the state’s public education system.138 The court then turned to the plaintiffs’ remaining claims
and dismissed them in short order.139 Again citing to Rodriguez, the court dismissed the due
process claim, reasoning that there was no fundamental right to education.140 The court then
dismissed the school code claims for failure to point to a specific provision in the code that had
been violated, and the common law claims failed due to the plaintiffs’ failure to prove actual
In his dissent, Justice Charles E. Freeman disclaimed the precedent set by Edgar and
Lewis E.142 East St. Louis schools were in deplorable condition, exposing students to asbestos,
overflowing sewage pipes, broken fire alarms, unheated classrooms, and fire-damaged school
libraries.143 The court’s opinions in Edgar and Lewis, Justice Freeman believed, permanently
precluded the court from ever taking on the gross inequalities in Illinois’ public schools, leaving
the matter to languish under legislative inaction.144
138 Id. at 804 (“[Q]uestions relating to the quality of education are solely for the legislative branch to answer." quoting Comm. for
Educ. Rights v. Edgar, 672 N.E.2d 1178, 1189 (Ill. 1996)). The plaintiffs argued that the Edgar opinion was not dispositive because
the plaintiffs in that case had sought a “high quality” education rather than a minimal level of education, however the court found the
difference indistinguishable. Id. The plaintiffs also argued that the historical education clause “efficiency” exception, whereby the
court has the limited authority to determine the fairness of newly drawn school district boundaries, should apply because East. St.
Louis students were being entirely deprived of educational opportunity (much like a student included in district boundaries that place
his home school so far away from his residence that he cannot attend). Id. The court, however, simply did not agree that the students
were being wholly deprived of education. Id. The boundary exception would only apply, the court speculated, in situations where a
“district provides a school that consists of nothing more than a vacant building marked with the word ‘School.’” Id.
139 Id at 805-16.
140 Id. at 805. The plaintiffs also made a due process argument that, because students in Illinois are legally required to attend schools,
and because the school facilities in East. St. Louis were in dangerous disrepair, the state was in effect forcibly subjecting them to a
harmful environment. Id. at 805-11. The court rejected this theory as well, finding that compulsory education laws did not raise due
process issues because the precedent cited by the plaintiffs—cases involving harmful prisons—were legally dissimilar. Id. at 805-09.
Furthermore, despite the poor condition of many East St. Louis schools, the plaintiffs had failed to demonstrate any actual harm
caused by the facilities. Id. at 808-11.
141 Id. at 813-16. The plaintiffs had based their common law claim on premises liability, alleging that the schools their children
attended were physically dangerous due to their lack of maintenance. Id. At common law, negligence claims require plaintiffs to show
actual harm or an invasion of some interest. See RESTATEMENT (SECOND) OF TORTS § 281 (1965). The court further held that a
permanent injunction was inappropriate because the plaintiffs had failed to point to specific hazardous condition that could lead to
irreparable injury. Lewis E., 710 N.E.2d at 815-16.
142 “In [Edgar], this court shut the courthouse door to claims alleging violations of section 1 of the education article
of the Illinois Constitution. In this case, the majority nails that door shut. The majority holds that these plaintiffs
may not-not do not, or could not, but may not-state a cause of action for a declaratory judgment based on a
violation of the education article.”
Lewis E., 710 N.E.2d at 816 (internal citations omitted) (Freeman, J., concurring in part and dissenting in part).
143 Id. at 817. Justice Freeman quoted extensively from the plaintiffs’ complaint:
By any reasonable measure, the public schools of District 189 are neither safe nor adequate. Strangers wander
in and out of junior high schools. Fire alarms malfunction, and firefighters find emergency exits chained shut as
they rescue children from burning schools. Classrooms are sealed to protect students from asbestos and
dangerous structural flaws. In dark corridors, light bulbs go unreplaced and rain seeps through leaky roofs. In
heavy rains, backed-up sewers flood school kitchens, boilers, and electrical systems, resulting in student
evacuations and cancelled classes. Bathrooms are unsanitary and water fountains are dry or spew brown water.
In winter, students sit through classes wearing heavy coats because broken windows and faulty boilers go
unrepaired. They struggle to learn using meager instructional equipment and tattered, dated textbooks. School
libraries are locked or destroyed by fire.
144 Id. This is not to say, however, that no other legal challenges have been attempted since Lewis E. In March 2010, the Chicago-based public policy organization Business and Professional People for the Public Interest (“BPI”), in conjunction with their pro bono
partner Sidley Austin, filed a school funding suit against State Superintendent of Education Christopher Koch, Governor Quinn, and
the Illinois State Board of Education. See Complaint, supra note 30, at 1-3. Working around Edgar and Lewis E.’s constraining
precedent, the plaintiffs argued that the state’s school funding system effectively forced residents of property-poor school districts to
pay property taxes at significantly higher rates than residents of property-rich districts, a violation of the state constitution. See id.
Additionally, the suit alleged that various other elements of how the state now runs public schools, including increases in state-level
performance requirements and standardized testing, have effectively ended “local control” of public schools. See id. Nevertheless, the
suit was dismissed in short order by the Illinois Supreme Court in late 2012, ruling that because localities ultimately set local property