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 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 a school building with a legally constitutedelected LSC. The legislativeintent also appears in the gramnraticalstructure of the 1999 clause. It links the alternativeschools with small schools,employing a seriesof conjunctivephrases, so that the LSC provisions"shall not apply to ... not to... or..." This grammaticalstructure fuses the alternativeand small schoolprovisions into a singleindependent clause(composed of dependentclauses and prepositionalphrases), the "shall not apply to" clause.This first independentclause ("the "shall not apply to" clause)is immediatelyfollowed by a second independentclause, the "provided that" clause. Grammatically,the second independentclause must be understoodto modity the entiretyof the first independentclause. Section 34-2.1b contains parallel language,requiring identical treatment of both alternativeand small schools. It's provisions"shall not apply to attendancecenters that have appliedfor and beendesignated as'Small Schools'bythe Board,... or any otherattendance centerdesignated by the Boardas an alternativeschool." The term "designation,"added in 1999, must be construedto refer to the prior useof the word "designated"added rn 1997. Therefore, the term "designation"in the provisorefers to both alternativeand small schoolsdesignated by the Board. The fact that the GeneralAssembly used similar languagein the 1997 amendment with respectto small schools,and in the 1999amendment with respectto alternativeschools, indicatesthat the legislatureintended to treat small and alternativeschools in the samemanner. Defendants,however. contend that the provisomodifies only the immediatelyproceeding clause,which references"attendance centers designated by the Board as alternativeschools." Defendantsargue that, immediatelypreceding the proviso.the Ger.reralAssembly used the word "or" to "break the chain of nor's" separating"attendance center designated by the Board,"and the provisofrom the list of specificalternative schools. Defendant fur-ther argues that both pa(s wereadded to Section34-2.1b at thesame time. in 1999. The Courtagreed with Def'endants.and held thatthe statutoryterms "designation" (added in 1999) and "designatedby the Board" (addedin 1997),are two separateand independent clausesthat addresstwo separatesets of facts. The use of "designation"refers to "[a]n attendancecenter's application to be brokenup into Small Schools...donewith the knorvledge andparticipation of its legallyconstituted Local SchoolCounsel," whereas "designated" ref'ers to the Board'sindependent action to convefta schoolwith an LSC to an AlternativeSchool. Thus,the Couft's April 11, 2008, decision was explicitly limited to situationsin whichan applicationwas madeto the Board for designationas a small school. Plaintiffsallege that the Board"designated" eacl'r of the specifiedschools as "Small" or "Alternative"Schools, not upon applicationof the LSC. Am. Comp.l|fl 30, 36, 38, 44,46,47,50,51,54 and58. Plaintiffsalso allegethat the Board"designated" each of theseschools despite Board policy providingthat the prior LSC electionsystem could continue. Id., atfln42,43 and46. Until Def-endantssatisfy their burdenof proof, establishingthat Plaintiffsapplied to becomea small or alternativeschool. and knewthat such a designationwould stripthe LSC of its statutoryauthority, Plaintiffs may rely on theirpleadingstocreateanissueofmaterial fact. Nedzvekasv.Fung,374Ill. App.3d618,624- 625 (2007). Defendantshave provided no contraryevidence. B. DefendantsInvoke A Legal Fiction That Must Be Rejected Defendantsseek refuge in the provisoof Section34-2.1b, i.e., "...providedthat the designationfof "small school"or "alternativeschool"] is not appliedto a schoolbuilding that has in placea legally constitr,rtedlocal schoolcouncil..." Defendantswould comewithin its terms throughthe stratagemof closinga school.dissolving its LSC, then reopeningit as a "small" or "alternative"school. The Board thus argues(at 6, 7-9) that Orr High School, Douglas ElementarySchool, Suder Elementary School, DuSable High School.and CarverAcademy were "closed"pursuant to the Board'sPolicy on the Closingand Consolidationof Sclioolsat the end of currentLSC members'terms.As a result.each school's LSC "dissolved."The Boardclaims that subsequently,it mcrely opened new alternativeschools in u'vacant"school buildings. BecauseLSCs were not in placethe santedcty that "new" alternativeschools