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United States District Court, Northern District of Illinois, E.D

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 promoting (if not indeed insuring) its public acceptability. Instead this opinion can only touch on the major aspects of the Plan important for constitutional evaluation.

First the Plan has identified categories of naturally "integrated schools":

    1. "stably integrated schools," which because
  they are now and are projected to remain
  naturally integrated, are exempted from mandatory
  student reassignment (except perhaps for future
  boundary changes) and are subjected to some
  limitations on voluntary transfers that would
  threaten the stability of their integration;

    2. schools now "stably integrated" but with
  projected racial changes that would threaten that
  status — here various techniques (including the
  encouragement of integration-enhancing transfers,
  establishment of boundary adjustments and
  institution of curriculum changes) are adopted to
  preserve their present stability; and

    3. "stable mixed schools" (having 15-30%
  present and projected white enrollment), as to
  which various techniques (such as educational
  teaming with other schools, maintenance of
  specially significant educational programs and
  open enrollment transfers that enhance
  integration) are intended to maintain or increase
  current levels of integration.

All such schools, it should be repeated, draw their diversity of enrollment from natural residential attendance patterns.

Next the Plan has defined the concept and goals of "desegregation" of the remaining schools in the system. Because the residential areas of those schools do not in themselves result in the requisite diversity of enrollment, student assignment techniques must play the major part in desegregating those schools. Such desegregation must derive from attendance of students outside each school's own attendance area. And it should be equally obvious that the goal here — as with the integrated schools — must be not merely desegregation but stable desegregation. Apparent desegregation that would likely trigger resegregation would represent a false promise.

On that score the directive of Decree § 2.1 matches what the Constitution requires:

  Desegregated Schools. The plan will provide for the
  establishment of the greatest practicable number of
  stably desegregated schools, considering all the
  circumstances in Chicago.

Toward that end the Board has made a basic policy judgment (Plan at 124):

  The Board has determined, based both on its
  experience and careful analysis, that
  desegregative techniques which are not compulsory
  on children are the most effective and most
  practicable in achieving stable desegregation.
  Voluntary methods emphasize education. They
  provide to all children and their families the
  opportunity to attend a school because they
  believe that educational opportunities will
  result. These affirmative choices not only
  enhance desegregation, but do so in a positive
  manner which is supportive of the educational
  objectives of the school system. Therefore, they
  are the techniques which are the most likely to
  produce both stable desegregation and educational

It has adopted a wide variety of voluntary methods, plus mandatory methods not involving transportation — all designed with an eye to implementation and monitoring to insure "substantial participation" of black students.

Always with that end in view, the Plan is structured this way:

    1. It requires desegregation of all
  predominantly white schools not later than the
  beginning of the next (1983-84) school year. As
  to those schools, it does not stop once the
  minimum percentage of minority students to meet
  the "desegregation" definition is reached, but
  contemplates continuing to work toward greater
  minority enrollment.

    2. It establishes special quality educational
  institutions — magnet schools, metropolitan
  schools and scholastic academies — to maximize the
  prospect of voluntary transfers that foster

    3. It sets an objective mandatory standard for
  measuring desegregation: By the beginning of the
  1983-84 school year, the schools that are viewed
  as best serving the goal of desegregation —
  integrated schools, desegregated schools, magnet
  schools, metropolitan schools and scholastic
  academies — must have a minimum total (white and
  non-white) enrollment at least two times the number
  of white children "available" for such schools.
  "Availability" is defined as the entire white
  population in the whole school system, except for
  white children enrolled in the schools other than
  those just listed (on the obvious theory that white
  children enrolled in a predominantly minority
  school are already assisting the overall
  desegregative goal). Stated differently, at least
  half the students in the five listed categories of
  schools must be drawn from minority groups.

    4. It recognizes that predominantly minority
  schools (unlike predominantly white schools)
  cannot all attain the definition of desegregated
  schools. There the Plan seeks by various means to
  minimize the number of schools in that category
  and to maximize the improvement of quality
  education for the students in those schools.

