made by Board to implement programs specifically resulting from
adoption of the Plan, such as magnet schools, voluntary transfer
programs and compensatory educational remedies at racially
isolated schools. In addition to specific desegregation
expenditures, Board has made other expenditures that would have
occurred absent the Plan, but that are significantly impacted and
directed by the implementation of the Plan. Those include, for
example, expenditures devoted to reassessment and placement of
special education students pursuant to the Educational Components
of the Plan. [Stip.]
55. For school year 1981-82 Board expended approximately $38.8
million for specific desegregation expenditures. In addition
Board incurred expenditures for reassessment and placement of
special education students totalling approximately $4 million
pursuant to the provisions of the Plan. [Stip.]
56. For school year 1982-83 Board will expend approximately
$56.9 million in specific desegregation expenditures. In addition
to those specific desegregation expenditures, Board devoted
approximately $4.2 million to the reassessment and placement of
special education students pursuant to the provisions of the
57. For school year 1983-84 Board has budgeted approximately
$66.9 million for specific desegregation expenditures. It
projects an operating budget deficit of approximately $200
million for that year, including the budgeted level of specific
desegregation expenditures. With the exception of an increase of
$10 million for specific desegregation expenditures, the $200
million budget deficit is based on an assumption that services
and programs will be maintained at their 1982-83 level. It does
not assume any expansion of programs or services or general
increases in compensation for Board employees. [Stip.]
58. Any amounts over and above the $66.9 million budgeted for
school year 1983-84 that are devoted by the Board to Plan
implementation and are not provided from funding sources external
to the Board will increase the Board's presently projected $200
million deficit. [Stip.]
59. Board needs approximately $163 million over 5 years to
rehabilitate the facilities of schools that are racially isolated
minority schools. Board's projected expenditures for school year
1983-84 do not include an expenditure for the rehabilitation of
any facilities. [Bacchus Testimony]
60. Board does not now have financial resources adequate fully
to implement the Plan in school year 1983-84 and does not expect
to obtain such funds from the external and internal sources of
revenue projected to be available to it in that fiscal year.
Conclusions of Law ("Conclusions")
Based on the foregoing Findings, this Court has made and hereby
states the following Conclusions in accordance with Rule 52(a):
1. On September 24, 1980 this Court properly approved and
entered a Consent Decree between the United States and Board.
That Consent Decree was properly executed by the Attorney
General, who has plenary power to conduct and supervise all
government litigation. ICC v. Southern Railway Co., 543 F.2d 534,
535 (5th Cir. 1976). It is an "order granting an injunction"
within the meaning of Rule 65(d), ILA, Local 1291 v. Philadelphia
Marine Trade Ass'n, 389 U.S. 64, 75, 88 S.Ct. 201, 207, 19
L.Ed.2d 236 (1967), and is binding on the United States and all
its officers, agents, servants, employees and attorneys.
2. Consent decrees are binding orders that have the same force
as any other judgment. Accordingly the Consent Decree is fully
enforceable by this Court. United States v. City of Miami,
Florida, 664 F.2d 435, 440 (5th Cir. 1981).
3. Consent decrees also have many of the attributes of
contracts and are construed according to contract principles.
Accordingly the scope of a consent decree will be discerned from
its four corners, United States v. Armour & Co., 402 U.S. 673,
91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971), although interpretive
aids consistent with contract law may be used if necessary.
United States v. ITT Continental Baking Co., 420 U.S. 223, 236,
95 S.Ct. 926, 934, 43 L.Ed.2d 148 (1975).
4. Section 15.1 is unambiguous in its terms. It clearly
expressed and continues to express the mutual intent of the
parties, and does not require extrinsic evidence to be construed.
Even if it were to be viewed otherwise, and if resort were had to
other parol evidence materials submitted by the United States in
reliance on White v. Roughton, 689 F.2d 118 (7th Cir. 1982),
cert. denied, ___ U.S. ___, 103 S.Ct. 1524, 75 L.Ed.2d 947
(1983),*fn5 these Conclusions would be the same. In essence the
United States seeks to parse Section 15.1 in an impermissible
way, arguing the word "available" is a term of limitation that
circumscribes what it must do to find and provide "financial
resources" — money — adequate to implement the Plan. "Available"
might alternatively be viewed as simply a term of emphasis (it is
directly coupled with "every")*fn6 or as tautological (after all, by
definition "unavailable" financial resources could not be
provided). But the shades of meaning need not be resolved in the
circumstances of this case. What the United States glosses over
is that it could not in good faith, having entered into the
Consent Decree, work actively to make financial resources
unavailable. That would permit a contracting party deliberately
and by its own unilateral action to flout its own contractual
undertaking and its obligations to this Court as well as to
Board. Yet that is precisely what the United States has done —
and it acknowledges having done so, for it has stipulated to most
of the Findings to that effect. For that reason it is entirely
proper to require the United States to take all affirmative steps
available to it to seek to make available financial resources
adequate for implementation of the Plan. And that is so whether
or not, absent its prior conduct to frustrate the Consent Decree
and its obligations under Section 15.1, that would have been the
required reading of that Section.*fn7
5. All terms of the Consent Decree, including Section 15.1, are
entitled to particular respect because they embody the conditions
upon which Board waived its right to litigate, a right guaranteed
by the Due Process Clause of the Fourteenth Amendment. Armour &
Co., 402 U.S. at 682, 91 S.Ct. at 1757.
