Letter From Rockfordrnby Scott P. RichertrnIt Ain’t Over’Til It’s OverrnOctober 26, 2000, dawned pretty muchrnlike ever)’ other day here in Rockford, Ilhnois.rnAfter ten years of Hving under therndictatorship of a federal magistrate, wernhad decided that nothing would everrnchange. And then something did.rnOn that glorious Indian summerrnmorning, the Illinois Supreme Court, byrna vote of six to one, declared illegal thernRockford School Board’s use of thernschool district’s tort fund to pay forrn”remedies” in the Rockford school-desegregationrncase, known as People WhornCare. Under the Illinois Local GovernmentrnEmployees Tort Immunity Act, arnlocal governmental body can levy taxesrn”to pay anv tort judgment or settlementrnfor compensator,’ damages for which . . .rnit is liable . . . ” Since 1991, Rockford’srnDistrict 205 has raised almost $134 millionrnin tort taxes (and has spent close to arnquarter-billion dollars on the desegregationrncase). The money, however, was notrndistributed to the plaintiffs in the class-actionrnlawsuit. Instead, it has been spent onrna series of federal-court-ordered programsrndesigned to narrow the achievement gaprnbetween white and minority (defined byrnthe court as black and Hispanic) students,rnand to desegregate District 205rnthrough busing and magnet schools. As arnresult, Rockford has the third-highestrnpropert)’ tax rate in the nation and thernmost desegregated schools (as you long asrnyou define “desegregation” as “racialrnquotas” rather than as allowing all studentsrnto attend their neighborhoodrnschools). Meanwhile, both white andrnminority students perform worse on standardizedrntests than their counterparts didrnten years ago.rnIt took eight years for the tax-protestrncase to make its way up throughrnthe courts. In October 1992, MichaelrnO’Brien, a local attorney and selfdescribedrnliberal Democrat, filed the firstrnobjection to the tort tax in WinnebagornCounh^ Circuit Court. Two years later,rnRockford Educating All Children, arncitizens’ group formed in response tornthe People Who Care suit, joined withrnO’Brien to collect tax-protest forms fromrnDistrict 205 taxpayers. Since then, asrnmany as 16,000 property owners havernfiled protests each year. Fighting thisrncase pro bono, O’Brien estimates that hernhas spent over 3,000 hours on the taxrnprotest.rnO’Brien’s case has taken a few twistsrnand turns over the years, including a visitrnto federal court. (The Seventh CircuitrnCourt of Appeals ultimately sent the casernback to the state courts, since the TortrnImmunity Act is an Illinois, not a federal,rnlaw.) But his argument has remainedrnconsistent: The Rockford School Board’srnuse of the tort tax in this manner amountsrnto taxation without representation.rnWhile the federal court can order thernschool district to implement programs tornredress constitutional violations, it cannotrnorder the method of funding thosernprograms. Under Illinois law, the questionrnof ftmding is left up to the voters, notrnthe school board or the court.rnThe Rockford desegregation case hasrnbeen driven by the greed of a Chicagornlawyer who took a limited case, aimed atrnkeeping a high school open on the westrnside of town, and turned it into a federalrnclass-action lawsuit. O’Brien’s case, onrnthe other hand, has its roots in the schoolrnboard’s response to People Who Care.rnThe idea to use the tort fund to pay for desegregationrnoriginated with the schoolrnboard’s own lawyers, who convinced thernboard that they could expand the district’srnbudget by admitting guilt in therndesegregation case. The same boardrnmembers whose actions led to the desegregationrnlawsuit arrogated to themselvesrnthe authority to override the people’s willrnand to raise their taxes without their consent.rnAs Mike O’Brien argued in a presentationrnat the Heritage Foundation inrn1996, the very existence of judicial ta.xationrnmade the board’s use of the tort fundrnalmost inevitable:rnNot only does the court circumventrnthe electorate by evading thernreferendum process… It underminesrnthe only protection the processrnoffers, the adversary system, byrnmaking clear to the governmentalrnentity that it will be better off guilty.rnA guilty verdict [ejnsures that thernjudge will increase the governmentalrnimit’s operating revenues andrnbudgets…. a Rockford SchoolrnBoard member has asked . .. howrnthe District will survive financiallyrnif it is ever unfortunate enough tornachieve so-called unitary status [thernlegal term for the end of a desegregationrnsuit and the return ofrnschools to local control]. At thatrnpoint the tort injury will have comernto an end, but the dependency uponrnthe judicial taxation will persist.rnAs O’Brien’s case played itself out inrnthe courts, a related battle was takingrnplace in the political arena. Over thernyears, the composition of tiie RockfordrnSchool Board changed, and new boardrnmembers objected to judicial taxation.rnBut by that time, Magistrate P. MichaelrnMahoney had issued the ComprehensivernRemedial Order (CRO), an elaborate social-rnengineering scheme designed to balancernRockford’s schools racially throughrna $48-million building program, magnetrnschools, and direct court oversight of everyrnaspect of District 205’s operations.rnThe magistrate also expressly ordered thernboard to use the tort l ew to fund thernCRO and threatened the members withrnjail time if they refused. Under protest,rnthey agreed.rnIn February 1997, The Rockford Instituternheld the first of two informationalrnrallies to address the issue of judicial taxation.rnOn a bitterly cold and snow’ Mondayrnnight, over 700 people packed the auditoriumrnat the Rockford Woman’s Clubrnto hear Chronicles’ editor Thomas Flemingrnand Rockford Congressman DonrnManzullo explain the problems with judicialrntaxation. In the audience thatrnnight were Ted Biondo and Patti Delugas,rnboth of whom would be elected tornthe school board the following November,rnlargely because they vowed to endrnthe use of the tort fund and fight judicialrnlANUARY 2001/35rnrnrn