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U.S. v. BD. OF EDUC. OF CITY OF CHICAGO

June 30, 1983

UNITED STATES OF AMERICA, PLAINTIFF,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, DEFENDANT.



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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This Court has conducted hearings on June 1, 7, 8, 22 and 27, 1983 on a petition filed by the Board of Education of the City of Chicago ("Board"). It has considered the testimony and exhibits submitted at those hearings, designations from the deposition testimony of Monika Edwards Harrison and Jack Simms, affidavits of those two deponents and of Carol Cichowski and J. Maxey Bacchus ("Bacchus"), stipulations of the parties and the United States' answers to the Board's First and Second Set of Interrogatories and First Request To Admit.

Findings of Fact ("Findings")

Based on all the evidence this Court determines pursuant to Fed.R.Civ.P. ("Rule") 52(a) that each of the following Findings is supported by a preponderance of all the evidence now before it:*fn1

1. This is a proceeding to enforce compliance with a Consent Decree between the United States of America and Board, the terms of which were embodied in this Court's September 24, 1980 Order. Specifically, it is to determine the nature and extent of the United States' obligations undertaken by the inclusion of Consent Decree I § 15.1 ("Section 15.1," App. A).

2. Since September 24, 1980 Board has made good faith efforts to implement fully the Comprehensive Student Assignment Plan and the Educational Components of the Chicago desegregation plan (collectively "the Plan"). [Stip.]

3. Since September 24, 1980 Board has made every good faith effort to find and provide every available form of financial resources adequate to pay the cost of full implementation of the Plan. [Bacchus Testimony]

4. Since September 24, 1980 Board has expended approximately $120 million in its efforts to implement fully the various elements and components of the Plan. [Stip.]

5. In school year 1982-83*fn2 Board has expended or will expend approximately $57.9 million to implement the Plan. [Stip.]

6. For school year 1983-84 Board has budgeted $66.9 million for implementation of the Plan. [Stip.]

7. Board presently projects a budget deficit of approximately $200 million for its 1983-84 fiscal year. [Stip.]

8. During school year 1980-81, specifically on September 28, 1980, Board received a Title IV planning grant in the amount of $422,800. [Stip.]

9. During school year 1980-81, specifically on June 15, 1981, Board received a Title IV grant in the amount of $298,639. [Stip.]

10. During school year 1981-82, specifically on September 22, 1981, Board received an out-of-cycle Emergency School Aid Act ("ESAA") grant in the amount of $1,813,025, in response to an application that requested $23,138,977. All the reasons for the difference in funding are not before this Court. [Stip.]

11. All the amounts of funding referred to in Findings 8-10 were received directly from the United States through the Department of Education or its predecessor agency, the Office of Education of the Department of Health, Education and Welfare, and were available to Board for implementation of the Plan. [Stip.]

12. During school year 1982-83 Board received a block grant pursuant to the Educational Consolidation and Improvement Act of 1981 ("ECIA") in the amount of $5.385 million, of which $1.8 million was allocated by Board for implementation of the Plan. Board used the remainder of the block grant to fund other educational programming allowable under ECIA, which would not have been funded absent the allocation of block grant money. [Bacchus Testimony]

13. Board received approximately $674,432 of desegregation-related assistance under Title VII for school year 1981-82 and approximately $528,267 for school year 1982-83. [Stip.]

14. Beginning in federal fiscal year 1981,*fn3 and for federal fiscal years 1982 and 1983, it has been a priority and a policy objective of the Executive Branch of the United States and the Department of Education to dismantle the Department of Education and turn most of its functions over to state educational agencies. [Stip.]

15. Since federal fiscal year 1981 it has been the policy of the Department of Education not to provide desegregation assistance to local educational agencies through direct grants to local educational agencies of funds appropriated by Congress under Title IV of the Civil Rights Act of 1964 ("Title IV"). [Harrison Dep. 35-36; Sims Dep. 11-14; Bd. Ex. 16]

16. After federal fiscal year 1981 the Executive Branch of the United States and the Department of Education sought repeal of all categorical programs under which the United States could provide direct grants to local educational agencies for desegregation assistance and replacement of those programs, along with all categorical programs under which the United States provided other assistance to local educational agencies, with a block grant of federal funds. Such block grants are allocated to local educational agencies by the states and can be used for the various purposes set forth in ECIA, including the purposes of the former ESAA programs. Title IV remains as a categorical program, as is more fully explained in other Findings. [Stip.]

