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PEOPLE WHO CARE v. ROCKFORD BD. OF EDUC.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, WESTERN DIVISION


November 3, 1993

PEOPLE WHO CARE, an unincorporated association; LARRY & CHASTY HOARDE, minors, by their parent and next friend Flossie Hoarde; JONATHAN HUGHES, a minor, by his parents and next friends, Sidella & Nathan Hughes; SIDNEY & ANDRE MALONE, minors, by their parent and next friend, Rev. Louis E. Malone; SHAHEED SALEEM, a minor, by his parent and next friend, Christine Saleem; ANISSA TRIPPLETT, a minor, by her parent and next friend, Beulah Tripplett; ASIA EASON, a minor, by her parent and next friend, Granada Williams; JAMES & KELLY CURTIN, minors, by their parents and next friends, Larry Curtin & Sue Belvoir; LEONARDO MEDRANO, by his parent and next friend, Jesus Medrano; each individual suing as a class representative of the class certified by the court; Plaintiffs,
v.
ROCKFORD BOARD OF EDUCATION, SCHOOL DISTRICT # 205, Defendant, and ROCKFORD EDUCATION ASSOCIATION, ROCKFORD BUILDING MAINTENANCE ASSOCIATION, & EDUCATION OFFICE PERSONNEL ASSOCIATION, Intervenor-Defendants.

MAHONEY, ROSZKOWSKI

[EDITOR'S NOTE: PART 2 OF 3. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS TO ACCOMMODATE ITS LARGE SIZE. EACH PART CONTAINS THE SAME LEXIS CITE.]

In the 1980-81 school year, Peterson School was 88% white. The Peterson School attendance area was divided into four areas and its students were sent to Beyer, Hallstrom, Nashold and Rock River Schools. B46628. Beyer School, with a 41% African-American student population, received thirty-one additional African-American students in 1981-82 and Rock River School, with a 41% African-American student population, received eleven additional African-American students. In contrast, Nashold School, with 5% African-American student population, received only two additional African-American students and Hallstrom School, with only a 5% African-American student population, received no new African-American students.

One week after receiving the staff's building study that indicated certain actions could result in de jure segregation, the RBE approved school closings and reassignments that, according to the report, could result in de jure segregation. In an open meeting approximately one month later, parents spoke to the RBE about the proposed school closings. Darlene Hanna, a Roosevelt School parent who later became an RBE member, discussed the disadvantages of closing Roosevelt Middle School and noted that Roosevelt was a naturally integrated school. Bd. Min., 1/26/81, B16951. The Roosevelt School boundaries ran from the Rock River on the east to Central on the west, Jefferson Street on the south and West Riverside on the North. Roosevelt's enrollment was integrated every year from 1970 through 1981. In its own Building Analysis, the RBE recognized and pointed out the value of natural integration in its discussion in relation to Lincoln Middle School. The elementary schools that naturally fed into Roosevelt were: Church (47.12% African-American), Garrison (25.23% African-American), Walker (19.35% African-American), Haskell (49.39% African-American), Welsh (19% African-American), Summerdale (28% African-American), West View (15.03% African-American) and Conklin (15.20% African-American). These feeder schools were mainly integrated schools.

 In the 1980-81 school year, Roosevelt Middle School had an integrated student population of 27.53% African-American. The Roosevelt attendance area residents also had a diverse socioeconomic make-up. The Fairgrounds Park Housing Project (low-income) and the National Avenue District (high-income) were both contained within its boundaries. Roosevelt School was located in an area with dense population, had the largest number of students in its feeder schools, had one of the lowest costs to run per year of any RSD secondary school, was the only school in the area projected to increase enrollment over the next five years, was located within walking distance of community resources and was a school where students could stay after school for extracurricular activities. Id. Despite all these advantages, on February 18, 1981, the RBE approved the closing of Roosevelt Middle School. Bd. Min., 2/18/81, B16967, B16971.

 The RBE also closed Washington Middle School, located in the Southwest Quadrant. Id. Washington Middle School was a racially-identifiable African-American school and, in the 1980-81 school year, had a 47.5% African-American student population. By closing Roosevelt and Washington Middle Schools, the RBE closed the only naturally integrated middle school and the most heavily populated minority middle school. The closing of these two schools left the Southwest Quadrant without any middle or secondary school south of State Street and west of the Rock River.

 Integration Efforts of the RBE in 1981

 According to one RBE Member, the level of the RSD's commitment to integrative programs declined after the withdrawal of the ISBE. Unless outside pressure was present, the RBE undertook no steps in an effort to desegregate Rockford schools. In 1981, Rockford was released from the pressure of the ISBE and the United States District Court.

 On February 18, 1981, the following policies were approved by the RBE:

 

1. Operating costs in the alternative education programs were cut.

 

2. All alternative program bus riders were charged for the actual cost of transportation to such programs except those families who qualified under the RSD's free lunch program.

 

3. The position of Director of Integration was eliminated. All funds that were realized from the sale of closed school properties were used for construction in the attendance areas of Argyle, Bell and Guilford Center (Northeast) and Cherry Valley, Gunsolas and Vandercook (far Southeast). The attendance areas of these schools were almost completely white.

  Bd. Min., 2/18/81, B16967; Walhout Test., Tr. at 420-421. In the 1981-82 school year, eight Southwest Quadrant elementary schools were racially-identifiable African-American. Those schools and their African-American student enrollment were: Ellis 63% Church 54% McIntosh 53% Haskell 52% Barbour 50% Lathrop 47% Haight 42% King 37%

 1983 School Closings

 In late 1982, eleven more schools were under consideration by the RSD for possible closure. These schools were Westview, Haight, Dennis, Evergreen or King, Guilford Center, Fairview, Garrison, Whitehead and Stiles, Cherry Valley and New Milford. B47879. Further closings were ruled out in the Northwest area where Whig Hill and Henrietta Schools were closed and in the inner Southeast area where Turner, Peterson and Wight Schools were closed. A savings of close to $ 2 million was projected to result from these closings. See B506492.

 Evergreen School was closed in 1983 and its students were reassigned to Lathrop and New Milford. Lathrop's African-American percentage went from 47% to 38% and New Milford remained all white. The Evergreen students east of the Rock River were sent to New Milford, also east of the Rock River. Guilford Center was also closed in 1983 and its students were reassigned to Brookview. Brookview School's African-American percentage decreased from 22% to 16%. Fairview School was closed in 1983 and its students were reassigned to Johnson School, lowering Johnson's minority percentage from 13% to 6%. Fairview students were also reassigned to Rolling Green School, decreasing its minority percentage from 18% to 16%.

 Garrison School's old building was closed in 1983, but its new addition remained open. Garrison's fourth through sixth grade students were reassigned to Walker and Haskell Schools. As a result, Walker's African-American student population decreased from 13% to 7% and Haskell's African-American student population increased from 57% to 63%. Garrison changed from a 27% African-American student population to an 18% African-American enrollment.

 Skyview School, which was all white, was closed in 1983 and its students were reassigned to New Milford School, also all white, and to Froberg School. Froberg was 3% African-American in the 1982-83 school year. As a result of the reassignment, Froberg School became 1% African-American in the 1983-84 school year.

 The RSD report also proposed closing Cherry Valley School, that was 99% white, and reassigning its students to Hillman School, that was 25% African-American. Cherry Valley, however, was not closed. Further, the RSD proposed closing Stiles School and reassigning its students to Dennis School. B47879. Stiles was previously 99% white; however, since 1973, Stiles had a 12-32% African-American student population due to the busing of African-American students from Dennis. In the 1982-83 school year, Stiles was 26% African-American, with 57 African-Americans in its student population of 223. Dennis was a school with a student population in excess of 90% African-American. Since 1975, Dennis had an increased percentage of whites as a result of receiving white students from the former Lincoln School area to the north. B509184. In the 1982-83 school year, Dennis was 31% African-American. Stiles was ultimately left open.

