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

June 8, 1984


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



BACKGROUND                                      138-140

I. FINDINGS OF FACT ("Findings")               Findings

   Adoption and Approval of the Desegregation
   Plan (the "Plan"), and the Nature of the
   Plan                                          101-61   140-157

Consent Decree Negotiations                 101-11   140-144

     Development of Part I of the Plan, the
     Educational Components                      112-17   144-146

     Statements of the United States and
     this Court Relating to the Educational
     Components                                  118-28   146-150

     Overview of the Student Assignment
     Plan                                        129-44   150-152

     Demographics of the City of Chicago
     and the Chicago Public Schools               145-61  153-157

   Propriety and Cost of Programs Proposed
   for Adequate Implementation of the Plan        201-72  158-180

   Board's Financial Affairs and Condition
   and the Financial Aspects of School
   Desegregation                                  301-76  180-196

     1983-84 Incremental Desegregation
     Expenditures                                 301-12  180-186

1983-84 Ancillary Desegregation Expenditures 313-17    186

1983-84 School Budget — Board

Resources and Expenditures                   318-29  186-188

1979-80 Financial Crisis                     330       188

Relationship to School Finance Authority     331-32  188-190

Projected Deficits for Future Years          333-41  190-191

Board Efforts To Find Resources              342-49  191-192

Federal and State Funds Received by Board    350-68  192-196

Board's Good Faith Efforts                   369-76  196-197

Addendum A to Findings                         301-76  197-200

   Availability of Federal Funds to Implement the
   Chicago Desegregation Plan                     401-67  200-208

Presently Available Funds                    401-38  200-205

     Actions by the United States Affecting the
     Availability of Funds                        439-67  205-208

   Actions with Respect to the Yates Bill and
   Weicker Amendment                              501-18  208-211

   The United States' Non-Compliance With
   Section 15.1                                   601-09  211-212

II. CONCLUSIONS OF LAW ("Conclusions")

Conclusions        Pages

Law of the Case                             1-9        212-214

   Standards for Determining the Amount
   of Funding "Adequate for Implementation
   of the Plan"                               10-16       214-217

   Standards for Determining the Share the
   United States Is Obligated To Attempt To
   Provide of the Amount "Adequate for
   Implementation of the Plan"                17-21       217-218

   Consideration of Funding Contentions
   of the United States                       22-35       218-220

   Propriety of the Programs Proposed by
   Board for Implementation of the Plan, and
   Summary as to the Amount of United States'
   Obligation                                 36-38       220-221

   Verification of the Current Availability
   of Funds                                   39-79       221-229

Meaning and Effect of the Yates Bill       80-88       229-231

   Meaning and Effect of the Weicker
   Amendment                                  89-119      231-237

   Additional United States Violations of
   Section 15.1 and Subsequent Court Orders,
   and Consequent Remedial Obligations       120-30       237-240

Present Obligations of the United States  131-43       240-243

   Separation of Powers: Judicial
   Consideration of Legislative Activities   144-57       244-245

Means of Enforcement                      158-62       245-246

This case has tended to be sidetracked by a "false conflict"
*fn1 created by the United States: By creating an artificial limitation on funds otherwise available or potentially available to satisfy the extensive Desegregation Plan needs of Chicago's Board of Education (let alone the varying needs of other claimants of funds), the United States has sought to place the Board (and this Court) into a position as though the Board (and this Court) were choking off deserving educational programs.*fn2 That is simply not true. It is the United States itself that has created and is perpetuating that regrettable situation.

This Court has held,*fn3 and our Court of Appeals has confirmed,*fn4 that the United States has broken its word by refusing to keep the promise it made on the day this lawsuit was filed, Consent Decree § 15.1, ("Section 15.1"):*fn5

  Each party is obligated to make every good faith
  effort to find and provide every available form of
  financial resources adequate for the implementation
  of the desegregation plan.

In a sense the United States is not like other litigants — because the concerns created by considerations such as separation of powers and sovereign immunity tend to prevent its promises from being fully enforced in precisely the same way as promises of (say) IBM or other private defendants. For that reason this Court has previously been compelled to impose a "freeze" order to avoid the risk its ability to order relief will arguably be frustrated. Because the United States has deliberately violated its original agreement to fund the Chicago Desegregation Plan, this Court has reluctantly found it necessary to prevent the distribution to other possible grantees of United States educational funds, in order to preserve access to all the dollars that would be potentially available to fund the honoring of the United States' freely-undertaken (and then freely-broken) obligation to the Board.

But as this Court has said during the course of hearings on this issue, the United States "has the key to its cell in its own pocket."*fn6 It could have, in the exercise of its "every good faith effort," assured that all the needed funds would be potentially available to the Board by (1) shifting available dollars to the Board to the fullest extent possible without congressional approval or (2) going to Congress with a request to allow the shifting of dollars that were already available to the Department of Education, but that required reallocation because they were not in fact going to be used for the purposes that had been the subject of the original allocation.*fn7 It could have done both those things if necessary. Instead the United States has chosen to pit deserving applicants for funds one against the other, and to put the issue before Congress as though the Board and this Court — rather than the United States as the breaker of its own voluntary promise — were the malefactors.

