2012 IL

App (2d) 110705, ¶ 26.

¶ 29      The general, discretionary powers of school boards were discussed in Tyska v. Board of

Education of Township High School District 214, 117 Ill. App. 3d 917 (1983). There, the

plaintiffs challenged the school board’s decision to close one high school and assign incoming

freshmen to a different high school. Id. at 918.          Decreasing enrollment and increasing cost

had made it necessary to close one or more of the eight schools within that district.         Id.    In

order to determine which school(s) to close, the school board established a committee to develop

criteria, and it solicited public opinion. Id. at 918-19.      However, the school board failed to

apply the criteria it had developed when it decided which school to close. Id. at 921.              The

plaintiffs sued the school board, alleging that its decision was arbitrary and capricious and should

be declared null and void. Id. at 920.       The trial court agreed with the plaintiffs and declared

the school board’s decision null and void. Id. at 921.

¶ 30      The appellate court reversed, noting that a school board has wide discretion in the exercise

of its powers. Id. at 923. “The decision to close a school and to reassign the students to other



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attendance zones within the district is an exercise of the discretionary powers granted to the Board

to act as a policy-making body, tantamount to the quasi-legislative power to make prospective

regulations and orders.” Id. at 927. The Tyska court stated that it was not for the courts to

determine whether the means ultimately adopted by the board were wise or expedient or to

interfere with the exercise of powers by the board in matters confided to its discretion. Id. at 930.

¶ 31   In Clarke I, defendant relied on Tyska in defending the 2011 Plan. Clarke I, 2012 IL App

(2d) 110705, ¶ 26. In particular, defendant argued in Clarke I that the 2011 Plan was not a SIP,

meaning that it was not subject to the specific provisions and regulations of the School Code

mandating compliance with the NCLB. Id. ¶ 31. Instead, defendant argued that the 2011 Plan

was a proper exercise of its discretion under the general provisions of the School Code. Id. This

court distinguished Tyska on the basis that Tyska did not consider the issue raised in Clarke I,

which was whether provisions granting school boards certain general powers governed over the

specific provisions mandating compliance with the NCLB. Id. ¶¶ 27, 29. Further, this court

found that there was a genuine issue of material fact regarding whether the 2011 Plan was a SIP

under the School Code, thus subjecting it to the provisions of the School Code and its regulations

mandating compliance with the NCLB. Id. ¶ 25.

¶ 32   The dissent refers to the law-of-the-case doctrine in conjunction with Clarke I, along with

the well-established principle that “where there exists a general statutory provision and a specific

statutory provision both relating to the same subject—in either the same or another act—the

specific provision controls and should be applied.” (Emphasis added.) Id. ¶ 29. However, as

we explain, there is no battle between the general and specific statutory provisions in this case. In

Clarke I, this court did not answer the question of whether defendant had the general discretion to

reconfigure the schools as part of the 2011 Plan, which is a separate question from whether the



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2011 Plan violated the NCLB and the specific provisions in the School Code mandating

compliance with the NCLB. Because these are separate questions, this court did not hold that on

remand the trial court was required to find the 2011 Plan either wholly lawful or wholly unlawful.

¶ 33   Endeavoring to follow this court’s decision in Clarke I, the trial court addressed whether

the 2011 Plan was a SIP. Determining that the 2011 Plan “had many elements of a revised SIP,”

the court then found that the 2011 Plan failed to comport with the NCLB and the specific

provisions of the School Code and its regulations implementing the NCLB. However, that

finding did not render the entire plan null and void. On the contrary, the court distinguished

between mandatory statutory requirements and discretionary functions.        Unlike the part of the

2011 Plan that violated mandatory statutory requirements relating to the NCLB, the court

properly determined, the part of the 2011 Plan reconfiguring Richmond and Davis was within

defendant’s “general power” or discretion under the School Code.

