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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 ...

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