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January 6, 1983


The opinion of the court was delivered by: Shadur, District Judge.


This lawsuit began where most lawsuits end — with the entry of a decree.*fn1 Unfortunately this lawsuit should rather have both begun and ended many years before it was ultimately filed, for the major changes in the schools' (and the City's) racial makeup over more than a decade before 1980 have increased enormously the difficulties of developing an effective desegregation plan.*fn2 In the words of Robert Frost's The Road Not Taken, "that has made all the difference." It is against that backdrop — against today's demography and problems — that the constitutionality of the Board's desegregation plan (the "Plan") must be assayed.

This Court's Role

It was obvious to this Court from the outset that in the Decree the Board and the United States had set an unreasonably optimistic schedule for the development of a comprehensive desegregation plan. It was equally obvious that there was a serious and widespread level of public misunderstanding of just what is involved in this case. For that reason, when in April 1981 the Board delivered (under an already-extended deadline) only a part of the proposed plan, this Court issued a brief statement.

Because that early statement continues to control this case — for it aptly describes both the roles of the parties and the yardstick by which the Plan must be measured — its core bears repetition today:

  Our Constitution teaches that no State can deny
  anyone the equal protection of the laws. Neither
  color nor race can justify unequal treatment. Our
  Supreme Court teaches us what that part of the
  Constitution means:
    "State," as that word is used in the Fourteenth
    Amendment, includes every governmental
    subdivision — whether a school board, a city or
    any other.
    "Equal protection" includes the right to an
    equal education.
    Separate education for blacks, Hispanics or
    anyone else is not an equal education.
  Busing of our schoolchildren is not the issue.
  Equal and non-separate education for all our
  children is the issue. And whatever must be done to
  provide that equal, non-separate education is the
  duty of the Board of Education as an arm of the
  state government. For any governmental authority to
  say that the Constitution will not be obeyed in
  that regard, whether for financial reasons or any
  other, is no different in principle from the
  Southern governor of a generation ago who stood at
  the steps of the state university and would not
  permit a black student to enter.
  This statement has spoken of "government." But we
  must always remember that when Lincoln said we
  have a government of the people as well as by and
  for the people, he meant that in our democracy the
  "government" is we not they. If it is irresponsible
  and wrong for government and its leaders to try to
  frustrate the Constitution, it is just as
  irresponsible and wrong for any of us — the
  citizens, the true government in a democracy — to
  do so. Federal courts are called upon only when
  others — government in the form of public
  officials, and more important government in the
  form of people — have defaulted in their duty to
  honor the Constitution.
  That proposition leads logically to the last
  point, on which perhaps the greatest
  misunderstanding appears to exist. This Court is
  neither the intended designer nor the intended
  czar of the Chicago school system and its plan of
  desegregation. Chicago is not like other cities
  where court-ordered desegregation was forced
  because school systems had refused to acknowledge
  their constitutional obligations. By joining the
  United States in signing the consent decree, the
  Board of Education did credit to its proper role
  as the responsible agency in constitutional
  Under that consent decree the obligation is
  placed squarely where it should be in a
  representative form of government: on the Board
  of Education. It is the duty of the
  Board to "develop and implement a system-wide plan
  to remedy the present effects of past segregation
  of black and Hispanic students." There is no single
  formulation that will discharge those duties and
  satisfy the demands of the Constitution. Instead
  the Board is free to adopt a plan within the "broad
  range of constitutionally acceptable plans." Only
  if the Board has strayed outside that range can
  this Court reject the Board's plan.

Brief History of the Litigation

Full development of the Plan required much more study and effort than the litigants had anticipated, though of course they had been keenly aware of the magnitude of the problems. Because any effective plan must exist and work in the real world and not just on paper, this Court encouraged implementation of the first year of planned desegregation at the same time the full planning process was reaching fruition.

Although self-serving, the Board's summary at the conclusion of its Reply Memorandum filed in April 1982 telescopes the efforts it had made beginning with the filing of this suit and the contemporaneous entry of the Decree:

In the past 18 months the Board has:

  Entered voluntarily into a desegregation consent
  decree, an unprecedented act for a large-city
  school system;
  Retained a leading national desegregation expert,
  Dr. Robert Green, long associated with the NAACP,
  to design a comprehensive set of Educational
  Components, and adopted every one of his
  Successfully implemented the first year of a
  desegregation plan, without major community
  disruption, which increased the index of
  desegregation in the system by 50%;
  Completed a long and careful planning process in
  which a full range of desegregation strategies
  was exhaustively evaluated for all 600 schools in
  the system; Adopted a student assignment plan
  that in every major aspect is plainly within the
  range of plans approved by the courts in
  comparable cities, a plan which promises to
  achieve levels of desegregation that compare
  favorably to plans in other urban, predominantly
  minority school districts;
  Elicited the concurrence of the United States
  Department of Justice, based on its careful study
  of the Plan, that the Plan is in compliance with
  the Constitution and the Consent Decree and that
  the Plan will maximize desegregation in Chicago
  compared to other possible strategies;
  Created a special department within the school
  system to coordinate implementation of the Plan,
  and appointed a nationally recognized
  desegregation expert to head that department.