¶ 34   The facts leading up to defendant’s decision to reconfigure the Davis and Richmond

schools are undisputed. When Richmond failed to achieve AYP for the second consecutive year,

the parents of Richmond students were given the “choice” to enroll their children in higher

performing schools within the district. As a result, 117 students left Richmond and transferred to

other schools in the district, including Davis. The court noted that “[b]ecause the students had

departed Richmond under their legal right to do so, Richmond was underutilized.” Although the

court found that defendant developed the 2011 Plan, “at least in part, to resolve its AYP issue,” the

court also noted that defendant’s superintendent, Don Scholmann, “testified that the problem

leading up to the 2011 Plan was a facilities issue.” Consequently, defendant reconfigured

Richmond and Davis from two independent elementary schools into two interdependent




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elementary schools, with Davis serving students in kindergarten through second grade and

Richmond serving students in third grade through fifth grade.

¶ 35    Although the dissent characterizes the “facilities issue” as a “pretext for [defendant’s]

unlawful action” (infra ¶ 53) and accuses defendant of intentionally contravening the NCLB, the

School Code, and its regulations, the trial court expressly found that defendant “admittedly

adopted [the 2011] Plan for the general good.”          According to the court, the 2011 Plan was

developed not only to resolve the AYP issue (which was its purpose only “in part” (emphasis

added)), but also to address the underutilization of Richmond.       Therefore, the court made the

dual finding that defendant’s decision to combine the two schools was within its general power

but also that defendant’s discretion could not eliminate its specific obligations under the NCLB

and the School Code.

¶ 36    The court’s finding was not contradictory, as the dissent urges.      On the contrary, the

court properly distinguished between the School Code’s general, discretionary powers and the

specific, mandatory requirements. On the one hand, defendant had the discretion to reconfigure

the two schools in the 2011 Plan, as the school board in Tyska had the discretion to change the

school attendance zones.       As enumerated above, the School Code gives defendant the

discretionary power to establish one or more school attendance units within the district (see 105

ILCS 5/10-21.3 (West 2010)). On the other hand, defendant was required to comply with the

specific, mandatory provisions in the School Code implementing the NCLB, which it failed to

do.    Accordingly, the court determined that it was not defendant’s reconfiguration that violated

the mandates of the NCLB and the specific provisions and regulations of the School Code

mandating compliance with the NCLB; rather, it was defendant’s failure to address the subgroups

at Richmond failing to achieve AYP that “ran contrary to the NCLB.”            The court correctly



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stated that its function in issuing a writ of mandamus was not to “replace the quasi-legislative

authority of the [defendant] district but to require that the [defendant] district perform its

mandated functions as opposed to” prohibiting it from “performing discretionary functions.”

¶ 37    Because the decision to reconfigure the schools was discretionary, the court did not err by

leaving that part of the 2011 Plan intact when issuing the remedy in its writ of mandamus.

Therefore, plaintiffs’ argument to the contrary fails.

¶ 38                                        B. Remedy

¶ 39    Both parties challenge the remedy ordered by the trial court in this case.       The court

ordered defendant to develop, within six months, a “Corrective Action Plan” in accordance with

the mandates of the NCLB, the School Code, and its regulations.     Plaintiffs argue, in addition to

their argument regarding the reconfiguration, that the court erred by not ordering a major

restructuring of the two schools, as required by the provisions in the School Code mandating

compliance with the NCLB.        See 105 ILCS 5/2-3.25d (West 2010) (requiring a restructuring

plan when a school has not met AYP for six years).       In its cross-appeal, defendant argues that

the court exceeded its authority by ordering a Corrective Action Plan and that, because the

authority to determine AYP status lies with the ISBE, the ISBE is a necessary party to this

litigation.   As we explain, it is not necessary to consider any of these arguments given our

conclusion in this case.

¶ 40    The trial court’s order mandated compliance with the NCLB, the School Code, and its

regulations. In a footnote of the trial court’s decision, it stated that “waivers of NCLB mandates”

may be granted by the United States Department of Education upon the application of a state and

that such an application had been made by Illinois. However, when the trial court ruled, the

application had not been acted on and was still pending. On April 18, 2014, while this appeal was



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2014 IL App (2d) 131016


pending, the United States Department of Education approved Illinois’s request for a waiver from

the mandates of the NCLB. The 2014 waiver, known as “ESEA (Elementary and Secondary

Education Act of 1965, which was amended by the NCLB) flexibility,” is effective for the 2014-15

school year. As stated, based on the 2014 waiver, defendant has now filed a motion to vacate the

trial court’s order and to dismiss the appeal and cross-appeal as moot.