In an effort to assure that the Plan is being translated into effective action, the Board has established an arrangement for an Annual Desegregation Review of all the Plan's aspects. That process has already begun, with the next Review due this March.

Even this short a description makes plain the policy decision of the Board: to maximize desegregation, as the Decree has required from the beginning. As the Plan itself says at page 52:

  The Board believes that the Plan it is proposing
  will maximize the creation of stably desegregated
  schools in Chicago. In accomplishing this
  objective, the Plan focuses on programs that will
  combine the attainment of system-wide student
  desegregation with educational enhancement. Thus,
  the Board believes, the Plan has the potential to
  stabilize and desegregate the school system,
  provide improved educational opportunities and
  serve as a focus for achieving the broader goal
  of developing an integrated community.

Those targets or the means of reaching them, or both, differ in some respects from those urged by the Plan's critics who have made submissions to this Court, chiefly the NAACP, the Urban League and the Citizens Schools Committee. This Court's review of the submissions identifies three important legal questions of constitutional magnitude:

    1. Do the Plan's percentage definitions of
  "integration" and "desegregation" satisfy the

    2. Does the Plan's collective treatment of all
  minorities (blacks, Hispanics and others), rather
  than measuring performance separately as to the
  two principal minority groups (blacks and
  Hispanics), comply with the Constitution?

    3. Does the Plan impose unconstitutionally
  disparate burdens on the minority student
  population (because the critics on this issue are
  the NAACP and Urban League, they understandably
  focus on the black students) in comparison with
  the white student population?

These issues will be dealt with in turn.

2. Racial Percentages as a Measure of Desegregation

Under the Plan's definitions a school is "integrated" or "desegregated" if it has at least 30% minority and at least 30% white students enrolled. As could be expected, the heaviest attack has been launched at the possibility that the Chicago school system, with fewer than 20% of its students white, could nonetheless view a school as "integrated" if it drew as many as 70% of its students from that small white pool. That evokes an intuitive concern,*fn7 closely related to the concern that the black majority in the school system should not bear a disproportionate share of the burdens of the desegregation plan.

Unfortunately the submissions to this Court by critics of the Plan have chosen to focus on such intuitive concerns, not on the test that binds this Court: whether the Plan's definitions are within the broad range of constitutionality established by law. On that score the Board has demonstrated it is indeed within that range:

    1. Our own Court of Appeals dealt with the
  Milwaukee school desegregation plan in
  Armstrong v. Board of School Directors,
  616 F.2d 305, 311 n. 8 (7th Cir. 1980). At that time
  Milwaukee's minority enrollment was about 46%, and
  the court-approved definition of a desegregated
  school permitted a white enrollment of 40% to 75%
  (or as high as 80% in a high school).

    2. St. Louis' school system had a 75% minority
  enrollment (close to the Chicago level). Its
  desegregation plan, approved by the Court of
  Appeals for the Eighth Circuit, defined a school
  with as much as 70% white enrollment (or as low
  as 50%) as integrated. Adams v. United States,
  620 F.2d 1277, 1296 & n. 30 (8th Cir.), cert. denied,
  449 U.S. 826, 101 S.Ct. 88, 66 L.Ed.2d 29 (1980),
  on remand sub nom. Liddell v. Board of Education of
  City of St. Louis, Mo., 491 F. Supp. 351 (E.D.Mo.
  1980), aff'd, 667 F.2d 643 (8th Cir. 1981),
  cert. denied, 454 U.S. 1081, 1091, 102 S.Ct. 634,
  656, 70 L.Ed.2d 614, 629 (1981).

    3. Atlanta's schools included 85% minority
  children, something greater than the Chicago
  pattern. There too the Court of Appeals (this
  time for the Fifth Circuit) upheld the definition
  of a school with 70% white enrollment (or even
  80% if already stabilized) as desegregated.
  Calhoun v. Cook, 362 F. Supp. 1249, 1251 n. 7
  (N.D.Ga. 1973), aff'd following remand,
  522 F.2d 717, 718 (5th Cir. 1975).

