Board of Education of Waukegan Community Unit School District 60 v. Illinois State Charter School Commission ( 2018 )

2018 IL App (1st) 162084
FOURTH DIVISION
January 25, 2018
No. 1-16-2084
THE BOARD OF EDUCATION OF WAUKEGAN ) Appeal from the
COMMUNITY UNIT SCHOOL DISTRICT 60, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. ) No. 15 CH 8889
)
THE ILLINOIS STATE CHARTER SCHOOL )
COMMISSION, THE ILLINOIS STATE BOARD OF )
EDUCATION, and THE LAWNDALE EDUCATIONAL )
AND REGIONAL NETWORK CHARTER SCHOOL, ) Honorable
) Anna Helen Demacopoulos,
Defendants-Appellees. ) Judge Presiding.
PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices Gordon and Ellis concurred in the judgment and opinion.
OPINION
¶1 Defendant, the Lawndale Educational and Regional Network Charter School (LEARN),
an operator of several charter schools in the Chicago area, submitted a proposal to plaintiff, the
Board of Education of Waukegan Community Unit School District 60 (District 60), to open a
charter school in Waukegan. After reviewing the submission, District 60 found several
inadequacies with LEARN’s proposal and denied the application to open the school. LEARN
appealed the denial to defendant, the Illinois State Charter School Commission (Commission),
who concluded that LEARN’s proposal was in compliance with the requirements of the Charter
Schools Law (105 ILCS 5/27A-1 et seq. (West 2014)) and in the best interests of the students the
school was designed to serve. The Commission accordingly reversed the decision of District 60
No. 1-16-2084
and agreed to a charter with LEARN, which was certified by defendant, the Illinois State Board
of Education (ISBE), thus establishing the charter school. District 60 subsequently filed a
complaint in the circuit court for administrative review and alleged that the Commission
committed multiple violations of the Open Meetings Act (5 ILCS 120/1 et seq. (West 2014)).
The circuit court affirmed the Commission’s decision and dismissed the remaining counts of
District 60’s complaint. Meanwhile, in the fall of 2015 and during the pendency of the circuit
court proceedings, LEARN began operating its charter school in Waukegan with approximately
200 students from kindergarten to third grade.
¶2 Before this court, District 60 contends that (1) the Commission and ISBE lost jurisdiction
over LEARN’s appeal and certification when they failed to adhere to the statutory timeline of the
Charter Schools Law, (2) the Commission improperly reversed the district’s decision to deny
LEARN’s proposal where the application was deficient in several manners and not in the best
interests of the students the school was designed to serve, (3) the Commission violated the
district’s due process rights, (4) the Commission committed multiple violations of the Open
Meetings Act, and (5) the circuit court erred in dismissing the remaining counts of its complaint.
For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 A. The Charter Schools Law
¶5 A charter school is a tuition-free public school supported by public funds but operated by
a nonprofit entity independent from the school district in which it operates. 105 ILCS 5/27A­
5(a), (e) (West 2014); Comprehensive Community Solutions, Inc. v. Rockford School District No.
205, 216 Ill. 2d 455, 458 (2005). In 1996, the Illinois legislature enacted the Charter Schools
Law as a means to provide alternative public education models that were innovative and flexible
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but still maintained high levels of student performance with a particular focus on students who
were less likely to succeed in a traditional educational environment because of “physical,
emotional, socioeconomic, or cultural factors.” 105 ILCS 5/27A-2(a), (b), 27A-3 (West 2014).
To promote innovation and flexibility, the Charter Schools Law exempts charter schools from
several state laws and regulations that are applicable to traditional schools. Id. § 27A-5(g). A
charter school operates under a charter, or contract, between the nonprofit entity and the school’s
authorizer, which may be the local school board or the Commission, depending on who
ultimately approves the charter. Id. §§ 27A-6(a), 27A-9(f).
¶6 Charter schools are open for enrollment “to any pupil who resides within the geographic
boundaries of the area served by the local school board.” Id. § 27A-4(d). If there are more
applicants to the school than spaces available, enrollees must be selected by a lottery. Id. § 27A­
4(h). Because charter schools are supported by public funds and enroll students who otherwise
would attend traditional public schools, they take funding away from the local school district. Id.
§§ 27A-9(f), 27A-11(b). Part of the charter school’s funding is based on a percentage of the local
school district’s per capita tuition charge, at the time of LEARN’s proposal between 75% and
125%, multiplied by the amount of students enrolled in the charter school that reside in the local
school district. 1 Id. § 27A-11(b).
¶7 An entity that wants to open a charter school must submit a proposal to the school board
in the district where the charter school would be located. Id. § 27A-7(a). In order to demonstrate
that the proposed charter school would be a suitable educational alternative, the proposal must
1
The per capita tuition charge is essentially a calculation used to quantify the amount of money a
school district pays from its own resources for each student enrolled in its schools. Recently, our
legislature changed the permissible funding range of charter schools to between 97% and 103% of the
local school district’s per capita tuition charge. Pub. Act 100-465 (eff. Aug. 31, 2017) (amending 105
ILCS 5/27A-11(b)).
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contain several requirements, including identifying two potential locations for the school;
describing the school’s educational program, goals, objectives and performance standards; and
providing evidence that the terms of the proposed charter are “economically sound” for both the
school and the district. Id. §§ 27A-7(a)(3), (5), (7), (9).
¶8 Following the submission of the proposal, the local school board must vote to either grant
or deny the charter school’s application. Id. § 27A-8(e). If the board denies the application, the
applicant may appeal the denial to the Commission, who subsequently conducts a de novo
review of the proposal. Id. § 27A-8(g); 23 Ill. Adm. Code 650.110(d)(1) (2012). The
Commission may reverse the denial if it “finds that the proposal (i) is in compliance with [the
Charter Schools Law] and (ii) is in the best interests of the students the charter school is designed
to serve.” 105 ILCS 5/27A-8(h) (West 2014).
¶9 If the Commission reverses the local school board’s denial, the Commission itself
becomes the charter school’s authorizer, meaning it oversees the charter school rather the school
board. Id. §§ 27A-3, 27A-9(f). Under these circumstances, the charter school also becomes its
own local educational agency (id. § 27A-5(k)), which under federal law has a specific meaning.
See 20 U.S.C. § 7801(26)(A) (2012). As its own local educational agency, the charter school
becomes entirely responsible for implementing services required by law that ordinarily would be
the responsibility of the local school district, such as implementing procedures to comply with
the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq. (2012)); see 105 ILCS
5/14-1.01 et seq. (West 2014). Regardless of who authorizes the charter school, ISBE must
certify the application and charter before the school begins to operate. 105 ILCS 5/27A-6(d),
27A-9(f) (West 2014).
¶ 10 B. Waukegan Community Unit School District 60
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¶ 11 During the 2013-2014 school year, District 60 served approximately 16,300 students.
Among its students, 77% were Hispanic, 16% were black and 4% were white. Additionally, 72%
of District 60’s students were low-income; 29% were English language learners (ELL), generally
students whose native language is not English; and 12% had disabilities. In the Illinois Standards
Achievement Test (ISAT), 39% of District 60’s students met or exceeded the state standards
compared to the statewide average of 59%. District 60’s graduation rate was 76% compared to
the statewide average of 86%, and 18% of its students were “college ready” compared to the
statewide average of 46%.
¶ 12 C. LEARN’s Proposal
¶ 13 In 2014, LEARN, a 501(c)(3) nonprofit entity whose first charter school opened in 2001,
operated eight charter schools in the Chicago area, including one in North Chicago, and served
approximately 3600 elementary and middle school students. LEARN’s mission was to provide
minority and low-income students “with the academic foundation and ambition to earn a college
degree,” and to that end, it focused on elementary education where it believed “the ambition and
academic foundation for college must be sown and cultivated.” Among LEARN’s students, 89%
were black, 9% were Hispanic, and 89% were low-income. LEARN touted that 95% of its
students graduated from high school and attended college.
¶ 14 During the spring of 2014, LEARN conducted a needs assessment of various
communities in the Chicago area and identified District 60 as one that could benefit from a
LEARN charter school. On November 14, 2014, based on this perceived need, LEARN
submitted a proposal to District 60 to open a charter school in Waukegan that would open in
September 2015. LEARN envisioned that the Waukegan campus would initially enroll 200
students in kindergarten through third grade and add one grade per year until the school had 600
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students enrolled in 2021 and was a fully functioning kindergarten through eighth grade (K-8)
school.
¶ 15 In its proposal, LEARN supplied various data that compared the academic performance
of its students to District 60’s students. In particular, in 2013 ISAT testing, 54% of LEARN’s
Chicago students met or exceeded the state standards. However, among students who had
attended a LEARN school for five or more years, 66% met or exceeded the state standards
whereas, among students who had attended a LEARN school for only one year, 39% met or
exceeded the state standards. Additionally, in 2013 ISAT testing, LEARN’s students
outperformed District 60’s students overall in reading and mathematics, as well as in those
subjects for the Hispanic, low-income, limited English proficiency, and black subgroups. The
data also showed that LEARN’s students overall fell below the statewide average in reading and
mathematics, but exceeded the statewide average in those subjects for the Hispanic, low-income,
limited English proficiency, and black subgroups.
¶ 16 The proposal stated that LEARN would utilize the Common Core standards and focus on
four core subjects: English language arts, mathematics, science and social studies. LEARN
provided a detailed description of its proposed curriculum on these subjects and noted that its
educational plan also placed a “special emphasis” on STEM (science, technology, engineering
and mathematics) learning. LEARN also would ensure that its students received weekly
“enrichment” classes in visual and performance arts, technology, physical education, and
Spanish.
¶ 17 LEARN’s proposal described how it would meet the needs of ELL students and students
with disabilities. Concerning ELL students, the proposal indicated that LEARN would identify
them through a survey, use different educational models depending on how many students had
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been identified, and monitor their progress with various assessments. Concerning students with
disabilities, LEARN noted how students would be identified and believed that such students
were “better served” with “an inclusion program rather than a pullout program.” LEARN
accordingly would first attempt to provide accommodations in the general classroom. LEARN
also stated that it employed occupational therapists, physical therapists, speech therapists, social
workers, counselors, and psychologists.
¶ 18 The proposal discussed LEARN’s utilization of data-based instruction, its academic
performance goals, its school culture and climate, and what the school calendar and daily
schedule would look like. The proposal provided various school policies, including a student
code of conduct, school safety protocols, and how teachers would be evaluated. Additionally, the
proposal talked about LEARN’s student recruitment strategy, the school’s proposed operational
structure, and many other details necessary to the functioning of a school.