¶ 41   Defendant argues that the case should be dismissed as moot because the 2014 waiver

removes an actual controversy between the parties and renders it impossible for this court to grant

plaintiffs relief. See Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 28 (“A case

on appeal becomes moot where the issues presented in the trial court no longer exist because

events subsequent to the filing of the appeal render it impossible for the reviewing court to grant

the complaining party effectual relief.”); Fisch v. Loews Cineplex Theatres, Inc., 365 Ill. App. 3d

537, 539 (2005) (an appeal is considered moot if no actual controversy exists or if events have

occurred that make it impossible to grant the complaining party effectual relief). In particular,

defendant argues that the case is moot because the 2014 waiver exempts Illinois “from complying

with certain statutory provisions of the NCLB and the corresponding regulations, and thus, the

conforming state statutes and regulations.”

¶ 42   Plaintiffs have objected to defendant’s motion to dismiss, arguing that the appeal is not

moot. According to plaintiffs, the primary legal issue on appeal is, under the umbrella of

mandamus, the proper legal remedy the trial court should have implemented for defendant’s

violations of law from 2011 to 2013. Plaintiffs argue that the 2014 waiver is not retroactive and

that the adjudication of this case thus has nothing to do with the waiver.

¶ 43   We deny defendant’s motion to dismiss the appeal as moot based on the 2014 waiver.

Contrary to defendant’s assertion, there is an actual controversy on appeal apart from the 2014



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2014 IL App (2d) 131016


waiver, which is whether the trial court erred by ordering a remedy that did not return the two

schools to the status quo ante. As discussed above, we have rejected plaintiffs’ argument that the

trial court erred by not undoing the reconfiguration as part of its remedy in the writ of mandamus.

However, while the trial court endeavored to follow this court’s opinion in Clarke I when it issued

the writ of mandamus, its remedy necessarily preceded the 2014 waiver. Accordingly, the issue is

what impact the 2014 waiver has on the remedy ordered.

¶ 44   We note that, when the trial court made its ruling, it was aware that a waiver application

was pending but that the NCLB mandates were still in effect. It is unclear what remedy the trial

court would have ordered had the 2014 waiver been in effect at the time of its ruling. Because we

do not know the impact, if any, of the 2014 waiver on the remedy ordered by the court, we grant

defendant’s motion to vacate the court’s writ of mandamus ordering defendant’s compliance with

the NCLB, the School Code, and its regulations and remand the case with directions to reconsider

the remedy in light of the 2014 waiver.

¶ 45                                   III. CONCLUSION

¶ 46   The reconfiguration part of the 2011 Plan was within defendant’s discretion, and the

judgment of the Kane County circuit court to that effect is affirmed. Because the remedy ordered

by the court preceded the 2014 waiver, we vacate the writ of mandamus and remand the case with

directions that the court reconsider the remedy in light of the 2014 waiver.

¶ 47   Affirmed in part and vacated in part; cause remanded.

¶ 48   JUSTICE McLAREN, dissenting.

¶ 49   I respectfully dissent because there is no doubt that defendant, a governmental body,

violated state and federal law and that plaintiffs established every element required to mandate the




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undoing of defendant’s unlawful act. Sadly, plaintiffs will not receive the relief to which they are

entitled. I agree with the trial court’s finding:

       “[O]nce Choice was implemented, the District cannot eviscerate past SIP failures by

       ‘reconfiguring the school population.’ This methodology only serves to circumvent the

       express requirements of the NCLB regulations. *** Under Section 5/2-3.25(d) [of the

       School Code], the District was obligated to adopt a Plan for Richmond School in 2011 for

       school years 2011-2013.” (Emphasis added.)