    4. Dallas' school system had the same kind of
  triethnic makeup as Chicago's, with an aggregate
  minority enrollment of 70%. There the District
  Court approved a range of 25% to 75% white
  students as satisfying the definition of a
  desegregated school. Tasby v. Wright, 520 F. Supp. 683,
  711 (N.D.Tex. 1981).

    5. Some years ago the District of Columbia's
  school system was more than 90% minority. Even so
  no school was considered "predominantly white"
  unless more than 85% of its students were white.
  Hobson v. Hansen, 269 F. Supp. 401, 411 n. 9 (D.D.C.
  1967), aff'd sub nom. Smuck v. Hobson, 408 F.2d 175
  (D.C.Cir. 1969).

This opinion might well end the discussion of the issue right here. Constitutionality of the Plan on this point is unquestionable. And as our own Court of Appeals put it a few months ago in an opinion dealing with the South Bend, Indiana desegregation plan, United States v. South Bend Community School Corp., 692 F.2d 623, 628 (7th Cir. 1982):

  A consent decree of this nature need not contain
  a perfect plan but only one that is "not
  unconstitutional, unlawful, * * * contrary to
  public policy, or unreasonable." United States v.
  City of Miami, 614 F.2d 1322, 1333 (5th Cir. 1980)
  [reaff'd en banc, 664 F.2d 435, 441 (5th Cir.

But given the enormous public importance of the issue, it would not do to damn the Plan with such faint praise. For the facts are that this aspect of the Plan is not only adequate to pass constitutional muster but — vital to public acceptance and support — reasoned and reasonable.

It should be stressed that the 30% figure, constitutional though it is, is not perceived by the Board as the stopping point once it has been attained at a particular school. In response to this Court's expressed concern about the 30% standard when the Board first announced its desegregation "principles," the final Plan expressed a "goal" of reaching at least a 35% minority figure in all schools in the system by October 1983, roughly the beginning of the next school year. At that time only two of the more than 500 schools in the system were projected to fall in the 30-35% range (in fact only one-sixth of the schools were projected to be less than 50% minority). It is the Board's stated intention to continue to push for integration in majority-white-attendance schools so long as counterproductive instability — with the ultimate potential for resegregation — is not threatened.

Nor is that just a paper commitment; it is real. Within the past two weeks a supplemental report from the Board discloses that of last year's 32 schools having less than 30% minority enrollment, only seven now remain in that category. Moreover the year's increase in minority enrollment in those 32 schools was slightly greater than that projected in the Plan, with that increase coming primarily among black children, also at a greater rate than projected in the Plan. Similarly, of the 42 schools that would be predominantly white but for desegregation efforts (and that were already more than 30% minority-enrolled a year ago), the total minority enrollment increased from about 35% at that time to some 41% this year. About three-fourths of the percentage increase represented more black students in those schools.

Implicit in all this is a value judgment by the Board that it would be contrary to the public interest to devise a plan that would have a racial balance more nearly reflecting the total school population on a school-by-school basis, only to find that through "white flight" or otherwise the already comparatively small white enrollment would be further diminished so as to make any real desegregation unattainable.*fn8 As Board Mem. 34 in support of the Plan aptly put it:

  Obviously, the racial composition of Chicago
  schools does not and will not derive solely from
  decisions made by the school board (or the
  Court), however important those decisions are.
  They are dependent to a large degree on the
  hundreds of thousands of private decisions of
  children and their families on where to live and
  to attend school.

It would be tragic if a well-intentioned desegregation plan, modeled along the lines suggested by the Plan's critics, were to cause accelerated resegregation — so that the common desegregative goals of the Board and its critics were defeated.*fn9

Admittedly the choice is a delicate one. Concerns as to "white flight" are legitimate,*fn10 but they cannot be permitted to dictate planning so as to impair constitutional rights. Reasonable people may certainly differ as to the resolution of the value judgments involved here — judgments that do not all point in the same direction. This Court cannot say however that the course chosen by the Board to balance the competing considerations is constitutionally flawed.