 The only other school that experienced a big change in enrollment in the 1982-83 school year was Whitehead, which resegregated from 19.08% African-American to 3.39% African-American. The RBE approved wing closings at Whitehead School, Garrison School and Fairview School. Bd. Min., 3/28/83, B17558, B17561. As a result of these wing closings, Whitehead School lost only 17% of its white students. In contrast, Whitehead lost 88% of its African-American students. Similarly, Garrison School lost 53% of its white students, but lost 72% of its African-American students due to wing closings. An examination of minority percentage changes in schools during the 1983-84 school year, revealed that the percentage of non-minority students enrolled in racially-identifiable white schools increased slightly as did the percentage of African-American students enrolled in racially-identifiable African-American schools.

 In its 1981 Individual Building Analysis, the RSD administrators warned that the closing of certain schools and the reassignment of those students to nearby schools resulting in segregation, would constitute de jure segregation. IBA, B29808. The following closings and reassignments were violative of this warning: Closing Evergreen and sending students to New Milford; closing Guilford Center and sending students to Brookview; closing Fairview and sending students to Johnson; closing Garrison and sending white students to Walker and African-American students to Haskell; closing Skyview and sending students to New Milford and Froberg; and expanding Dennis' boundaries, thereby increasing its racial isolation. The net result of these school and wing closings was that eight schools became substantially more racially isolated, three schools were allowed to remain racially and geographically isolated from the rest of the RSD and many other schools throughout the RSD experienced resegregative enrollment changes. The court finds that the RSD knew that these closures constituted de jure segregation.

 Dismantling of Alternative Programs

 After the State of Illinois and the Federal court allowed the Rockford Board of Education to proceed without scrutiny, the RBE began to dismantle the alternative programs. In 1981, free transportation and teachers for the full-site programs were canceled, thus effectively eliminating the programs. See, infra, Inequitable Access to Transportation. Additionally, free transportation was eliminated for all students in the secondary schools grades seven through twelve. RBE Letter to Parents, 4/81, B46529. Transportation to some of the alternative programs was also canceled. After the free transportation was canceled, the number of RSD students participating in the desegregation program decreased dramatically. In the 1980-81 school year, 674 students were participating in integration transfers. By the 1981-82 school year, that number had dropped to 277. B4069; B46711.

 On March, 1981, the RBE decided to close Lincoln Park Elementary School. Lincoln Park was a full site magnet school that housed the Rockford Alternative Middle School (RAMS) and the Rockford Alternative Elementary School (RAES) programs. Bd. Min., 3/9/81, B16975. The RAMS program was to be moved from Lincoln Park to Lincoln Middle School and the RAES program was to be moved to Ellis School. Id. The RAMS and RAES programs were integrated magnet school programs. Subsequently, despite community protest, the RBE decided to discontinue the RAMS program. Bd. Min., 6/14/82, B17348.

 By the 1988-89 school year, the year in which the RSD passed the Reorganization Plan that triggered this lawsuit, the mandatory one-way busing of African-American students was still underway in various schools and the burden of any remaining integration efforts was being born exclusively by minorities. The RSD schools continued to be severely segregated. After twenty years of desegregation efforts in the Rockford School District, six schools had more than 50% minority enrollment, 63% of the elementary schools were racially-identifiable and 33% of the middle and high schools were racially-identifiable.

 CONCLUSIONS OF LAW

 Generally, courts hearing liability claims avoid finding that some magical percentage of variance in a school's population from the racial composition of the district as a whole makes a school racially imbalanced. Some courts have explicitly held that it is unnecessary to find that specific schools are segregated or to set a precise numerical ratio that designates a school as segregated or integrated. Armstrong v. Brennan, 539 F.2d 625, 633 (7th Cir. 1976), vacated and remanded, 433 U.S. 672, 97 S. Ct. 2907, 53 L. Ed. 2d 1044 (1977), on remand, Armstrong v. O'Connell, 451 F. Supp. 817 (E.D. Wis. 1978), on remand, 463 F. Supp. 1295 (E.D. Wis. 1979); Arthur v. Nyquist, 415 F. Supp. 904, 912 n.9 (W.D.N.Y. 1976), aff'd on reconsideration, 429 F. Supp. 206 (W.D.N.Y. 1977), aff'd in part and rev'd in part on other grounds, 573 F.2d 134 (2nd Cir.), cert. denied, 439 U.S. 860 (1978). A rigid mathematical formula would arguably conflict with the dictates of Keyes that factors other than the composition of a school's student body, "such as the racial and ethnic composition of faculty and staff, and the community and administration attitudes toward the school, must be taken into consideration." Keyes v. School Dist. No. 1, Denver Colorado, 413 U.S. 189, 196, 37 L. Ed. 2d 548, 93 S. Ct. 2686 (1973) (emphasis added); see also, Oliver v. Kalamazoo Bd. of Educ., 368 F. Supp. 143, 153 (W.D. Mich. 1976), aff'd, 559 F.2d 1042 (6th Cir. 1977), cert. denied, 434 U.S. 997 (1977).

 This does not suggest, however, that student enrollment figures do not play a central role in desegregation cases. Typically the evidence in desegregation cases includes vast historical data showing enrollment by race in the school district and in its individual schools. Based upon the circumstances of the case, the court then makes findings that highlight: (1) the percentage deviation between the minority enrollment in particular schools and the minority population of the district as a whole; and (2) the existence and number of virtual one-race schools in the district. See, e.g., United States v. Yonkers, 624 F. Supp. 1276, 1386 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2d Cir. 1987) (64% of district's white students attended schools with at least 90% white students, while 28% of the minority students were enrolled in schools with at least 80% minority enrollment); Lansing, 429 F. Supp. 583, 609 (in a system in which 18,800 students attended 48 elementary schools and 79% of the students were white and 21% minority, two elementary schools were 85% minority and a third 49% minority); Morgan, 379 F. Supp. 410, 424 (in a system of 96,000 students, in which 61% of the students were white and 39% minority, 84% of the white students attended schools that were more than 80% white and 62% of the African-American students attended schools more than 70% African-American); Oliver, 368 F. Supp. at 153 (in a system of 29 elementary schools in which 16.1% of the elementary students were African-American, 92.3% of African-American children went to five schools).

 In considering the degree of segregation in student assignments, courts frequently rely upon expert testimony that identifies particular schools as racially imbalanced based upon a certain percentage deviation between the proportion of minority enrollment in a given school and that in the whole district. See, Higgins v. Bd. of Educ. of Grand Rapids, 508 F.2d 779, 787 n.12 (6th Cir. 1974) (15% is a commonly accepted guideline); Columbus, 429 F. Supp. at 229 (5% variation). Although these analyses do not provide a talismanic mathematical formula for racial identifiability, Price v. Denison Indep. School Dist., 694 F.2d 334 (5th Cir. 1983), such formulas serve as a "rough gauge which is a useful reference point when examining particular schools." Columbus, 429 F. Supp. at 268-69. Based upon this type of statistical evidence, and with appropriate reference to conditions in the other areas noted in Keyes, a court may then conclude that the district's schools are "racially imbalanced" or "racially-identifiable."

 Conduct Contributing to Racially Identifiable Schools

 In cases involving non-statutory dual school systems, courts have cited a wide range of acts and omissions by school boards that have caused or maintained segregation in student assignment. The court finds that the Rockford School District engaged in a pattern of unlawful acts and omissions involving the conduct noted below that caused and maintained segregation in its schools.

