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July 14, 1983


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


This Court's January 6, 1983 memorandum opinion and order in the United States action (the "Opinion," 554 F. Supp. 912, 928) approved the desegregation plan (the "Plan") developed by the Board of Education of the City of Chicago ("Board") "as being clearly within the `broad range of constitutionally acceptable plans'." Final judgment (the "Judgment") upholding the Plan's constitutionality was then entered February 11. Board has now moved for judgment as a matter of law in the Johnson and Milton cases recently consolidated with the United States action, arguing the Opinion and Judgment are dispositive of the constitutional issues raised in Johnson and Milton. For the reasons stated in this memorandum opinion and order Board's motion is granted.


Some four years ago our Court of Appeals first dealt with the Johnson and Milton actions in Johnson v. Board of Education, 604 F.2d 504 (7th Cir. 1979). It summarized the relevant factual background, id. at 507-09, footnote omitted:

  These consolidated civil rights actions for
  declaratory judgment and injunctive relief were filed
  on March 15, 1976, challenging as unconstitutional a
  desegregation plan adopted voluntarily by the Board
  of Education of the City of Chicago in an effort to
  arrest the trend toward segregated enrollments at two
  Chicago public secondary schools. The challenged
  desegregation plan, commonly referred to as the
  "Student Racial Stabilization Quota Plan" ["Plan" in
  this quotation], established a ceiling on enrollments
  and imposed racial quotas with respect to admissions
  at Morgan Park and Gage Park High Schools.
  Plaintiffs-appellants in [Johnson] are black children
  and their parents residing in the Morgan Park High
  School attendance area. Plaintiffs-appellants in
  [Milton] are black children and their parents
  residing in the Gage Park High School attendance

  Plaintiffs' complaints alleged that the Plans, as
  instituted at Morgan Park and Gage Park High Schools,
  deprived them of their rights under the Constitution
  and under Title 42 U.S.C. § 1981 and 1983, and
  under Title 20 U.S.C. § 1703(c) because the Plans
  restricted the admission of minority students to
  these high schools solely on the basis of race. . . .
  [Board] filed answers to the complaints, denying the
  Plans were unconstitutional and denying plaintiffs
  were deprived of any rights under federal law.
  [Board] further alleged that plaintiffs had no
  constitutional right to attend Morgan Park or Gage
  Park High School since the Board of Education, vested
  by state statute with the supervision and management
  of the public school system of the City of Chicago,
  is empowered to divide the city into attendance areas
  and to apportion the pupils to the several schools,
  taking into consideration the prevention of racial
  segregation in the public schools. In the performance
  of these statutory duties, the Board contended the
  Plans were necessary to alleviate overcrowding and to
  promote integration at Morgan Park and Gage Park High
  Schools, both of which had experienced an accelerated
  change in the size and racial composition of their
  enrollments as a result of a concomitant demographic
  change in the residential neighborhoods encompassing
  the attendance areas of these schools.
  On April 29, 1976, three days after the filing of
  [Board's] answer, plaintiffs in Johnson presented a
  motion for a temporary restraining order seeking to
  enjoin the implementation of the Plan at Morgan Park
  High School, which was scheduled to begin the next
  day with a lottery drawing to select the incoming
  freshman class for the fall of 1976. The district
  court [Will, J.] denied the motion. On August 17,
  1976, after extensive discovery by means of
  interrogatories and document production, plaintiffs
  filed a motion for a preliminary injunction or in the
  alternative for summary judgment. On September 27,
  1976, the district court denied the alternative
  motion for summary judgment, but deferred ruling on
  plaintiffs' motion for preliminary injunction,
  stating its preference for a modification of the
  Plans to include a voluntary busing program for
  students excluded from these two schools to attend
  alternative integrated high schools.
  At the conclusion of discovery, entry of a final
  pretrial order, stipulation of additional facts and
  admission of exhibits into evidence, and after both
  parties agreed to withdraw objections, the parties
  rested on June 27, 1977. At that time, counsel for
  the Board advised the court of a pending modification
  of the Plans to be acted upon at the next Board
  meeting. The district court then stated it was
  prepared to find the Plans as originally adopted to
  be unconstitutional, but would reserve final ruling
  pending any modification the Board might wish to
  On July 13, 1977, the Board adopted a modification of
  the Plans, which provided bus transportation to white
  or integrated schools from a convenient point near
  the residences of all students in the Gage Park and
  Morgan Park attendance areas who were not selected
  for admission to these two schools under the Plans.
  By an order of the district court entered August 12,
  1977 the Board was directed to implement procedures
  for publicity and student counseling with respect to
  the Plans, as modified, and further, to provide that
  designated spaces at the alternative schools which
  were not filled by students excluded from one school
  (e.g., Gage Park) would be made available to students
  excluded from the other school (e.g., Morgan Park).
  On December 30, 1977, the district court entered its
  findings of fact and conclusions of law, and granted
  judgment in favor of [Board]. The court held that the
  Plans, as modified to include bus transportation to
  primarily white or integrated schools for those
  students not admitted to Gage Park or Morgan Park
  High Schools, restored to plaintiffs their
  constitutional rights in that plaintiffs had a
  meaningful opportunity to attend a Chicago public

  high school in an integrated setting. The court
  further ordered that [Board] be enjoined to continue
  the Plans, as modified.

In affirming the district court's order, the Court of Appeals concluded (id. at 518):

  Accordingly, in view of the findings on the record of
  the existence of white flight and the compelling
  state interest in promoting integration, we hold that
  voluntary state action directed toward the prevention
  of de facto segregation in the public schools is
  constitutionally permissible where, as here, the
  racial quotas imposed in connection with the
  desegregation plan provide all students residing in
  the attendance areas with a meaningful opportunity to
  attend an integrated high school.

Although the Supreme Court initially granted certiorari, 448 U.S. 910, 100 S.Ct. 3055, 65 L.Ed.2d 1139 (1980), it later vacated that grant and remanded Johnson and Milton to our Court of Appeals to consider whether the actions were moot in light of (1) Board's decision to rescind the stabilization plans and (2) this Court's September 24, 1980 order approving and entering the Consent Decree (the "Decree") in the United States action. 449 U.S. 915, 101 S.Ct. 339, 66 L.Ed.2d 162 (1980). See Opinion, 554 F. Supp. at 913 n. 1. In turn our Court of Appeals remanded Johnson and Milton to this Court's colleague Judge Will, 645 F.2d 75 (7th Cir. 1981).

Pending final development of the Plan, Board reinstated its stabilization plans for Morgan Park and Gage Park High Schools in April 1981. In June 1981 Judge Will accordingly found Johnson and Milton were not moot, but he again denied plaintiffs' motion for a permanent injunction against use of the challenged quotas. Our Court of Appeals (1) affirmed Judge Will's finding the cases ...

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