opened, they do not constitutea "schoolbuilding that has in placea legallyconstituted local school counsel." The Defendants'attempt to characterizetheir removal of LSCs as two separatc,and unrelatedtransactions is factuallyintensive, and Plaintiffssubmit, disingenuous. For example, Defendants'state (at I l) that the Boardordered an AlternativeSchool, Carver Academy, to close on June30,2006, and approved its reopeningas CarverMilitary Academy(incidentally, the very nextday) on July 1,2006. Carver's"closure" was a n-rerelegal f-rction. It is dilficult to missthe Board'sultimate intention to achievea resultprohibited by Section34-2.4b, parlicularly when the closureand reopening of theseschools are ordered in the samedocur.nent. II. THE COURT'S APRIL II,2008, DECISION IS INAPPLICABLE The Court's April I l. 2008. decisiongranting Def'endant's Motion to Dismissdoes not resolvethe substantiveclaims alleged in PlaintifTs'First Amended Complaint. The decisionwas explicitlylimited to situationsin which an applicationwas madeto the Boardfor designationas asmall school. Def.'s MSJ Ex. l. The Court assumedthat suchapplications were "done with the knowledge and participation of its legally constitutedLocal School Counsel." Id. This factual assumption,which far exceeded the factual allegations of the Plaintiffs' original complaint.was effor. Porter v. DecatureMemorial Hospt.,227 Ill.2d 343,353 ("a court must interpretall pleading and supportingdocuments in the light most favorable to the nonmoving party."). Plaintiffsdo not provideevidence supporting this assumption.Defendants provide no evidencesupporling this assumption. The Plaintiffs' First AmendedCornplaint specifically alleges that the Board designated eachof theschools included as a "Small"or "Alternative"School. Am. Contp.llfl 30, 36,44,47 and 51. It also includesadditional facts which establishthat the Board misled Plaintiffsto believethat the subsequentschool could determineits own governancestructure, and was not limitedto ALSCs. Am. Comp.fl43. In fact,Board policy adopted on April 24,2002,provides: All ConversionPlains must at a minimum...Provide for an appropriateschool governancestructure. ... At the endof the final yearof a conversionplan: l. The convertingschool shall be closedpursuant to the Policy on Closing andConsolidation of Schools. 2. The LSC at a convertingschool shall be dissolved.Former LSC members from the convertingschool will be encouragedto participate in any new LSC or other potentialgovernance structures in placeat the new small schoolsoccupying the converting*school\building. B. The Off-rceof Small Schoolswill assistsmall schoolswith the formation of local schoolcouncils, or other governingbody, in accordancewitlr the time frame utilized system-widefbr local school council elections, unlessa time period for the installationof a local schoolcouncil or other governing body is otherwise approved in the Guidelines for Small Schools. SeeEx. B. This policy allowedLSCs to adoptany governanceprocedure they chosewhen they appliedto be a small school. Thus, contrary to the Court's assumption,Z,SC's were not on notice that an applicationto becomea small school v,ould result in the.formationof'an ALSC. It was not until January24, 2007,that the Board adoptedits currentPolicy on Governanceof Alternativeand SmallSchools, which expresslyrequires an ALSC in all alternativeand small schools. Moreover,the Court'sApril I 1, 2008.decision was limited to Small Schools,and did not addressAlternative Schools. During the March 27,2008, oral argumenton Defendants'prior Motion to Dismiss,Defendants themselves admitted that alternativesschools are subjectto the provisolanguage contained in Section34-2.1b. Ex. A, 38.24;29:1-7.The AmendedComplaint thusstates a claim concerningthe wrongful impositionof ALSCs in alternativeschools, and the motionfor summaryjudgment must be denied. III. REZIN ORR COMMUNITY ACADEMY HIGH SCHOOL, MOSE VINES, SCHOOL OF TECHNOLOGY AND SCHOOL OF ENTREPRENEURSHIP It is clear from Defendant'sown docunrentsthat its closureof Rezin Orr Cornmunity AcademyHigh School and reopeningof four srnall schoolsin Orr's place was an attemptto evadethe Section34-2.1 LSC requirenrents.Contrary to Def-endant'sassertion, in 2002. the Boardactually began to convertRezin Orr CornmunityAcademy High Schoolinto four Sniall Schools,one of which was Mose Vines. Exhibit E, April 28,2004, Approvethe Small Schools ConversionPlan to Convert Rezin Orr Community Academy High School into Four Srnall