  Boundary Changes and Attendance Zones

 In most desegregation cases, courts have noted instances in which the defendant school district developed boundaries and attendance zones in such a manner that racial segregation in school assignments resulted. See Yonkers, 624 F. Supp. at 1430, 1526-27; Reed v. Rhodes, 455 F. Supp. 546, 558 (N.D. Ohio 1978), aff'd in part and remanded in part on other grounds, 607 F.2d 714 (6th Cir. 1979), cert. denied, 455 U.S. 1018 (1982); Berry v. School Dist. of Benton Harbor, 442 F. Supp. 1280, 1312-17 (W.D.Mich. 1977); Lansing, 429 F. Supp. at 596; Penick v. Columbus Bd. of Educ., 429 F. Supp. 229, 245-46 (S.D. Ohio 1977), aff'd in part and remanded in part on other grounds, 583 F.2d 787 (6th Cir. 1978), aff'd, 443 U.S. 449, 99 S. Ct. 2941, 61 L. Ed. 2d 666 (1979; Arthur v. Nyquist, 415 F. Supp. at 924, 934-36; Amos v. Board of School , 408 F. Supp. 765, 783-84 (E.D. Wis.), aff'd, Armstrong v. Brennan, 539 F.2d 625 (7th Cir. 1976), vacated and remanded on other grounds, 433 U.S. 672, 97 S. Ct. 2907, 53 L. Ed. 2d 1044 (1977); Morgan, 379 F. Supp. at 438; Oliver, 368 F. Supp. at 167; Booker v. Special School Dist. No. 1, Minneapolis, Minn., 351 F. Supp. 799, 804 (D. Minn. 1972); Johnson v. San Francisco Unified School Dist., 339 F. Supp. 1315, 1336, 1341 (N.D. Cal. 1971), vacated on other grounds, 500 F.2d 349 (9th Cir. 1974); United States v. Bd. of School Commissioners of Indianapolis, 332 F. Supp. at 666-67; Spangler v. Pasadena City Bd. of Educ., 311 F. Supp. 501, 509-10 (C.D. Cal. 1970); United States v. School Dist. 151 of Cook County, 286 F. Supp. 786, 798 (N.D. Ill. 1968), aff'd, 404 F.2d 1125 (7th Cir. 1969), cert. denied, 402 U.S. 943 (1971).

 The court finds that the Rockford Board of Education gerrymandered school attendance area boundaries in order to create and maintain a separate school system based upon race. The RSD's alleged policy of maintaining neighborhood schools was, in fact, a policy of maintaining neighborhood white schools. Minority students simply did not have the same rights as majority students in the RSD.

 Manipulating Feeder Patterns

 In many schools districts, high school attendance is determined by feeder patterns geared to schools rather than to geographical areas. Thus, manipulation of these feeder patterns to perpetuate or increase segregation has the same effect as manipulating attendance zones boundaries. See Berry, 442 F. Supp. at 1310; Morgan, 379 F. Supp. at 442-48. The court finds that the Rockford School District consistently and intentionally manipulated school feeder patterns in order to maintain segregation in its schools.

 Optional Attendance Zones and Open Enrollment

 In some desegregation cases, courts have found that the defendant school districts contributed to segregative conditions by employing optional attendance zones or open enrollment policies by means of which students were permitted to attend one of two or more schools. See United States v. School Dist. of Omaha, 521 F.2d 530, 540-43 (8th Cir.), cert. denied, 423 U.S. 946, 46 L. Ed. 2d 280, 96 S. Ct. 361 (1975); Oliver, 508 F.2d 178, 183-84; Brinkman, 503 F.2d 684, 695-96; Penick, 429 F. Supp. at 245-46; Arthur, 415 F. Supp. at 924, 939-41; Armstrong, 408 F. Supp. at 812; Morgan, 379 F. Supp. at 449; Booker, 351 F. Supp. at 804; Board Of School Commissioners of Indianapolis, 332 F. Supp. at 668. The predictable result of giving majority or minority students the option of attending predominantly white or African-American schools is student choices that create or intensify segregation in school enrollments. Id.

 The court finds that the Rockford School District consistently and intentionally maintained an open enrollment policy that contributed nothing to the desegregation of its schools. The open enrollment policy benefited majority students through the use of alternative programs while, at the same time, burdened minority students through mandatory one-way busing.

 Construction of New Schools

 Courts commonly cite a school board's segregative building placement decisions as contributing to segregation in student assignments. See Omaha, 521 F.2d at 543; Reed, 455 F. Supp. at 561; Berry, 442 F. Supp. at 1326-27; Penick, 429 F. Supp. at 241-42; Armstrong, 408 F. Supp. at 788; Morgan, 379 F. Supp. at 428-31; Oliver, 368 F. Supp. at 170; Johnson, 339 F. Supp. at 1337, 1341. The placement of school facilities on particular sites is an action with a singular capacity to promote either integration or maintain segregation. Reed, 455 F. Supp. at 561; Booker, 351 F. Supp. at 804; School Dist. 151 of Cook County, 286 F. Supp. at 798. In Keyes, the United States Supreme Court condemned "the practice of building a school . . . to a certain size and in a certain location, with conscious knowledge that it would be a segregated school." 413 U.S. at 201-2. Other courts have similarly found that situating schools, "under the guise of pursuing a neighborhood school policy . . . so that these schools were segregated on the very day they opened their doors," represents "positive action to aggravate segregation." Soria v. Oxnard School Dist., 386 F. Supp. 539, 543 (C.D. Cal. 1974); Lansing, 455 F. Supp. at 622.

 The court finds that when the RSD built a new school, boundaries were gerrymandered in order to continue to isolate minority populations. Further, the Rockford School District's decisions as to the location of new schools were made in such a way as to promote and retain segregation. Minority students bore a disproportionate burden in relation to transportation as a result of these decisions.

 School Closings and the Assignment or Reassignment of Students

 When faced with the need to close a school or to reassign students because of overcrowding or other similar factors, school districts are often presented with an opportunity to make either segregative or integrative student assignments. A school district's consistent choice of the more segregative option is evidence of unlawful conduct. See Yonkers, 624 F. Supp. at 1528; Reed, 445 F. Supp. at 560-61; Berry, 442 F. Supp. at 1313-15.

 School closings can increase segregation if a district assigns students to other schools in a racially segregative manner. See Reed, 455 F. Supp. at 563; Berry, 442 F. Supp. at 1304. In some cases, school authorities have closed schools that appeared likely to become naturally integrated through changes in neighborhood residential patterns. Swann, 402 U.S. 1, 21, 28 L. Ed. 2d 554, 91 S. Ct. 1267; Oliver, 368 F. Supp. at 164. This action has sometimes been accompanied by a decision to build new schools in outlying regions farthest from the minority population center so as to maintain the separation of the races with a minimum departure from the formal principles of "neighborhood schools." Swann, 402 U.S. at 21. Such a policy does more than just skew the short-run racial composition of the student body of the new school; the policy may well promote segregated residential patterns that, when combined with "neighborhood zoning," further lock the school system into the mold of segregation of the races. Id.

 The court finds that when the RSD closed a school, it consistently reassigned the affected students in such a way that the white students went to racially-identifiable white schools and the African-American students went to racially-identifiable African-American schools. As such, the RSD maintained the segregative nature of its school district.

 Additions to Existing Schools

 Along these same lines, each decision concerning additions to existing schools offers a school district the option of locating the addition either to promote or alleviate racial segregation. For example, the decision to build an addition onto a school that is 100% African-American is a decision to increase the number of African-American students enrolled in that particular school. Accordingly, courts have frequently held that decisions to add to existing schools impermissibly contributed to segregation in student enrollments. See Reed, 455 F. Supp. at 562; Berry, 442 F. Supp. at 1310-12; Oliver, 368 F. Supp. at 173; Booker, 351 F. Supp. at 803; Johnson, 339 F. Supp. at 1318; Board of School Commissioners of Indianapolis, 332 F. Supp. at 667; Spangler, 311 F. Supp. at 517. The courts finds that the Rockford School District consistently and intentionally constructed additions to its facilities in such a way as to promote and maintain segregation within its school system.

 Manipulation of School Capacity

 In some instances, school districts have manipulated school capacities as a means of effecting racial segregation. See Reed, 455 F. Supp. at 565; Morgan, 379 F. Supp. at 426-27; Spangler, 311 F. Supp. at 518. School districts have permitted African-American schools to operate at overcapacity rather than transfer or reassign minority students to white schools or have operated white schools at overcapacity in order to avoid sending white students to African-American schools. Id, see, also, United States v. Texas Educ. Agency, 600 F.2d 518, 522 (5th Cir. 1979). The court finds that the RSD operated its majority schools at overcapacity levels in order to avoid the transfer of majority students to racially-identifiable minority schools. The RSD engaged in such actions consistently and intentionally.