6. To date Board has fulfilled its obligations under the
Consent Decree, particularly including Section 15.1. Despite such
fulfillment of its obligations, Board cannot obtain "adequate"
financing for full implementation of the Plan without receiving
financial assistance from other sources, including the United
7. Under the Consent Decree Board is not required to exhaust
all its available resources for implementation of the Plan before
the United States becomes obligated to find and provide every
available form of financial resources adequate for implementation
of the Plan.
8. In all events the United States' promise to "make every good
faith effort" to find and provide available funds entails a
serious and substantial obligation. Geisser v. United States,
513 F.2d 862, 869-71 (5th Cir. 1975), on remand, 414 F. Supp. 49
(S.D.Fla. 1976), appeal after remand, 554 F.2d 698 (5th Cir.
1977), appeal after remand, 627 F.2d 745 (5th Cir. 1980), cert.
denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981).
Having properly exercised its discretion by entry into the
Consent Decree, see Gautreaux v. Pierce, 690 F.2d 616, 628-29,
637-38 (7th Cir. 1982) the United States does not have discretion
to violate it.
9. Under the plain language of the Consent Decree and under the
circumstances described in Conclusion 4, the Executive Branch of
the United States is unquestionably now obligated to take every
affirmative step within its legal authority to find and provide
adequate financing for the Plan. Brewster v. Dukakis, 675 F.2d 1
(1st Cir. 1982), aff'g as modified decisions in Civil Action No.
76-4423-F (D.Mass. Sept. 15, 1981; Dec. 23, 1981); Ricci v. Okin,
537 F. Supp. 817 (D.Mass. 1982). That obligation includes the
following efforts and actions, to the extent necessary to assure
full implementation of the Plan:
(a) "provide" any presently available funds;
(b) "find" every available form of funds, by
identifying excess or otherwise available
appropriations for other purposes and
(1) notifying Congress of the intent to reprogram
such funds when they are in the same budget
(2) seeking congressional reappropriations of
such funds from other budget accounts;
(c) "find" funds by supporting specific legislative
initiatives to meet the obligations to Board;
(d) "find" funds by not failing to seek
appropriations that could be used for desegregation
assistance to Board, and by not attempting to rescind
all such appropriations.
10. By taking actions to render financial assistance
unavailable for the purposes specified in Section 15.1, the
United States has violated its obligations under the Consent
Decree. It has failed to make substantial efforts to find and
provide financial assistance, and it must now do so. Funds have
been available to the United States that would have been provided
to Board had the United States employed "every good faith effort"
as it was bound to do.
Such funds continue to be available at this time.
11. This Court has not had the opportunity in the limited time
available for the hearings to verify the validity of all of the
following. It appears however that the currently "available forms
of financial resources" may include the following:
(a) Under ECIA the Secretary of Education is
authorized to reserve up to 6% of the total amounts
appropriated under the block grant provisions of
ECIA, to carry out various programs, in his
discretion. 20 U.S.C. § 3813, 3851. Of the
$28,765,000 million set aside for the Secretary's
Discretionary Fund in fiscal year 1983, $10,725,000
must be used to fund the programs mandated by
20 U.S.C. § 3851(b). Other moneys in the
Discretionary Fund may be used to provide
desegregation assistance directly to local
educational agencies. 20 U.S.C. § 3832(7), 3811,
3851(a)(2)-(4). Approximately $8,980,000 is currently
available in the Discretionary Fund. It is within the
Secretary's authority to establish priorities, and to
give a competitive or absolute preference to
applications which meet those priorities, for grants
from the Discretionary Fund. 34 C.F.R. § 75.105(c)(2),
75.105(c)(3). Nothing in the Education Department's
General Administrative Regulations (EDGAR), which
govern grants made out of the Secretary's
Discretionary Fund, would prevent the Secretary from
making an award to Board. 32 C.F.R. § 75.210, 75.217.