3. "Minority": A Composite or Individual Concept?

More troublesome than the percentage levels for defining segregation is the Plan's concept that all minorities are to be grouped together in measuring the satisfaction of those percentage levels. In the practical sense that could mean a school with (say) 65% white and 35% Hispanic students is counted as "desegregated," even though it contains no members of the black population that itself makes up 60% of the entire school system.

As might be expected, this issue was one this Court also singled out as requiring particularized attention when the nature of the student assignment principles was first identified by the Board and its counsel. And again only the Board — and not other commentators — has been responsive in the terms that control this Court: the case law applying constitutional standards.

It is worth a moment to state the obvious. Usually desegregation is dealt with in black-white terms, and by definition what desegregates blacks also desegregates whites. When the problem is multi-ethnic, that one-to-one correlation no longer exists, and the problem of desegregation may look different depending on the perspective chosen by the observer.

From the Board's standpoint it makes policy and constitutional sense to group blacks and Hispanics in testing the Plan's success in desegregation (Plan at 137):

  The Board determines that the composite minority
  concept is appropriate in the Plan because in
  Chicago, each of these groups constitutes, in
  general, a historically disadvantages [sic]

Its counsel has elaborated on that notion (Mem. 47):

  The approach of the Board is to seek the
  desegregation of white children from all groups
  of minority youngsters. Usually this reduces the
  isolation of white children from black children.
  Sometimes it involves desegregation of white and
  Hispanic children. Other times it involves
  tri- or multi-ethnic schools. Each of these
  schools, in the Board's judgment, is a
  desegregated school. The isolation which is to be
  reduced is that of white children from minority
  children, regardless of their group. A definition
  which is directed at reducing the isolation of
  white and minority children meets the
  requirements of the Consent Decree (§ 2.3).

    ". . . the plan will provide for the
    desegregation of all racial and ethnic groups."

True enough, there is a good deal to be said in policy terms on the other side of the issue, and some of those policy arguments have been made by those submitting comments on the Plan. But as has already been made plain, the Board and not this Court is the policymaker. And courts that have dealt with desegregation issues in multi-ethnic school districts have consistently approved plans with an inclusive definition of minorities like that adopted by the Plan.
*fn11 No constitutional requirement has been articulated that blacks must be a substantial part of the enrollment in all schools in a tri-ethnic system.

Of course a composite definition like that established by the Plan could be used to mask a segregative intent and result. Certainly the Board would not be permitted to avoid desegregation of blacks by increasing the desegregation of Hispanics, seeking to rely on the aggregate "minority" figures to disguise the situation and insulate that result.

Nothing of the sort is at work here. Instead the Board's R.Mem. 30 accurately portrays the situation:

  In any event, the Board's Plan does not
  arbitrarily use the definition to avoid
  desegregating black children. The Plan does not
  reflect attempts to abuse the definition by
  arbitrarily assigning children

  to avoid black involvement; to the contrary, it
  reflects steps deliberately taken to increase the
  involvement of black children. The Plan projects
  very substantial aggregate black enrollment in
  schools to be desegregated. It projects,
  moreover, substantial black enrollment at nearly
  every such school. Indeed, because there is more
  natural integration of white and Hispanic
  children, most of the Plan's desegregation
  actually focuses on the desegregation of black
  children and white children.*fn12

On the other side of the coin, the Board has rejected suggestions by the NAACP and Urban League for a mandatory minimum percentage of black enrollment for all schools. It has done so in part because it deems such a requirement potentially resegregative (especially in schools with a declining white enrollment percentage and a majority or imminent majority of Hispanic students), and in part because it finds such a requirement generally counterproductive to desegregation. In all such circumstances the Board views the mandated infusion of black students as a real danger to its goal of stabilized integration (see its R.Mem. 38-41). Once again the question is not whether this Court (or the commentators) would have resolved the matter the same way, but whether the Board's resolution is constitutionally impermissible. It is not.