¶ 19 LEARN identified two different locations for the school. The first site, an 18,000-square
foot stand-alone facility, was located at 2634 Grand Avenue in Waukegan, and had previously
been used as a medical office building. As constructed, the building could support a kindergarten
through fifth grade school, but with an addition could support a K-8 school. The facility was
available for lease or purchase but would require a zoning variance. Capital improvements were
also necessary, and the building had one current tenant. The second site, a 91,000 square foot
facility connected to a retail mall, was located at 2700 North Belvidere Road in Waukegan. The
building was available only to lease but large enough to accommodate a K-8 school. The
building required rezoning and capital improvements. LEARN provided an estimated five- to
six-month timeline to make either location operational and noted its past experience in
transforming other facilities into schools.
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¶ 20 Additionally, LEARN’s proposal discussed the finances of LEARN itself and included an
audited financial statement as well as provided a budget and budget narrative for the proposed
school. According to LEARN’s most recent audit, as of June 30, 2012, it had approximately
$16.6 million in assets and $8.7 million in liabilities. In each year from 2012 to 2014, LEARN
had raised over $3 million. The budget for the proposed school assumed certain enrollment
numbers and forecasted the school’s financial position for six years, projecting its income,
expenses, and potential capital expenditures. Concerning income, LEARN sought a per capita
tuition charge of $10,132 but also intended to obtain additional funding from loans, grants, and
other contributions from foundations and individuals. Concerning expenses, LEARN stated that,
based on its experience, it would need “a contingency expense” equal to 10% of its total
expenses to withstand any unexpected costs.
¶ 21 Lastly, the proposal contained the proposed charter agreement between LEARN and
District 60, insurance information, and several appendices of documents, including detailed
program frameworks for different subjects, sample sequence reports, and a sample Common
Core standards teaching training agenda.
¶ 22 D. District 60’s Decision
¶ 23 On January 6, 2015, District 60 denied LEARN’s proposal, finding several inadequacies,
including (1) the lack of community support, (2) “serious flaws and gaps” with the proposed
educational program concerning, in particular, services to special education students and ELL
students, (3) the lack of “significant achievement” of LEARN North Chicago, which was located
in a community with comparable demographics to Waukegan, and (4) “lingering questions about
climate and culture in LEARN schools.”
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¶ 24 Additionally, District 60 determined that the proposed school would not be economically
sound and identified multiple issues with the financial aspect of the proposal. These included that
LEARN’s “year end fund balance was negative indicating a deficit” as of June 30, 2012, and its
“current ratio,” a measure of liquidity determined by dividing assets by liabilities, was 1.91, thus
below “the commonly accepted threshold of 2.0.” District 60 also observed that LEARN had not
provided audited financial reports from the 2013 fiscal year, suggesting to the district that
LEARN’s financial position had worsened. District 60 also pinpointed several issues with the
school’s proposed budget, including that LEARN failed to provide evidence of specific funding
sources, did not take into consideration transportation costs for its students, neglected to provide
sufficient information on a food service program, and failed to adequately consider the financial
impact of serving students with special needs.
¶ 25 Moreover, District 60 found that the proposed school would “cause grievous financial
harm” to the district by shifting “scarce” resources away from it. District 60 determined that it
would lose nearly $23 million over six years if the school operated as intended, which would
“significantly impair[ ]” the district’s ability to meet its fixed overhead and operational costs.
District 60 further asserted that it would have to make significant reductions in services, forgo
current educational initiatives, and add to its $49.6 million of long-term debt.
¶ 26 E. LEARN’s Appeal to the Commission
¶ 27 On February 5, 2015, LEARN appealed District 60’s decision to the Commission. In its
appeal, LEARN included a memorandum that reiterated the information contained in its
proposal, responded to the alleged inadequacies raised by District 60, and included information
not contained in its proposal to provide added support and update its proposal “based on
progress” that had occurred after the original submission. District 60 did not object to LEARN’s
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request, and the Commission accepted the new information. The additional information included
two new proposed locations for the charter school, further financial information, supplementary
curriculum information, elaboration on its strategy for serving ELL students, and plans for
becoming its own local educational agency.
¶ 28 The first new site was a 32,000-square foot two-story facility located at 800 South
Genesee Street in Waukegan. The building was built in 2005, in excellent condition and already
had more than 30 classrooms, a full gym, a cafeteria, offices and other space necessary for a
school. The building only needed a minimal investment in order to become operational as a
school and also could accommodate the school’s anticipated growth. LEARN also noted that the
building’s owner had expressed a desire to lease the facility to it. Given these details, LEARN
deemed the site “the most viable option.” The second new site was a 37,000-square foot two-
story facility located at 202 North Genesee Street in Waukegan. The facility was relatively new
and had an open, unfinished design inside that could be refurbished to function as a school more
quickly than the original two sites. It was also large enough to accommodate the anticipated
growth of the school. LEARN stated that construction could be performed in phases and
segregated from school activities.
¶ 29 LEARN also responded to District 60’s assertions concerning its financial health, the
projected budget for the school, and the financial impact on the district. LEARN disputed
District 60’s computation of its year-end fund balance, insisting it was not negative, but rather a
positive $7.9 million for the 2012 fiscal year. LEARN provided an update on its current assets
and liabilities, which resulted in a current ratio of 2.16 as of January 2015, as well as audited
financial statements from 2013 and 2014. According to LEARN, it meant to, but did not, submit
the 2013 audit as part of its proposal while the 2014 audit had not yet been completed at the time
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of the submission. Regarding the school’s projected budget, LEARN stated that it had recently
authorized funding of up to $1 million in start-up costs for the campus and secured commitments
for donations from five donors, which were listed, for approximately $8 million over five years.
LEARN further updated its original budget to include a food service plan and disputed District
60’s concerns over the sufficiency of its funding plan for special education students.
¶ 30 Concerning the financial impact on District 60, LEARN asserted that, as of the 2013
fiscal year, the district had a fund balance of $37 million, which was higher than the 2011 or
2012 fiscal years. Additionally, LEARN highlighted that District 60 had approximately $36
million of cash on hand, or 75 days’ worth, an amount which had been increasing over the past
years. LEARN further highlighted that, between 2011 and 2013, District 60 had operated at a
surplus every year with its revenues growing every year. LEARN’s data also showed that
District 60’s surplus had decreased each year since 2011 and was approximately $2 million as of
2013. Based on District 60’s alleged “robust” financial position, LEARN concluded that, even
when considering its request for funding at a 100% per capita tuition charge, its Waukegan
campus would represent 1% to 2% of District 60’s budget and the district would maintain its
“strong financial” position and remain “financially solvent” with the school’s presence.
¶ 31 Additionally, LEARN acknowledged that, if it was successful on appeal, its school would
not be part of District 60 but rather its own local educational agency. Consequently, LEARN
stated that it had conversations with charter schools that were operating as local educational
agencies, reviewed revenue data from charter schools authorized by the Commission, and
obtained further guidance from its legal counsel. LEARN asserted that it was prepared to
dedicate the resources necessary to be fully responsible for the instruction of special education
and ELL students and the transportation of its students. LEARN provided corresponding plans
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on these matters and submitted a revised budget to include the added expenses, including line
items on transportation, food service and special education services.
¶ 32 District 60 responded to LEARN’s memorandum, arguing that, even when considering
the new information on appeal, the proposal still did not satisfy the criteria enumerated in the
Charter Schools Law, specifically as it related to serving special education, ELL, and at-risk
students; the fiscal capability of LEARN to operate the school; and the financial impact on the
district. District 60 also highlighted that, while the proposed location at 800 South Genesee
Street had been “described positively,” there was no evidence that an architect had reviewed the
facility and determined whether a school could operate there. Furthermore, District 60 posited
that LEARN did not sufficiently address whether the location could meet the transportation or
food service needs of the school. District 60 also included a report prepared by Dr. Benjamin
Ditkowsky, which was based on data from the Illinois Report Card. 2 Dr. Ditkowsky’s report
acknowledged that the academic performance of LEARN’s students “appear[ed] impressive” but
could be explained by variables unique to its schools. In particular, the report noted a high rate of
attrition of LEARN’s students as they matriculated through school grades, suggesting that the
students who left the schools were academically inferior to those who remained. Additionally,
the report found that the level of chronic truancy, i.e., missing 10 days or more of school the
prior year, at LEARN’s schools was more than twice the rate of District 60’s schools and more
than three to four times the statewide average, suggesting that this level of truancy led to lower
test participation and higher test scores, as those who took the test were academically superior to
those who did not.
2
The Illinois Report Card is a compilation of data published annually by ISBE showing how
individual schools, school districts and the state as a whole are performing on a variety of academic
performance measures, as well as providing the demographic composition of the schools, districts, and
the state. 105 ILCS 5/10-17a (West 2014).
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¶ 33 LEARN responded to the critiques of its academic success, asserting that the “mobility
rate,” a statistic measuring the percentage of students who transfer in and out of a school, for its
Chicago schools was lower than District 60’s schools for each of the past five years and lower
than the statewide average for four of the last five years. LEARN acknowledged that its North
Chicago school had a high mobility rate, but explained that the school, and the North Chicago
Community Unit School District 187 as a whole, had a high percentage of military families who
relocated often as part of their careers. Furthermore, LEARN acknowledged that the Illinois
Report Card showed that over one-third of its Chicago students were chronically truant but noted
that its “[a]ttendance data,” also from the Illinois Report Card, showed that its Chicago students
attended school at a higher rate than students in District 60 and the statewide average. LEARN
stated that the “discrepancy” between its chronic truancy and attendance data was “severe” and
would be “investigate[d].”
¶ 34 On March 12, 2015, the Commission, as part of its due diligence process, held interviews
with several representatives of LEARN and several representatives of District 60.
¶ 35 Four days later, Dr. Michael Anderson, an education consultant with the Lake County
Regional Office of Education, issued a report on whether the facility located at 800 South
Genesee Street could pass various safety and health codes. Dr. Anderson observed that the
facility was “clean,” was well-maintained, and had “many facilities that one would find in a
regular public school,” such as a large gymnasium, offices, a cafeteria, a kitchen, and several
classrooms. Although Dr. Anderson determined that the building met the safety and health codes
in several respects, he also found that “a few stairways” did not, some floor tiles “probably
contain[ed] asbestos,” and certain windows would need to be modified to “allow for quick and
easy escape.” Dr. Anderson also noted issues with the parking lot and the size of the classrooms.