There are no statutory, regulatory or other legal
provisions that prevent the Secretary from using the
unobligated monies in the Discretionary Fund to
provide financial assistance to Board for
(b) There are no statutory, regulatory or other
legal provisions that would preclude the Secretary of
Education from awarding all or part of the $24
million currently available in the Title IV program
fund to Board for the purposes set forth in
42 U.S.C. § 2000c-2 and 2000c-4. EDGAR provisions do
not apply to grant awards under Title IV, which can
be made by the Secretary at any time.
34 C.F.R. § 270.02(c), (e), 270.74(a).
(c) In addition to the foregoing items, the
Secretary of Education may reprogram funds between
programs within the same budget account by providing
notice to the Chairmen of the two congressional
appropriations committees. $28.058 million is
currently available in programs other than Title IV,
in the Special Projects and Populations account.
Those funds could be reprogrammed to the Title IV
program and made available to Board for desegregation
12. Funds distributed to Board pursuant to ECIA's block grant
legislation do not fully satisfy the United States' obligations
under the Consent Decree. Moreover the Secretary of Education has
the authority to issue regulations relating to the approval of
block grant distribution criteria submitted by the states and to
consult with state and local officials regarding the distribution
of block grant funds on his own initiative (20 U.S.C. § 3871(a)).
Although the United States cannot itself "provide" the block
grant funds, its "good faith effort" obligations under Section
15.1 — in light of its past conduct — include the current
exercise of its retained authority to encourage provision of
block grant funds in a manner that takes into account Board's
need for desegregation assistance.
13. Every citizen has a right to expect fair dealing from the
government and must be able to have confidence in the integrity
of the nation's officials. S & E Contractors, Inc. v. United
States, 406 U.S. 1, 10, 92 S.Ct. 1411, 1417, 31 L.Ed.2d 658
(1972); United States v. 119.67 Acres of Land, 663 F.2d 1328,
1333-34, 1336 (5th Cir. 1981). When government officials are
involved, it is particularly important for this Court to insure
compliance with its orders. United States v. An Undetermined
Quantity of An Article of Drug Labeled As Benylin Cough Syrup,
583 F.2d 942, 949 (7th Cir. 1978). As a judgment, a consent
decree may be enforced by citation for contempt if it is
violated. City of Miami, 664 F.2d at 440; United States ex rel.
Shell Oil Co. v.
Barco Corp., 430 F.2d 998, 1000 (8th Cir. 1970).
14. What the government's arguments here seek to do is to
modify the Consent Decree, though it denies that intention and
charges Board with the same motive. Both parties agree the
standard for modification of a consent decree is a strict one,
and relief is granted only upon a showing of exceptional
circumstances. Fox v. United States Department of Housing and
Urban Development, 680 F.2d 315, 322 (3d Cir. 1982); Ricci, 537
F. Supp. at 825 (D.Mass. 1982). That strict standard applies with
equal force to cases involving government officials. Id.;
Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114,
1119-21 (3d Cir. 1979) cert. denied, 444 U.S. 1026, 100 S.Ct.
689, 62 L.Ed.2d 660 (1980) (both involving state officials).
15. There are no circumstances advanced by either party
justifying modification of the Consent Decree. Certainly
conditions created by a party itself, such as the United States
invokes here, are not grounds for modification. Delaware Valley
Citizens' Council for Clean Air v. Commonwealth of Pennsylvania,
678 F.2d 470, 476 (3d Cir.), cert. denied, ___ U.S. ___, 103
S.Ct. 298, 74 L.Ed.2d 280 (1982); Williston on Contracts § 1959
(3d Ed. 1978).
16. To be entitled to preliminary injunctive relief, a
plaintiff must show a reasonable likelihood of success on the
merits, that irreparable harm will occur if the injunction does
not issue, that the threatened injury to plaintiff outweighs the
threatened harm to defendant, and that the grant of the
injunction will not disserve the public interest. Wesley-Jessen
Division of Schering Corp. v. Bausch & Lomb, Inc., 698 F.2d 862,
864 (7th Cir. 1983). Application of those principles to this case
demonstrates Board has borne its burden on each of those
(a) There is a substantial likelihood Board will
prevail on its Petition. There is substantial
evidence the United States has violated its binding
and enforceable obligations under the Consent Decree
and the disposition of the funds at issue would
constitute a further violation.
(b) Board will be irreparably injured if the United
States is not restrained from committing or expending
further funds, because the Court will be effectively
deprived of its power to grant the relief sought.
(c) Any hardship imposed on the United States from
the grant of this injunction is not substantial. It
certainly does not outweigh the injury to be
inflicted upon Board if the injunction is not
(d) Without question the public interest is best
served by granting the injunction. In particular, the
public interests in assuring full and adequate
implementation of the Plan, in preserving the
integrity of the Consent Decree and in protecting the
dignity and power of this Court would be served.
Accordingly Board continues to satisfy all of the requirements
for preliminary injunctive relief.