This opinion will not dwell on the issues any further, for the constitutionality of this aspect of the Plan is also clear. For constitutional purposes it does not matter that if this Court were drafting a plan in the first instance (as it is not), it would have dealt with the tri-ethnic composition of the school population — and its black majority — in a quite different way. To the extent the Board has chosen along the spectrum of constitutionally permissible alternatives, this Court cannot properly — and will not — interfere with that good faith choice.

4. "Burdens" of the Plan

Court involvement in school desegregation cases derives from the Equal Protection Clause. One obvious facet of equal protection of the laws is the extent to which a desegregation plan, required to address the right to equality of education, may itself impose disproportionate burdens on the already disadvantaged students participating in the plan.

Although not adducing factual support for the assertion, some of the critical submissions assert the Plan places disparate burdens on black children. On analysis those charges do not stand up in constitutional terms.

"Burdens" may from one viewpoint be measured in terms of the numbers of students attending schools outside their home attendance areas.*fn13 Precise balancing of "burdens" in that sense was admittedly not the Board's main focus (R.Mem. at 42):

  When the Plan was developed, the Board
  concentrated on how stably to desegregate the
  greatest number of schools. It sought to include
  both white and minority schools. But the Board
  did not do this by any mathematical formula for
  deciding how many of each kind of children must
  attend a non-neighborhood school as part of the
  program. Frankly, knowing that children of all
  races would attend non-neighborhood schools in
  significant numbers, the Board considered the
  exact proportions to be irrelevant to the task of
  trying to desegregate the greatest number of

Yet as matters turned out, the percentages of students attending schools outside their home attendance areas for desegregative purposes ("non-residential children")*fn14 last year was startlingly parallel to the ratios of racial enrollment in the system as a whole:

                      White    Black   Hispanic  Other     Total
                      -----    -----   --------  -----     -----
Total in System
(1981 Grades 1-12)    70,961  245,423   77,103   10,181  403,660
Children in
Programs               4,710   14,776    3,620      933   24,037
% of Total             6.6%     6.0%     4.7%     9.2%      6.0%
% of Non-Residential
Children              19.6%    61.5%    15.1%     3.9%      100%

It would be difficult to have devised a more proportionate allocation of burdens had the Board's primary goal actually been proportionality, rather than the stable desegregation of the largest number of schools.

It will not do to argue, as does the NAACP, that the proportionality of burdens is instead to be measured by the comparative numbers of children of the various racial groups who are desegregated. In a largely minority school system like Chicago's, desegregation is achieved by desegregating all the primarily white schools (hence all the white children), but it is not feasible to desegregate all the primarily minority schools (hence all the minority children).

Essentially the NAACP's contention is one for racial balance in all schools, which the Constitution does not mandate at all (and which could not be accomplished in real world terms). Our Court of Appeals so held in Armstrong, 616 F.2d at 321, following Milliken v. Bradley, 418 U.S. 717, 740-41, 94 S.Ct. 3112, 3125, 41 L.Ed.2d 1069 (1974). Indeed Armstrong (616 F.2d at 321-22) specifically rejected the proposition (urged by the intervenors there and by the NAACP and Urban League here) that the continued existence of one-race (all-black) schools posed the kind of clear unconstitutionality requiring disapproval of a desegregation plan, submitted in Armstrong under circumstances equivalent to those now before this Court.*fn15 Instead the prospect of one-race schools must be dealt with on a case-by-ease basis, as the Plan has done and as this Court cannot find clearly unconstitutional. Thus any non-attainment of racial balance, or the presence of one-race schools, does not represent the imposition of an invalid disproportionate burden.*fn16

Once more constitutional doctrine supports the Board. Even where there is a disproportionate allocation of burdens (and it should be repeated none has been shown here), the Constitution is not offended unless the disproportion is arbitrary or invidious — unless it stems from purposes other than legitimate plan-development and plan-implementation. Keyes v. School District No. 1, Denver, Colorado, 521 F.2d 465, 479 (10th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976); Higgins v. Board of Education of City of Grand Rapids, 508 F.2d 779, 793 (6th Cir. 1974); cf. Parent Ass'n, 598 F.2d at 717-18, followed in Arthur v. Nyquist, 636 F.2d 905, 907 (2d Cir. 1981).

