Illinois

State constitutional guarantees regarding right to education

Ill. Const., Art. X, § 1 provides: 

• “A fundamental goal of the People of the State is the educational development of all persons to the limits of their capacities.  The State shall provide for an efficient system of high quality public educational institutions and services. Education in public schools through the secondary level shall be free. There may be such other free education as the General Assembly provides by law. The State has the primary responsibility for financing the system of public education.”

Case law and legislative history defining and interpreting the right to education

• Generally, the judiciary is highly differential to the legislature when it comes to implementing the constitutional right to education.

• Committee for Educations Rights v. Edgar analyzes the legislative history of the clause “the state shall provide for an efficient system” and the provision relating to the responsibility for financing. 

  • Rejected plaintiff’s claim that wealth disparities between school districts leading to differences in education funding violates the education article and held that “the [legislative history] persuasively suggests that the framers of the 1970 Constitution viewed educational equality and “efficiency” to be separate and distinct subjects. (Comm. for Educ. Rts. v. Edgar, 174 Ill. 2d 1, 19–20, 672 N.E.2d 1178, 1187 (1996)) 

  • Holds that the definition of “high quality” of education and how to implement it is left for the legislature. ( Id. at 1193)

  • Held that education is not a fundamental right for equal protection purposes and is therefore subject to the rational basis test for judicial review. (Id. at 1195.)   

• Courts later affirmed the holding in Edgar in Jenkins v Leininger: No judicial intervention was granted on behalf of students seeking injunctive relief because the conditions of schools in their district were so bad they felt deprived of their right to education. (Lewis E., et al. Lewis E. v. Spagnolo, 186 Ill.2d 198, 710 N.E2d 789, (1999)) 

  • According to the court, the only avenue for relief is through enforcement of the School Code. (Id. at 805.) By enacting the School Code, the legislature complied with the constitutional mandate to provide an efficient educational system of sufficient quality.  (Jenkins v. Leininger, 277 Ill.App.3d 313 (1995) 659 N.E.2d 1366, 213 Ill.Dec. 719, 106 Ed. Law Rep. 804 at 1371)

  •  Questions of efficiency and quality of education are also left to the discretion of the legislature, and the courts will not intrude unless the legislature has exceeded some constitutional limitation. ( Id. at 1371)

  • Where the legislature, pursuant to statute, has empowered a school board to perform certain functions, “the courts will not interfere with the exercise of such powers or substitute their discretion for that of the school board unless the board’s action is palpably arbitrary, unreasonable or capricious.”  Id. at 1372.

  • Affirmed that the right to a high quality education is not a fundamental right but rather a goal to be strived for. (Id. at 1373.) 

• A student’s entitlement to a public education is a property interest which is protected by due process guarantees; therefore, it may not be taken away without adherence to minimal procedural safeguards. (Stratton v. Wenona Community Unit District No. 1, 133 Ill.2d 413, 432, 141 Ill.Dec. 453, 551 N.E.2d 640 (1990)) 

• In Stasica v. Hannon, the court found that the IL constitution gave parents standing to sue for improper notice of closing a school (Stasica v. Hannon, 70 Ill.App.3d 785 (1979) 388 N.E.2d 1110, 27 Ill.Dec. 147) 

State constitutional protections regarding non-discrimination and equity

• “All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property” [Constitution of the State of Illinois, Art. I, Sec. 17].

• “The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts” [Constitution of the State of Illinois, Art. I, Sec. 18].

• “All persons with a physical or mental handicap shall be free from discrimination in the sale or rental of property and shall be free from discrimination unrelated to ability in the hiring and promotion practices of any employer” [Constitution of the State of Illinois, Art. I, Sec. 19]. 

Other relevant state constitutional civil rights protections

• “To promote individual dignity, communications that portray criminality, depravity or lack of virtue in, or that incite violence, hatred, abuse or hostility toward, a person or group of persons by reason of or by reference to religious, racial, ethnic, national or regional affiliation are condemned” [Constitution of the State of Illinois, Art. I, Sec. 20].