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¶ 36 On March 30, 2015, an employee of LEARN e-mailed the Commission, stating that it
was no longer considering the facility at 2634 Grand Avenue due to necessary renovations being
too costly. The employee stated that the other three locations were still viable options for the
school but highlighted 800 South Genesee Street as the preferred site and noted an architectural
review of the facility revealed that the location would be able to open in the fall of 2015 despite
“some items” needing “attention.”
¶ 37 The next day, the Commission held a public hearing. According to a summary of the
hearing, 105 people signed in to support LEARN while 80 signed in to support District 60.
Among the people who spoke at the hearing, 28 supported LEARN while 29 supported District
60. During the week following the hearing, the Commission received 40 e-mails in support of
LEARN and 32 e-mails in support of District 60.
¶ 38 On April 9, 2015, IFF Real Estate Services, LLC (IFF) submitted a “desk review” in
response to the Commission’s request to assess the feasibility of having a charter school located
at 800 South Genesee Street and 2700 North Belvidere Road. In order to render the assessment,
IFF reviewed various documentation, including an analysis performed by an architecture firm on
each of the properties, LEARN’s memorandum on appeal, and a proposed term sheet for 800
South Genesee Street. Concerning 800 South Genesee Street, although IFF generally concluded
that the building could be converted to accommodate a charter school, it required clarification on
the square footage of the building, noting a discrepancy between LEARN’s memorandum on
appeal and the proposed term sheet. IFF determined that, if the square footage of the term sheet
was correct, LEARN would eventually outgrow the facility, but the facility would be a “good
option” if LEARN reduced its proposed student population or increased the size of the facility.
Concerning 2700 North Belvidere Road, IFF concluded that the facility could be converted to
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accommodate the charter school but that it would likely require more funding than the $750,000
LEARN had initially allocated.
¶ 39 On April 15, 2015, the Commission’s staff issued a report, recommending that the
Commission grant LEARN’s appeal with a funding level of 91% of District 60’s per capita
tuition charge. The report noted that the academic performance in LEARN’s schools was “very
strong” and highlighted that, in 2013 ISAT testing for low-income students in mathematics and
reading, LEARN’s schools outperformed all of District 60’s schools except for one “admissions­
based magnet school.” Additionally, in 2014 ISAT testing, LEARN’s schools outperformed
District 60’s schools “in all tested subjects overall, and for low-income/at-risk students.” With
regard to ELL students, although LEARN had a small population of them at its schools, those
attending LEARN North Chicago, a location demographically similar to Waukegan, significantly
outperformed both District 60 and the statewide average in reading and mathematics scores in
2014 ISAT testing. The report also indicated that “independent analyses by outside experts
confirm LEARN’s academic data and do not support [District 60’s] challenges,” specifically
citing Dr. Ditkowsky’s analysis.
¶ 40 Concerning LEARN’s finances, the report concluded that it had “a 14-year track record
of running a financially sound network of charter schools.” The report found that District 60’s
expenses and revenues had risen during the past three years, and although its net income had
been declining each year, its cash on hand had increased. The report noted that District 60’s
enrollment had been “accelerating,” which would “significantly offset” the loss of students to the
charter school. The report concluded that, contrary to District 60’s claim, the district was not
“likely to suffer economic hardship” if the Commission granted LEARN’s appeal with funding
at 91% of the district’s per capita tuition charge, the staff’s recommended award, or even 100%.
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¶ 41 Concerning LEARN’s facility plan, the report highlighted that LEARN had built or
remodeled four campuses in the past decade. The report found that LEARN had “experience
negotiating contracts, obtaining zoning and permits and incentivizing contractors to timely”
complete their projects. The report observed that LEARN had identified a total of four locations
for the school, two in its proposal to District 60 and two on appeal to the Commission, but as of
April 2015, LEARN had focused on 800 South Genesee Street and 2700 North Belvidere Road.
However, the report noted that, given the material available on appeal, independent financial and
construction evaluators could not determine whether LEARN would be able to open the
Waukegan campus on time. The report further observed that LEARN did not have much
experience with ELL or Hispanic students and had never operated a school as a local educational
agency. However, the report concluded that, due to LEARN’s experience and “track record” of
success at its other eight schools, it should have the opportunity to replicate its success in
Waukegan. Although the staff recommended granting LEARN’s appeal, it suggested that,
because of the “limited time for opening in September, 2015,” the grant should be contingent on
LEARN satisfying a performance agreement that required it to “finalize its facility plan, pre­
opening budget, and timeline” by May 15, 2015.
¶ 42 Leading up to the Commission’s scheduled public meeting, in which it would vote on
LEARN’s appeal, set to begin in the afternoon of April 21, 2015, its staff met with
representatives from LEARN and District 60. The staff informed the parties that its
recommendation was to grant LEARN’s appeal subject to the performance agreement.
¶ 43 On the morning of April 21, 2015, the Commission e-mailed the parties with several
attachments, including one where the Commission requested District 60 to provide “any
evidence and/or verification” on its assertions that it would suffer grievous financial harm if the
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appeal was granted. That document also informed the parties that two of the Commissioners
would participate in the meeting by telephone. Another attachment, which was a recommended
motion to grant LEARN’s appeal, stated that LEARN would be allowed to satisfy the conditions
of the performance agreement by July 1, 2015, rather than May 15, 2015.
¶ 44 Shortly after receiving this e-mail, District 60’s general counsel, Thomas Morris, replied,
objecting to the Commission’s request for additional evidence of financial harm because of the
short notice. Morris asserted that additional evidence existed but was impossible to gather by the
time of the meeting. Morris also complained that it was unfair LEARN would have additional
time to satisfy the conditions of the performance agreement while District 60 had been required
to meet its deadlines. Morris argued that extending the deadlines to only one party showed that
the Commission was biased and acting “arbitrar[ily] and capricious[ly].”
¶ 45 F. The Commission’s Public Meeting
¶ 46 On April 21, 2015, at 3:05 p.m., Greg Richmond, the chairman of the Commission, took
roll call. Seven of the commissioners were physically present while two others appeared
telephonically, with their telephonic presence being approved unanimously by motion. After
tending to a separate matter on the agenda, the Commission heard public comments on
LEARN’s appeal. Thereafter, the Commission discussed reports from Richmond, its various
committees, its legal counsel, and its interim executive director. Commissioner Bill Farmer then
made a motion for the Commission to hold a closed session “for the expressed purpose of
considering the following subject, consideration of evidence by the Commission or a committee
of the Commission as a quasi-[adjudicative] body.” The motion passed unanimously, and the
Commission adjourned into a closed session.
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¶ 47 When the Commission returned to an open session, it began consideration of LEARN’s
appeal. Hosanna Mahaley-Jones, the interim executive director of the Commission, gave a
presentation summarizing the staff’s recommendation to grant LEARN’s appeal and its two key
reasons: (1) “performance” and (2) “capacity.” First, she highlighted that, in ISAT testing,
LEARN’s schools generally outperformed District 60’s schools overall and for low-income
students, at-risk students, ELL students, students with disabilities, black students, and Hispanic
students. Second, Mahaley-Jones observed that LEARN had a lengthy track record “of running
financially sound schools,” and although LEARN would be operating as a local educational
agency for the first time, it had “the capacity” to do so. She also addressed District 60’s concerns
about the proposed school and deemed them unwarranted.
¶ 48 Following Mahaley-Jones’s presentation, LEARN gave a presentation and requested that
it be funded at 100% of District 60’s per capita tuition charge, arguing that anything less would
result in drastic consequences for the proposed school. District 60 also gave a presentation, in
which its outside counsel responded to many of the statements made by Mahaley-Jones and
LEARN in their presentations. District 60’s counsel further informed the Commission that it
could not “sufficiently respond” to the request for additional evidence of financial harm due to
its receipt of the request on such short notice. Counsel concluded that LEARN’s proposal was
not in the best interests of the students the school was designed to serve for various reasons,
including that LEARN lacked a viable facility to house the school and was not prepared to
undertake the responsibilities required of a local educational agency.
¶ 49 The commissioners subsequently asked questions of LEARN and District 60’s
representatives and held their own discussions of various issues, including the impact of funding
the school at 91% versus 100% of the district’s per capita tuition charge and about LEARN’s
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preferred location of 800 South Genesee Street. Eventually, the commissioners voted 5-4 to grant
LEARN’s appeal to establish the Waukegan charter school at a funding level of 100% of District
60’s per capita tuition charge provided that, by July 1, 2015, LEARN had to (1) execute a facility
lease, (2) obtain approval from the Commission’s staff on a facility plan that would allow the
Waukegan campus to open by September 15, 2015, and (3) obtain approval from the
Commission’s staff on a revised budget plan with a 100% funding level.
¶ 50 On April 29, 2015, the Commission sent a report summarizing its vote to ISBE.
¶ 51 G. The Commission’s Written Decision
¶ 52 The next day, the Commission sent LEARN and District 60 its final written decision. In
the decision, the Commission discussed several aspects of LEARN’s proposal. Concerning the
facility plan, the Commission noted that LEARN initially proposed locating its Waukegan
campus at either 2634 Grand Avenue or 2700 North Belvidere Road, but observed that LEARN
later amended the proposal to include facilities located at 800 South Genesee Street and 202
North Genesee Street. The Commission found that LEARN identified “three viable facilities,” all
but the 2634 Grand Avenue facility, and noted that the Charter Schools Law only required an
applicant to identify two facilities.
¶ 53 Concerning LEARN’s finances, the Commission observed that LEARN’s assets were
$14.8 million while its liabilities were $6.8 million and that LEARN projected a positive net
income for the first five years of the Waukegan campus. The Commission noted that LEARN’s
Waukegan budget contained a 3% contingency and found that LEARN had appropriate internal
financial controls and reporting mechanisms. Furthermore, the Commission highlighted that
LEARN had raised over $3 million each year since 2012 and had secured enough funding to
support the school’s start-up costs. The Commission further highlighted that it had a precedent of
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funding Commission-authorized charter schools at 100% of the local school district’s per capita
tuition charge and determined that amount to be the appropriate level of funding for the
Waukegan school. The Commission asserted that a 100% funding level “did not materially
harm” District 60 or impact its financial solvency, as LEARN’s impact on the district’s total
budget would range from less than 1% in 2016 to slightly more than 2% in 2020. Based on the
evidence before it, the Commission concluded that LEARN’s proposed Waukegan campus
complied with the Charter Schools Law.