5. Mandatory v. Voluntary Transfers: "'Busing"

It may seem bizarre to have gone this far down the road of constitutional evaluation of the Plan without talking about busing. Not so. Busing (the buzzword for mandatory student assignment requiring transportation) is a concept loaded with emotional content on both sides of the issue, but its significance in the Plan is far more symbolic than real.

What the Board has done is to opt for a Plan of voluntary transfers and mandatory measures other than transportation, to accomplish its goal of producing the greatest number of stably desegregated schools under all circumstances. In its view (Plan at 271):

  The Plan's basic objective is to produce the
  greatest practicable number of stably
  desegregated schools considering all the
  circumstances of Chicago. The Board believes that
  this objective can and should be achieved without
  the use of compulsory assignment of students by
  transportation (mandatory busing). Thus, the Plan
  primarily employs voluntary desegregation
  techniques and mandatory measures not involving
  transportation. The use of desegregative
  techniques other than compulsory transportation
  will produce the maximum feasible degree of
  stable desegregation at less financial cost and
  with greater system-wide and city-wide stability
  and potential for long term achievement.

That means the potential use of mandatory busing for student reassignment is reserved for the possible failure of the Plan, despite all other measures, to achieve two objective requirements of the Plan by this October 31:

    1. at least 30% minority enrollment in any
  school; and

    2. total non-white and white enrollment in
  desegregative-environment schools (all
  integrated, desegregated and magnet schools, all
  metropolitan schools and all scholastic
  academies) at least twice as great as the total
  number of white children available for such

In those terms the Board plans to make its compliance assessment and its determination of the need for any mandatory busing as part of its March 1983 Annual Desegregation Review, with its decision to be made by this June. Finally the Plan sets a number of limitations on any use of mandatory busing (Plan at 275):*fn17

    (a) no children [sic] shall be assigned to a
  school which is a distance of more than 30
  minutes by bus away from his or her home;

    (b) no child shall be assigned to a school
  which is not, or is not projected to become, a
  stably desegregated school;

    (c) mandatory transportation will not be
  assigned in a way that would arbitrarily burden
  one racial or ethnic group disproportionately to
  other groups;

    (d) mandatory backup measures shall be applied
  only to the extent it [sic] can be projected to
  increase the total number of children attending
  stably desegregated schools.

In reaching its conclusions on this issue, the Board stated its motivations partly in terms of the lack of perceived necessity for busing and the Board's general preference for neighborhood school concepts. But it also pointed to the results of the NORC survey, which indicated such a mandatory busing program would accelerate the decline in white enrollment in the system. And it pointed to the adverse experience of other cities in that respect (Plan at 276):

  Furthermore, mandatory reassignment will
  substantially reduce the number of white children
  enrolled in and available to desegregate the
  school system and will

  thereby reduce the total number of children
  attending desegregated schools. The Board's
  research indicated that the institution of a
  mandatory reassignment program will result in an
  acceleration in the decline in the enrollment of
  white children in the school system. Based on the
  experience in comparable cities, such as Los
  Angeles, Boston and Detroit, between 40% and 45%
  of white students reassigned by transportation to
  minority schools can be expected to leave the
  school system, attending either private or
  suburban schools. A school system, desegregated
  by means of mandatory reassignment, but which is
  subsequently resegregated in enrollment of
  minority children is not the type of system the
  Board wishes to create.