One other related point should be emphasized at the outset. Section 15.1 is part of a consent decree. Like every consent decree, it has a twofold aspect.*fn8 It is of course a contract — and as a contract, it is enforceable to require the contracting parties to perform their voluntarily undertaken duties. Because unlike most contracts the parties have chosen to submit it for the stamp of court approval, it is also a court order — and as such, it is enforceable like any other court order, by contempt if need be.*fn9

On the sorry record reflected by the matters detailed in this long opinion, a private litigant that did what the United States has done would unquestionably be held in contempt — with the potential for being subjected to a fine or imprisonment as well as to an order for civil compliance. But for the United States a contempt fine is meaningless — after all it is the public interest (and not the injured opposing party) that is vindicated by a fine, with the money going to the United States itself as surrogate for the public. Thus imposition of a fine against the United States would just transfer money from one federal pocket to the other. Similarly imprisonment of the United States as such is impossible, and any possible imprisonment of defiant ranking government officials would be unseemly at best. For those reasons voluntary adherence by the United States to its solemnly undertaken responsibilities becomes all the more important, and its deliberate flouting of those responsibilities becomes all the more unpardonable.

Now the legal rights of the litigants have to be evaluated. This opinion has not been drafted in response to the United States' conduct just referred to, but that conduct may have made the issues more clouded than would otherwise have been the case.

This Court now has before it the evidence developed in extensive hearings on remand from the Court of Appeals' decision ("Opinion III," see n. 4) confirming the United States' violation of Section 15.1. Although the Court of Appeals did that, it also vacated the part of this Court's June 30, 1983 order (the "Order," issued contemporaneously with "Opinion II," see n. 3) that had directed the United States to undertake an affirmative program to preserve the availability of funds potentially available to fulfill its obligations under the Decree. As the Court of Appeals put it (717 F.2d at 384), this Court had "acted with excessive dispatch" in doing so. This Court of course had shared the respect for separation of powers that underlay the Court of Appeals' opinion. This Court's fault, if it was one, was in a skepticism (grounded in prior conduct by the United States, not in mere surmise) as to whether the United States would in fact "fashion its proposed remedy for past non-compliance, as well as . . . show that it intends to comply in the future . . ." (717 F.2d at 385).

As the following findings of fact ("Findings") and conclusions of law ("Conclusions") will reflect, this Court's anticipatory doubts were unfortunately all too justified. Now the Department of Education has been given the opportunity mandated by the Court of Appeals, and it has failed its charge dismally. In accordance with Fed.R.Civ.P. ("Rule") 52(a), this Court sets forth the Findings and Conclusions that constitute the grounds of its action referred to in this lengthy opinion.


Adoption and Approval of the Desegregation Plan (the "Plan"), and
                     the Nature of the Plan

Consent Decree Negotiations

101. Chicago's Board of Education ("Board") operates the third largest public school system in the United States. In the 1980-81 school year Board operated 634 schools, including 495 elementary schools, 66 high schools and 73 special needs schools of various types. In October of that school year Board had 458,497 students, whose racial/ethnic makeup was as follows:

White Non-Hispanic            85,292   18.6%

Black Non-Hispanic           278,726   60.8%

Hispanic                      84,226   18.4%

Asian/Indian                  10,253    2.2%

At the same time Board employed approximately 43,000 persons, including 29,000 members of the Chicago Teachers Union. Board is the largest employer in Chicago and the second largest in Illinois. (Stip. 101)

102. After protracted and complex negotiations, the United States and Board entered into a Consent Decree, which was filed with and approved by this Court September 24, 1980. (Stip. 102) Findings 103-04 give the background of the Consent Decree.

103. After desegregation negotiations in 1979 between the former Department of Health Education and Welfare and the former representatives of Board had proved unsuccessful, the United States Department of Justice notified former Interim Superintendent of Schools Caruso on April 21, 1980, that if further negotiations were not successful, the United States would initiate a desegregation lawsuit against Board. (GX1-27 [Government Exhibit 1, June 1983 hearing, Document 27]) Ensuing negotiating sessions between the Department of Justice and former Board representatives primarily addressed whether the parties could agree on specific racial percentages for a student assignment plan and on the specific amount and timing of the Emergency School Aid Act (ESAA) funds that the Board would receive to implement such a plan. (GX1-21,22) Board counsel indicated that if the negotiations failed and litigation commenced, Board would present counterclaims against agencies of the federal government. (GX1-39) There was no significant progress in those negotiations. (GX1-21, GX1-22) (Stip. 103)