¶ 54 The Commission next analyzed if the proposal was in the best interests of the students the
school was designed to serve, observing that its analysis focused on the sufficiency of LEARN’s
educational plan, organizational plan, and business plan and its capacity to execute. The
Commission highlighted the superior academic performance of LEARN’s students compared to
District 60’s students, but acknowledged that LEARN’s experience with ELL students was
“limited.” Nevertheless, the Commission noted that LEARN’s ELL students “greatly
outperformed” the students in District 60 and statewide in reading and mathematics test scores.
Moreover, the Commission asserted that LEARN’s organizational plan, business plan and
capacity to execute “met or exceeded the standards required.” All told, the Commission
determined that the proposal was in the best interests of the students the school was designed to
serve. Accordingly, the Commission granted LEARN’s appeal and reversed District 60’s denial
subject to LEARN satisfying the conditions of the performance agreement.
¶ 55 H. Post-Decision Proceedings
¶ 56 Approximately two months later, LEARN submitted the documentation required by the
performance agreement, including a lease for a building located at 540 South McAlister Avenue
in Waukegan, a facility plan with a renovation schedule, and a revised budget. On July 1, 2015,
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the Commission’s staff issued a compliance report, finding that LEARN had complied with all of
the requirements of the performance agreement. Consequently, on that same day, LEARN and
the Commission executed a charter agreement for a term of five years. The Commission
subsequently informed ISBE of the agreement. Over the next two months, LEARN worked with
ISBE to clarify and correct some issues with the charter agreement. Ultimately, on August 27,
2015, ISBE certified the charter.
¶ 57 I. Circuit Court Proceedings
¶ 58 On June 4, 2015, District 60 filed a complaint in the circuit court against the
Commission, ISBE, and LEARN, alleging four counts. Count I sought administrative review
against all three defendants and alleged that the Commission’s decision to grant LEARN’s
appeal was clearly erroneous because LEARN failed to (1) provide two viable facilities for the
charter school, (2) propose an adequate educational plan for the school, in particular for ELL
students and students with disabilities, (3) submit a complete description of the governance and
operations of the school, (4) demonstrate how it would meet the needs of Waukegan’s high
population of at-risk students, and (5) provide sufficient evidence to show that the terms of the
charter were economically sound for both the school and District 60. In addition, District 60
claimed that the Commission’s decision was “late and unlawful” because it e-mailed ISBE the
vote summary “after 5:00 p.m. on April 30th,” or “after the close of business on the seventh day
after the Commission’s meeting approving the charter school.” Further, District 60 alleged that
the Commission set conditions under which it would approve LEARN’s appeal “without the
legal authority to do so” and had “exceed[ed] its jurisdiction” when it gave LEARN until July 1,
2015, to satisfy the performance agreement.
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¶ 59 Count II alleged that the Commission violated the Open Meetings Act (5 ILCS 120/1
et seq. (West 2014)) when it allowed two commissioners to participate telephonically without
prior notice and a lawful justification. Count III alleged that the Commission violated the Open
Meetings Act (id.) by holding a closed session without identifying a proper exception. Lastly,
count IV sought a declaratory judgment against all three defendants, seeking a declaration that
the Commission’s decision was clearly erroneous.
¶ 60 Approximately a week later, District 60 filed an unsuccessful emergency motion to stay
the final decision of the Commission pending resolution of its lawsuit. Eventually, on June 23,
2016, following several motions being filed and various briefings, the circuit court affirmed the
Commission’s decision to grant LEARN’s appeal and dismissed counts II, III and IV of District
60’s complaint, finding that administrative review was the sole means for District 60 to obtain
relief and the counts were “duplicative of the relief sought by way of administrative review.”
District 60 timely appealed. 3,4
¶ 61 II. ANALYSIS
¶ 62 A. Compliance With Supreme Court Rules
¶ 63 Initially, we must address ISBE and the Commission’s contention that District 60’s
opening brief violated our supreme court rules in multiple respects. While we agree that District
60 violated multiple rules by not providing a citation to authority for its purported standard of
3
District 60’s notice of appeal stated that it was appealing from the circuit court’s June 23, 2016,
order that affirmed the Commission’s decision but also from the court’s order that denied the district’s
emergency motion for a stay. However, District 60 has not raised any arguments on appeal related to this
motion. Accordingly, any argument concerning the propriety of the denial of the motion has been
forfeited on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017); Goldberg v. Rush University Medical
Center, 371 Ill. App. 3d 597, 604 (2007).
4
Although LEARN is a party to this appeal, it has not filed any briefs nor has it moved to adopt
the joint briefs of the Commission and ISBE.
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review (Ill. S. Ct. R. 341(h)(3) (eff. Nov. 1, 2017)), copiously arguing and failing to provide
appropriate references in several places to the record on appeal in its statement of facts (Ill. S. Ct.
R. 341(h)(6) (eff. Nov. 1, 2017)), and neglecting to include a complete appendix with the
required documents (Ill. S. Ct. R. 342 (eff. July 1, 2017)), we disagree with ISBE and the
Commission that we should sanction these violations by dismissing District 60’s appeal or
striking its brief. Such punishments are permissible for violating the supreme court rules, but
they are particularly harsh. North Community Bank v. 17011 South Park Ave., LLC, 2015 IL App
(1st) 133672, ¶ 14. Although we do not find such a punitive sanction warranted in this case, we
will disregard any arguments raised by District 60 in its statement of facts and consider only
those properly raised in the argument section of its brief. Thus, despite District 60’s
noncompliance with the rules, we nevertheless consider the merits of its appeal.
¶ 64 B. Jurisdiction of the Commission and ISBE
¶ 65 District 60 first contends that the Commission and ISBE lost jurisdiction over LEARN’s
appeal and certification because they both failed to follow the timeline established by the Charter
Schools Law.
¶ 66 The Charter Schools Law outlines the timeline in which various actions by the
Commission and ISBE should occur. 105 ILCS 5/27A-1 et seq. (West 2014). Following a public
hearing on a charter school applicant’s appeal, the Commission has 30 days to vote to either
grant or deny the appeal, which must occur at a public meeting. Id. §§ 27A-8(e), (g). The statute
then provides that:
“Within 7 days of the public meeting ***, the [Commission] shall file a report
with [ISBE] granting or denying the proposal. If the [Commission] has approved
the proposal, within 30 days of receipt of the [Commission’s] report, [ISBE] shall
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determine whether the approved charter proposal is consistent with the provisions
of [the Charter Schools Law] and, if the approved proposal complies, certify the
proposal ***.” Id. § 27A-8(f), (g).
Although section 27A-8(f) of the Charter Schools Law provides a timeline with respect to a local
school board’s approval of a charter school, section 27A-8(g) makes clear that the timeline
imposed in section 27A-8(f) applies equally to when the Commission considers an appeal of a
charter school denial by the school board. See id. § 27A-8(g) (“[T]he Commission shall follow
the same process and be subject to the same timelines for review as the local school board.”).
¶ 67 The parties do not dispute the timeline of events in this case. On April 21, 2015, the
Commission voted at a public meeting to grant LEARN’s appeal. Eight days later, on April 29,
2015, the Commission submitted the report of its vote to ISBE, who ultimately certified the
charter between LEARN and the Commission on August 27, 2015, well after the outlined 30-day
time period. According to District 60, the Commission’s noncompliance with the 7-day reporting
command and ISBE’s noncompliance with the 30-day certification command resulted in them
losing jurisdiction over LEARN’s appeal and rendering them unable to reverse District 60’s
denial and certify the charter school, respectively. Furthermore, District 60 argues that the
Commission and ISBE’s failure to comply with the timeline prejudiced the district because it
created uncertainty in its staffing, enrollment, and budget. The Commission and ISBE respond,
arguing that they did not lose jurisdiction over LEARN’s appeal and certification because the
statutory language is merely directory, not mandatory.
¶ 68 Whether a statutory command is directory or mandatory is a question involving statutory
construction that we review de novo. In re M.I., 2013 IL 113776, ¶ 15. “When construing a
statute, our primary objective is to ascertain and give effect to legislative intent, the surest and
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most reliable indicator of which is the statutory language itself, given its plain and ordinary
meaning.” Id. If a “statute expressly prescribes a consequence for failure to obey a statutory
provision, that is very strong evidence the legislature intended that consequence to be
mandatory.” People v. Robinson, 217 Ill. 2d 43, 54 (2005). Therefore, under the mandatory-
directory dichotomy of statutory construction, it is not the use of obligatory language, such as the
word “shall,” that determines whether a statutory command is mandatory or directory, but rather
whether noncompliance with such language dictates a resulting consequence. Id.
¶ 69 When a procedural command to a government entity is at issue, we begin with the
presumption that the command is directory. People v. Geiler, 2016 IL 119095, ¶ 18. This
presumption may be overcome, and thus the procedural command read as mandatory, if “(1)
negative language in the statute or rule prohibits further action in the case of noncompliance or
(2) the right the statute or rule is designed to protect would generally be injured under a directory
reading.” Id. “It has long been held that statutory requisitions directed to government officials
designed to secure order, system and dispatch in proceedings are usually directory rather than
mandatory.” (Internal quotation marks omitted.) Robinson, 217 Ill. 2d at 56. But if these
requisitions “are intended for the protection of the citizen, *** and by a disregard of which his
rights might be and generally would be injuriously affected, they are not directory but
mandatory.” (Internal quotation marks omitted.) Id. If the procedural command is deemed
mandatory and the government entity fails to comply with the required act, we must invalidate
the government action. In re M.I., 2013 IL 113776, ¶ 16.
¶ 70 In this case, we begin with the presumption that the procedural commands at issue—the
Commission’s 7-day reporting command and ISBE’s 30-day certification command—are
directory rather than mandatory. District 60 has failed to overcome this presumption. First,
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section 27A-8 of the Charter Schools Law (105 ILCS 5/27A-8 (West 2014)) does not utilize any
negative language prohibiting further action in the case of noncompliance nor does this section
dictate a particular consequence for either the Commission or ISBE’s failure to comply with the
commands. Notably, District 60 fails to identify any language, seemingly conceding this point.
¶ 71 Second, before analyzing whether a directory reading would generally injure the right the
statutory provision is designed to protect, we must determine what right the provision protects.
See In re M.I., 2013 IL 113776, ¶ 24. Our review of the legislative history of the Charter Schools
Law does not reveal an explicit right to be protected by the Commission’s 7-day reporting
command or ISBE’s 30-day certification command. District 60, however, suggests that the
timeline is intended to protect impacted school districts and their students from uncertainty in
staffing, enrollment, and budgetary matters that result from delayed proceedings. District 60’s
argument is true to a degree, as this timeline helps give local school districts, whose funding and
enrollment are necessarily affected by the existence of charter schools in their districts, clarity.
