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CHANCERY DIVISION' MOSE VINES ACADEMY LSC, ET AL. ) Case No. 08

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CHANCERY DIVISION' MOSE VINES ACADEMY LSC, ET AL. ) Case No. 08 IN THE CIRCUITCOURT OF COOK COUNTY,ILLINOIS COUNTY DEPARTMENT- CHANCERYDIVISION' MOSEVINES ACADEMY LSC,ET AL. ) Plaintiffs. v. CaseNo. 08 CH 4912 THE BOARD OF EDUCATION, ET AL JudgeSophia H. Hall. Defendants. PLAINTIFFS' RESPONSEIN OPPOSITIONTO DEFENDANT BOARD'S MOTION FOR SUMMARY JUDGMENT Plaintiffs, Mose Vines Academy Local School Counsel,e/. al., by their attorneys, respondas follows in oppositionto DefendantBoard's Motion for Summary.ludgrnent ("MSJ"). In clear and mandatorylanguage, the School Code obligatesDefendants to maintain electedlocal school councils ("LSC") in eachattendance catier in the schooldistrict: Beginningwith thc 1995-1996school year and every even numberedycar hereafter,the Board shall set SecondSemester Report Car Pick-up Day for Local SchoolCounsel elections... Elections shall bc conductedas provided hereinby the Boardo1- Education in consultationwith the local schoolcouncil at eachattendance center. 105 ILCS 5134-211 (Ernphasisadded). The Illinois SuprerneCourl hasunderscore-d the inportanceof this rnandate,stating: We hold that the local school councils are essentialunits of educational governance, empowered to make important budgetary, educational and administrativedecisions regarding the Chicagopublic schoolsystem, and that the statutory scheme which denies or dilutes the vote of certain citizens must thereforebe necessaryto advancea compellingstate interest. Fumurolo v. The ChicagoBd. of Ed., l42lll. 2d 54.81 ( 1990)(Emphasis added). Defendantswould circumventthis obligationthrough the stratagemof "closing" schools with electedLSCs, and "reopening"them as "slnall" or "alternative"schools. Det-endantsseek refugein the "small schools"exemption of Section34-2.1b, which providesthat the SchoolCode sectionsestablishing LSCs andtheir powers: ...shall not apply to attendancecenters that have appliedfor and beendesignated as a "SmallSchool" by the Board...orany otherattendance center designated by the Boardas an alternativeschool, provided that the designationis not applied to a schoolbuilding that has in place a legally constitutedlocal school council... (Emphasisadded. See full recitationof Section34-2.|b in AppendixA attachedhereto). Defendant'sargument must fail. First, Defendantsthemselves admit that the provisoin Section34-2.1b applies to "alternative"schools. During the March 27.2008, oral argumenton Defendants'prior Motion to Dismiss,Defendants stated: So what they're doing is, they got tired of keeping-adding and subtracting namesto the list of alternativeschools and said,Okay, Board,don't come back and botherus again with striking out Washburnor striking out someother one that you closedand let's add in anothername; let's .justgir,'e you authorityto designatesomething an alternativeschool, but yor-rcan't do it and get rid of the LSC in thisprocess here. Ex. A, 312712008,transcript. 38:24;29:l-7 . Second,Section 34-2.1b cannot be twistedinto the loopholeDefendants seek to fashion. The rulesof statutoryconstruction require Section 34-2.Ib to be interpretedto give meaningto eachword, clause,and setrtence,not renderingtliem superfluor-ts.Illinois t,. Broyvrt,229 Ill.2d 374, 2008 lll. Lexis 627 +11 (June19. 2008);In re; ,IaimeP., 223 lll. 2d 526. 534 (2006). Defendant'sargument that it can closeany schoolwith an electedLSC. dissolveits LSC, and reopena new small or alternativeschool, days or evcn hours later, rendersSection 34-2.1b superfluous.Defendant's closure policies, which dissolvel,SCs just prior to schoolreopenings. achievesprecisely what Section34-2.1bsought to prevent.Ex. B, ChicagoPublic Schools Small SchoolPolicy, adopted April 24,2002. Def-endantsshould not be able to throw out Section34- 2.lb with its closurepolicies. Third, as it appliesto so-called"contract" or "perfbrmance"schools, the SchoolCode prohibitsthe Defendants'abolition of LSC's. IllinoisSchool Code 105 ILCS 5134-8.14states: Notwithstanding anything in the School Code to the contrary, statutes, regulations,rules, and policy provisionsconcerning the follor.vingshall not be waivable. .. (5) Local SchoolCouncil provisions, including required staten"rents of economicdisclosure. (Emphasis added). For eachof thesereasons, Defendant's Motion for SumniaryJudgment must be denied. FACTS As part of an overall scheme,Defendant Board has designatednumerous schools throughoutChicago, including certain schools designated in the Complaint,as amended("Am. Comp."),as "Altemative" or "Small Schools."Plaintiffs allege that in theseschools, Defendants replacedthe electedLSC with Advisory Local SchoolCouncils ("ALSC"). Am. Cornp.till 33, 34,38,44, 50,and 54. Plaintiffsallege that the abolitionof the LSCsviolates the Illinois School Code,105 