104. During those negotiations a new Board was appointed and took office. (GX1-22) That new Board formed a Desegregation Committee (GX1-21) and indicated to the United States it would bring fresh approaches to the negotiations (Id.) Thereafter Board was represented by its new leadership and by new counsel. (GX1-16) Negotiations then progressed rapidly, leading to a draft agreement within a few weeks (GX1-16) and to consummation of the Consent Decree within another six weeks. (GX1-14, 15) That progress resulted from an altogether different focus. Rather than seeking to negotiate the specific terms (or even somewhat more generalized terms) of a student assignment plan, the parties instead agreed to general principles that would guide subsequent development of a plan. (Consent Decree, Part I) Correspondingly with respect to funding, the parties negotiated a general principle applicable to both parties. Those negotiations concerning the general funding provision have been described in a Joint Stipulation of the parties as follows:

    At a relatively early stage in the negotiations
  leading to the Consent Decree, the parties discussed
  the question of financial support from the United
  States for the Board's desegregation activities. It
  was the Government's position that no funding
  commitment specific as to form and amount could be
  made in the context of the Consent Decree, because
  there was no way to anticipate the nature and costs
  of the Board's Plan, the amount and sources of
  Government funding, or a variety of other matters.
  The parties briefly discussed funding possibilities
  relating not only to the Department of Education
  (including ESAA and other programs), but also other
  federal agencies such as the Department of Justice,
  the Department of Transportation, and the Department
  of Housing and Urban Development. Thereafter Mr. Ross
  conveyed to Mr. Howard by telephone brief
  descriptions (obtained by Mr. Ross from the
  Department of Education) of some of the types of
  planning and implementation activities funded in
  other instances. Mr. Ross also conveyed to Mr. Howard
  very sketchy information about grant amounts to other
  cities, but in general it was the position of the
  Department of Education that it would not disclose
  such information. These discussions took place
  approximately two months before the completion and
  execution of the Consent Decree. It was concluded
  that the matter of federal financial support would be
  handled by including general provisions in the
  Consent Decree, and Section 15.1 was drafted and
  incorporated into the Decree. Section 15.1 was not
  designed to incorporate any specific discussions
  between the parties on this issue, but to establish a
  general obligation on

  the part of both parties which would be interpreted
  and applied as appropriate in whatever future
  circumstances might arise.

Section 15.1 provides:

    15.1 Each party is obligated to make every good
  faith effort to find and provide every available form
  of financial resources adequate for the
  implementation of the desegregation plan.

Section 15.3 provides:

    15.3 The parties recognize that financial cost of
  implementation does not excuse the failure to develop
  a desegregation plan consistent with the principles
  set forth in §§ 2-14, and is not a basis for
  postponement, cancellation or curtailment of
  implementation of the plan after it has been finally
  adopted, but is one legitimate consideration of
  practicability in meeting the objective stated in
  § 2.1.

(Stip. 104)

105. On September 24, 1980 four events occurred to make the Consent Decree fully operative:

(a) filing of a Complaint by the United States;

(b) execution and filing of the Consent Decree;

  (c) after a hearing and after consideration of the
      Complaint, the Consent Decree and the United
      States' Memorandum of Law, approval by the Court
      of the Consent Decree and its entry by the Court;

  (d) Board's non-filing of any counterclaim against
      the United States.

(Stip. 105)

106. Among the general principles set forth in the Consent Decree to guide subsequent development of a desegregation plan were the following:

§ 2. Basic Objectives

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

        2.2 Compensatory Programs in Schools Remaining
        Segregated. In order to assure participation by
        all students in a system-wide remedy and to
        alleviate the effects of both past and ongoing
        segregation, the plan shall provide educational
        and related programs for any Black or Hispanic
        schools remaining segregated.

        2.3 Participation. To the greatest extent
        practicable, the plan will provide for
        desegregation of all racial and ethnic groups,
        and in all age and grade levels above

        2.4 Fair Allocation of Burdens. The plan shall
        ensure that the burdens of desegregation are
        not imposed on any racial or ethnic group.

  § 7. Compensatory Programs in Schools Remaining
        Segregated. To accomplish the objective stated
        in § 2.2, the plan will include specific
        programs for Black or Hispanic schools
        remaining segregated, in the following areas
        among others:

        7.1 Remedial and compensatory educational

        7.2 Improved curricula and instructional and
        evaluative techniques (including the
        utilization of tests that validly measure
        student achievement) for academic, vocational
        and alternative educational studies.

        7.3 Pre-service and in-service instruction for
        administrators, principals, teachers and other
        school personnel.

        7.4 Selection, and evaluation of the
        performance of, principals and supporting
        leadership staff.

        7.5 Testing, counseling, guidance and student

7.6 Physical facilities, safety and security.

        7.7 Supportive relationships between such
        schools and groups and institutions in the
        community and in government.

