Appeal from the United States District court for the Northern District of Illinois, Eastern Division, No. 80-4261-Charles R. Norgle, Judge.
Before BAUER, WOOD, JR., and FLAUM, Circuit Judges.
WOOD, JR., Circuit Judge.
Plaintiffs' original interlocutory appeal in this case was dismissed for lack of jurisdiction. Samayoa v. Chicago Board of Education, 783 F.2d 102 (7th Cir. 1986). As the jurisdictional problem no longer exists, the plaintiffs now reassert their appeal from the dismissal of Count I of their complaint. We affirm.
The district court described the case as follows:
This suit alleges racial discrimination in the operation of the Walt Disney Magnet School, a Chicago public elementary school. . . .
Count I alleges that the defendants, the Chicago Board of Education and various school officials, violated the constitutional rights of a group of Cuban, American-Indian, and white children, aged 3-4. These children were originally admitted to the Walt Disney Magnet School's pre-kindergarten program in June, 1981, but their admission was revoked two months later, after the school district decided to revise the racial composition of the school to reflect changes in the racial composition of the geographic area from which the school draws pupils. ( Fourth Amended Complaint, Count I, PVII). Count I alleges that the defendants' actions were discriminatory because they revoked the admission of only Cuban, American-Indians and white student.
Count II is based upon the deed for the property on which the school stands. The property was granted by the federal government to the City of Chicago for the purpose of establishing a school; in the deed the city allegedly agreed to comply with Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination in federally-funded programs. (Complaint, Count II, PXIII). Count II alleges that the revocation of the children's admission to the school violates this contract between the federal government and the city. Paragraph XIV of Count II also alleges a series of other breaches of this contract, e.g. the lay-off of teachers and other staff, an increased student-teacher ratio, budget cuts and other changes allegedly weakening the school's educational program. The complaint alleges that these changes contribute to "white flight" by making the magnet school less attractive and therefore contravene the goals of Title VI.
Count III alleges both a due process and an equal protection violation of the rights of the children whose admissions were revoked. The complaint alleges that on October 20, 1981 the school board held a "purported hearing" regarding the revocation. This hearing did not meet minimum standards of procedural due process, however, according to the complaint. Furthermore, after the hearing the Board subsequently admitted 5 and 6-year-olds who were originally rejected with the younger plaintiffs here, but did not give a reason for treating the younger children differently.
Plaintiffs seek injunctive relief and specific performance of the deed to prevent the school board from continuing to discriminate against the plaintiff's racial and ethnic groups. Plaintiffs also seek compensatory and exemplary money damages. Although this suite originally was filed as a class action, plaintiffs in their status report now state that it is being brought only on behalf of the plaintiffs in their individual capacities.
In the original appeal this court determined that the district court's dismissal of count I was not "directed specifically toward the denial of permanent injunctive relief," Samayoa, 783 F.2d at 104, and the dismissal thus could not be appealed immediately under 28 U.S.C. § 1292(a)(1). This court furthermore stated that even accepting the dismissal of count I as "an effective denial of a permanent injunction so as to make it reviewable by interlocutory appeal," id., the lack of an emergency or an urgent need to appeal while Count III still remained for trial in the district court counseled against allowing the appeal of Count I.
Consequently plaintiffs returned to the district court and asked for a dismissal of count III. The district court dismissed Count III on May 12, 1986. The plaintiffs are here again appealing the dismissal of Count I and urging this court to reverse and remand this case for entry of a permanent injunction to prohibit the Walt Disney Magnet School from using racial quotas, entry of an order directing the immediate admission of children excluded by the racial quotas, and an award of attorney's fees.
We agree with the district court that the rational of United States v. Chicago Board of Education (Johnson III), 567 F. Supp. 290 (N.D. Ill. 1983), applies here, The plaintiffs in Johnson challenged as unconstitutional the desegregation plan voluntarily adopted by the Board. The desegregation plan imposed racial quotas and a ceiling on enrollments in two high schools. The plaintiffs were black children and their parents who resided in the attendance areas of the high schools. The plaintiffs asserted that the desegregation plan as applied to the two high schools violated 42 U.S.C. §§ 1981 and 1983 and 20 U.S.C. § 1703(c) by restricting minority student admission to these schools solely on the basis of race. The district court in Johnson found that "stripped of rhetoric, plaintiffs' contention is really that (1) each individual aspect of the [desegregation] plan and (2) every impact of every element within it must pass strict constitutional scrutiny." 567 F. Supp. at 295. The Johnson court agreed with the Board that "the narrow and specific relief sought by the Johnson and Milton, plaintiffs was subsumed by the provided in the United States [ v. Chicago Board of Education, 554 F. Supp. 912 (N.D. Ill.), aff'd, 717 F.2d 378 (7th Cir. 1983),] action, which was brought on behalf of all the minority students in the Chicago public schools." Id. The district court reasoned that the "implementation of the [Consent] Decree has transformed claims of individual constitutional deprivation into claims that must be scrutinized against the [desegregation] plan as an entirety." Id. at 296.
Applying this reasoning the Johnson court concluded that the plaintiffs' challenges were collateral attacks on a desegregation plan that had already been found constitutional, and "approval of the Plan as a whole implicates refection of the notion each and every element of the Plan must pass strict constitutional scrutiny in a vacuum, isolated from the other aspects of the Plan." Id. The court stated that the plaintiffs' efforts to inquire further into the Board's motives in instituting the Plan were unwarranted because "the actions sought to be stigmatized are part of a ...