Schools. Defendant'sMSJ Ex. 4, is actuallyits most rccentattempt to convertMose Vines,a SmallSchool, into New Or Academy,an AltemativeSchool. This evidenceshows that Defendantsmisled elected LSC membersthroughout the Rezin Orr conversionprocess. The Board'sApril 28, 2004.Conversion Plan lbr RezirrOrr Community AcademyHigh School,states: Notwithstandingthe foregoing,at tlie end of thc secondyear of any of the small school'soperation, school and communitypartners may subrnit to the CEO a requestfor the schoolto havean electedLocal SchoolCouncil. Any suchrequest is subjectto approvalby the Board. Ex. E. Basedon Defendants'representations, the Mose Vines LSC reasonablybelieved that they could reinstatethe LSC after the conversionof Rezin Orr Community Academy I ligh School into MoseVines as a Small School. Ex. F, Aff. of Rev.Charlie Walker, Jr, fl 3. In March 2006, DefendantBoard sent staff to severalsmall schoolsto poll community advisorybodies. Id, n 4. Mose Vines voted l7-l infavor of having an electedLSC with full statutoryauthority. [d.,114. The Boardtook tlie poll, compiledand notifiedthe LSC the results, and kner,vof the LSC's decision.Id.,Itn 4 and 5. The LSC did not take the uselessaction of tellingthe Boardwhat it alreadyknew. Shortlythereafter, in April 2006.LSC membersparticipated in a citywide LSC election, exactlylike prior LSC elections. Id.,n 6. Each electedLSC memberreceived a letter from JamesDeanes congratulating him or her on the election.Id..n 7. Memberswere formally seated in July 2006. Id.,118. It was not until August 2006. when the LSC atternptedto exerciseits principalselection authority, that it learnedthe Boardhad designatedit an ALSC. Id,ln 9 and 10. Seeqlso Ex. G, Memorandumof AngelaWilkersorr, LSC Chairperson,and Ex. H. August 16,2006,Letter from Miguel A. Rodriguez,Associate Gencral Counsel, to Angela Wilkerson. In response,on September16,2006, Mose Vines' LSC submitteda fbrmal requestto CEO,Arne Duncan,again requesting that it becomean electedLSC with firll statutoryauthority. Ex. H. In a furtherattempt to strip Mose Vines LSC of its statutoryauthority, the Boardclosed Mose Vines PreparatoryAcademy, effective at the end of Ihe 2007-2008 school year, and reopenedit on July l, 2008,of "New Orr Academyas an alternativeschool." Def.'s MSJ Ex. 4. Despitethe changein name,and educationalfbcus (to a "professionaldevelopment school"). studentswill not be displaced. Id. This is yet anotherattempt to camouflageDefendants' takeoverof LSC powers. Repeatedlyclosing and reopeningthe same school,with cosmetic namechanges, does not exemptDef-endant from Illinois SchoolCode requirements. IV. PERSHING WEST. LOCATED AT THE DOUGLAS ELEMENTARY SCHOOL BUILDING Defendantssimilarly misled PersliingWest's LSC rnenrbers.According its a September 28,2005,adoption of PershingWest Magnet School fbr the Humanitiesas a RenaissanceSchool, l0 an electedLSC was to be establishedunless the PerformanceSchool selected an ALSC. Def.'s MSJ Ex. 10. The plan clearlystates: If the PerformanceSchool selects an ALSC as its form of governance,it must submit an application to the Board seekingclassification as an alternativeor small schoolunder section105 ILCS 5134-2.4bof the Illinois SchoolCode no laterthan October 1,2007. The applicationmust describe why the schoolshould be classifiedas an alternativeor small school,the membershipof the ALSC, the processby which the ALSC is to be formedand its membershipmaintained. and theproposed duties and responsibilities of theALSC. The Boardwill reviewthis applicationand determinewhether the applicationshould be grantedas proposed or with modifications. In the event the Board approvesthe formation of an ALSC,the Board also will definethe process by whichthe ALSC is to be formed 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 does not classifythe Performance school as an alternative or smallschool, the schoolwill operatewith an clectcdLSC. Given the Defendants'written representations,Douglas Elemerttary's LSC would reasonably believethat the smallschool conversion would not changeits electedstatus. To demonstratethe absenceof a genuineissue of material tact. Det-endantshavc the burdenof provingthat PershingWest appliedfor an ALSC. CelotcxCorp. v. Catrett,477 tJ.S. 317,323 (1986)("aparty seekingsummary judgnient always bears the initial responsibilityof ' informingthe districtof the basisfbr its motion,and identifyingthose portions of the evidence "which it believesdemonstrate the absenceof a genuineissue of