 Special Transfers and Transfer Policies

 In many cases, defendant school boards have employed transfer policies in order to perpetuate school segregation. One common technique is the use of special transfers to allow white students to avoid attending predominantly African-American schools. This device has an obvious segregative effect on student enrollments. See Omaha, 521, F.2d at 539-40; Reed, 455 F. Supp. at 566; Lansing, 429 F. Supp. at 597-601; Armstrong, 408 F. Supp. at 791-94, 819; Morgan, 379 F. Supp. at 473-74; Spangler, 311 F. Supp. at 520. Another segregative transfer technique is to limit African-American transfers to white schools by imposing various conditions on such transfers. See Berry, 442 F. Supp. at 1312 (no transfer granted if likely to lead to further transfers). When the foreseeable effect of a transfer policy is to increase the racial identifiability of schools with large minority enrollments, the policy strongly indicates segregative intent. Lansing, 559 F.2d at 1051; Armstrong, 451 F. Supp. at 856-57; Berry, 442 F. Supp. at 1313.

 The court finds that the RSD permitted special transfers for majority students whose parents requested such transfers. The RSD engaged in such action even when the transfer had a negative integration effect on the schools involved. Such a policy in the RSD had the effect of maintaining racially-identifiable schools.

 Finally, the court finds that the RSD was aware of desegregation proposals that would have brought about the easy and swift integration of the Rockford School District. The proposals were all rejected. Any desegregation programs adopted by the RSD burdened only minority students and set up a benefit program for white students. The primary method used by the RBE to desegregate its schools was the mandatory transfer of minority students and the voluntary transfer of white students through the provision of special programs. When pressured by the State of Illinois and the United States District Court throughout most of the 1970's, the RBE used delay tactics in order to avoid compliance with the dictates of the United States Constitution and the rules and regulations of the ISBE.

 FACILITIES AND EQUIPMENT DISPARITIES

 INTRODUCTION

 Children of all races should have equivalent facilities, equipment and supplies. Children should have an equal opportunity to learn. The RSD, however, did not provide equivalent facilities, equipment or supplies to the racially-identifiable minority schools. Minority students and their teachers, at various times, had little support equipment, an insufficient number of textbooks (which were often dated) and a constant drought of supplies. Further, the record shows that minority students were taught in older, and at times poorly maintained buildings. The RSD also maintained a private gifts policy that contributed to the disparity between the races.

 FINDINGS OF FACT

 Systemwide Disparities In Facilities And EMS

 Systemwide disparities in facilities and in equipment, materials and supplies (hereinafter "EMS") between predominantly minority and predominantly majority schools existed during the past two decades. Educators and administrators in the RSD, and former members of the School Board itself, testified as to the disparities between the predominantly minority and the predominantly majority schools in the District. Their testimony supports the objective data derived from the RSD and third-party studies. This combination of RSD documents and witness testimony provide an in-depth look at facilities and EMS disparities at particular points in time over the past two decades.

 Data Demonstrating Systemwide Disparities

 At the RBE meeting of February 23, 1970, Superintendent Shaheen submitted a report indicating that there existed a considerable imbalance and uneven distribution of school equipment throughout the District at that time. Bd. Min., 2/23/70, B0012479. In light of these disparities among schools with regard to equipment, Dr. Shaheen recommended to the RBE that equipment and supplies be balanced among the schools in Rockford as much as possible. He recommended that such balancing be achieved by transfers of equipment where there was sizable imbalance and/or by additional purchases of equipment where balance can be readily achieved. Such a balancing was never performed.

 In 1973-74, the RSD prepared a report entitled "1973-74 Elementary School Facilities." B48233, B48263-B48575. Under Section C of that report, data was presented regarding physical systems (cooling systems, lighting, interior maintenance, exterior maintenance, and ground maintenance) in each of the elementary schools. Evaluation of this data revealed disparities between African-American schools and white schools. Chart I shows the mean ranking of the physical systems by school type (African-American, integrated, white), ranked on a scale of 1 to 4, with 1 being the lowest and 4 being the highest. African-American schools had a mean ranking with regard to physical systems of 2.45. Integrated schools had a mean of 2.51, and white schools a mean of 2.57.

 Chart 1 1973-74 Elementary School Facilities Quadrant NW SW NE SE A 1.30 2.04 2.32 2.20 B 2.80 2.55 2.74 2.53 C 2.00 2.50 2.64 2.50 D 1.80 3.04 2.87 2.75 All Categories 2.53 2.53 2.64 2.50 School Type Black Integrated White A 1.91 2.33 2.30 B 2.50 2.33 2.61 C 2.58 2.55 2.54 D 2.81 2.82 2.83 All Categories 2.45 2.51 2.57

 The First Interim Order in this case, dated July 1989, required the RSD to perform a detailed evaluation of the physical condition and educational equipment of the Southwest Quadrant elementary schools. On January 2, 1990, Defendant filed a twenty-seven page Facilities and Equipment Evaluation, prepared by Jim Olson, District Supervisor of Buildings and Grounds. This report provided information on the number of various types of equipment allocated to each RSD elementary school. Facilities and Equipment Evaluation, B0509071. The RSD's data revealed that African-American schools had close to 40% less equipment than white schools.

 Table 1 gives a detailed breakdown of the allocation of equipment by racial composition of the schools. Since the three categories of schools contained different numbers of schools, the pieces of equipment per school is evaluated. While there is some variation, the African-Americans schools tended to have the lowest per school allocation, with either integrated or white schools having the highest allocation of equipment. The magnitude of this difference is illustrated in the last column of the table, which shows the ratio of the white per school allocation to the African-American per school allocation. On most of the items, the ratio is greater than 1, indicating that the white schools had a greater number of pieces of equipment per school. Table 1: Per School Equipment Allocation, by School Racial Composition. Type of Equipment Black Integrated White Ratio of Schools: Schools: Schools: White to Per School Per School Per School Black Allocation Allocation Allocation Per School Allocation Student Microscope 0.71 4.42 8.31 11.63 Speak & Spell 0.00 0.17 0.08*-- 35mm Viewer 1.71 2.33 1.46 0.85 Language Master 2.29 2.67 1.46 0.64 Tape Recorder 14.14 24.92 26.15 1.85 Teacher Carts 16.00 21.25 28.38 1.77 Copy Machines 2.14 2.58 3.15 1.47 Duplicators 2.43 3.67 3.23 1.33 Kilns 0.43 0.67 0.85 1.97 Record Players 19.71 18.50 23.46 1.19 Pianos 2.71 3.67 3.77 1.39 Projectors 12.29 14.50 19.08 1.55 Opaque Projectors 1.00 1.33 1.77 1.77 Overhead Projectors 8.43 7.58 12.00 1.42 Screens 17.86 19.58 17.54 0.98 Slide Projectors 1.71 1.83 3.62 2.11 Televisions 2.43 4.00 7.46 3.08 VCR's 0.86 2.00 3.00 3.5 Tape Decks 0.00 0.00 0.15 -- Radios 1.29 1.75 0.92 0.72 Controlled Readers 1.57 3.92 5.46 3.48 Miscellaneous Adding Machines 0.86 1.08 1.08 1.26 Calculators 0.43 2.25 4.08 9.52 Stapler, Electric 0.00 0.33 0.31 * -- Typewriter 3.71 2.83 3.15 0.85 Microphone 0.57 1.67 3.15 5.52 Cameras 0.57 2.08 1.62 2.83 Dark Shade 0.00 5.42 7.31 -- Amplifier 0.00 0.33 0.69 -- Dry Mount Press 0.14 0.17 0.15 1.08 Fan 0.29 1.92 6.23 21.81 Computer Computers 16.00 20.92 20.92 1.31 Monitors 15.86 20.58 20.46 1.29 Printers 3.29 3.75 3.38 1.03 Table 2: Pieces of Equipment per School, by School Racial Composition. School Type Student Teacher Misc. Computer All Equipment Equipment Equipment Equipment Equipment Black Schools 18.86 90.86 6.57 35.14 151.43 Integrated 34.50 106.83 18.08 45.25 204.67 Schools White Schools 37.46 133.85 27.77 44.77 243.85 All Schools 32.28 114.31 19.50 42.84 208.97

  Table 2 summarizes the information contained in Table 1 by collapsing the various types of equipment into four categories: student equipment, teacher equipment, miscellaneous equipment and computer equipment. Table 2 shows that strong disparities existed in how equipment was allocated to schools of different racial composition. Specifically, African-American schools had close to 30% less equipment than did all schools in the system (151.43 pieces compared to 208.97 pieces) and close to 40% less equipment than did white schools (151.43 pieces compared to 243.85 pieces).