The same could be said for charter school applicants themselves, who similarly have to budget
limited resources and also need clarity in the resolution of their proposals. While clarity to the
parties may be a partial benefit of the timeline in the Charter Schools Law, it is only ancillary to
the true purpose of the timeline, which is to provide guidance to government officials to help
expedite proceedings and keep them moving in an orderly process. In other words, the timeline
does not protect a specific right but rather helps ensure that the proceedings do not become
unnecessarily delayed.
¶ 72 Nevertheless, even giving credence to District 60’s argument that the timeline is designed
to protect school districts from uncertainty in various matters, we disagree that it is a directory
reading that generally causes this uncertainty. Regardless of a directory or mandatory reading of
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No. 1-16-2084
the statutory timeline, there will always be uncertainty. That is simply the nature of the
Commission’s appeals process or any other unresolved proceeding. The uncertainty cannot be
removed until an appeal or proceeding is resolved. Thus, District 60’s alleged uncertainty has
nothing to do with a directory or mandatory reading of the statutory timeline but rather is
inherent in unresolved proceedings. To the extent that District 60 argues that a directory reading
exacerbates this uncertainty above and beyond the normal uncertainty produced by unresolved
proceedings, we also disagree. Had the Commission missed its 7-day reporting command and
ISBE missed its 30-day certification command much earlier in the calendar year, for example in
January and February, District 60 would have no basis for arguing that these missed deadlines
somehow caused any exacerbated uncertainty for its subsequent year’s staffing, enrollment, or
budget.
¶ 73 It is only because the missed deadlines occurred much closer to the beginning of the
school year that this alleged uncertainty in District 60’s operations manifested itself. Thus, while
in this specific case, a directory reading of the statutory timeline might have injured a right the
provision was designed to protect, District 60 fails to convince us that this holds true under
general circumstances. See, e.g., Geiler, 2016 IL 119095, ¶ 23 (finding that “a defendant may be
prejudiced by a Rule 552 violation if there is a lengthy delay in transmitting a citation in a given
case, but no reason exists to believe that would generally be true”); Robinson, 217 Ill. 2d at 57
(finding that, “[w]hile the right to appeal might be injured by untimely service in a given case,
there is no reason to believe that it generally would be”). Moreover, District 60’s assertion that it
was prejudiced from the Commission and ISBE’s failure to comply with the timeline is belied by
the fact that it knew the Commission had voted to grant LEARN’s appeal on April 21, 2015,
subject to LEARN satisfying the performance agreement, well in advance of the beginning of the
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2015-2016 school year. Consequently, we find that the Commission’s 7-day reporting command
and ISBE’s 30-day certification command are directory.
¶ 74 Furthermore, District 60’s reliance on McReynolds v. Civil Service Comm’n, 18 Ill. App.
3d 1062 (1974), is unpersuasive. In that case, the plaintiff, a state employee, was suspended
without pay and two weeks later received a notice of discharge. Id. at 1063. The plaintiff
subsequently sought a hearing on the matter, which occurred 47 days later. Id. Following the
hearing, a hearing officer recommended that the plaintiff be discharged, a recommendation that
was eventually adopted by the Civil Service Commission. Id. Thereafter, the plaintiff filed a
complaint for administrative review, arguing that the Civil Service Commission lost jurisdiction
over her case because it failed to hold the hearing within 30 days of her request. Id. The statutory
provision at issue stated that, “ ‘[u]pon the filing of such a request for a hearing, the Commission
shall grant a hearing within thirty days.’ ” (Emphasis omitted.) Id. at 1064 (quoting Ill. Rev. Stat.
1971, ch. 127, ¶ 63b111). The circuit court agreed with the plaintiff and reversed the decision of
the Civil Service Commission. Id. at 1063. The Civil Service Commission appealed, arguing that
the 30-day command was directory, not mandatory. Id. at 1063-64.
¶ 75 This court observed that the purpose of the statutory provision at issue was to provide
“employees certain procedural protections when they were being considered for discharge,
demotion or suspension,” namely “a timely hearing and a speedy adjudication of disciplinary
charges.” Id. at 1065. To this end, the time limitation not only ensured “fairness to the employee
but serve[d] to prevent the employee from suffering monetary injury.” Id. at 1066. In other
words, without a mandatory reading, the employee would be unable to collect a salary, which
would always result in a direct monetary injury. Id. Thus, we found the statutory timeline was
mandatory. Id. at 1067.
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¶ 76 In contrast to McReynolds, where the timeline was intended for the protection of the
employee, in this case, the timeline is designed to ensure order and efficiency in the proceedings
rather than protect a specific right. Furthermore, even accepting District 60’s argument that the
timeline is designed to protect school districts from uncertainty in various matters, the district
has only shown that a directory reading of the timeline would, in certain circumstances, injure a
right the provision is designed to protect. However, in McReynolds, a directory reading of the
timeline at issue would always injure the right the provision was designed to protect.
Accordingly, because the Commission’s 7-day reporting command and ISBE’s 30-day
certification command are directory, the Commission did not lose jurisdiction over LEARN’s
appeal and ISBE did not lose jurisdiction over the certification of LEARN’s charter.
¶ 77 C. The Propriety of the Commission’s Decision
¶ 78 District 60 next contends that, because LEARN’s proposal and supplemental information
on appeal did not satisfy the requirements of the Charter Schools Law, the Commission’s
decision to grant LEARN’s appeal was improper. Specifically, District 60 argues that LEARN’s
proposal did not (1) identify two viable locations for the school, (2) demonstrate that the terms of
the proposed charter were economically sound for the district and the school, (3) include an
educational program sufficient to meet the needs of students in the district, in particular ELL and
special education students, (4) demonstrate the capability to meet the needs of at-risk students,
and (5) demonstrate it was in the best interests of the students the school was designed to serve.
¶ 79 Pursuant to the Charter Schools Law, the Commission could reverse District 60’s denial
of LEARN’s proposal if it found the proposal was “in compliance with [the law]” and “in the
best interests of the students the charter school” was designed to serve. 105 ILCS 5/27A-8(h)
(West 2014). To be in compliance with the Charter Schools Law, a proposal must, inter alia,
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identify “at least 2 sites that are potentially available as a charter school facility by the time the
charter school is to open,” provide “[e]vidence that the terms of the charter as proposed are
economically sound for both the charter school and the school district,” and provide a description
of the proposed school’s educational program. Id. §§ 27A-7(a)(3), (7), (9). When determining
whether a proposal is in compliance, the Commission conducts a de novo review, affording no
deference to the school board’s findings. 23 Ill. Adm. Code 650.110(d)(1) (2012). The
Commission also does not have to rely on only the information contained in the initial proposal
and may accept additional information on appeal. 23 Ill. Adm. Code 650.100(e) (2015). The
Commission’s final decision is reviewable under the Administrative Review Law (735 ILCS 5/3­
101 et seq. (West 2014)). 105 ILCS 5/27A-8(h) (West 2014).
¶ 80 In administrative review, we review the decision and reasoning of the administrative
agency, here the Commission, not that of the circuit court. Doe Three v. Department of Public
Health, 2017 IL App (1st) 162548, ¶ 25. The applicable standard of review “depends upon
whether the question presented is one of fact, one of law, or a mixed question of fact and law.”
Beggs v. Board of Education of Murphysboro Community Unit School District No. 186, 2016 IL
120236, ¶ 50. The factual findings of an administrative agency are held as prima facie true and
correct (735 ILCS 5/3-110 (West 2014)), and we will not disturb those findings unless they are
against the manifest weight of the evidence, which occurs only when “the opposite conclusion is
clearly evident.” Beggs, 2016 IL 120236, ¶ 50. We review pure questions of law de novo. Id.
Finally, mixed questions of law and fact “examine[ ] the legal effect of a given set of facts” or, in
other words, involve whether uncontested facts have satisfied a statutory standard. Id. We review
these questions under the clearly erroneous standard. Id. Clear error occurs only “when although
there is evidence to support it, the reviewing court on the entire evidence is left with the definite
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and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id.
We will determine the appropriate standard of review for each of District 60’s arguments in our
discussion on each argument.
¶ 81 1. Location of the Proposed Charter School
¶ 82 We begin with District 60’s argument that LEARN’s proposal was deficient because it
did not identify two “viable” locations for the charter school. District 60 asserts that, during the
proceedings, facilities that had been identified by LEARN were taken out of consideration for
various reasons and highlights that the eventual location of the charter school was not even
among the locations identified in LEARN’s initial proposal nor the supplemental locations
submitted to the Commission on appeal. Based on this, District 60 concludes that “LEARN did
not submit even one potential viable site” for the location of the charter school.
¶ 83 Under section 27A-7(a)(3) of the Charter Schools Law, the proposal must include:
“A description of and address for the physical plant in which the charter school
will be located; provided that nothing in the Article shall be deemed to justify
delaying or withholding favorable action on or approval of a charter school
proposal because the building or buildings in which the charter school is to be
located have not been acquired or rented at the time a charter school proposal is
submitted or approved or a charter school contract is entered into or submitted for
certification or certified, so long as the proposal or submission identifies and
names at least 2 sites that are potentially available as a charter school facility by
the time the charter school is to open.” 105 ILCS 5/27A-7(a)(3) (West 2014).
District 60 does not contest that LEARN identified two sites in its proposal and identified two
additional sites in its memorandum on appeal to the Commission but rather seemingly contests
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whether these facts satisfied the statutory standard. Thus, we review this issue under the clearly-
erroneous standard. See Beggs, 2016 IL 120236, ¶ 50.
¶ 84 In LEARN’s proposal to District 60, it identified two locations for the charter school, one
at 2634 Grand Avenue and the other at 2700 North Belvidere Road. The proposal provided a
description of the locations, discussed the options available for acquiring use of them, and briefly
detailed the improvements necessary for them to operate as a school. Upon appeal to the
Commission, LEARN provided a memorandum and identified two additional locations, one at
800 South Genesee Street and the other at 202 North Genesee Street. LEARN also provided a
description of the locations and briefly detailed the improvements necessary for them to operate
as a school. The memorandum suggested that the newly identified locations were more feasible
than the ones identified in the proposal to District 60. During the pendency of LEARN’s appeal
before the Commission, various documents detailed the feasibility of, and issues associated with,
operating a charter school at the locations identified by LEARN.
¶ 85 Based on this information, the Commission’s written decision observed that, upon further
due diligence by LEARN on all four locations, 2634 Grand Avenue was no longer viable due to
prohibitive costs and 2700 North Belvidere Road would require a longer conversion process.