After the Board's initial adoption of Student Assignment Principles (the "Principles") at the end of April 1981, the United States as well as private parties had voiced criticisms and concerns about its various aspects. It was not until late January 1982 that the detailed Student Assignment Plan was produced, substantially reshaped from the Board's initial statement of the Principles. Then further comment by the United States and the public,*fn3 all as invited by this Court, followed in turn by the Board's Reply Memorandum, carried us to April 1982.

This Court's preliminary analysis of the ultimate Plan, and the various submissions by all interested parties, confirmed once again that some further testing in the crucible of reality — carrying the Plan and its implementation past the commencement of the current school year — would be an important plus for the constitutional evaluation that is the Court's responsibility. Were the paper promise of the Plan to be broken in its performance, it would not pass constitutional muster despite its nominal adherence to the standards of the law.

It should be emphasized that this course of deferral to the present time would not have been followed had the Plan not satisfied the Constitution in threshold terms. Had the Plan been obviously unconstitutional in any respect, this Court would have acted swiftly to reject it. But no such obvious flaw was involved. And because any interim statement by this Court to explain the reasons for deferral would have carried the serious possibility of being misunderstood as final approval at that time, the Court has perforce bided its time in silence.

Now the second school year of implementation has begun. Nothing in the execution of the Plan has been shown to disprove the premises on which it was designed. In the Court's view the optimum time for ruling has been reached.

Student Assignment Plan

There is far more to the Plan than its student assignment provisions. Its Educational Components, crafted under the supervision of the distinguished Dr. Green, have been in place much longer than the final version of the student assignment proposal.*fn4 This Court's function is to judge constitutionality, not educational quality as such (more precisely, its role in dealing with the quality of education is limited to assuring that the constitutional mandate of equal protection has been met). For that reason, and not because the Educational Components are less important (they are surely not), this opinion will focus almost entirely on the Student Assignment Plan.

No one can understand, let alone constitutionally appraise, the Plan without a realization of the demographic facts with which the Board must deal. Just two decades ago more than half the school population of the City of Chicago was white and less than half was black (because of differences in categorization since then, the "white" classification of that era included a small percentage — well under 5% — now counted separately in the Hispanic group). There has been a steady decline in white enrollment since then, both in percentages and in absolute numbers. As recently as 1970, when the present system of categorization was adopted by the Board, the total school profile looked like this (for simplicity the numbers will be rounded):

Black                55%            315,000 students
White                35%            200,000
Hispanic             10%             55,000
Total                               575,000*fn5

*fn5 Other categories, the largest of which was children classified as Asian, came to less than 1%, with the other rounding-off figures causing the apparent disparity in the total.

In just over ten years the total school population has shrunk by almost exactly 25%, to some 435,000 at the beginning of the current school year. More significant for desegregation planning, the racial makeup of the three principal student categories has shifted dramatically from the 1970 numbers:*fn6

              1970-71             1981-82             1982-83
              -------             -------             -------
Black         54.8%              60.7%                60.7%
White         34.6%              17.2%                16.3%
Hispanic       9.7%              19.6%.               20.4%

This school year's white student body of some 70,000 is about one-third of its size when the decade of the 1970s began. This obviously reflects a falloff in the number of school age children generally (and it may also stem in part from enrollments in parochial and other private schools), but it mainly reflects a shift in residential demography.

One important fact recently noted in the press (the 1982-83 figures were just released) is that the decline in white attendance this year is perceptibly less than the Board's 1982-83 projections in the Plan would have indicated, although the numbers of blacks and Hispanics in the schools are uncannily close to the corresponding Plan projections. It is too early to tell whether this has long-range significance, but it certainly appears to bear out the Board's thoughtful analysis that its multifaceted approach to the complex problems of desegregation is intended to avoid the self-defeating perils of resegregation.

1. Aspects of the Student Assignment Plan

It is neither possible nor necessary in the brief compass permitted by this opinion to do justice to the Comprehensive Student Assignment Plan authored by the Board. Its "Comprehensive" label is accurate: Its text is a 328-page volume, its careful school-by-school analysis is another, more massive volume (one or two pages being devoted to each of the more than 500 schools in the system) and its appendices (a third volume) have added another inch to the Court's file in this case. But bulk is not the point; quality is. On that score it is regrettable that the sheer bulk does make the Plan inaccessible in practical terms, for reading it would go a long way toward ...

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