(Stip. 106)

107. Thus in agreeing in Section 15.1 to find and provide financial resources "adequate for implementation of the desegregation plan," the United States was agreeing to help pay for a plan that would include educational components in racially isolated schools (§ 2.2)[fn1a] covering the subject matter outlined in § 7, in the development of which the Board would exercise discretion (§ 3.1). (Stipulations 101-06)

108. Circumstances surrounding entry of the Consent Decree indicate that a joint and mutual obligation was contemplated. The Consent Decree represents the only instance in which a major urban school system has agreed, without any litigation or determination of liability issues, to develop and implement a system-wide desegregation plan under court supervision. It contemplated that because of the demographics of the Chicago school system, a substantial number of minority children would inevitably remain in racially isolated schools, requiring the extensive and expensive use of compensatory educational remedies to alleviate the effects of past segregation. In 1980 (as now) Board was faced with massive financial deficits, and the joint funding provision of the Consent Decree reflected recognition that Board's finances were such that it could not voluntarily agree to develop, or successfully to implement, an effective desegregation plan of this type unless the federal government were sharing the financial burdens. (Stipulations 101-56; June 1983 Findings and Plan/ADR data on Board finances)

109. Stated simply, the parties had a common and overriding goal of assuring that an effective desegregation plan was developed and implemented in Chicago. This joint purpose, with respect to financing, included a requirement that the parties provide the total amount of funds adequate for implementation of the Plan. In Section 15.1 each party agreed to do everything possible to supply the necessary funding. (Stipulations 101-56; June 1983 Findings and Plan/ADR data on Board finances) The United States' financial commitment under Section 15.1 was the principal quid pro quo for Board's willingness to forego litigation and develop the Plan. In return for that commitment, the United States secured the full result it sought (and may not otherwise have achieved) without the expense and delay of complex litigation. The United States also avoided potential liability for a number of counterclaims that would have been brought against it. (Findings 103, 105)

110. With respect to "what the parties reasonably expected at the time of signing," the parties' Joint Stipulation (Government's Exhibit 2 in the June 1983 hearing) states:

    Section 15.1 was not designed to incorporate any
  specific discussions between the parties [on the
  issue of federal financial support], but to establish
  a general obligation on the part of both parties
  which would be interpreted and applied as appropriate
  in whatever future circumstances might arise.

All the extrinsic evidence concerning this issue does not support any notion that there was a recognized specific dollar limitation incorporated in Section 15.1, based on the amount of previous ESAA grants or otherwise. Indeed the Joint Stipulation reflects the parties had been discussing "funding possibilities relating not only to the Department of Education (including ESAA and other programs), but also other federal agencies such as the Department of Justice, the Department of Transportation, and the Department of Housing and Urban Development."[fn2a] As this Court has determined previously, the extrinsic evidence points to an obligation to conduct a "universal search" (567 F. Supp. at 282 n. 6), not a limited examination of what ESAA funding was theoretically available to Board. (Stipulations 101-06; Government Exhibits 1 and 2 in the June 1983 hearing) This does not of course mean the parties contemplated issuance of a blank check to Board by the United States. But given the circumstances of the negotiations, Board's known financial difficulties, its inability to generate funds without the approval of other governmental agencies, the known major problems (and hence major costs) of implementing a desegregation plan in a school system as large as Chicago's (and with its racial mix), and other relevant factors, the parties' reasonable expectations should certainly have embraced the potential need for the United States regularly "to find and provide" sums of the magnitude represented by Board's proof at the current hearing. Although this Court ruled in limine (prior to the current hearings) certain areas of proof by the United States would be excluded, this Court has nevertheless given full consideration to (a) the United States' offer of proof suggested by this Court as the means to complete the record and (b) Board's post-hearing response to that offer of proof. Even taking that offer of proof fully into account (rather than treating it as excluded) this Court finds nothing in the United States' proof or proposed proof persuasively refutes the reasonableness of the expectations referred to in this Finding. Given the parties' Joint Stipulation that Section 15.1's "general obligation . . . would be interpreted and applied as appropriate in whatever future circumstances might arise," this Court finds the current circumstances make the interpretation of that obligation to embrace the Board's current request (as modified by this opinion) to be wholly appropriate for funding by the United States.

111. The Consent Decree in this case is the only instance in which the United States has entered into a desegregation settlement containing the same or substantially similar language to that in Section 15.1. (Stip. 107)

Development of Part I of the Plan, the Educational Components

112. To develop the Educational Components of the Plan, Board retained a team of independent, nationally recognized consultants. Dr. Robert L. Green was the Lead Consultant, with principal overall responsibility for the process. Dr. Green (now the President of the University of the District of Columbia) was then Dean of the College of Urban Development, Michigan State University. He was a leading national expert on desegregation plans, especially the aspect of desegregation that emphasizes educational programs to provide equal and effective education for urban and minority children. Dr. Green had participated in many desegregation cases and desegregation plans, traditionally as an expert for the plaintiffs in such litigation, and frequently on behalf of the NAACP. (Stip. 108) In addition to Dr. Green, five other education experts from outside the school system were retained on a full-time basis to work on the Educational Components, along with 24 part-time "national consultants." Professor Ronald Edmonds (who has since died) was the primary national consultant in the area of curriculum. While on the faculty of the Harvard Graduate School of Education, Dr. Edmonds had directed the well-known major research project, Search for Effective Schools: The Identification and Analysis of City Schools That Are Instructionally Effective for Poor Children. Professor Edmonds had also implemented his "effective schools" design as the principal instructional officer for the New York City schools, with the title of Senior Assistant for Instruction.