17. Since federal fiscal year 1981 it has been the policy of the Department of Education and the Executive Branch of the United States to reduce the total amount of funds provided by the United States to the states for the various purposes set forth in ECIA. [Request To Admit Nos. 25, 26.]

18. Since federal fiscal year 1981 it has been the policy of the Department of Education and the Executive Branch of the United States not to seek any legislation or appropriation other than through ECIA that would provide direct financial assistance for desegregation to local educational agencies implementing desegregation plans, and specifically to Board. [Harrison Dep. 105-06; Bd. Ex. 16]

19. All the United States' policy decisions not to provide direct grants to local educational agencies pursuant to Title IV, to provide funding to the states only through block grants, to reduce federal funding to the states for any of the purposes listed in the block grant legislation, and not to seek legislation or appropriations that would directly provide financial desegregation assistance to Board, were determined by the general priority and objective of dismantling the Department of Education and turning most of its functions over to state governmental agencies. [Stip.]

20. Since fiscal year 1981 it has been the policy of the Department of Education to use funds in the Secretary's Discretionary Fund only for the programs required by 20 U.S.C. § 3851(b) or to support projects for research, demonstrations, training, dissemination or other activities that address some national education emphasis, as determined by the Secretary, not including the funding of specific desegregation plans. [Harrison Dep. 124; Request To Admit 27; Bd. Ex. 25]

21. In fiscal year 1981 and in each of the succeeding fiscal years it was, and still is, the position of the Department of Education that it could not and would not approve state educational agency criteria for allocation of block grant funds that were based in part on the amounts local agencies within the state received or could have received under ESAA because such criteria would not adequately reflect "a higher than average cost per child." [Harrison Dep. 133-35; Harrison Dep. Ex. 26, 27]

22. In its development of the policies and in taking its actions described in Findings 14-21, the United States did not give any consideration to its obligations under the Consent Decree in general and under Section 15.1 in particular. [Harrison Dep. 41]

23. Before October 1, 1982 ESAA was the primary means for the United States to provide direct desegregation assistance to local educational agencies. [Stip.]

24. In furtherance of the policies and priorities described in Findings 14-21, the Executive Branch of the United States and the Department of Education have:

    (a) requested a significant reduction in ESAA
  funding from Congress for fiscal 1981; [Stip.]
    (b) requested no ESAA funding from Congress for
  fiscal 1982; [Request To Admit 11]
    (c) sought and supported in Congress the repeal of
  ESAA, which became effective October 1, 1982;
  [Request To Admit 6]
    (d) supported the passage by Congress of the ECIA
  block grant legislation (as described in Finding 15),
  which became effective October 1, 1981; [Stip.]
    (e) requested from Congress for fiscal 1982 an
  appropriation of ECIA block grant funding in the
  amount of $487,525,000, which was (1) $103,843,000
  less than Congress had authorized and (2) $50,852,828
  less than the amount appropriated by Congress in
  fiscal 1981 for the categorical grant programs,
  including ESAA, which the ECIA block grant funding
  was intended to replace; [Request To Admit 25]
    (f) requested from Congress for fiscal 1983 an
  appropriation of ECIA block grant funding in the
  amount of $406,080,000, which was (1) $183,288,000
  less than Congress had authorized and (2)
  $130,297,828 less than the amount appropriated by
  Congress in fiscal 1981 for the categorical programs,
  including ESAA, which ECIA block grant funding was
  intended to replace; [Request To Admit 26]
    (g) continued a similar request policy for fiscal
  1984; [Stip.]
    (h) done nothing to ensure that, in fiscal 1982 and
  1983, any portion of the ECIA block grant for
  Illinois was used to support a purpose related to
  school desegregation; [Harrison Dep. 120]
    (i) opposed congressional efforts to reenact ESAA;
  [Stip.]
    (j) failed to request from Congress in fiscal 1982
  and 1983 an appropriation to fund any desegregation
  programs contemplated by Title IV; [Harrison Dep. 34;
  Request To Admit 13, 16]
    (k) in each of fiscal 1982 and 1983 requested
  Congress to rescind the $24,000,000 of Title IV
  funding Congress had previously appropriated;
  [Harrison Dep. 48]
    (l) in fiscal 1983 requested Congress to rescind
  $2.54 million appropriated to the Secretary of
  Education's Discretionary Fund; [Stip.]
    (m) requested Congress to rescind $41,600,000
  appropriated to the Department of Education for
  special programs and populations, other than Title IV
  programs, in fiscal 1982 and to rescind at least
  $28,000,000 appropriated for such programs in fiscal
  1983; [Stip.]
    (n) determined as a matter of policy to provide no
  Title IV funding in fiscal 1982 and 1983 to local
  educational agencies; [Harrison Dep. 26, 35-36;
  Request To Admit 15]
    (o) requested Congress to rescind approximately
  $900 million in unexpended student loan funding; [Bd.
  Ex. 28 at 61]
    (p) failed to use any portion of the Secretary of
  Education's Discretionary Fund in fiscal 1982 and
  1983 for a direct grant of desegregation assistance
  to any local educational agency; [Request To Admit
  31]
    (q) failed to urge state educational agencies to
  adopt criteria for determining the allocation of
  block grant funds to "high cost children" that
  include giving particular consideration or weight to
  a local educational agency implementing a
  desegregation plan. [Request To Admit 22, 23]

