Patrick Quinn v. Board of Education of the City , 887 F.3d 322 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1565
PATRICK QUINN, et al.,
Plaintiffs-Appellants,
v.
STATE OF ILLINOIS and BOARD OF EDUCATION OF THE CITY OF
CHICAGO,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 9514 — Elaine E. Bucklo, Judge.
____________________
ARGUED MARCH 28, 2018 — DECIDED APRIL 10, 2018
____________________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Illinois law provides that the
Mayor of Chicago appoints the City’s Board of Education.
105 ILCS 5/34-3. Until 1995, when this law took effect, the
Mayor needed the consent of the City Council; now the
Mayor acts on his own. In this suit under §2 of the Voting
Rights Act, 52 U.S.C. §10301, plaintiffs (registered voters,
some of whom are parents or grandparents of school-age
2 No. 17-1565
children) contend that this system deprives black and Latino
citizens of their right to vote. School boards elsewhere in Il-
linois are elected; plaintiffs say that failure to elect the school
board in Chicago has a disproportionate effect on minority
voters. The district court dismissed the complaint. 234 F.
Supp. 3d 922 (N.D. Ill. 2017).
Section 2 provides:
(a) No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State
or political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color, or in contravention of the guar-
antees set forth in section 10303(f)(2) of this title, as provided in
subsection (b).
(b) A violation of subsection (a) is established if, based on the to-
tality of circumstances, it is shown that the political processes
leading to nomination or election in the State or political subdi-
vision are not equally open to participation by members of a
class of citizens protected by subsection (a) in that its members
have less opportunity than other members of the electorate to
participate in the political process and to elect representatives of
their choice. The extent to which members of a protected class
have been elected to office in the State or political subdivision is
one circumstance which may be considered: Provided, That noth-
ing in this section establishes a right to have members of a pro-
tected class elected in numbers equal to their proportion in the
population.
Section 2(a) covers any “voting qualification or prerequisite
to voting or standard” that results in an abridgement of the
right to vote, and it is here that plaintiffs’ claim founders.
Although §2 governs the conduct of elections, it does not
guarantee that any given public office be filled by election
rather than appointment, a civil service system, or some oth-
er means.
No. 17-1565 3
The Voting Rights Act has been on the books for 53 years,
and as far as we are aware no court has understood §2 to re-
quire that any office be filled by election. Several courts have
rejected contentions to that effect. See, e.g., Mixon v. Ohio,
193 F.3d 389, 406–08 (6th Cir. 1999) (appointing Cleveland’s
school board is consistent with §2); Moore v. Detroit School
Reform Board, 293 F.3d 352, 363–68 (6th Cir. 2002) (appointing
Detroit’s school board is consistent with §2); African-
American Citizens for Change v. St. Louis Board of Police Com-
missioners, 24 F.3d 1052 (8th Cir. 1994) (appointing St. Louis’s
police commissioners is consistent with §2). Mixon, Moore,
and African-American Citizens for Change collect similar deci-
sions. They rely in part on the observation in Chisom v. Roe-
mer, 501 U.S. 380, 401 (1991), that, although the election of
judges is subject to §2, “Louisiana could, of course, exclude
its judiciary from the coverage of the Voting Rights Act by
changing to a system in which judges are appointed”. What
is true of judges is true of school boards.
Moore, the most recent of the decisions we have cited,
was issued in 2002; no court since then has disagreed. We,
too, find the statutory text conclusive and hold that appoin-
tive positions are outside its scope. Whether having an ap-
pointed board is “good government” or good for pupils
(plaintiffs say no, defendants say yes) is irrelevant to the
Voting Rights Act, which just does not speak to the question
whether a particular governmental function (such as public
education) may be part of a larger unit (such as a city) and as
a result not be separately elected.
Plaintiffs rely on §2(b), which tells us that a violation of
§2(a) can be established by proof that “the political processes
leading to nomination or election in the State or political
4 No. 17-1565
subdivision are not equally open to participation by mem-
bers of a class of citizens protected by subsection (a) in that
its members have less opportunity than other members of
the electorate to participate in the political process and to
elect representatives of their choice.” They observe that eve-
ryone in Rockford or Springfield or Peoria can vote for local
school boards while black and Latino citizens in Chicago
cannot; the political process in Illinois thus is not “equally
open” to minority voters. They add that black and Latino
voters are more likely to live in Chicago and contend that the
difference is adverse to them as groups:
According to the U.S. Census American Community Survey, in
2014, about one-third of Chicago’s population was Black. About
32% of Chicago’s population is non-Hispanic white. In other
words, more than two-thirds of Chicago’s residents are people of
color. According to the same data set, about 15% of the popula-
tion of Illinois is Black and about 63% of the population of Illi-
nois is non-Hispanic white. Thus, just over one third of the Illi-
nois residents are people of color. However, because Chicago’s
African American population makes up about 45% of the total
African American population in Illinois, and its Latino popula-
tion makes up about 37% of the State’s total, the percentages of
people of color in Illinois outside of Chicago are even lower.