113. Board's complete list of desegregation project consultants is as follows:

Robert L. Green, Ph.D., Lead Consultant
   Dean, College of Urban Development
   Michigan State University
   East Lansing, Michigan


Nelvia M. Brady, Ph.D., Staff Director
   Professional Associate
   Educational Testing Service
   Evanston, Illinois

Elizabeth Jill Hirt, Ph.D., Staff Associate
   Research Associate
   College of Urban Development
   Michigan State University
   East Lansing, Michigan

Judson Hixson, M.A., Staff Associate
   Educational Director on Leave
   Chicago Urban League
   Chicago, Illinois


Jodi Martinez-Martin, Ed.D., Consultant
   Teacher Education Specialist
   Illinois State Office of Education
   Springfield, Illinois

Frances S. Thomas, Ph.D., Consultant
   Assistant Professor
   College of Urban Development Michigan State University
   East Lansing, Michigan

Primary National Consultants

Curriculum:             Professor Ronald Edmonds
                        Senior Assistant to the Chancellor for
                          Instruction, NYC Public Schools

Staff Development:      Dr. Cassandra Simmons Assistant Professor
                        and Director, Office of Student Affairs
                          College of Urban Development Michigan
                          State University East Lansing, Michigan

Additional Consultants and Resource Persons

Dr. Beatriz Arias                   Dr. Josue Gonzalez
Stanford University                 Office of Education
Stanford, CA                        Washington, DC

Ms. Norma Barnes                    Dr. Robert J. Griffore
Norma Barnes Assoc.                 Michigan State University
Chicago, IL                         East Lansing, MI

Dr. Samuel Betances                 Dr. James Hawkins,
Northeastern Illinois University      Superintendent
Chicago, IL                         Benton Harbor Public Schools
                                    Benton Harbor, MI

Dr. Duane Brown                     Ms. Maureen Larkin
University of North Carolina        Milwaukee Public Schools
Chapel Hill, NC                     Milwaukee, WI

Dr. Robert Crain                    Dr. Jane Mercer
Johns Hopkins University            University of California
Baltimore, MD                       Riverside, CA

Ms. Jane Creeden Dore               Dr. Margaret Parsons
Freelance Editor/Writer             Michigan State University
Chicago, IL                         East Lansing, MI

Dr. Joseph Darden                   Ms. Rachel Patrick, J.D.
Michigan State University           American Bar Association
East Lansing, MI                    Chicago, IL
Dr. Harold Dent                     Dr. Diana Pearce
Westside Community Mental           Center for National Policy
Health Center                       Review
San Francisco, CA                   Washington, D.C.

Dr. Edgar Epps                      Mr. Joseph Rosen
University of Chicago               Educational Consultant
Chicago, IL                         Chicago, IL

Dr. Reynolds Farley                 Dr. Charles Thomas, Supt.
University of Michigan              School District #64
Ann Arbor, MI                       North Chicago, IL

Dr. Walter Farrell                  Ms. Rebecca Yarlott
Univesity of Wisconsin              Minneapolis Public Schools
Milwaukee, WI                       Minneapolis, MN

(Stip. 109)

114. During the development of the Educational Components from November 1980 through March 1981, Board submitted monthly progress reports to the Department of Justice, as required by the Consent Decree. (Stip. 110)

115. Dr. Green submitted his Recommendations on Educational Components to Board April 3, 1981. Two weeks later the Recommendations were adopted by Board as Part I of the Desegregation Plan: Educational Components. Part I's content is summarized by its Table of Contents:

A. Introduction

B. Educational Components

1. Curriculum and Instruction — Elementary Schools

2. Curriculum and Instruction — High Schools

3. Magnet Schools

4. Vocational and Technical High Schools

5. Special Education and Testing

6. Bilingual Education

7. Within-School Segregation

8. Student Discipline

C. Staff Development

D. Other Components

1. Public Participation

2. Metropolitan Initiatives

3. Faculty Desegragation and Affirmative Action

4. Evaluation

5. Monitoring

E. Appendix

(Stip. 111)

116. The following statements about Plan costs appeared at pages 17 and 19 of the "Financial Aspects" section in Part II of the Plan, adopted in April 1981:

    1. Cost and Funding of the Plan. Due to the
  relatively short time available under the Consent
  Decree for development of the desegregation plan, the
  planning process has been addressed to the
  formulation of programs that would be desirable to
  effectuate the purposes of the Decree.

    2. It has not yet been possible to determine the
  financial feasibility of the programs — i.e.,
  the administrative details of the programs, the exact
  costs associated with the various elements of the
  plan, the extent to which these costs can be met from
  existing resources or require new funding, and the
  availability of such new funding.

    While the exact costs of the educational components
  are not yet known, the

  Board believes that the core level of funding
  required to make reasonably effective those
  educational components directed to Black and Hispanic
  schools remaining racially isolated is $40 million
  annually in fiscal years 1982 and 1983, and $20
  million annually thereafter (although additional
  funding would be strongly desirable).