State law equivalents to Title VI, Title IX, Section 504, and the Educational Opportunities Act (EEOA) 

The Illinois Human Rights Act (IHRA), codified in Illinois Compiled Statutes (ILCS) Chapter 775 Act 5. The  IHRA prohibits discrimination in several areas, including education, employment, housing, public accommodations, financial credit, and retaliation for exercising protected rights. 

• It is the public policy of this State … to secure for all individuals within Illinois the freedom from discrimination based on race, color, religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or mental disability, military status, sexual orientation, pregnancy, reproductive health decisions, or unfavorable discharge from military service in connection with employment, real estate transactions, access to financial credit, and the availability of public accommodations, including in elementary, secondary, and higher education.(775 ILCS 5/1-102(A).) 

• [It is the public policy of this State to] prevent sexual harassment in employment and sexual harassment in elementary, secondary, and higher education. (775 ILCS 5/1-102(B).) 

• [It is the public policy of this State to] secure and guarantee the rights established by Sections 17, 18 and 19 of Article I of the Illinois Constitution of 1970. (775 ILCS 5/1-102(F).) 

• [It is the public policy of this State to] establish Equal Opportunity and Affirmative Action as the policies of this State in all of its decisions, programs and activities, and to assure that all State departments, boards, commissions and instrumentalities rigorously take affirmative action to provide equality of opportunity and eliminate the effects of past discrimination in the internal affairs of State government and in their relations with the public. (775 ILCS 5/1-102(G).) 

• Article 5A applies to Elementary, secondary and higher education. Civil rights violations include engaging in harassment or sexual harassment 775 ILCS 5/5A-102(A) and 102(C). but also failing to take remedial or disciplinary action against someone who does engage in harassment sexual harassment. ( 775 ILCS 5/5A-102(B) and 102(D).)  Failing to comply with the reporting requirements of Section 2-3.196 the School Code, which requires reporting of allegations of discrimination, harassment and retaliation received, is also a civil rights violation under the ILHRA.                    (775 ILCS 5/5A-102(E).)  These provisions only apply to nonsectarian institutions. ( 775 ILCS 5/5A-102(F).)  

• Harassment is defined as: “ Harassment in Elementary, Secondary, or Higher Education. "Harassment in elementary, secondary, or higher education" means any unwelcome conduct by an elementary, secondary or higher education representative toward a student on the basis of a student's actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service that has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile, or offensive educational environment.”

• The Department of Human Rights is required to provide training to prevent discrimination and harassment based on race, color and national origin as well as retaliation in schools. (775 ILCS 5/5A-103(b))

• Aiding, abetting, compelling or coercing a person to violate the ILHRA and interfering with the Human Rights Commission or the Department of Human Rights are also civil rights violations. (775 ILCS 5/6-101(B) and (C).)  

• The Illinois Civil Rights Act (ILCRA), codified in the ILCS Chapter 740 Act 23. 

  • No unit of State, county, or local government in Illinois shall… exclude a person from participation in, deny a person the benefits of, or subject a person to discrimination under any program or activity on the grounds of that person's race, color, national origin, or gender.

Additional state civil rights protections that go beyond federal requirements (e.g., protections for LGBTQ+ students, multilingual learners, undocumented students)

• The IL Department of Human Rights has issued guidelines that suggest broader protections:

  • Non-Regulatory Guidance Relating to Protection of Transgender, Nonbinary, and Gender Nonconforming Students (Dec. 2021) explains how the ILHRA protects students of all gender identity by requiring full and equal enjoyment of all school services, programs and activities, with special emphasis on the availability of restrooms, locker rooms, participation in gender based sports and dress codes.

  • Non-Regulatory Guidance on Immigration Enforcement Actions (01/22/2025) prohibits inquiries about citizen status by school districts to establish residency and requires districts to ensure that the process to establish residency does not force students or parents to receive immigration status.

• The Keep Illinois Families Together Act provides that no law enforcement agency or official may enter into or remain in an agreement with U.S. Immigration and Customs Enforcement under a federal 287(g) program.

• Transitional bilingual education programs are provided if at least 20 students in a language are enrolled in a  school [105 ILCS 5/14C-3]. 

• The IL School Code prohibits harassment and discrimination on marital status, parental status, order of protection status and provides resources and support for victims of domestic and/or sexual violence [see generally 105 ILCS 5/Art. 26A].