Despite the longer conversion process at 2700 North Belvidere Road, the Commission concluded
that LEARN had still identified “three viable facilities” for the charter school, which satisfied the
requirement of the Charter Schools Law to identify two sites that were potentially available.
¶ 86 We agree with the Commission that LEARN satisfied the statutory standard. While
LEARN ultimately did not select any of the four locations for the eventual home of its school,
nothing in the Charter Schools Law requires this. Despite District 60’s assertion that, at the time
of the Commission’s public meeting, only the property at 800 South Genesee Street was still
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being considered by LEARN, we do not find it unfathomable that, after a charter school
applicant has identified potential locations, further due diligence would reveal those locations as
unsuitable for a multitude of rational reasons. The critical fact is that, at the time LEARN
submitted its proposal to District 60 and at the time it submitted its memorandum to the
Commission on appeal, LEARN had identified at least two locations in each submission that
were “potentially available,” the only standard the Charter Schools Law requires. See 105 ILCS
5/27A-7(a)(3) (West 2014). Nothing in the record on appeal demonstrates that the locations were
unavailable for use when LEARN proposed them. Therefore, we are not left with a definite and
firm conviction that the Commission committed a mistake in finding that LEARN satisfied this
statutory requirement. Accordingly, the Commission’s finding was proper.
¶ 87 2. Economic Soundness
¶ 88 District 60 next argues that LEARN failed to demonstrate the terms of the proposed
charter were economically sound for both the district and the school. Concerning itself, District
60 asserts that, during the public meeting on LEARN’s appeal, the commissioners focused their
discussion on the impact on LEARN of funding the school at 91% or 100% of the district’s per
capita tuition charge, but neglected to discuss how it would impact the district itself. District 60
further posits that the record is devoid of any sound economic analysis of the proposed charter
school’s impact on the district. Concerning LEARN, District 60 asserts that LEARN failed to
demonstrate that it was fiscally capable of operating a school in Waukegan, especially in light of
the additional responsibilities it would have as a local educational agency.
¶ 89 Before discussing the Charter Schools Law requirement of economic soundness, it is
important to understanding generally how a charter school is funded. As previously mentioned, a
charter school is a tuition-free public school (id. §§ 27A-5(a), (e); Comprehensive Community,
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216 Ill. 2d at 458), but how the school is funded depends on who is its authorizer. When a local
school board approves a charter school proposal, it becomes the authorizer. 105 ILCS 5/27A-6(a)
(West 2014). In such cases, part of the funding for the charter school is determined by an
agreement between the local school board and the charter school based on a percentage (at the
time, 75% to 125%) of the local school district’s per capita tuition charge multiplied by the
number of students enrolled in the charter school who reside in the district. Id. § 27A-11(b).
¶ 90 However, when a local school board denies a charter school proposal and the
Commission subsequently grants the appeal, the Commission becomes the school’s authorizer.
Id. § 27A-9(f). In such cases, the Commission determines the level of funding, also using a
percentage of the local school district’s per capita tuition charge multiplied by the number of
students enrolled in the charter school who reside in the district, but the school obtains the
funding directly from ISBE. See id. (stating that ISBE “shall withhold from funds otherwise due
the district the funds authorized by [the Charter Schools Law] to be paid to the charter school
and shall pay such amounts to the charter school”). Thus, regardless of who authorizes the
charter school, funding that normally would go to a district’s traditional schools is diverted to the
charter school.
¶ 91 Now turning to District 60’s economic soundness argument, under section 27A-7(a)(9) of
the Charter Schools Law, a charter school proposal must include “[e]vidence that the terms of the
charter as proposed are economically sound for both the charter school and the school district.”
Id. § 27A-7(a)(9). Although what constitutes economic soundness is not explained in the
regulations, our supreme court has defined the term as meaning “ ‘financial security’ or
‘solvency.’ ” Comprehensive Community, 216 Ill. 2d at 477 (quoting Webster’s Third New
International Dictionary 2177 (1986)). In Comprehensive Community, our supreme court stated
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that the entity proposing the charter school must not only present evidence that the school would
be financially sound, but also that the district would remain financially secure and solvent with
the presence of the charter school. Id. Thus, the local school district’s finances must be
considered in any analysis. Id. However, economic soundness “is not a bright-line standard, but
rather a continuum.” Id. at 481. “The terms of some charter school proposals will be more
economically sound for a school district than other proposals, depending upon their effects on
the district’s bottom line.” Id.
¶ 92 District 60 does not appear to dispute any of the factual findings of the Commission on its
finances or LEARN’s but rather asserts that, despite these facts, LEARN’s proposal did not
demonstrate economic soundness. In this regard, we view the issue presented as a mixed
question of law and fact, as we must determine whether the established facts have satisfied the
statutory standard. Beggs, 2016 IL 120236, ¶ 50. On such questions, we review for clear error.
Id.; see also Comprehensive Community, 216 Ill. 2d at 477-78 (reviewing for clear error whether
a charter school proposal satisfied the economic soundness requirement when the main facts of
the local school district’s finances were not in dispute). On mixed questions of law and fact, we
give significant deference to the Commission’s findings, as it has the experience in construing
and applying the Charter Schools Law. Comprehensive Community, 216 Ill. 2d at 472.
¶ 93 In the Commission’s written decision, it found that, based on all of the documentation
submitted in the appeal, LEARN had a lengthy track record of operating financially sound
charter schools, had been successful in fundraising, and its assets exceeded its liabilities.
Furthermore, during the public meeting, LEARN’s CEO, Gregory White, answered questions
from the commissioners. One commissioner asked White about LEARN’s cash reserves, and
White responded that LEARN had 45 days of cash reserves, which was sufficient to “support any
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school that may be falling down, as far as the finances.” The Commission’s written decision also
observed that LEARN had “put forward a comprehensive plan *** to suggest that it has the
operational capacity” to operate as its own local educational agency and had submitted a
satisfactory budget to operate as one.
¶ 94 Concerning District 60’s finances, in the Commission’s written decision, it found that
funding the proposed charter school at 100% of the district’s per capita tuition charge “did not
materially harm” District 60 or impact its financial solvency, as LEARN’s impact on the
district’s total budget would range from less than 1% in 2016 to slightly more than 2% in 2020.
Moreover, during the public meeting, one of the commissioners asked if District 60’s 2015
budget was accurate concerning a $7.3 million deficit in its educational fund and a $2.8 million
deficit in its operations maintenance fund. A representative of District 60 responded that the
figures were accurate, adding that the operations maintenance fund included capital costs, which
would not decrease in the future due to the district’s use of older buildings. The representative
explained the chief cause of the deficits was decreasing property taxes in the district. She also
stated that, due to these deficits, District 60 had already made various “cuts.” The commissioner
pointed out that, in all likelihood due to District 60’s financial position, its per capita tuition
charge would decrease, which LEARN would need to consider in its own budgetary analysis.
Additionally during the public meeting, the commissioners spent time addressing issues related
to funding the charter school at 91% and 100% of District 60’s per capita tuition charge and the
impact on both parties. At one point during the meeting, a commissioner stated “there is
evidence” that funding the charter school at 91% or 100% of District 60’s per capita tuition
charge “would cause harm to [District 60] *** given [its] financial situation.” The commissioner
added that this was a “concern” of his.
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¶ 95 In this case, the record plainly shows that the Commission reviewed the relevant financial
information and considered not only the financial feasibility of the proposed charter school, as
supported in part by LEARN, but also District 60’s finances. Critically, we give significant
deference to the Commission’s findings on these matters, as it has the experience in construing
and applying the Charter Schools Law. See Comprehensive Community, 216 Ill. 2d at 472. This
is so because the Commission is comprised of members who “collectively possess strong
experience and expertise in public and nonprofit governance, management and finance, public
school leadership, higher education, assessments, curriculum and instruction, and public
education law.” 105 ILCS 5/27A-7.5(d) (West 2014). Given the fact that the Commission
possesses the superior knowledge in analyzing the relevant economics of schools compared to
us, nothing in this record leaves us with a definite and firm conviction that the Commission
committed a mistake in finding that LEARN satisfied the economic-soundness requirement.
¶ 96 Nevertheless, District 60 posits that the Commission failed to complete a “sound
economic analysis” of the charter school proposal and claims that the Commission’s staff
admitted as much at the public meeting. At that meeting, Hosanna Mahaley-Jones, the interim
executive director of the Commission, informed the commissioners that the staff did not obtain a
“second [financial] analysis with our independent consultants” on LEARN’s proposal, an
analysis the staff generally obtained in other appeals. However, Mahaley-Jones explained that
the staff only had a set amount of money “to fund an appeal,” and it had to use those resources to
investigate other concerns of District 60, including Dr. Ditkowsky’s analysis of the academic
performance of LEARN’s schools. Although the staff did not obtain an independent financial
analysis of LEARN’s proposal, it is clear that, based on Mahaley-Jones’s statements and other
parts of the record, the staff conducted its own detailed financial analysis. District 60’s claim
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otherwise is therefore without merit. Accordingly, the Commission did not commit clear error
and its finding on economic soundness was proper.
¶ 97 3. Educational Program
¶ 98 District 60 next argues that LEARN’s proposed educational program was insufficient to
serve the needs of the students in the district, in particular ELL and special education students.
District 60 asserts that, at the time the Commission held its public meeting, there was no
evidence that LEARN had begun to develop a comprehensive special education program, had the
capacity to function as its own local educational agency, or had the experience and ability to
operate a robust ELL program. As District 60’s argument essentially contests the factual findings
by the Commission on LEARN’s educational plan, we review this question under the manifest-
weight standard, reversing only if the opposite conclusion is clearly evident. See Beggs, 2016 IL
120236, ¶ 50.
¶ 99 Under section 27A-7(a)(5) and (a)(7) of the Charter Schools Law, the charter school
proposal must include “[t]he goals, objectives, and pupil performance standards to be achieved
by the charter school” and “[a] description of the charter school’s educational program, pupil
performance standards, curriculum, school year, school days, and hours of operation.” 105 ILCS
5/27A-7(a)(5), (7) (West 2014). Furthermore, charter schools must comply with all federal and
state laws and regulations “applicable to public schools that pertain to special education and the
instruction of [ELL students].” Id. § 27A-5(g).