25. Terrel H. Bell has been Secretary of Education since January 21, 1981. He is responsible for the formulation of the policies and priorities set forth in Findings 14-21 and for the actions taken by the Department of Education to implement those policies and priorities. Since January 21, 1981 he has also been responsible for ensuring that the Department of Education fulfills all its obligations under the Consent Decree, including specifically the obligations imposed by Section 15.1. [Harrison Dep. 12, 32-34, 107, 114.]

27. Ms. Harrison was responsible for making the policy recommendation to Mr. Bell, through her superior Mr. Davenport, that Title IV funds in fiscal 1982 and 1983 not be used to provide the desegregation assistance contemplated by the purposes of Title IV to local educational agencies, including Chicago. Mr. Bell accepted this recommendation and made it a policy decision of the Department of Education. [Stip.]

28. Ms. Harrison was responsible for making the policy recommendation to Mr. Bell, through her superior Mr. Davenport, that the Department of Education seek to rescind in Congress the Title IV funds appropriated by Congress for use in fiscal 1982. [Harrison Dep. 48]

29. Title IV funds appropriated by Congress for use in fiscal 1982 and 1983 were distributed as direct grants to state educational agencies and desegregation assistance centers. In fiscal 1982 the Illinois Department of Education received a Title IV grant in the amount of $705,832. Desegregation assistance centers that could provide technical and in-service training desegregation assistance to Board are located only at Indiana University, in Bloomington, Indiana and the University of Wisconsin branch in Milwaukee, Wisconsin. Only the center at Indiana University is a race-specific desegregation assistance center. In fiscal 1982 the Title IV grant to the Indiana University center was $311,629. In fiscal 1982 the Title IV grant to the University of Wisconsin-Milwaukee center was $385,560. [Stip.]

30. In fiscal 1982 and 1983 the Department of Education took no actions to ensure that Board received the desegregation assistance contemplated by Title IV from the Illinois Department of Education and the desegregation assistance centers described in Finding 29. [Harrison Dep. 45-47, 147, 154; Sims Dep. 36, 38]

31. In fiscal 1982 the Department of Education made Title IV grants to 42 state educational agencies. There are 49 such applicants for 1983. In fiscal 1982 the Department of Education made Title IV grants to 25 desegregation assistance centers, and it plans to make similar grants in fiscal 1983. [Response To Int. 16, 17]

32. Use of the Title IV appropriations in fiscal 1982 and 1983 to fund state educational agencies and desegregation assistance centers by definition reduced the level of technical and in-service training assistance available to Board from the levels of such assistance available to it under Title IV in prior fiscal years.

33. In fiscal 1982 and 1983 the Department of Education took no actions toward providing a grant of Title IV funds to Board to assist its implementation of the Plan. [Harrison Dep. 26, 35-36]

34. In fiscal 1982 the Secretary of Education or his delegee had the authority to provide a grant of Title IV funds to Board to assist its implementation of the Plan, and it is still within the Secretary's discretion to do so. [Harrison Dep. 70-71]

35. Of the Title IV funds appropriated to the Department of Education by Congress in fiscal 1982, $24,000,000 ...


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