Unfortunately, the trial court and the majority are now allowing such an evisceration. By failing

to provide the proper remedy, the trial court contradicted its finding and defeated the purposes of

the School Code and NCLB and the purpose of a writ of mandamus. The majority rubber-stamps

the trial court’s failure to hold defendant responsible to the people it is beholden to, by affirming

the trial court’s misguided judgment. Both the trial court and the majority operate under the

fiction that there were two completely separate parts of the 2011 Plan; however, nothing in the

record supports this “finding.” In fact, the testimony presented by defendant regarding this issue

was determined by the trial court to be “not credible.” Thus, the reconfiguration of the schools

and every other part of the 2011 Plan were inextricably intertwined and the parents and children

are given short shrift by the trial court and the majority by their failure to nullify defendant’s

circumvention of the School Code and NCLB.

¶ 50   The main purpose of NCLB is to close the “achievement gap between high- and low-

performing children, especially the achievement gaps between minority and nonminority students,

and between disadvantaged children and their more advantaged peers.” 20 U.S.C. § 6301(3)

(Supp. I 2001). Defendant failed to bring Richmond’s AYP up after two years of its ineffective

SIPs. So, defendant moved “the problem” around by forcing half of the “limited English



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proficient” students to attend Davis and by forcing half of the high-performing Davis students to

attend Richmond. By doing this, defendant subverted the purpose of NCLB: it denied the

low-performing students choice; failed to provide them measurable, scientifically based strategies;

and failed to involve parents, all in violation of NCLB, the School Code, and its regulations. The

real rub of this is that defendant did all this while collecting Title I funds, which were to be used to

supplement the educational needs of disadvantaged students. 20 U.S.C. § 6301 et seq. (Supp. I

2001). Any discretion defendant might have had was abused by its intentional subversion of both

federal and state law, and its unlawful action must be undone.

¶ 51    The basis for denying plaintiffs effective relief is fallacious. Defendant’s reconfiguration

of the schools cannot be isolated from its failure to comply with the mandates of the School Code

and NCLB. In its findings, the trial court “finds” that the reconfiguration was part and parcel of

defendant’s failed plan to comply with the mandates of the School Code and NCLB; and then, in

its grant of relief, the trial court “determines” exactly the opposite.       The record shows that

defendant reconfigured the schools to avoid compliance with the specific statutory mandates that

were required due to Richmond’s AYP status problem.

¶ 52    The trial court recognized this pretextual deceit when it found that, even before the

adoption of the 2011 Plan, “the District used the 2011 Plan to seek a ‘roll back’ [(reset)] in the

AYP status at Richmond.” Thus, defendant’s explanation for the reconfiguration, that there was

“a facilities issue,” was a pretext for its unlawful action. Defendant’s intention was clear: it

reconfigured Richmond and Davis, as the trial court found, “to resolve its AYP issue.” The trial

court also found:

        “Although District personnel repeatedly denied that resolving the Richmond issue was a

        factor of the 2011 Plan, the Court does not find this testimony credible. The public



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       presentations and the written material disseminated by the District unambiguously trace

       the root issue to the repeated failure at Richmond to meet Average yearly Progress (AYP).

                                                 ***

               The Court finds that what the district did in its 2011 plan in part was to combine

       two schools into one school with two campuses ***.             As our Appellate Court has

       indicated, a District may have that general power; its discretion cannot eliminate its

       obligations under the NCLB and the specific provisions of the school code that regulate its

       implementation.     ***    Indeed [the two schools’] AYP status appears inextricably

       intertwined in the current configuration as the K-2 students are not tested for AYP and get

       their status by ‘rollback’ from the third grade students who attend in a different building.”

       (Emphasis added.)

Thus, the trial court found that the raison d’être of the reconfiguration of the schools was to avoid

the requirements of the School Code and NCLB due to AYP failure at Richmond. The trial court

repeated this finding throughout its decision.