¶ 100 LEARN’s original proposal included information about how it would support and enrich
the learning of traditional students, as well as ELL students and special education students. Upon
appealing to the Commission and realizing that if its appeal was granted, it would operate as its
own local educational agency, LEARN submitted additional information on how it would
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support ELL and special education students. Based on this information, in the Commission’s
written decision, it found that LEARN’s educational plan would follow the Common Core
standards but would be supplemented with a curriculum that had “been heavily researched” and
shown to have “strong positive growth for all student demographic groups, including
educationally disadvantaged minority, low-income, and ELL populations.” The Commission’s
decision also stated that, based on LEARN’s proposal and the additional information submitted
on appeal, its staff and an independent evaluator visited LEARN’s North Chicago campus,
directly observed classroom instruction, and interviewed ELL students and the ELL coordinator.
From this, the Commission concluded that the school culture and climate at the North Chicago
campus were “conducive to learning,” the “academic performance and growth by ELL and
special education students” were “proficient,” and the ELL coordinator was “knowledgeable,
experienced and had a vision for an ELL program across campuses.”
¶ 101 The Commission further found that LEARN would place students requiring “Individual
Education Plans in the least restrictive environment,” which meant accommodating those
students first in the general classroom, but if necessary through “self-contained/resource rooms
with learning resource teachers.” Additionally, the Commission highlighted that LEARN
employed “a full range of specialists,” including occupational therapists, physical therapists,
speech and language therapists, social workers, counselors, and psychologists.
¶ 102 District 60, in essence, asks us to find LEARN’s educational plan, especially as it relates
to ELL and special education students, insufficient despite the Commission, who has the
expertise and experience in reviewing and evaluating these precise matters, finding the plan
sufficient. When reviewing the findings of fact from an administrative agency, we cannot simply
reweigh the evidence and substitute our judgment in for that of the agency. Abrahamson v.
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Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). Nothing in LEARN’s
proposal or its supplemental information submitted on appeal demonstrates to us that the
opposite conclusion reached by the Commission is clearly evident. Accordingly, the Commission
properly found that LEARN had proposed a sufficient educational program for its Waukegan
campus and in particular for ELL and special education students.
¶ 103 4. At-Risk Students
¶ 104 District 60 next argues that the Commission did not have adequate support to find that
LEARN would sufficiently serve at-risk students. Specifically, District 60 asserts that the
Commission ignored evidence from the district that the levels of truancy at LEARN’s schools
were significantly higher than the district and three to four times higher than the statewide
average. District 60 appears to base this argument on Dr. Ditkowsky’s report, which was based
on data from the Illinois Report Card.
¶ 105 In enacting the Charter Schools Law, our legislature declared that one of the law’s
purposes was “[t]o increase learning opportunities for all pupils, with special emphasis on
expanded learning experiences for at-risk pupils,” which are defined as students “who, because
of physical, emotional, socioeconomic, or cultural factors, [are] less likely to succeed in a
conventional educational environment.” 105 ILCS 5/27A-2(b)(2), 27A-3 (West 2014). As
District 60’s argument contests the factual findings by the Commission on LEARN’s ability to
meet the needs of at-risk students, we review this question under the manifest-weight standard,
reversing only if the opposite conclusion is clearly evident. See Beggs, 2016 IL 120236, ¶ 50.
¶ 106 In the Commission’s written decision, it found that LEARN’s “academic performance
overall is worth special note given that LEARN serves a high-needs student population.” The
Commission also determined that its “staff found that LEARN’s academic performance in its
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network of eight existing schools exceeded Waukegan District 60’s performance and that
LEARN’s superior performance could be observed overall, and with respect to low income and
at-risk students.” District 60 essentially argues that, because Dr. Ditkowsky’s report showed a
statistically higher level of chronic truancy at LEARN’s schools compared to District 60’s
schools and the statewide average, that alone forecloses the possibility that LEARN could
sufficiently serve at-risk students. The Commission did not find that such a conclusion was
warranted.
¶ 107 First, in a document submitted to the Commission on appeal, LEARN responded to Dr.
Ditkowsky’s report, acknowledging that over one-third of its Chicago students had chronic
truancy, but noted its “[a]ttendance data,” also from the Illinois Report Card, showed its students
attended school at a higher rate than District 60’s students and the statewide average. Here, the
Commission was faced with conflicting evidence on truancy and attendance data, and it was the
Commission’s responsibility to weigh the evidence and resolve the apparent conflict. See
Plowman v. Department of Children & Family Services, 2017 IL App (1st) 160860, ¶ 24. The
Commission did just that, as its decision indicated that its staff “conducted an independent study
to review” the concerns raised in Dr. Ditkowsky’s report. The Commission’s study not only
concluded that the concerns were unsupported by the data but also “reaffirmed LEARN’s high
quality performance on the vast majority of metrics.”
¶ 108 Second, even if LEARN’s truancy data reflected negatively on its schools, this is only
one measure in determining whether a charter school can adequately serve the needs of at-risk
students. The Commission’s decision focused primarily on the academic success of LEARN’s
students, who, despite being comprised of high populations of at-risk students, generally
outperformed District 60’s students in ISAT testing. Nothing in the record demonstrates to us
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that an opposite conclusion than that reached by the Commission is clearly evident. Accordingly,
the Commission properly found that LEARN could sufficiently meet the needs of at-risk students
at its proposed Waukegan campus.
¶ 109 5. Best Interests of the Students
¶ 110 Although we have rejected District 60’s arguments concerning whether the Commission
properly found that LEARN’s proposal was in compliance with the statutory requirements of the
Charter Schools Law, the district lastly argues that the Commission erroneously found that
LEARN’s proposal was in the best interests of the students the charter school was intended to
serve. In support, District 60 asserts that, at the Commission’s public meeting, it did not discuss
whether the proposal was in the best interests of the students and its written decision merely
contained “boilerplate conclusory statements” on the issue. District 60 posits that the
Commission had no basis for finding the proposal was in the best interests of the students.
¶ 111 As previously discussed, the Commission may only reverse a local school board’s
decision to deny a charter school proposal if the Commission finds that the proposal (1) “is in
compliance with” the Charter Schools Law and (2) “in the best interests of the students the
charter school is designed to serve.” 105 ILCS 5/27A-8(h) (West 2014). Although the
regulations do not expound on this requirement, this court has previously examined the
requirement by focusing on the overall purpose of the Charter Schools Law, i.e., a means to
provide alternative public education models that are innovative and flexible. Board of Education
of Rich Township High School District No. 227 v. Illinois State Board of Education, 2011 IL
App (1st) 110182, ¶¶ 101-104 (citing 105 ILCS 5/27A-2(a)(2) (West 2008)). We review whether
the Commission properly found LEARN’s proposal was in the best interests of the students it
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was designed to serve for clear error, deferring significantly to the Commission because of its
experience in construing and applying the statute. Id. ¶ 100.
¶ 112 In the Commission’s written decision, it asserted that LEARN provided evidence that it
had “the capacity to provide Waukegan public school student[s] with a high quality education
option that is not currently available to them,” especially given LEARN’s demonstrated past
success in operating charter schools. The Commission based this finding on its staff’s
“independent analysis” of LEARN’s proposal, which focused on LEARN’s educational plan,
organizational plan, business plan, and “evidence of capacity.” The staff’s analysis determined
that the academic success of LEARN’s schools “exceeded Waukegan District 60’s performance
and that LEARN’s superior performance could be observed overall, and with respect to low
income and at-risk students.” Further, the staff acknowledged that LEARN’s experience with
ELL students was limited, but found that the ELL students at its North Chicago campus “greatly
outperformed both Waukegan District 60 and the State ELL reading average.” The staff also
believed that LEARN’s organizational plan, business plan and the capacity of LEARN to execute
on the plans met or exceeded the standards required by law.
¶ 113 In light of the Commission’s findings, LEARN has demonstrated that the innovation it
implements into the classroom has resulted in minority and low-income students excelling in
academic performance as compared to their peer groups. As of the 2013-2014 school year, 72%
of District 60’s students were low-income, 77% were Hispanic and 16% were black. These
students deserve the opportunity to attend a school operated by LEARN, an organization that has
proven to be adept at teaching minority and low-income students, improving their academic
performance, and providing them with the academic foundation and ambition to attend college.
Furthermore, merely because the commissioners never directly discussed the “best interests”
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factor during the public meeting does not mean their ultimate vote to grant LEARN’s appeal was
flawed. During the meeting, the commissioners discussed several aspects of LEARN’s proposal,
and although the words “best interests” were never uttered, this undefined concept was clearly
related to various discussions the commissioners had. Moreover, based on the Commission’s
written decision, it is clear that the Commission analyzed this factor. Therefore, the
Commission’s conclusion that LEARN’s proposal was in the best interests of the students the
school was designed to serve was not clearly erroneous.
¶ 114 In sum, the Commission properly found that LEARN’s proposal was in compliance with
the requirements of the Charter Schools Law and in the best interests of the students the school
was designed to serve.
¶ 115 D. Due Process
¶ 116 District 60 next raises two due process challenges to the proceedings in front of the
Commission. First, District 60 contends that the Commission improperly set conditions for
granting LEARN’s appeal, i.e., the performance agreement. Second, District 60 contends that the
Commission’s approval of these conditions was made without providing the district an
opportunity to review or address the adequacy of LEARN’s alleged compliance.
¶ 117 The United States and Illinois Constitutions protect people against “governmental
deprivations of life, liberty, or property without due process of law.” Village of Vernon Hills v.
Heelan, 2015 IL 118170, ¶ 31 (citing U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2).
There are two types of due process: substantive and procedural. In re Marriage of Miller, 227 Ill.
2d 185, 197 (2007). “Whereas procedural due process governs the procedures employed to deny
a person’s life, liberty or property interest, substantive due process limits the state’s ability to act,
irrespective of the procedural protections provided.” Id. In District 60’s brief, it does not state
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which type of due process claim it is bringing, but based on its arguments, it is clear that its due
process claim is procedural in nature as the district assails the fairness of the procedures used by
the Commission. Whether a party’s procedural due process rights have been violated presents a
legal question we review de novo. Heelan, 2015 IL 118170, ¶ 31.
¶ 118 Although due process concerns permeate in administrative proceedings (Abrahamson,
153 Ill. 2d at 92), the Commission and ISBE argue that District 60 cannot assert a due process
claim against the state given that it is itself a state entity. District 60 does not respond to this
argument, and we agree with the Commission and ISBE.
¶ 119 District 60, as a school board, is a governmental agency, or rather a “ ‘municipal
corporation,’ created by the legislature and subject to its will.” East St. Louis Federation of
Teachers, Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel, 178
Ill. 2d 399, 412-13 (1997). Because school boards are created by statute, they are offices entirely
under “the control of the legislature, ‘which may at pleasure create or abolish them,’ ” as well as
modify their duties. Id. at 413 (quoting Hughes v. Traeger, 264 Ill. 612, 616 (1914)). “The
State’s control over units of local government is without regard to due process guarantees,” and
“[t]he school board as an entity, therefore, cannot assert due process claims against the state.” Id.
