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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 ...

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