 Figure 1 is a graph depicting these relationships. Figures 2 through 5 illustrate the relationship between number of pieces of equipment allocated (for the four categories of equipment) and the percentage of African-American students in school. *fn12" Overall, for each category of equipment, as the percentage of African-American students in the school increased, the number of pieces of equipment allocated to the school declined. The advantage of these graphs is that the schools are not grouped (i.e., "African-American", "integrated", "white") and, therefore, the full strength of the relationship between pieces of equipment and percentage of African-American students is conveyed.

 Figure 1

 Per School Equipment, by Racial Composition of Schools

 [SEE GRAPH IN ORIGINAL]

 Figure 2

 The relationship between school racial composition and the allocation of student equipment

 [SEE GRAPH IN ORIGINAL]

 Figure 3

 The relationship between school racial composition and the allocation of teacher equipment

 [SEE GRAPH IN ORIGINAL]

 Figure 4

 The relationship between school racial composition and the allocation of miscellaneous equipment

 [SEE GRAPH IN ORIGINAL]

 Figure 5

 The relationship between school racial composition and the allocation of computer equipment

 The equipment disparities revealed by Defendant's January 2, 1990 Facilities and Equipment Evaluation were known to the School District through an annual equipment inventory process conducted by the District. The Facilities and Equipment Evaluation states that the District maintained permanent inventory lists that were utilized annually to inventory equipment in various schools and District facilities. Facilities and Equipment Evaluation at 14-17, B509071. This process was coordinated by the Director of Purchasing. Permanent inventory forms were sent out annually to each school for correction and verification. These permanent inventory forms required item-by-item identification of any equipment that was received through Federal funds of any kind. The annual forms also called for comments on the condition of the equipment. Looking at the data, then, one could determine the usefulness of the equipment in each school.

 John Costello, former RSD principal who was retained by the RSD in 1989 to close ten schools, testified that inventory lists for the years immediately prior to the filing of this lawsuit were unavailable because they were not retained in original form. Costello Dep. at 14. Defendant's failure to produce pre-lawsuit inventory lists makes precise evaluation of equipment allocation to African-American schools at the time this suit was filed impossible. However, even Defendant's post-lawsuit equipment evaluations, performed after some remedial measures were taken, showed strong disparities in equipment allocation.

 Witness Testimony

 Former Board member Carl Towns testified that when he became a Board member he performed a purposeful series of school visits to determine conditions in the schools. In his opinion, pervasive differences in EMS and in the curriculum being offered in the various schools existed. Towns Dep. at 25-26, 30. Dr. Robert Greene, former Haskell School principal, also testified that there were widespread disparities in EMS among the elementary schools. Greene Dep. at 79-84.

 Eloise Beal taught both as a substitute teacher and as a full-time instructor. As a substitute, Beal taught in schools all over the district. During her tenure as a full-time teacher Beal taught at Church School and at Barbour School. Both Church and Barbour are Southwest Quadrant schools. Beal testified as to the disparities in facilities and equipment between East and West side schools. Beal noticed that East side schools had

 

[E]verything teachers need to do their job . . . everything seemed to be in shape much better than the classrooms on the west side . . . it was just more advanced, everything was. Everything [on the East side] seemed to be[,] in [a] certifiable sense, just about a hundred percent. . . And I'm saying that the east side seemed to be more prepared in the classroom. . . They had plenty things to -- seemingly to work with. There were times that we didn't have materials to work with. . . The east side schools, the ones that I worked in, had really nice stuff.

 Beal Dep. at 13-25.

 Ms. Beal went on to testify about the shortage of textbooks in the schools on the West side. She told of pushing desks together and having multiple students reading from the same book. She testified as to shortages of materials of all kinds, including art supplies, visual aids and workbooks:

 

We didn't have . . . workbooks for the children . . . I have erased work in workbooks that children had done so the other children coming after, so they would have them, [to] do the same type of work, until these fingers were sore at the end of the day.

 Beal Dep. at 31.

 The students themselves were well aware of these disparities. One former student, Pat Redmond, went from McIntosh Elementary School, located in the Southwest Quadrant, to Eisenhower Middle School, located in the Northeast Quadrant. He noticed that everything at Eisenhower was basically brand new. He testified that he had newer books and more resources and facilities, and further testified that Eisenhower was "nice and neat." Redmond Dep. at 7.

  Marcella Harris, the first African-American member of the School Board, visited numerous African-American schools on the West side of the city during her years as a Board member (1965-1970). She found these schools to be so overcrowded that "the kids reminded [her] of sardines packed in a can." Harris Test., Tr. at 640. In one African-American school, a converted coal bin was being used as an adjunct classroom. The restroom facilities and water fountains were "abominable" and "unfit for human use." The pathways to the schools were littered with glass, rubble and garbage. In contrast, the older schools on the East side were well-maintained and fully operational.

  Nathaniel Martin, a teacher and a principal in the RSD for twenty-eight years, observed pervasive disparities in the educational materials and equipment available at majority schools as opposed to minority schools. When Martin was part of a North Central accreditation team, he visited Eisenhower Middle School and observed a wealth of high technology equipment and books. In contrast, Washington Middle School, where Martin was principal, had insufficient numbers of books, books with outdated copyrights and a lack of high technology equipment. The distribution of discretionary funds to schools favored by the RSD's superintendents and assistant superintendents contributed to the disparities in equipment and materials between majority and minority schools. While Martin was principal at Washington Middle School, his requests for discretionary funds were repeatedly turned down by the RSD's administrators.

  Hiram Gregory Luna, a former member of the School Desegregation Committee, visited a number of elementary schools on the East and West sides of Rockford. He remembers the schools being "worlds apart." Similarly, Sandra Glaspie, the current assistant principal at East High School and an employee of the Rockford School District for twenty years, noticed disparities of supplies and books between East and West side schools.

  Michael Bozym was a teacher at the Royal Avenue Annex. From 1968-1970, the Annex housed fifth and sixth grade students from Ellis and Church Schools. The Annex was located in the Southwest Quadrant. Bozym remembers visiting Walker School on the East side. Walker was carpeted, had a full library and a media center. Bozym testified as to how surprised he was at the differences between Walker and the Annex where he taught. "I felt like a country kid in the big city looking at the buildings." Bozym Dep. at 17-18. The Annex did not have a library. As a result, teachers would put all of the school's books on a cart and roll it from room to room. As many as four students would need to share a book and no one could check the books out. Walker, in contrast, had a librarian, a library and many books. The whole environment at Walker was completely different from the Royal Avenue Annex. At Walker the environment "was inviting and it shaped behavior . . . in a positive way for those children who were comfortable there." Id. at 19-23.

