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United States District Court, Northern District of Illinois, Eastern Division

June 8, 1984


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

        June 8, 1984 OPINION — TABLE OF CONTENTS


BACKGROUND                                                           138-140

I. FINDING 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 Desegragation
     Expenditures                                   301-12           180-186

     1983-84 Ancillary Desegragation
     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

Boards 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

    Seperation 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 36, 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) West Page

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 consideraition 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; and

   (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
   the 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

   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 kindergarten.

   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 programs.

   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

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

   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

(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)*fn1 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."*fn2 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, PhD., 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

Judaun 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, Superintendent
Northeastern Illinois University     Benton Harbor Public Schools
Chicago, IL                          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
Univeisity 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 Desegregation 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)

Satements 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 hence
   forward 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

     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
  desegregation. *           *            *            *

     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%.*fn3 As of October 1981 those three types of schools encompassed 67 schools with an enrollment of 52,067 students.*fn4 (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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