This is a very different matter from the constitutionally impermissible notion of catering to bias. For much the same reason that we cannot permit the "heckler's veto" (the late Professor Harry Kalven's term for the audience unfriendly to a controversial speaker) to inhibit the speaker's exercise of First Amendment rights, the attempts of persons hostile to a desegregated school system cannot impair the constitutional right of minorities to equal educational opportunities.*fn18 Once within the range of constitutionally permissible desegregation plans, however, the Board was free to choose one calculated to minimize parent resistance and thereby serve its larger goal.*fn19

At least equally significant, it is not simply rhetoric to assign the busing issue to largely symbolic status in this case. To test whether this question — on which passions unfortunately tend to run so high — must be faced at all, the Board had an analysis made of the theoretical possibility of desegregating any remaining minority schools by the mandatory busing of "available" white children (white children over a given percentage of the enrollment at any school). We need not trace each step of the analysis or the assumptions underlying it, but the Board's conclusion was that not one presently racially identifiable (i.e., at least 85% minority) school would be desegregated by any busing program having reasonable time and distance limitations (Plan at 287-90).

In response to criticism of its methodology in preparing that analysis, the Board made alternative calculations with assumptions increasing the numbers of "available" white children in various ways.*fn20 Its conclusion was the same: Desegregation would not be increased in any meaningful respect by simply ordering and using school buses.

Just as school busing is an inflammatory term to the intransigent white parent who does not want his or her child exposed to "those people,"*fn21 so the inclusion of mandatory busing in a plan has importance to minority parents as evidence that the plan is really committed to equal and non-segregated education for their children. But it would be ironic to require token transfers of white students to predominantly-black or all-black schools to serve that purpose, when the use of tokenism in other contexts is properly offensive to every minority group. Symbolic efforts can, and often do, play important roles in our society, but they do not universally rise to constitutional significance. Under the circumstances here the Board cannot be faulted in constitutional terms for not having ventured needlessly onto that battlefield.

6. Other Aspects of the Assignment Plan

Were this Court to rehearse in detail all the subjects dealt with in the thousands of pages generated by this case up to now, there would be serious danger of losing the forest for the trees. Were this Court instead to make detailed reference to only some of the other areas that have triggered criticism or discussion,*fn22 while not treating with others, that would create the misleading inference those others had not been considered. Suffice it to say this Court has reviewed everything that has been provided as grist for its mill and finds that all aspects of the Student Assignment Plan are within the range of constitutional acceptability.

Educational Components

As already indicated, the Educational Components of the Plan were in definitive form well before the assignment provisions that have occupied the discussion in this opinion, and those Educational Components have not drawn the same heated attention. They were approved early by the United States and found favor with the NAACP as well. To the extent they have been criticized (chiefly by the Hispanic organizations and by Designs for Change), the criticisms did not go to claimed constitutional insufficiency and are therefore not within the province of this Court's overview. Though they of course continue to form a vital part of the purposes and hoped-for impact of the Plan — the constitutional guaranty is after all one of equality of education — no more need be said at this time.


Desegregation, like all other aspects of affording quality education to all students in a school system, costs money. In that respect the Board is not master of its own fate. If and to the extent other governmental bodies and agencies that control the pursestrings were to thwart the Board's ability to perform in the way its Plan contemplates and the Constitution requires, this Court would have to examine all appropriate and available remedies. There is no reason to presume at this time that any such delinquency in meeting the mandates of the Constitution, or any such resulting power confrontation, will occur.


No provision in the Decree specifically contemplated this Court's appointment of a monitoring commission to oversee the Board's implementation of the Plan. Several of the commentator organizations (Citizen Schools Committee Mem. 15, Urban League Mem. 42, Designs for Change Mem. 17) nevertheless urge this Court to do so. In response the Board hints strongly this Court has no power to make such an appointment, at least at this stage of the proceedings.

Today the question of power need not be faced. Under the Decree the Board has ongoing recordkeeping and reporting requirements, to which it has been faithful. It has established an Office of Equal Education Opportunity with major staffing and with an operating head having outstanding credentials. None of the interested organizations has been critical of the Board's comprehensive reports in compliance with its obligations under the Decree. No reason now appears for the addition of another layer of superstructure. Again if the Board's future performance were to fail to conform to its duties, a fresh look could be taken.

Other Matters

This fall the United States filed with this Court its second interim report on two ongoing investigations called for by the Decree, one dealing with possible state liability for past segregation in the Chicago schools, the other dealing with the possible existence and sources of interdistrict school segregation. Neither report reflects any significant advance or promise of productive results. With the Plan now having been approved, this Court expects the United States to step up its efforts on the ongoing investigations, as well as actively to monitor the Board's performance under the Plan.