  Dr. Thomas Shaheen, Superintendent of Schools from 1965-1970, observed that achievement levels and the quality of facilities correlated with the race of the student body. African-American students tended to have lower academic results and their schools were of poorer quality. Dr. Shaheen stated that the imbalances in equipment from school to school in the RSD was a substantial problem during his time as Superintendent. Access to equipment was dependent on where a child went to school. For example, parent organizations in some sections of Rockford could raise several thousands of dollars in one weekend to buy needed equipment. The poorer sections of Rockford, however, were in greater need for equipment and less able to raise additional funds. During his tenure, Dr. Shaheen informed the RSD that it was the obligation of the RSD to make sure that equipment and materials were available universally. Allowing the maintenance of a system that let wealthier schools have more equipment and materials was something he could not support. T. Shaheen Test., Tr. at 56-57.

  Joanne Shaheen testified that when a white school needed something, it was provided. For example, Maud Johnson School, a white school on the East side, had much more equipment than Henrietta School in the Southwest Quadrant. The parent organizations as well as RSD funding contributed to these disparities. Dr. Shaheen had aggressively tried to change the parental giving policy but was unable to do so. J. Shaheen Test., Tr. at 50.

  Dr. Connie Goode, an African-American employee of the RSD, refused to send her children to their neighborhood school, Ellis, because the school was in very poor condition, the school was dirty and she didn't believe that the principal would be sensitive to the needs of her children. Dr. Goode also described the condition of educational materials and supplies that were available at Washington Middle School (in the Southwest Quadrant) in the 1960's. The books that were available were outdated and there was a lack of equipment in the science laboratory. Goode Test., Tr. at 1314.

  Disparity Examples At Individual Schools

  Individual school histories over a twenty year period highlight the systemwide facilities and equipment disparities detailed above. Montague School, located in the Southwest Quadrant, was 69% African-American in 1970-71. The RSD was under pressure to move the Montague students because Montague School was not in compliance with State fire codes. The State Fire Safety Code required minimum safety standards in all public schools as of 1964. In 1964, the year of the Code's enactment, the RSD unsuccessfully sued the State of Illinois in an attempt to have the Code declared unconstitutional. The conditions at Montague School were so bad that parents, teachers and community residents asked the Board to close Montague because they believed it was unsafe for the building to be occupied. On February 16, 1971, approximately twenty-five Montague elementary students were removed from their classes by their parents and taken to Carlson Elementary School, where the parents asked that their children be enrolled. Available space existed at Carlson since the Jane Adams Housing Project children, who had previously been bused there, were sent back to Kishwaukee School by the RSD.

  Despite the unsafe conditions at Montague, the RSD found that Montague was adequate to continue to house children for another four months, until the end of the school year. In February of 1971, following the RSD's decision, the RSD heard from the West Side Community Organization (WESCO), the Montague School staff, Grant Schneider who was the Area 4 Chair of the RSD, Rosa Stamps of the Concerned Parents of Montague School and others that the Montague students should be immediately moved to the then empty Page Park School, northwest of Rockford. The RSD continued to refuse to relocate the Montague students until the end of the year.

  In mid-February 1971, in response to the RSD's refusal to remove these mostly African-American children from what was believed to be a dangerous facility, the parents and students began a boycott of the school. On March 4, 1971, the parents agreed to end the boycott and return their children to school. On March 8, 1971, the RSD agreed to transport the Montague children to Page Park School for the remainder of the school year.

  Mary E. Williams, a former teacher in both the Winnebago County and Rockford Public Schools from 1953 until 1982, testified regarding Montague School:

  

I was hired at Montague Elementary School, which was part of the City of Rockford public school system. I was very sad about going to Montague because it was nothing like Nashold. Nashold was a new school and very modern. Montague, on the other hand, was a much older structure. The school was very dark and dingy and did not have the modern conveniences of Nashold. I worked at Montague for two days before the School District informed me of an opening at Peterson Elementary School. Because of the condition of the school, I was happy to leave Montague and I stayed at Peterson for 25 years until the school was closed after the 1981-82 school year.

  Mary Williams Aff. at PP 7-8.

  During her deposition, Williams elaborated on the differences between Nashold and Montague. With regard to Nashold, she noted "the modern conveniences" of the facility.

  

We had a wonderful library at Nashold, complete library. We had nice, clean modern bathrooms, visual aids, you know, with the maps and whatever. And nice window lighting and ceiling lighting and everything. It was just modern and it was just nice. Montague didn't have that. I remember when I first went down in the basement to take my children to the bathroom and I remember the steps creaking. I said, oh, my goodness, this is like going down in a dungeon, creaking to take them to the bathroom. And it was dark down there.

  Mary Williams Dep. at 9.

  Prior to its closing in 1973, Muldoon School, a predominantly African-American school in the Southwest Quadrant, was in dire need of renovation. Muldoon was an old, previously closed Catholic girls' school, that was purchased by the RSD and operated for only one year, housing 4th, 5th and 6th grade children from Ellis. In response to parent protests, the RSD allocated a small sum of money for repair work for the school year 1972-73.

  Haskell School (approximately 60% African-American from 1970 through 1988) suffered significant adverse effects from facilities conditions which the School Board and Central Office refused to correct despite repeated pleas from the Haskell principal. These conditions were described by the principal, Dr. Robert Greene, in a paper he presented to the Illinois Principals' Association in October 1983, and were amplified in Dr. Greene's deposition testimony. Dr. Greene further testified that the conditions of these facilities had a significant negative impact on the educational process in the school. BH1860.

  When the original seven room Haskell School was built in 1959, the building already had a significant minority enrollment. Pupil Placement Committee data for 1960 showed that the school had 23% African-American students. This percentage increased to 37% in 1967. By 1970, the enrollment was 62% African-American. Building additions in 1962 and 1966 expanded the building to twenty-one classrooms and consumed nearly all of the land surrounding this building, leaving no playground. Id. All three sections of Haskell, built in three different years, lacked acoustical treatment of any kind (except in the office area). The building had tile floors, prestressed concrete ceilings and steel venetian blinds at the windows. Acoustical treatment was lacking not only in the classrooms, but also in the gym and lunchroom. BH1861. Dr. Greene testified that Haskell was like "teaching inside a steel tank." The lack of acoustical treatment made it very difficult for children to hear teacher questions and for teachers to hear student answers. This seriously undermined the educational process. Dr. Greene testified that as soon as he became principal in 1971, he submitted a report to the Superintendent requesting installation of acoustical ceilings in all of the classrooms with carpeting, where feasible. BH1862. Dr. Greene stated that the School Board and the Central Office were unresponsive. Despite his constant pressure for the next twelve years, nothing was ever done by the District to correct this condition, with one exception. In the late 1970's the District did put acoustical ceilings in a couple of the classrooms.

  Dr. Greene further testified that once he realized the District would not fix this condition at Haskell, he and the students began a laborious process of raising funds by collecting old newspapers and selling them to trash dealers. Through this process, Dr. Greene and the students were able to raise a few dollars each year and to put acoustical ceilings in one or two classrooms per year. Twelve years passed before all of the Haskell classrooms had acoustical ceilings. According to Dr. Greene, the actual cost of acoustical ceilings was relatively small. The problem could have been solved with a relatively small expenditure on the part of the District.

  With respect to the lack of a playground, Dr. Greene testified that this caused "the feeling of claustrophobia, overcrowding and excessive noise level in the building. . . ." Dr. Greene stated he felt like "he had been handed the keys to a nice, clean, sanitized prison for 500 children serving 7 hour per day terms. A 4-year campaign by the principal and teachers with significant help from the news media finally overcame the bureaucratic buck passing and inertia." BH1861. A city block adjacent to the school was finally acquired, primarily through the assistance of the City and the Park District and Congressman John Anderson. In 1976, a four-acre playground was opened at Haskell School.

  Dr. Greene's testimony shows that the RSD itself was either an obstacle or, at best, a passive participant in obtaining this playground. Dr. Greene stated that without the relationships developed during his four-year term as County Superintendent of Schools (1967-1971), it would not have been possible to get the playground for Haskell. Greene Dep. at 44-50. Dr. Greene's report states that:

  

The preceding Principal and Parent-Teacher Organization had petitioned the School Board in 1967 for a playground, but the School Board's $ 24-million building program in 1969-71 failed to allocate any funds for Haskell School. This inaction continued despite a 1969 City-County Planning Commission Study that noted a high density of young children in the Haskell area and the need for a school-neighborhood playground, and despite a 1970 Park District application for federal revenue sharing funds for a Haskell playground.