¶ 53   The majority states that I mischaracterize the “ ‘facilities issue’ ” as a “ ‘pretext for

[defendant’s] unlawful action.’ ” Supra ¶ 35.       However, the majority supports its assertion by

quoting the trial court out of context (“the trial court expressly found that defendant ‘admittedly

adopted [the 2011] Plan for the general good’ ”).         Id.   When read in context, the quoted

portion has a different meaning than that espoused by the majority.    The trial court found:

       “The [2011] Plan fails to address any specific subgroups, let alone those who were

       consistently failing AYP at Richmond.         The NCLB is an acronym for ‘No Child Left

       Behind’, but the District admittedly adopted a Plan for the general good with no specific

       strategies for those subgroups who failed AYP.       These subgroups have continued to fail



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       after the 2011 Plan was implemented.             Had the District not combined Davis and

       Richmond, Richmond would be subject to major restructuring under Section 1.85 for the

       2012-2014 school year.”     (Emphasis added.)

The phrase “admittedly adopted a Plan for the general good” does not mean that the trial court

found that it was for the general good.         Rather, based on the trial court’s finding that

defendant’s witnesses were not credible, it is more likely that the trial court meant only that

defendant’s witnesses merely testified that the 2011 Plan was adopted for “the general good.”

Therefore, this phrase, when read in context, further supports the conclusion that defendant’s

explanation for violating the School Code and NCLB was a pretext.

¶ 54   It is easy to understand why the trial court doubted the veracity of defendant’s witnesses.

If defendant believed that it was adopting the 2011 Plan for the general good, why did it adopt the

plan without input from those it served and from those with expertise in the field, namely, parents,

teachers, and other professionals as required by the School Code and NCLB? Instead, defendant,

in complete violation of the law, designed the 2011 Plan behind closed doors and announced it by

“robocall” to those it was elected to serve. The trial court and the majority might believe that

defendant’s discretion cannot ever be abused when such autocratic actions are claimed to be

benevolent. However, the record does not support this belief, because defendant cared more

about an actuarial solution than the children left behind.

¶ 55   Alarmingly, when fashioning a remedy, the trial court contradicted its express “finding”

with a “determination.” Now, according to the trial court, it “determined” that defendant’s

reconfiguration of the schools was no longer “inextricably intertwined” with defendant’s failure to

comply with the School Code and NCLB; rather, according to the trial court, defendant had

discretion to reconfigure the schools pursuant to Tyska, 117 Ill. App. 3d 917. However, this court



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had already rejected defendant’s reliance on Tyska in Clarke I. Clarke I, 2012 IL App (2d)

110705, ¶ 27. In addition, this court had rejected defendant’s argument that it had discretion to

reconfigure the schools under certain statutory provisions. Id. ¶¶ 28-29. Thus, these bases for

defendant’s discretion to reconfigure the schools should be rejected as the law of the case. See

Village of Ringwood v. Foster, 2013 IL App (2d) 111221, ¶ 33 (the law-of-the-case doctrine limits

relitigation of a previously decided issue in the same case).

¶ 56    Curiously, the majority asserts that in Clarke I “this court did not answer the question of

whether defendant had the general discretion to reconfigure the schools as part of the 2011 Plan.”

(Emphasis added.)      Supra ¶ 32.      However, defendant had “only those powers expressly

conferred upon it by the General Assembly and those that [were] necessary to carry into effect the

powers granted by the legislature.” Spinelli v. Immanuel Lutheran Evangelical Congregation,

Inc., 118 Ill. 2d 389, 403 (1987). In Clarke I, we rejected defendant’s statutory bases for

reconfiguring the schools, stating that the specific provisions of the School Code addressing

NCLB control over the general-powers provisions of the School Code cited by defendant. Clarke

I, 2012 IL App (2d) 110705, ¶ 29.

¶ 57    I agree with the majority that in Clarke I we did not require the trial court to make any

specific finding. However, the majority fails to recognize that in Clarke I we directed the trial

court that if the allegations in the complaint were proved, i.e., if the 2011 Plan was a SIP, plaintiffs

would be entitled to the relief they sought. See id. ¶¶ 31, 39.