(Stip. 112)

117. Before the Consent Decree, Board's desegregation programs were administered by a staff of three persons. Shortly after the initial adoption of the Educational Components, Board created a special Office of Equal Educational Opportunity ("OEEO") to coordinate the implementation of the Plan. OEEO is presently headed by Dr. Nelvia Brady, Associate Superintendent, who was a member of Dr. Green's original desegregation planning staff. OEEO's office staff has expanded continuously since 1981 and presently comprises 53 persons, of whom eight are clerical staff, eight are teachers (who are district-assigned), 13 are school-committee representatives and 24 are teachers (7) and administrators (17) assigned to the central office. Twenty-nine of the 40 education professionals (72.5%) have their principal responsibilities in the area of implementing the Educational Components of the Plan. (Stip. 113)

Statements of the United States and this Court Relating to the Educational Components

118. On June 3, 1981 Attorney General William French Smith delivered an address before the American Law Institute. In discussing the policy of the United States as to desegregation remedies, Mr. Smith stated (at 8-9):

    All of these considerations [concerning mandatory
  reassignment] point to the need for more innovative
  and practical approaches to achieve equal educational
  opportunity. Mandatory busing is not an effective
  educational remedy, and in many cases it has also
  proven counterproductive. But this does not mean that
  desegregation should not continue or that improving
  the quality of public education for all our children
  cannot be achieved. To do so, however, we must tailor
  the remedy to the facts of each case in which a
  constitutional violation has occurred.

    Rather than focusing solely on the means by which
  discrimination has been practiced in the past, it is
  time we devoted more attention to remedying the
  resulting harms actually being suffered today. We
  should emphasize those remedies that actually improve
  the quality of education. Rather than continuing to
  insist in court that the only and best remedy for
  unconstitutional segregation is pupil reassignment
  through busing, the Department of Justice will
  henceforward propose remedies that have the best
  chance of both improving the quality of education in
  the schools and promoting desegregation.

(Stip. 114)

119. In the Response of the United States to the Desegregation Plan, filed in July 1981, the United States made the following comments about the Educational Components of the Plan:

  (a) With respect to the provision of the Consent
    Decree concerning providing compensatory programs
    in schools remaining segregated, the United States
    said (at 5):

      This principle is based squarely on common sense
    and Supreme Court holdings. The method of
    compliance with this objective is largely within
    the discretion of the Board, which has the
    expertise in educational methods.

  (b) After a brief summary of the Educational
    Components, the United States stated (at 22) that
    "the Government endorses" them.

  (c) Finally, in evaluating the Educational
    Components, the United States said (at 32-33):

      The Educational Components have been more fully
    developed than the student assignment principles.
    The Board hired an impressive team of nationally
    known experts and the Plan

    reflects the substantial time and effort that has
    gone into the preparation of the Educational
    Components. The Board and its planners deserve a
    great deal of credit for the accomplishment of this
    task. We expect that when these new educational
    programs are developed in detail and implemented,
    they will complement the student assignment
    principles by enhancing the workability of
    voluntary desegregation techniques and that they
    will contribute to bringing about equality of
    educational opportunity in the one-race schools
    which remain under the final plan.

(Stip. 115)

120. On August 28, 1981 the United States and Board submitted their Joint Statement to the Court as to the development of the Plan. With respect to the Educational Components, the Joint Statement (at 5) informed the Court that

  The Board and the United States are in agreement in
  these general respects: . . . (2) the Educational
  Components are an integral and necessary aspect of
  the Board's Plan. They are consistent with the
  Consent Decree and the Constitution. The United
  States fully endorses the Educational Components from
  a legal perspective, although it views the particular
  educational policy choices as within the Board's

(Stip. 116)

121. On September 27, 1981 Assistant Attorney General William Bradford Reynolds delivered a speech to the Education Commission of the States, meeting in Chicago. In discussing the policy of the Department of Justice concerning desegregation remedies, Mr. Reynolds stated:

    Experience teaches us that blacks in a segregated
  school environment more often than not receive
  inferior educational attention. To the extent
  necessary, their facilities and curriculum must be
  enhanced to bring them into educational parity with
  the other public schools in the system. In sum, we
  must ensure, whatever the ultimate racial composition
  in the classroom, that all students attending public
  schools, regardless of race, color, or ethnic
  background, have an equal opportunity to receive an
  education. We are concerned, quite frankly, much less
  with student relocation than we are with student
  education and our school desegregation plans will be
  drawn to reflect that predominant concern.

    Pursuant to the Department's civil rights policies,
  we are overseeing the development of a desegregation
  plan here in Chicago that will be designed to
  enhance educational opportunities for all students.
  The public school enrollment in Chicago is
  approximately 61% black, 18% white, and 21% non-black
  minorities, mostly Hispanic. The Chicago School Board
  and the Justice Department recognize that there are
  schools in the system that will remain racially
  identifiable under the desegregation plan, and the
  Board has thus undertaken compensatory programs to
  enhance the quality of education provided in those
  schools in order to guarantee equal educational
  opportunity to all students in the system. To this
  end, the Board has developed and submitted to the
  Court, with our enthusiastic approval, detailed plans
  to enhance educational quality in the schools, and
  implementation of those plans began this fall.