materialfact."). l{edzvekasv. Fung,374IIl. App. 3d 618.624(2007), citing Pecora v. Countyo/'Cook,323 lll. App. 3d 917, 933 (2001). ("a det-endantmoving for summary judgment bears the initial burden of production...Onlywhen the defendantsatisfies his initial burdendoes the burdenshift to the plaintiff to presenta factual basis which would arguablyentitle her to a favorablejudgment.") The Boardhas providedno evidencethat PerishingWest appliedfor an ALSC. Nonetheless, without the requisiteapplication, Defendant designated Perishing West a Small Schoolwith an ll ALSC. Def. Ex. I L Defendant'sown evidenceindicates that it unilaterallyconvened Perishing West'sLSC to an ALSC, andbarred it from participatingin 2008 LSC elections. V. SUDER MONTESSORI, LOCATED AT THE SUDER ELEMENTARY SCHOOL BUILDING Like PershingWest, SuderElementary School's LSC was led to believethat it would continueoperating as an electedentity until August22,2007. Accordingto Defendant'sExhibit 14,on September28,2005. the Boardadopted a RenaissanceScliool Performance Plan for Suder MontessoriMagnet School. The Boardspecifically stated that "an LSC electionwill be held in 2008 unlessthe IAC flnterim Advisory Committee]subnrits a requestfor the Boardto approve Suderan alternativeschool and to establishan alternativeLSC thereafter."Plaintiffs know of no suchrequest, which Defendanthas not evidenced.The RenaissanceSchool Performance Plan for Sudercontained the samemandatory language found in the PershingWest Plan,cited above. See Def. Ex.l4. Defendant'sfailure to producean applicationfbr an ALSC as the fbrm of governanceraises an issue of material fact for trial. As with PershingWest, Def-endant unilaterallydesignated Suder Montessori, as a Small Schoolwith an ALSC, and refusedto hold electionsin 2008. Del-.'sMSJ Ex. 15. Summaryjudgment must be denied. VI. WILIAMS PREPARATORY. LOCATED AT THE DU SABLE HIGH SCHOOL BUILDING Accordingto Defendant'sMSJ Ex. 16, in 2003,the "DuSablecommunity" submitted a requestto CPSto closeDuSable High Schooland openthree srnall schools, including Williams Preparatory.in its place. This proposalwas not made by DuSable'sLSC, and thus. DuSable doesnot fall within the Court'sApril I l, 2008,order. Despitehaving the burden of proof, Defendantshave failed to submit the community proposalreferenced in Defendant'sMSJ Ex. 16. There is no proof that theseunidentified "communitymembers" would have known that convertingDuSable ir-rto three small schools would resultin dissolutionof the LSC, andthe creationof an ALSC withoutfull authority. l2 Accordingto Defendant'sMSJ Ex. 16, on February22. 2006, the Board approvedthe closureof DuSableand dissolutionof its electedLSC at the end of the 2005-2006school year. Prior to approvingthe closureof DuSable.in Defendant'sMSJ Ex. 17, datedNovember 17, 2004,the Boardapproved the establishmentof Williams Preparatoryto be openedin the Fall of 2005. Defendant'sMSJ Ex. l6 and 17 conflict. If Defendant'sdocuments are accurate.both DuSableand Williams Preparatorywere to be in operationduring the 2005-2006school year. Thus,Defendants themselves have created a disputeof fact. VII. CARVER MILITARY ACADEMY. LOCATED AT THE CARVER HIGH SCHOOL BUILDING A. Defendant'sFictive ClosureOf Carver In April 2000, the Board began to conveft Carver High School to Carver Military Academy.Def.'s MSJ Ex. 18. From2000 until 2006.Carver maintained an electedLSC. Ex. l. Affidavit of Darryl Gibson.On February22. 2006.the Board approvedthe closureof Carver High School,effective June 30,2006^ and the openingof CarverMilitary Academyon July 1. 2006.Def.'s MSJ Ex. 18. The Boarddissolved the LSC on June30,2006. Id. The Board insists(at ll) that simply becausethe designationof Carver Military Academyas an alternativeschool took eflbcta lnereday, mere hours, after the schoolclosed, the LSC members'terms expired,and the LSC "dissolved",the designationdid not occur in "a schoolbuilding that has in placea legallyconstituted local school council..." 