  BH1860

  A second facilities deficiency identified by Dr. Greene upon becoming principal in 1971 was the need for a library/learning center. Dr. Greene made this need known in his report to the Superintendent's Office that year. BH1862. Dr. Greene testified during his deposition that he and parents made repeated efforts to get the library/learning center, but the District would not provide it. He stated that in his visits to Eastside schools, he saw that all of them had such facilities. Dr. Greene believed the School Board would not have failed to respond to a request from an Eastside school for such a facility. Greene Dep. at 61-62, 65-66. Dr. Greene testified that eventually he was able to get the library/learning center built at Haskell. The library/learning center was built, however, by going to downtown buildings that were being demolished for the new Metro Centre and salvaging used drywall and other building materials during the demolition. Dr. Greene then took those back to Haskell where they were installed by a combination of parents and moonlighting District tradesmen (who worked without knowledge of their Central Office supervisors). Id. at 67-72; Bd. Min. 8/14/72, B13458.

  The RSD'S Private Gifts Policy Contributed To EMS Disparities

  For twenty-five years, the RSD consistently operated in a manner that allowed parent gifts and other private gifts to provide a much better educational experience for white students than for minority students. Schools serving middle and upper income students received more gifts from their PTA's, PTO's and other third-parties, than schools serving lower income students. Accordingly, the schools serving middle and upper income students had far more equipment, materials and supplies.

  This problem was constantly recognized in RSD documents. Beginning with Superintendent Shaheen, who asked that the policy allowing gifts to individual schools be changed, through the QUEFAC/ISBE years and right up to the 1989 Reorganization Plan, which explicitly recognized the "inequities created by parent gifts," RSD at no time took any significant corrective action. In fact, the RSD's policy with regard to "Gifts, Grants and Bequests" gave the Board (and the Superintendent in consultation with the Board) complete discretion to accept or reject private gifts to the District. The Board also had complete discretion as to the purpose and allocation of such gifts to the schools.

  Further, the RSD exercised discretion over reallocating property from closed schools. With regard to partial school closings and changes in building utilization due to decline and/or shifts in enrollment, the RSD formulated a policy "that gifted property remained in the building so long as the use of that property remained appropriate." The policy also was, however, that the Board "reserved the authority to control the placement or disposition of such property." Bd. Policy, 5/85, B44168; Bd. Policy, 9/8/87, B44169. During a board meeting held on February 23, 1981, when the RSD adopted a plan for several school closings, the RSD responded to a question raised as to the disposition of gifts from PTO and PTA organizations in schools to be closed, that it was Board policy that such gifts become the property of the school district and that they be placed where they were needed. Bd. Min., 2/23/81, B16973. The Board did, in fact, follow its own policy and exercised complete control and discretion over the re-allocation of gifts and PTO funds from schools closed in 1981. *fn13"

  Despite the Board's admitted authority to control the allocation of gifts, the Board always opted (with the exception of closed schools) to allow the donors to decide where the gifts would go. A review of board minutes showed that the RSD accepted gifts as a regular part of each meeting. The Board minutes constituted the record of the gift and contained the value assigned to the gift by the donor. In most cases, the donor designated which school received the gift. Defendant's Response to Interrogatories, 1992-4, No. 6.

  In 1987, Michael Williams, a Board member, raised the issue of private gift inequities before the Board. Williams expressed the concern that the Northeast Quadrant parents supported a private school system within the public school system and that it appeared the donor parents exerted substantial control over those schools. The RSD did nothing in response to Williams' concerns.

  At a Board meeting on November 27, 1967, Superintendent Shaheen recommended to the Board a "gifts to school" policy that would allow the District, rather than the PTA's, PTO's or other donors, to determine in what manner and for which schools the gifts be used. Dr. Shaheen recommended that whenever gifts were offered by an individual or organization to the District, the Board be the one to determine the propriety of the acceptance of such gifts. Dr. Shaheen also believed that the Board should not accept gifts with restrictions on their use. Any gift presented should become the exclusive property of the RSD and should be used for whatever purpose the administration of the school deemed appropriate. Dr. Shaheen subsequently withdrew his recommendation after the Board heard discussion on the recommended policy from members of the Booster Club of all four high schools and from parents of elementary school children. Thus, the Board did not adopt the suggested policy. Bd. Min., 11/27/67, B11683.

  The Board's policy of allowing donors to determine the allocation of gifts resulted in some schools receiving substantially more in terms of equipment and supplies than other schools. The allocation of gifts, in turn, depended on the ability of PTA's and PTO's to raise money. Former Wilson Middle School Principal Curtis Anderson testified that there were "some schools where the PTO's were able to raise much more money to provide help to their schools . . . than some of the parents in the poorer school districts . . . The need for those who were able to provide additional funds was not probably as great as the need for other schools that could not provide additional funds to get school supplies." Anderson Dep. at 32-33.

  Accordingly, the court finds that the RSD was well aware that inequities were caused by disproportionate PTO contributions to schools in wealthier neighborhoods. An examination of Board Minutes reveals significant disparities by Quadrant in gifts received: *fn14"

  

a. The percentage of gifts going to elementary schools, listed by Quadrant, for the time period 1967-88 are: Southeast 47%, Northwest 21%, Northeast 21%, and Southwest 11%

  

b. The percentage of gifts going to middle schools, listed by Quadrant for the time period 1967-1988 are: Northeast 53%, Southeast 24%, Northwest 22%, and Southwest .6%.

  

c. The percentage of gifts going to high schools, listed by Quadrant for the time period 1967-1988 are: Northeast 54%, Southeast 29%, and Northwest and Southwest 17%.

  FIGURE 1 Elementary Schools Dollar Amount and Percent Going to Quadrant NE SE NW SW PTO Contributions $ 269,918 $ 404,251 $ 154,887 $ 87,847 29% 44% 17% 10% Other Gifts $ 14,397 $ 8,491 $ 10,297 $ 30,377 23% 13% 16% 48% Contributions and $ 284,315 $ 412,742 $ 165,184 $ 118,225 Gifts Combined 29% 42% 17% 12% Middle Schools Dollar Amount and Percent Going to Quadrant NE SE NW SW PTO Contributions $ 78,585 $ 46,127 $ 30,607 $ 75 51% 30% 20% 0% Other Gifts $ 1,116 $ 6,784 $ 26,755 $ 21,695 2% 12% 47% 39% Contributions and $ 79,701 $ 52,911 $ 57,362 $ 21,770 Gifts Combined 38% 25% 27% 10% High Schools Dollar Amount and Percent Going to Quadrant NE SE NW & SW PTO Contributions $ 123,306 $ 44,046 $ 45,021 58% 21% 21% Other Gifts $ 138,544 $ 64,847 $ 33,350 59% 27% 14% Contributions and $ 261,850 $ 108,893 $ 78,371 Gifts Combined 58% 24% 17% All Schools Dollar Amount and Percent Going to Quadrant NE SE NW SW PTO Contributions $ 471,809 $ 494,424 $ 230,514 $ 87,922 37% 38% 18% 7% Other Gifts $ 154,057 $ 80,122 $ 70,332 $ 52,072 43% 22% 20% 15% Contributions and $ 625,866 $ 574,546 $ 300,846 $ 139,994 Gifts Combined 38% 35% 18% 9%

  CONCLUSIONS OF LAW

  The maintenance of unequal school facilities, equipment and educational materials denies minority students an equal educational opportunity. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971); Green v. County School Bd., 391 U.S. 430, 435, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968). In some instances, the quality of the school facilities, equipment and materials may cause a school to be racially identifiable. See, Berry v. School Dist. of Benton Harbor, 442 F. Supp. 1280, 1303-1306 (W.D. Mich. 1977) (African-American schools older, operated at higher percentage of capacity and had poorer physical conditions, educational materials and library facilities); United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1431-34 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2nd Cir. 1987), cert. denied, 487 U.S. 1251 (1988) (minority schools lacked playground and recreational space and suffered from lack of classroom space, limited instructional areas for educational specialists and inferior facility conditions); Oliver v. Kalamazoo Bd. of Educ., 368 F. Supp. 143, 174-76 (W.D. Mich. 1973) (minority schools were older, substandard and unsafe).