    By concentrating our attention and resources on
  teachers and administrators, course offerings,
  incentives for learning, and other components of
  education quality, this Administration — with the
  help and cooperation of civil rights groups, state
  and local school authorities, and, most importantly,
  professional educators — can formulate desegregation
  plans that not only will ensure all public school
  students, irrespective of race, color or ethnic
  background, equal educational opportunity, but will
  do so within an educational environment free from
  state-enforced attendance barriers. If such a
  cooperative and united effort can be mounted to rid
  our Nation's public

  schools of the tragic legacy of racial
  discrimination, I am confident that, in time, we will
  be able to review that effort against the test of
  experience, and say with pride "it worked."

(Stip. 117; Bd. Ex. 77)

122. In school year 1981-82 Board submitted quarterly progress reports to the United States and to the Court, detailing the process of implementing the Plan, including the Educational Components. (Stip. 118)

123. In February and March 1982, following the adoption of Board's Comprehensive Student Assignment Plan, the Court entertained briefs concerning the compliance of the total Plan with both constitutional requirements and the Consent Decree. The United States Assessment of the Plan commented on the Educational Components as described in Finding 139. The Chicago Urban League's Assessment of the Plan expressed strong concern about the need to provide significant extra funding for implementation of the Educational Components in racially isolated schools:

    The provision of extra funds — and therefore
  resources — to schools which are to remain
  racially isolated is a form of compensation intended
  to make up in part for the system's failure to remedy
  all manifestations of segregation. This component of
  the Plan is extraordinarily important because the
  majority of the system's schools are to remain
  segregated under the Board's proposal. . . .

    The Chicago Urban League believes the notion of
  compensatory funding requires that racially isolated
  schools receive extra funding above and beyond what
  other schools may be receiving. . . .

The Urban League went on to express concern that Board had only committed itself to provide "Milliken II relief" to the extent that funds are available. NAACP's July 1981 memorandum on the Plan stated "we have no specific objection to the content of these programs." NAACP's March 1982 brief did not comment further on the Educational Components. (Stipulations 119, 133)

124. On January 6, 1983 this Court issued its opinion ("Opinion I," 554 F. Supp. 912) approving Board's Plan as being clearly within the broad range of constitutionally acceptable plans. With respect to the Educational Components and funding, Opinion I stated (id. at 926):

    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.

    Funding. 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.

(Stip. 120)

125. Board's 1983 Annual Desegregation Review, Part I (filed April 15, 1983) contained a section on "Financial Aspects" at 402-23, which included the following statements:

    With regard to expenditures for racially
  identifiable schools, a brief explanation is in
  order. The Board's initial commitment (as outlined in
  the April, 1981 Principles) was to spend $40 million
  a year in 1981-82 and 1982-83 and $20 million a year
  thereafter. As described above, spending specifically
  budgeted for this component of the Desegregation Plan
  has fallen somewhat short of this originally
  projected level in the first two years of
  implementation. As a result, the Board believes it to
  be appropriate to attempt to make up the difference
  in subsequent years. Hence, the Board believes to be
  desirable to spend at least $40 million in 1983-84,
  as opposed to the $20 million initially prescribed by
  the Principles. However, the funds needed to provide
  for this level of expenditure simply are not
  available from within the Board at this time.

    Over and above the level of expenditures for
  1983-84 described above, additional resources would
  also be highly desirable to maximize the
  effectiveness of the Desegregation Plan. Such
  additional funding would help to strengthen and
  enrich the implementation of desegregation in Chicago
  in a variety of ways: intensified implementation and
  evaluation of educational components, expansion of
  magnet schools and programs (including metropolitan
  schools and scholastic academies), intensified
  recruitment efforts, improvement in vocational,
  technical and special educational programs,
  initiation of interdistrict transfer programs, to
  name only a few.

    Resources. The resources necessary to fund
  desegregation implementation at the levels set forth
  above unfortunately are not available at this time
  from within the Board. The Board, for its part, is
  committed to appropriations for 1983-84 of at least
  $57 million — a continuation of the amounts it
  budgeted for the current school year. To the extent
  additional moneys are made available, the Board will
  spend them to bring the aggregate levels of
  expenditures for racially identifiable schools up to
  $40 million and to further maximize optimum
  implementation of this and other aspects of student

    Thus, at this time precise estimates of the Board's
  financial condition for future years are slightly
  premature. However, it may be fairly stated that for
  1983-84 the Board faces budget problems of an
  extremely serious magnitude. Preliminary projections
  suggest it is facing a budget deficit in the range of
  $200 million. . . .

    In any event the Board believes that, in the first
  instance, the obligation to provide these additional
  resources for the substantial expenditures which full
  and complete implementation of the Plan entails lies
  with the federal and state governments.