Consequently, District 60, as a school board, cannot assert due process claims against the
Commission, an entity of the state. See id. Accordingly, both of District 60’s procedural due
process claims fail.
¶ 120 E. Open Meetings Act
¶ 121 District 60 next contends that the Commission committed multiple violations of the Open
Meetings Act (Act) (5 ILCS 120/1 et seq. (West 2014)) during its April 21, 2015, public meeting
where it voted to grant LEARN’s appeal. Specifically, District 60 argues that (1) the chairman of
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the Commission, Greg Richmond, incorrectly asserted that all nine commissioners were present
when only seven members were physically present, (2) the Commission improperly allowed two
commissioners to vote telephonically without properly justifying their absence, (3) the
Commission improperly utilized a roll call vote rather than a voice vote during the vote to allow
the two commissioners’ remote attendance, and (4) the Commission went into a closed session
based on a motion that failed to sufficiently identify the exception in the Act allowing for a
closed session. Based on these alleged violations, District 60 asserts that it was prejudiced and
the proper remedy, and only one requested, is to render the Commission’s decision to grant
LEARN’s appeal “null and void.”
¶ 122 The Act represents a public policy initiative by our legislature that public bodies of the
state, whose activities directly impact the lives of the citizens, should deliberate and take action
in the open rather than in private. Id. § 1. To this end, the Act requires that “[a]ll meetings of
public bodies” must be open to the public unless a specific exception applies. Id. § 2(a). A
“meeting” is defined as “any gathering, whether in person or by video or audio conference,
telephone call, *** of a majority of a quorum of the members of a public body held for the
purpose of discussing public business.” Id. § 1.02. A “public body” means “all legislative,
executive, administrative or advisory bodies of the State *** and all other municipal
corporations, boards, bureaus, committees or commissions of this State.” Id. The provisions of
the Act must be “strictly construed against closed meetings” (id. § 1(2)), and all final actions
made by a public body be must be done in an open meeting. Id. § 2(e).
¶ 123 When a public body fails to comply with the provisions of the Act, “any person” may
bring a civil action in the circuit court alleging noncompliance (id. § 3(a)), which is how District
60 proceeded in this case. Although District 60, as a school board, could not assert due process
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claims against the Commission (see East St. Louis Federation, 178 Ill. 2d at 412-13), a “person,”
as defined by the Act, has been interpreted broadly. In Paxson v. Board of Education of School
District No. 87, 276 Ill. App. 3d 912, 916, 918, 921 (1995), this court found that, consistent with
the Act’s purpose of requiring public bodies to act openly, the term a “person” should not be
limited to only individuals, but rather should incorporate “a body politic.” District 60, as a school
board, is a body politic (see 105 ILCS 5/10-2 (West 2014)), and thus can allege violations of the
Act. If the circuit court determines that a violation has occurred, it:
“may grant such relief as it deems appropriate, including granting a relief by
mandamus requiring that a meeting be open to the public, granting an injunction
against future violations of this Act, ordering the public body to make available to
the public such portion of the minutes of a meeting as is not authorized to be kept
confidential under this Act, or declaring null and void any final action taken at a
closed meeting in violation of this Act.” 5 ILCS 120/3(c) (West 2014).
¶ 124 Although the circuit court’s power to grant a remedy for violations of the Act is
discretionary and ordinarily reviewed for an abuse of discretion (see Parker v. Nichting, 2012 IL
App (3d) 100206, ¶ 15), here, the circuit court did not dismiss District 60’s counts of alleged
violations of the Act on the merits. Because the court did not address the alleged violations of the
Act on their merits and thus did not utilize its discretion to grant or deny a remedy available
under the Act, we will review the Commission’s alleged violations de novo.
¶ 125 We first note that District 60 does not dispute that the Commission’s vote to grant
LEARN’s appeal was a final action and that the vote occurred during an open session. And, of
all the alleged violations of the Act, none of them concern a final action taken by the
Commission in a closed session. The Act expressly states that the circuit court may only declare
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“null and void any final action taken at a closed meeting in violation of this Act.” 5 ILCS
120/3(c) (West 2014); see also Chicago School Reform Board of Trustees v. Martin, 309 Ill.
App. 3d 924, 936 (1999) (finding that, because the selection of a principal occurred at an open
meeting, a party could not request nullification of that action because it was both “too extreme
and not supported by the Open Meetings Act”); Williamson v. Doyle, 112 Ill. App. 3d 293, 300
(1983) (finding that the provision in a prior version of the Act “permitting the court to declare
the action void refers by its terms only to a ‘closed session’ ”). Thus, assuming arguendo that the
Commission committed the alleged violations of the Act, we find that, based on the language of
the Act, District 60’s requested relief—declaring the Commission’s decision to grant LEARN’s
appeal null and void—is improper.
¶ 126 Our conclusion is buttressed by the Act’s legislative history. Prior to 1981, what is now
known as the Act was called “AN ACT in relation to meetings.” 1957 Ill. Laws 2892 (adding Ill.
Rev. Stat. 1957, ch. 102, ¶ 41); Ill. Rev. Stat. 1979, ch. 102, ¶ 41. In this previous version of the
Act, the only civil remedy the circuit court could issue upon a violation or anticipated violation
of the Act was “a writ of mandamus requiring that a meeting be open to the public at large or
issue such other appropriate order as will insure compliance with the provisions of this Act.” Ill.
Rev. Stat. 1979, ch. 102, ¶ 43. However, Public Act 82-378 (eff. Jan. 1, 1982) (amending Ill.
Rev. Stat. 1979, ch. 102, ¶ 43) changed the civil remedies available for the circuit court to issue.
As a result of the public act, upon a violation or anticipated violation of the Act:
“The court, having due regard for orderly administration and the public interest,
as well as for the interests of the parties, may grant such equitable relief as it
deems appropriate, including issuance of a writ of mandamus requiring that a
meeting be open to the public, granting an injunction against future violations of
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this Act, ordering the public body to make available to the public such portion of
the minutes of a meeting as is not authorized to be kept confidential under this
Act, or declaring null and void any final action taken at a closed session in
violation of this Act.” Ill. Rev. Stat. 1981, ch. 102, ¶ 43(c).
The 1981 version of the statute is substantially the same as the current version.
¶ 127 During discussions of House Bill 411, which ultimately became Public Act 82-378 (eff.
Jan. 1, 1982), in the House of Representatives, Representative Reilly stated that the bill “clarifies
that action taken in closed session and only that action taken in closed session can be voided.”
82nd Ill. Gen. Assem., House Proceedings, May 20, 1981, at 31 (statements of Representative
Reilly). Representative Reilly later stated that “[t]he intent is to invalidate only final action
improperly taken in secret” and “only the action that takes place in the closed meeting can be
voided not action that takes place in the open meeting.” Id. at 34, 59. It is clear that, based on the
legislative history of the Act, the circuit court’s power to declare a final action null and void is
limited to only those situations where a final action occurred during a closed meeting.
Accordingly, even if District 60 could persuade us that the Commission committed multiple
violations of the Act, we would not grant the district its requested relief.
¶ 128 Lastly, we note that District 60 could have followed the procedure set forth in section 3.5
of the Act and initiated a request for review with the “Public Access Counselor” of the Office of
the Attorney General. 5 ILCS 120/3.5 (West 2014). Under this means of review, the Attorney
General reviews whether a violation of the Act has occurred and then issues a binding opinion on
the matter. Id. § 3.5(e); see also American Federation of State, County, & Municipal Employees,
Council 31 v. Illinois Labor Relations Board, 2017 IL App (5th) 160046, ¶ 27 (“After review,
the Attorney General must issue a binding opinion.”). In that binding opinion, the Attorney
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General can direct the public body to take appropriate actions (5 ILCS 120/3.5(e) (West 2014);
American Federation, 2017 IL App (5th) 160046, ¶ 27), including voiding final actions taken in
open meetings. See, e.g., 2016 Ill. Att’y Gen. Pub. Access Op. No. 16-015 (after finding that the
Board of Trustees of the Village of Caseyville violated the Act by voting to amend and approve a
settlement agreement without providing proper public notice, the Attorney General voided the
original vote and directed the board of trustees to reconsider the matter at a properly noticed
meeting); 2013 Ill. Att’y Gen. Pub. Access Op. No. 13-002 (after finding that the Chicago Park
District Board of Commissioners violated the Act by voting to increase fees for admission to two
museums without providing proper public notice, the Attorney General voided the original vote
and directed the board of commissioners to reconsider the matter at a properly noticed meeting).
¶ 129 Had District 60 sought a remedy under section 3.5 of the Act (5 ILCS 120/3.5 (West
2014)) with the Public Access Counselor originally rather than initiating an action in the circuit
court under section 3 of the Act (id. § 3), the Attorney General may have voided the
Commission’s vote on LEARN’s appeal upon a finding of noncompliance with the Act.
However, District 60 instead sought a remedy in the circuit court that it had no power to grant
because the formal vote on the matter occurred during a public meeting. As a result, we have no
choice but to reject its argument concerning the Commission’s alleged violations of the Act.
Although the circuit court dismissed the counts of District 60’s complaint related to alleged
violations of the Act for different reasons, the counts were properly dismissed. See Vantage
Hospitality Group, Inc. v. Q Ill Development, LLC, 2016 IL App (4th) 160271, ¶ 54 (the
appellate court may affirm the circuit court’s judgment on any basis supported by the record).
¶ 130 F. Dismissal of Remaining Counts
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¶ 131 District 60 lastly contends that the other counts in its complaint should not have been
dismissed. However, the district’s arguments center around the improper dismissal of its claims
concerning the Commission’s alleged violations of the Act. As we have already discussed this
issue in our foregoing analysis, we need not discuss it any further. But to the extent District 60
has challenged the propriety of the circuit court’s dismissal of count IV of its complaint—the
count which sought a declaratory judgment against LEARN, the Commission and ISBE—we
find any such challenge forfeited for failing to cite any legal authority or develop a coherent legal
argument. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017).
¶ 132 III. CONCLUSION
¶ 133 Based on the foregoing, we affirm the judgment of the circuit court of Cook County,
which had affirmed the decision of the Commission and dismissed counts II, III, and IV of
District 60’s complaint.
¶ 134 Affirmed.
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