State law protections regarding color of law or pattern/practice liability for law enforcement in schools

• Recently passed amendment to the school code, to be in effect as of the 2027/2028 school year will prohibit fines, tickets and citations as school-based disciplinary consequences, including those issued by a school resource officer. (Amendment to 105 ILCS 5/2-3.206 by SB1519 (104th General Assembly (2025-2026) passed both houses 5/28/2025.) The stated reason is that such actions disproportionately impact students of color and with disabilities, create financial hardships, and do not provide sufficient due process, confidentiality and expungement protections.(SB1519 Section 1(a)(4)-(6)) 

Anti-discrimination protections under state human rights statutes

• The Illinois Human Rights Act (described above) is a state human rights statute thrat provides protections to students. 

Private right of action provisions under state civil rights and human rights statutes

• 775 ILCS 5/7A-102 (see below for more detail).

• 740 ILCS 23/5 (b).

Identify whether state anti-discrimination laws also prohibit discrimination caused by disparate impact. If yes, does the state law allow a private right of action for disparate impact claims?

• The ILCRA prohibits utilizing criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, national origin, or gender.  740 ILCS 23/5(a)(2).

• Under the ILHRA, prohibition against disparate impact appears to be limited to employees with at least 1000 employees. 775 ILCS 5/2-105(B)(4)(d). 

Is the right provided by state law conferred on the student, parent/guardian, or both? In other words, who can bring a claim under this law? 

• Under the IHRA, a charge may be filed with the Department of Human Rights or the Human Rights Commission by an aggrieved party or issued by the Department itself (775 ILCS 5/7A-101(A)(1)).  An “aggrieved party” means a person who is alleged or proved to have been injured by a civil rights violation.( 775 ILCS 5/1-103(B). )  Parents may file on behalf of Minor students. 

• Under the ILCRA, any aggrieved party can bring a civil suit in federal district court or state circuit court. 740 ILCS 23/5 (b). 

Does the specified law or policy provide protections against retaliation? What are the elements of a retaliation claim? Are protections against retaliation clearly spelled out in the law or policy?

• YES! ILHRA: It is a civil rights violation for a person, or for 2 or more persons, to conspire to… [r]etaliate against a person because that person has: (i) opposed or reported conduct that the person reasonably and in good faith believes to be prohibited under Articles 2, 4, 5, 5A, and 6; (ii) made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this Act; or (iii) requested, attempted to request, used, or attempted to use a reasonable accommodation as allowed by [the ILHR]. 775 ILCS 5/6-101(A).

• ILCRA: Any person suffering from damages as a result of retaliatory action can bring a civil suits for damages, injunctive relief, and may be awarded reasonable attorney’s fees and costs. 740 ILCS 24/5(b). 

Statute of limitations for filing education-related state civil rights complaints (or state civil rights complaints broadly) or state human rights complaints?

• 2 years after the date that a civil rights violation allegedly has been committed under the ILHRA. 775 ILCS 5/7A-102(A)(1)

• 2 years after the violation of the ILCRA. (74 0 ILCS 23/5 (b)). NB the ILCRA has a fee-shifting provision that allows courts to award attorney’s fees and costs, including expert fees and other litigation expenses to a prevailing plaintiff. 740 ILCS 23/5 (c).

Are there areas where the state laws provide more protections than federal law? What are those areas? 

• ILHRA protects against discrimination against a person because of his or her actual or perceived: race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, reproductive health decisions, or unfavorable discharge from military service. 775 ILCS 5/1-103(Q); emphasis added. 

• Several of these terms are defined more broadly than under federal law:

  • "Race" includes traits associated with race, including, but not limited to, hair texture and protective hairstyles such as braids, locks, and twists. 

  • "Sexual orientation" means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person's designated sex at birth. "Sexual orientation" does not include a physical or sexual attraction to a minor by an adult. 

  • "Reproductive Health Decisions" means a person's decisions regarding the person's use of: contraception; fertility or sterilization care; assisted reproductive technologies; miscarriage management care; healthcare related to the continuation or termination of pregnancy; or prenatal, intranatal, or postnatal care.