    On April 13, 1983, the Board adopted a resolution
  directing its counsel to initiate litigation against
  the State of Illinois and the United States seeking
  contribution for the cost of implementing the
  Desegregation Plan. The Board expects that the
  initiation of these actions will be forthcoming.

(Stip. 121)

126. Board's statements as to the desired expenditure of at least $40 million on the Educational Components in racially isolated schools and on the desired expenditure of additional amounts for these purposes, including the statements described in Findings 116 and 125, do not reflect any determination by Board either that the expenditure of $40 million would be "adequate" for that aspect of the Plan (in terms of Section 15.1) or that the expenditure of additional amounts for that aspect of the Plan would not materially aid its success or would not be necessary for its full implementation. (Stipulations 101-21; Parts I, II and III of the Plan)

127. In August 1983 Board filed Part II of its 1983 Annual Desegregation Review, a 416 page document that reported in detail on the implementation of the Educational Components ("ADR II"). After the filing of ADR II this Court provided the United States and the amici curiae the opportunity to file comments. Neither the United States nor any of the amici filed comments with the Court. (Stip. 122)

128. As the preceding review of the record reflects, the United States (a) strongly supported (indeed, insisted upon the inclusion of) Board's Educational Components as the developmental process moved from the Consent Decree principles to the April 1981 Educational Components Plan to approval by this Court and (b) raised no subsequent objection as Board proceeded to add programmatic details to those initial documents. Only when called upon to fulfill its financial responsibility did the United States begin to renege on its approval. (Stips. 101-22, 133)

Overview of the Student Assignment Plan

129. Under the Consent Decree Board agreed to adopt a system-wide desegregation plan with two basic objectives. Section 2.1 called for creating the greatest practicable number of stably desegregated schools, considering all the circumstances in Chicago. As already described, the second objective was to provide educational and related programs for schools that remained racially isolated. (Stip. 123)

130. In January 1982 Board adopted its Comprehensive Student Assignment Plan, which divides all schools in the school system into four broad categories. First of those categories is that of the residentially integrated school (defined as one whose enrollment includes at least 30% white children and 30% minority children, derived principally from residential or other natural attendance patterns). Two basic types of schools come within that category: (a) stably integrated and (b) integrated but with potential for change. There is a third type of school identified in the Plan: currently integrated, but with an enrollment of white children projected to decline below 30%.[fn3a] As of October 1981 those three types of schools encompassed 67 schools with an enrollment of 52,067 students.[fn4a] (Stip. 124)

131. Next the Plan considers the category of the desegregated school: one whose enrollment includes at least 30% white children and 30% minority children, and which has been established primarily by student assignment techniques under the Plan. That category includes both (a) schools that have previously achieved stably desegregated status through the implementation of various student assignment measures (as of 1981, 42 schools with 20,329 students) and (b) schools that in 1981 were yet to achieve desegregated status, through previously existing and newly adopted student assignment techniques (in 1981, 33 schools with 17,541 students). Such techniques include voluntary transfer programs and magnet and magnet-type programs within schools. (Stip. 125)

132. In addition the Plan describes various magnet-type schools, which are established primarily in minority communities and are designed to promote desegregation by special educational offerings and programs. Each such school has a target enrollment composition, generally 15-35% white, 65-85% minority. In 1981 such schools included 41 magnet schools, scholastic academies and metropolitan high schools, enrolling 28,824 students. (Stip. 126)

133. Finally the Plan also considers schools projected to remain racially identifiable (with an enrollment of greater than 70% minority children, less than 30% white children). In 1981 there were 354 such schools, enrolling 275,794 students. After describing why those schools cannot practicably be desegregated, the Plan describes the compensatory educational arrangements that will be provided for at those schools and the various voluntary transfer arrangements in which students enrolled at those schools may participate. (Stip. 127)

134. This table summarizes the school types identified in the Plan, and the number and enrollment of the schools:

    Integrated Schools:                   Number    Enr.*fn*

        Stably integrated                   42      31,791
        Integrated schools stable
        but projected to become mixed       11       7,697
        Integrated schools with
        potential for
        change                              14      12,579
                                           ---     -------
        Subtotal                            67      52,067

Schools Desegregated and To Be Desegregated:

        Schools presently desegregated      42      20,269
        Schools to be desegregated          33      17,541
        Magnet schools                      29      16,765
        Scholastic Academies — 1982    6       2,406
        Metropolitan High Schools
        — 1982                        6       9,653
                                           ----     ------
        Subtotal                           116      66,634

Predominantly Minority Schools:

        Stable mixed (15-29% white)         14      11,481
        Mixed with potential for racial
        change                              20      14,695
        Schools more than 85% minority     320     249,618
                                           ----    -------
        Subtotal                           354     275,794

Special Needs/Special Admissions:

        Physically handicapped, apprentice,
        adult education, bilingual centers,
        juvenile detention and pregnant
        students                            43       9,173
                                           ----    -------
        Total                              580     403,668

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