Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 C 0995 -- Hubert L. Will, Judge .
Before Pell, Circuit Judge, Fairchild, Senior Circuit Judge, and Cudahy, Circuit Judge.
The present appeals arise from a determination by the district court that the controversy in these cases had not become moot by virtue of a consent decree between the United States Department of Justice and the Chicago Board of Education (the "Board") in other litigation.*fn1 These cases challenge the constitutionality of student assignment plans based on racial quotas which were originally adopted and implemented by the Board in 1976 for Gage Park and Morgan Park High Schools. The gravamen of the complaint is that the Board's voluntary racial quotas on enrollment have the discriminatory effect of requiring only black children to be transported from their neighborhood schools. Separate quotas for enrollment of blacks and whites were set as ceilings on the number of black children and the number of white children which could be admitted to these two schools. The purpose of these quotas, according to the Board, is to curb a trend of decreasing white enrollment and increasing black enrollment in these schools which might eventually result in two predominantly black, segregated schools.*fn2 Because the quotas for enrollment of blacks were set at a lower percentage level than that at which black students ordinarily would have applied and been admitted, the effect of the quotas was to exclude some blacks from admission to these schools. The quotas applicable to white students did not have this effect.
In response to the plaintiffs' motion for a permanent injunction against use of the quotas, the district court and this court on appeal upheld as constitutional the Board's use of the quotas. After the Supreme Court had granted certiorari, the Board and the Department of Justice in other litigation entered into a consent decree to develop a system-wide integration plan. At approximately the same time, the Board voluntarily discontinued use of the challenged quotas. The Supreme Court remanded, 449 U.S. 915, 101 S. Ct. 339, 66 L. Ed. 2d 162, to this court, and, in turn, this court remanded, 645 F.2d 75 (7th Cir.), to the district court for a determination as to whether the consent decree or any plan implementing the decree had mooted the controversy.
The district court determined that the case was not moot because the Board had readopted the racial quotas in question after remand by the Supreme Court. In keeping with its original judgment upholding the constitutionality of the quotas, the district court again denied plaintiffs' motion for a permanent injunction against use of the quotas. Accordingly, the issue now before this court is whether the consent decree or any implementation of the decree moots the plaintiffs' case despite continued use of the contested racial quotas by the Board. If the controversy is not deemed moot, an issue remains as to the proper course of action by this court in reviewing the district court's denial of the plaintiffs' motion for a permanent injunction against use of the quotas.
The consent decree compels the Board to "develop and implement a system-wide plan to remedy the present effects of past segregation of Black and Hispanic students." Two of the "Basic Objectives" of the plan to be implemented by the Board are to "provide for the establishment of the greatest practicable number of stably desegregated schools" and to "ensure that the burdens of desegregation are not imposed arbitrarily on any racial or ethnic group." Nothing in the consent decree otherwise prohibits or mandates use of racial quotas for enrollment. After entering into the consent decree, the Board announced on October 1, 1980 that the challenged quota plan would be discontinued at the end of the 1980-81 school year. As previously noted, the sequel to this action was that the case was returned to the district court.
In April of 1981 the Board voted to reinstate the quota plans at Gage Park and Morgan Park High Schools for the 1981-82 school year. On April 29 the Board adopted a set of "Student Assignment Principles" for its integration plan pursuant to the consent decree. Under these principles, all integration efforts in the 1981-82 school year were to be voluntary, and mandatory busing of students would not be implemented until June of 1983 "to the extent that other techniques have been determined by the Board to be insufficient."
In the June 11, 1981, district court hearing on the plaintiffs' motion for a declaration of non-mootness and for entry of an injunction, the Board sought to introduce further evidence as to how the quotas were then being implemented at Morgan Park and Gage Park High Schools. The court denied the motion, reasoning that there was no need for the Board to introduce any evidence to the court in support of a position which the district court had upheld already in its prior opinion. The court heard no evidence on the current implementation of the plan beyond that already in the record. On appeal to this court, the Board stated in its brief that new feeder patterns and attendance areas adopted by the Board on August 10, 1981, were designed to remedy the prior exclusion of only black children from the two high schools. For the reasons stated herein, we need not address the issues of whether the Board's motion was properly denied or whether evidence of the Board's August 10 actions was properly part of the record on appeal before this court.
A case or controversy may become moot because there is no reasonable expectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979). Both conditions must be satisfied before a case may be deemed moot. Id. In Davis, the Supreme Court concluded that the civil rights action before it was moot because the defendants had fully complied with the district court's remedial hiring order after discontinuing discriminatory tests, and there was no reasonable expectation that the defendants would ever again use the tests. The facts of the present case, however, differ sharply from those in Davis and fail to satisfy either condition for a determination of mootness.
The first condition for mootness under Davis is that there must not be any reasonable expectation that the alleged violation will recur. County of Los Angeles v. Davis, 440 U.S. 625, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979). Even assuming that the newly adopted feeder patterns and attendance areas would and do eradicate the allegedly discriminatory effect of the quotas, as the Board contends, the controversy would not be moot if there is a reasonable expectation that the quotas may again be used to exclude only blacks. There is no question that racial quotas as such may be used by the Board despite the consent decree. As the Board concedes, it reinstituted the racial quotas shortly after entering into the consent decree and continues to use them. The only remaining determination as to the likelihood of recurrence of the challenged act is a determination of whether the consent decree precludes use of the quotas at Morgan Park and Gage Park High Schools in such a way as to exclude only blacks from those schools.
The Board's only argument against the likelihood of recurrence of the alleged violation is that the Board must comply with the consent decree, and the decree requires that the burdens of integration "not be imposed arbitrarily on any racial or ethnic group." However, the alleged violation is not the arbitrary allocation of burdens in the system as a whole, but the arbitrary allocation of the burdens of integration as to Morgan Park and Gage Park High Schools specifically. The consent decree is not addressed to those schools alone but to the city system as a whole. It requires only that the Board develop a system-wide plan to make a fair allocation of the burdens of integration. We cannot conclude that a requirement that the burdens not be imposed "arbitrarily" on any racial group for the system as a whole by its terms precludes use of quotas at Morgan Park and Gage Park to exclude only blacks from those schools.
Significantly, the Board does not take the position that such use of the quotas would violate the consent decree or even that the consent decree may preclude such use of the quotas. To do so, the Board would be placed in the anomalous position of arguing that its present enrollment plan at Morgan Park and Gage Park violates the consent decree. As the statistics on "white flight" fluctuate, the Board may again, if it is not doing so now, resort to the quotas to exclude only blacks from these schools to preserve integration despite the consent decree. Mere voluntary cessation of the challenged act cannot moot a controversy. United States v. W. T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953); Chicago and Northwestern Transportation Co. v. United Transportation Union, 656 F.2d 274 (7th Cir. 1981); Boyd v. Adams, 513 ...