During the prior pendency of this action this Court has stayed the separate (and later) action filed by the NAACP, Chicago Southside Branch of the NAACP v. Byrne, No. 81 C 2110. At this point the stay is lifted, though the NAACP would do well to consider what the most constructive steps for its own involvement will be in light of this opinion.


Shortly after the outset of this litigation, in the course of first denying the NAACP and Hispanic organizations leave to intervene as formal parties, this Court took occasion to say (88 F.R.D. 679 at 687-88, emphasis in original):

  This Court does not view itself as a passive
  receptacle for the Board's desegregation plan, to
  respond in a Pavlovian way only if the bell is rung
  by a stated disagreement between the Board and the
  United States. It has not abdicated its
  constitutional responsibilities, and if the
  litigants were to agree on a plan that did not
  conform to the Constitution this Court would reject
  that plan and send the parties back to the drawing
  board. This Court has specifically retained
  jurisdiction of this action for all purposes under
  Paragraph 7 of the Consent Decree, by specific
  agreement of the parties. In this Court's opinion,
  the provision of Section 18 for resolving any
  disagreements between the parties cannot and does
  not exclude (expressly or by inference) this
  Court's right and duty to determine whether the
  plan meets the requirements of the United States

  If the Board meant only to contrast the situation
  here with the usual school desegregation case, in
  which the responsibility for actually preparing
  the desegregation plan has devolved on the
  courts, there is no disagreement between us.
  Under the Consent Decree the primary
  responsibility for developing the plan is on the
  Board, and so long as its product is within the
  "broad range of constitutionally acceptable plans"
  (Consent Decree ¶ 3.1), the Court will of course
  not superimpose its own views of what other
  constitutional means might be preferable. As our
  Court of Appeals put it in reviewing the ultimate
  settlement in the Milwaukee school desegregation
  (Armstrong) case, 616 F.2d at 315, in a related
  though somewhat different context:

    Judges should not substitute their own judgment
    as to optimal settlement terms for the judgment
    of the litigants and their counsel.

  This Court does not plan to do that, but it also
  plans to live up to its obligations under the
  Constitution, just as the Board and the United
  States must live up to theirs.

That remains a valid statement of the Court's position and its role in this litigation. Now the Plan has been presented, reshaped and refined, and the United States' initially stated objections have been met to its satisfaction. At this point the situation — in terms of this Court's function — is not materially different from that described by our Court of Appeals in dealing with the settlement of the Milwaukee school desegregation case in Armstrong, 616 F.2d at 319-20:

  A federal court cannot permit an agreement
  between counsel for the defendants and counsel
  for the plaintiff class seriously to undercut the
  constitutional policy requiring desegregation of
  our nation's schools; this is true even where the
  class members themselves do not oppose a
  particular settlement. At the same time, however,
  the court cannot disregard the desire of the
  litigants amicably to settle their litigation nor
  can it ignore the substantial benefits which can
  accrue to both the class members and the general
  public from a fair and adequate settlement of a
  school desegregation controversy.

  A school desegregation settlement which
  authorizes clearly unconstitutional behavior is,
  on its face, neither fair, reasonable nor
  adequate as required by the class action
  standard. In applying this principle, however,
  the court must not decide unsettled legal
  questions; any illegality or unconstitutionality
  must appear as a legal certainty on the face of
  the agreement before a settlement can be rejected
  on this basis.

For all the reasons — and under the standards — explored in this opinion, this Court approves the Plan as being clearly within the "broad range of constitutionally acceptable plans" (Decree Art. I, § 3.1). Once again, though, this Court will not abdicate its constitutional responsibilities by today's approval. To a major extent the Plan reflects a promise of things to come. That promise is within the range of constitutional acceptability if it is kept. As both the Decree and the parties expect, this Court retains jurisdiction to make certain that takes place.

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