¶ 58    On remand the trial court found:

        “There is no question that the 2011 plan adopted by the District had many elements of a

        revised SIP or Corrective Action Plan. Indeed the District’s Superintendent testified that

        the 2011 plan was a SIP except that the District didn’t ‘fill out the paperwork.’ ”



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Therefore, the narrow question of fact, whether the 2011 plan was a SIP, was essentially answered

in the affirmative. Thus, pursuant to Clarke I, plaintiffs were entitled to the relief they sought.

¶ 59    Regardless of the law of the case, any discretion defendant might have had to reconfigure

the schools under its “ ‘general power’ or discretion under the School Code” (supra ¶ 33) was

palpably abused when defendant used its power to reconfigure the schools to subvert the clear

mandates of the School Code, its regulations, and NCLB. See Kermeen v. City of Peoria, 65 Ill.

App. 3d 969, 972 (1978). Defendant’s “discretion” was used to achieve an illegitimate purpose

via the actuarial ploy of melding the two schools. Through this single deceit, defendant sought

the AYP rollback, the evisceration of past SIP failures, and the circumvention of the express

requirements of the NCLB regulations.

¶ 60    Defendant intentionally contravened NCLB’s overarching goal of “ensur[ing] that all

children have a fair, equal, and significant opportunity to obtain a high-quality education and

reach, at a minimum, proficiency on challenging State academic achievement standards and state

academic assessments.” 20 U.S.C. § 6301 (Supp. I 2001). The trial court properly found that

“[t]he 2011 Plan contained no measures whereby the failing subgroups were addressed.”

Defendant’s lack of concern for its low-performing, limited-English-proficient students, and the

lack of any effective remedy, invites other school districts to evade their obligations to

disadvantaged and low-achieving students.            Defendant’s reconfiguration of the schools

accomplished nothing more than moving the problem of one school’s failing children to another

school and moving the other school’s children, with no apparent benefit to them, from their local

school to a different, distant school, for the sole purpose of utilizing their collective test scores.

¶ 61    Further, defendant’s discretion is expressly limited by section 10-20 of the School Code.

105 ILCS 5/10-20 (West 2010) (“This grant of powers does not release a school board from any



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duty imposed upon it by this Act or any other law.”). Therefore, defendant’s discretionary

powers were limited by the specific provisions of the School Code that it chose to violate. See

Clarke I, 2012 IL App (2d) 110705, ¶ 28.

¶ 62   Accordingly, the remedy here should include the undoing of the reconfiguration of

Richmond and Davis schools, and anything less than that is no remedy at all. See Noyola, 179 Ill.

2d at 133 (the writ of mandamus can be used to compel the undoing of an act). If the writ of

mandamus has any purpose, it is here. The entire action taken by defendant should be abrogated

and the status quo ante returned. Thereafter, the parties can decide whether further action is to be

taken and whether further relief is necessary pursuant to the present status of the law.

¶ 63   With regard to defendant’s motion to dismiss, its motion is a red herring. The fact that

there might or might not be a waiver of future NCLB requirements has nothing to do with the

vacation, abrogation, or repeal of defendant’s obligations pursuant to state statute absent

retroactive repeal of such statute by the state legislature. Until the status quo ante has been

effectuated, there remains substantial relief that can and should be effectively realized. Until the

status quo ante has been effectuated, the purpose of the writ of mandamus remains unfulfilled.

¶ 64   I submit that the trial court was correct when it stated, “the better approach [was] to place

the process on the track where it went off the track.” Unfortunately, the process went off the track

when defendant was guilty of, in the trial court’s words, “eviscerating past SIP failures by

‘reconfiguring the school population.’ ” Thus, at a minimum, the “better approach” is to undo the

reconfiguration of the schools. To conclude otherwise is to permit pernicious abuses of discretion

that subvert or avoid statutory mandates. See Kermeen, 65 Ill. App. 3d at 972 (“If a discretionary

power is exercised with manifest injustice or if a palpable abuse of discretion is clearly shown,

mandamus will issue.”).



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