ILCS 5134-2.7et. seq..which mandatesthat each attendance area have an LSC. Plaintiffs further allege that, as part of their scherrreto usurp authority over LSCs, Defendantsled LSC membersto believethat they had thc authorityto vote for, and retain,an electedLSC, oncethe school'sconversion to an Alternativeor Small Schoolwas completed.In fact,in someinstances Board documents (Def.'s Ex. 10and l4) state: If the PerformanceSchool selects an ALSC as its form of governance.it must submit an application to tlie Board seekingclassification as an alternativeor small schoolunder section 105 ILCS 5134-2.4bof the Illinois SchoolCode no laterthan October 1.2001. The applicationmust describe why the schoolshould be classifiedas an alternativeor small school,the menibcrshipof the ALSC. the processby which the ALSC is to be formedand its rnembershipmaintained, and 'fhe the proposedduties and responsibilitiesof the ALSC. Boardwill reviewthis applicationand determinewhether the applicationshould be grantedas proposed or with modifications. In the event the Board approvesthe formation of an ALSC, the Boardalso will dellnethe processby which the ALSC is to be fbrmed andmaintained, and its dutiesand responsibilities. *** C. PermanentGovernance-Elected Local SchoolCounsel If the PerformanceSchool does not selectan ALSC as its form of governance, or the Board doesnot classifythe Performanceschool as an alternativeor small school,the schoollvill operatewith an electedLSC. No such ALSC applicationshave been provided by Defendants,and Plaintills are unawareof any such applications.Nonetheless, Defendant amended Board documentsto designatethese schoolsas Altemative or Small Schoolsto imnosean ALSC. In otherinstances, such as Mose Vines,the Boardrequired the LSC to requestan elected LSC. Despitea17-1 vote in favor of an electedLSC, and submissionof a formal request,the Boarddesignated Mose Vines a SmallSchool. and imposed an ALSC. ARGUMENT Summaryjudgment is a drasticmeans of disposingof litigation.Murray v. ChL Youth Ctr.,224 lll.2d 213,245(2007). The evidenceis reviewedde novo and construedin the light most favorableto the nonmovant. Colonial Inn Motor Lodge, Inc. v. Gay. 288 lll.3d 32.39 o'there (1997).Summary judgment is properwhere is no genuineissue as to any materialfact and ...the rnovingparty is entitledto a judgmentas a matterof law." Raganv. ColumbiaMttt. Ins. Co., 183 lll.2d 342,349 (1988). "[t]he trial court should not resolve disputedfactual 'is matters....Thetrial coutl's function simply to deterrninewhether a factualcontroversy exists ...as a matterof law."' Krautsackv. Anderson.329lll. App. 3d 666, 674 (lst Dist. 2002) (citationsomitted). I. PLAINTIFFS HAVE BEEN DENIED DISCOVERY On AugustI1.2008. Plaintiffifiled a Motionto OpenDiscovery under tllinois Suprenre CourtRule l9l(b), to obtaininformation necessary to respondto DefendantBoard's Motion for SummaryJudgment. SeeEx. C, Plaintiff s Motion to OpenDiscovery, incorporated herein by reference.Plaintiffs pointed out that slrmmaryjudgment motions filed befbrethe completionof discoveryare premature. See Williamsv. CovenantMedical Ctr., 316 Ill. App. 3d 682.690-691 (4th Dist. 2000).On August26,2008, the Courtdenied Plaintiffs' request. Ex. D. 8126108Order. II. DEFENDANTSCLOSE AND REOPEN SCHOOLSTO EVADE SECTION 34-2.4b A. DefendantsMisread and Misapplythe Statuteand this Court's Opinion The exemptionfrom LSC governance,allowing CPS to exerciseLSC functions,first appearedin 1989,and initially appliedsolely to specificallydesignated alternative schools. See AppendixA. A 1996amendment to Section2.4b extendedthe LSC governanceexemption to Article 13"alternative schools" in additionto the specificschools previously enumerated. 1d. In 1997,the GeneralAssembly again amended Section 2.4b, to brins "small schools" within the LSC govemanceexemption. It addedthe languageexcluding "attendancecenters that haveapplied for andbeen designated as a "Small School"by the Board." 1997lLL. ALS 566,5. Finally, in 1999, the GeneralAssembly added the carve-outexception to the I-SC governanceexemption that is at issuehere. The amendedstatute relevantly provided: Theprovisions of Sections34-2.1, ... shallnot apply to attendancecenters that haveaprrlied for and beendesiqnated as a "Small School" by the Board. ... [A>, OR ANY OTHER ATTENDANCE CENTER DESIGNATED BY THE BOARD AS AN ALTERNATIVE SCHOOL, PROVIDED THAT THE DESIGNATION IS NOT APPLIED TO A SCHOOL BUILDING THAT HAS IN PLACE A LEGALLY CONSTITUTED LOCAL SCHOOL COUNCIL <A 1999 ILL. ALS 622, 10. (E,mphasisadded) (statutory additionsin capitals.bracketed and precededby A: deletionsin bracketspreceded by D). SeeAppendix A. Plaintiffscontend thatthe 1999language, adding "any otherattendance center designated by the Board" and the proviso language,do not exempt Small Schoolsfrom electedLSC governanceif, prior to their conversion, they are locatedat
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