Outside of Chicago, only 10.6% of the State’s population is Black
and 71% of the population is non-Hispanic white. Thus, about
29% of Illinois residents that live outside of Chicago are people
of color. This means that Section 34-3 of the Illinois School Code
deprives 45% of all African American people in Illinois of the
right to elect the body that taxes them and provides public edu-
cation where they live, deprives 37% of all Latino people in Illi-
nois of the same, but deprives less than 11% of the white people
in Illinois of that right.
Quinn Br. 12–13 (citations omiped). Yet this observation does
not expand the scope of §2(a): unless an office is elected, §2
as a whole does not apply. Plaintiffs beg the question by as-
No. 17-1565 5
suming that §2 requires each municipality to choose a school
board by voting.
There is a further problem with plaintiffs’ position. Black
and Latino citizens do not vote for the school board in Chi-
cago, but neither does anyone else. Every member of the
electorate is treated identically, which is what §2 requires.
See, e.g., Frank v. Walker, 768 F.3d 744, 752–55 (7th Cir. 2014).
It is misleading to say that political processes in Chicago are
not equally open to participation by persons of all races.
Every voter in Chicago exercises the same influence when
voting for a candidate who has a particular position on edu-
cation—as well as policing, zoning, the parks, and the many
other issues any city must address. Every voter throughout
Illinois influences education policy. Some do this by electing
a school board, some by electing a mayor who appoints a
board, but influence is there for everyone to wield.
True, the Mayor of Chicago is selected in an at-large elec-
tion, and historically some jurisdictions have used at-large
elections to dilute minority voters’ influence. See, e.g., Rogers
v. Lodge, 458 U.S. 613 (1982). But plaintiffs have not contend-
ed that what amounts to an at-large election of the school
board violates the Voting Rights Act. The dispute here con-
cerns the choice between election and appointment, not
whether some voters’ influence is diluted by casting ballots
in a jurisdiction the size of Chicago. The proposition that §2
applies only to elections thus resolves plaintiffs’ claim.
Plaintiffs have a second theory: that allowing the Mayor
to appoint the Board’s members violates the Equal Protec-
tion Clause of the Fourteenth Amendment. They pursue this
claim, under 42 U.S.C. §1983, against the Board of Education
only, given the rule that a state is not a “person” for the pur-
6 No. 17-1565
pose of §1983. See Will v. Michigan Department of State Police,
491 U.S. 58 (1989).
This equal-protection theory is brought up short by Sail-
ors v. Board of Education, 387 U.S. 105 (1967), which holds that
appointing a school board is constitutionally permissible,
and by Hearne v. Board of Education, 185 F.3d 770 (7th Cir.
1999), which holds that the 1995 Illinois statute is valid not-
withstanding the line it draws between Chicago and every
other city in Illinois. Accord, Quinn v. Board of Education,
2018 IL App (1st) 170834 (Mar. 29, 2018) (applying the Con-
stitution of Illinois). Plaintiffs insist that Sailors and Hearne
are outdated, but we must follow the Supreme Court no
maper what arguments can be leveled against its decisions.
And we are quite content to follow Hearne, whose reasoning
is as strong now as it was when it was issued 19 years ago.
Hearne addresses and rejects the sort of racial-impact con-
tention that plaintiffs pursue. 185 F.3d at 775–76. This ap-
proach is just a repackaged version of the contention that
some citizens have been disfranchised. We have explained
why that is wrong: all citizens of Chicago have equal influ-
ence, though it is exercised indirectly (by voting for Mayor)
rather than directly (by voting for the Board’s members).
There is neither disparate treatment nor disparate impact—
and, as Hearne observed, disparate impact does not violate
the Equal Protection Clause at all. See Personnel Administrator
v. Feeney, 442 U.S. 256 (1979); Washington v. Davis, 426 U.S.
229 (1976).
AFFIRMED