105ILCS 5/34- 2.4b. Contraryto Defendant'sassertion, the back-to-back"closing" of the Carver Military Academy on June 30, 2006, and its immediatereincarnation as Carver Military Academy Alternative School, is a subterfugefbr the Board to assumeall governance. It renders meaninglessthe statutoryscheme for LSC electionsand governance. The February22,2006, conversionfrom Carver Military Academyto CarverMilitary AcademyAlternative School is nominal,and only servesto further the Board's authorityover the schoolsby dissolvingthe LSCs. From June 30. to July l, 2006, nothing but the name 13 changed.Def.'s MSJ Ex. 18. The adrninistration.teachers and studentsall remainedthe same. Id. Substantivechanges to Carveroccurred primarily in2000-2001,when the incomingclass includedonly freshmencadets, the school implementeda military code of conduct,and began JROTCclasses. Id. During the 2004-2005academic year, the schoolwas assigneda principal with military experience.Def.'s MSJ Ex. Al. Despitethese changes, Carver continued to have an electedLSC, with full statutoryauthority. Ex. I,fl 4. It was not until the Board'sFebruary 2006 conversionof CarverHigh School,to CarverMilitary Academy,as an alternativeschool, by name,that the LSC wasdissolved. B. THE DOCTRINE OF LACHES DOES NOT REQUIRE DISMISSAL The doctrine of laches does not bar Plaintiffs' claims about Carver. Laches is an equitabledoctrine, to be appliedor rejectedin the trial courl'sdiscretion. Finlel, v. Finley.8l lll. 2d317,330(1980). To invokethe doctrine of laches,one must show more than a merepassage of time; it must show an unreasonabledelay in bringingan action,and that the delaymaterially prejudicedor misledthe party,or the party has takena courseof actiondiff-erent from what he otherwisewould havetaken. Huyesv. StateTeacher Certificution 8d.,359 Ill. App. 11,53(5th Dist.2005). The doctrineapplies to governmententities only in extremecircumstances, and is appliedagainst public officialswith reluctance.as it can inpair the functioningof governmental bodiesand resultin the lossof signifrcantpublic interests.People ax. Rel.Devine y. Suburban CookCo. TuberculosisSanitarium Dist.349 Ill. App. 3d 790(lst Dist. 2004). Unlike Alicea v. Snyder,upon which Def-endantsrely, Defendantshave not raisedlaches asanaffirmativedefense.Aliceav.Snyder,32l Ill.App.3d253,254 (4thDist.2001). Evenif Aliceaapplied, Defendants misread it asa bright-line,6-morrthlirnitations period for all petitions for writs of mandamusand cerliorari.Instead, the decisionfocused on whethera challengewould cause"public detrimentor inconvenience,"Id. at253-254. Here,however, no expenseor burden is attributableto Plaintiffs' inability to bring suit within a six months after the 2006 LSC elections.Failing to cite to a singlematerial detriment or harm,Defendants merely argue: l4 "could have openedCarver Military AlternativeSchool in a differentbuilding. lt could have openedit as a Small School-atthe former CarverMilitary or anotherbuilding. It could have closed Carver Military, left it vacantfor a period [ofl time-perhaps to perform renovations-and then openedit as an Alternative School (sincethere would no longerhave been an LSC in place)."Emphasis added. (See Defendant's MSJ, pg. 13). Defendantsignore the fact that the 6-monthtime periodfollowing the spring2006 LSC elections elapsedafter it "closed"and "reopened" Carver on June30 andJuly I .2006. Defendants'alleged "detriments," moreover,miss the point. In Hadley v. Ryon, also reliedupon by Defendants,the lossof witnessesand records,and the witnesses'failure to recall events,were deemed "material" detriments. Hadley v. Ryon,345Ill. App. 3d 302,303 (4th Dist. 2003),citing Richter,9T lll. App. 3d at 804. Defendant'salleged "detriments" assume that had Plaintiffsbrought suit prior to its June30, 2006closure and reopening of Carver, it "could have" takenalternative steps to manipulateSection 34-2.|b andelirninate an electedLSC. Defendants. however,have no "right" to establishan ALSC, nor to evadethe mandateof Section34-2.lb.On the contrary,the Illinois SupremeCourt hasheld that LSCsare integralto the educationsystem, and any denialor dilution of an LSCs authorityrequires a compellingstate interest. Fumarolo, supra, 142 lll.2d 54,81 (1990). Vague argumentsthat tlie Defendant"may" have taken a differentaction if this suit was broughtwithin six monthsare insufficientto overridethe public detrimentthat would resultfrom Defendant'sdenial of LSC statutorvauthoritv. VIII. PATTERN OF BEHAVIOR The Defendant'sposition in its MSJ, that it did not violate Section34-2.4b in these particularinstances, ignores the numerousother schoolswhich the Board is currentlyin the processof convertingto alternativeschools. These other schools are not explicitlynamed in the Complaintbut arereferred to generally.Am. Comp.11 6l-63. DATED: October23.2008 RespectfullySubmitted, 15 One of Plaintiffs' Attorneys OFCOTINSEL: ElaineK.B. Siegel ElaineK.B. Siegel & Assoc.,P.C. 39 SouthLaSalle Street. Suite 617 Chicago,IL 60602 (312)236-8088 AttorneyNo. 40875 I6 L