  The court finds that the RSD's policies and practices with regard to facilities and the provision of equipment, materials and supplies to schools within the RSD caused great disparities in the quality of education between minority and predominantly white schools. System-wide disparities in facilities, equipment, materials and supplies between minority and predominantly white schools is unlawful. Such policies and practices of the RSD clearly indicate intentional discrimination.

   THE 1989 REORGANIZATION PLAN

  INTRODUCTION

  On February 28, 1989, the RSD adopted an extensive plan for changes in District operations entitled "Together Toward a Brighter Tomorrow." This plan, together with the explanatory and implementation documents generated by the RSD, is referred to in this section as the "Reorganization Plan" or "Plan."

  The Reorganization Plan resegregated the District's elementary schools, closed naturally integrated West High School and several African-American elementary schools, and imposed extreme disparate burdens and educational disadvantages upon minority students. The Plan triggered this litigation.

  This section examines the Reorganization Plan and the circumstances of its consideration and adoption by the RSD. Particular aspects and impacts of the Reorganization Plan include: the consequences for elementary schools; the availability of a non-segregative alternative for elementary student assignment; effects on secondary schools, especially in the closing of West High; and the large net increase in transportation, despite a stated goal to reduce transportation.

  Many aspects of the Reorganization Plan were never implemented. For the purposes of this opinion, the court has evaluated the Plan in terms of the consequences that Defendant RSD had anticipated at the time of the Plan's adoption, as reflected in enrollment and program projections issued on February 28, 1989 (or developed between that date and May 11, 1989, the date the Complaint in this lawsuit was filed). Similarly, any actions taken by the RSD staff to ameliorate the impact of the Plan after the Complaint in this case was filed are not considered by the court.

  The RSD enrollment projections explained the impact of the Plan in terms of "% minority," that is, the combined percentage of all minorities in a school. No breakdowns by separate race/ethnic categories were performed. Accordingly, while most data in this order are presented for African-Americans and Hispanics separately, the particular findings in this section are based upon the District's "% minority" data. The court finds this to be a reasonably close approximation of African-American-plus Hispanic enrollment, since only 3% of the Fall 1988 enrollment in the RSD was Asian and Native American. In the analysis of resegregative impact, however, the District's "% minority" data was converted into African-American-plus-Hispanic data, by subtracting from the minority enrollment at each school the number of Asian and Native American students enrolled in that school in the Fall 1988.

  Finally, this section employs the definition of desegregation used elsewhere in this Order. A school is "racially-identifiable minority" if the relevant enrollment percentage exceeds the systemwide average by more than fifteen percentage points. A school is "racially-identifiable white" if its minority enrollment percentage is less than 50% of the systemwide average.

  FINDINGS OF FACT

  The Extent Of Segregation In The School System Prior To The Reorganization Plan In 1988-89 school year, the overall African-American/Hispanic percentage of enrollment at the elementary level was 25.7%. Accordingly, a desegregated school in 1988-89 had a population ranging from 12.9% to 40.7% African-American/Hispanic. Based upon the total enrollment in each school, the RSD had the following distribution of elementary schools: # of % of Schools Schools Racially-identifiable white 14 36% Desegregated 15 38% Racially-identifiable minority 10 26% Total 39 100% At that time, the percentage of elementary students attending each type of school was as follows: African-American/ Hispanic White Students Students Racially-identifiable white 5% 42% Desegregated 39% 423 Racially-identifiable minority 57% 16%

  B509103; D8388.

  At the secondary level in 1988-89, the overall African-American/Hispanic percentage was 24.9%, yielding a desegregation range of 12.4% to 39.9%. On that basis, six of the ten middle and high schools in the system were desegregated. The remaining four were each within 3% of the desegregation range. Id. In large part, this level of desegregation was achieved through the mandatory reassignment of minority students to non-Southwest schools and through the voluntary transfer of white students to alternative programs located in predominantly minority schools. B509110; B509125; D8388. The RSD admitted in its 1989 Answer that "almost all minority movement for desegregation [was] mandatory, while virtually all white movement [was] voluntary in response to special program offerings." Complaint and Answer at P 9.3.

  The January Version Of The 1989 Reorganization Plan

  On January 24, 1989, Interim Superintendent Swanson recommended and the Board of Education promulgated, the first version of the Reorganization Plan (hereinafter the "January Plan"). "The primary rationale for the Plan was to reduce expenditures to offset projected future-year operating deficits." Id. at P 14. The January version of the Plan estimated costs savings of approximately $ 6.47 million, enough to offset the RSD's deficit projection for 1989-90. Much of the costs savings was derived from steps such as closing swimming pools and staff reductions. B509142.

  One provision of the Plan terminated the elementary mandatory assignment system then in effect. Complaint and Answer at P 16.1. The January version of this provision read as follows:

  

2.12 Draw elementary school boundaries to enable all elementary students to attend schools in the general area of their homes.

  

This will facilitate parental involvement in the education of their children; reduce the need for transportation; and encourage the use of schools as neighborhood centers. Students will be allowed to transfer for purposes of desegregation and participation in alternative programs.

  Id. Thus, the January version of the Plan relocated all or most of the desegregative alternative programs from schools in the Southwest Quadrant to schools in the Northeast and Southeast Quadrants. B509149.

  The January plan also proposed closing six elementary schools, two of which were in the Southwest Quadrant, Garrison and Barbour. No schools in the Northeast Quadrant were to be closed. January Plan at 5, B509136. Three other Southwest elementary schools were to be partially closed through split-grade pairs (further explained below). Id. at 6, B509137. The January Plan also closed West High School, a naturally integrated school in a contiguous residential area that produced a racial mix of students reasonably approximating the systemwide racial proportions. In addition, the January Plan redrew the boundaries of the remaining secondary schools in such a manner that Westside students were mandatorily assigned to Eastside secondary schools. This provision stated:

  

2.13 Design secondary school boundaries which create racial and socio-economic diversity and optimum enrollment in each school; and make the high school boundaries identical with their underlying middle schools.

  

This boundary pattern abandons the traditional eastside-westside pattern; provides natural diversity among students in each secondary school; equalizes the enrollments in the schools; more equitably shares the need to be transported among majority and minority students; and pairs each middle school with a high school for improved articulation. Displaced seniors may remain in their current high school but bus transportation will not be provided.

  Id.

  Although the RSD's stated purpose for the Plan was to reduce expenditures, no cost savings were projected by the Plan either from returning to neighborhood elementary schools or from relocating the alternative programs. The January version of the Plan was tentatively approved by the Board of Education and issued for public comment, by a 6-1 vote with the African-American member of the Board, Michael Williams, in opposition.

  The Revised February 1989 Reorganization Plan

  The January Plan evoked extensive public reaction, including criticism of its various proposals. In particular, the proposed closing of West High School aroused intense protest from the neighborhood where that school was located. Northwest side parents formed the "Save West High Committee" for the purpose of opposing the closing of West High School. Within two weeks, the Save West High Committee presented the Board with 12,000 signatures in opposition to the closing of West High. D11845-D12286. Rockford's Mayor, John McNamara, also publicly opposed the closing of West High School. See D13853.

  In the face of community opposition, Superintendent Swanson and the Board sought to keep the West High building open. In reviewing alternatives to closing West High, the District's administrative leadership recommended that Auburn High School be closed. In his February 8, 1989 memorandum to the Board entitled "Modifications to Original Recommendations," Superintendent Swanson stated in an addendum:

  

After hearing the concerns of city officials and the business community, I feel we may not have given sufficient consideration to the impact on the West High business and residential neighborhood. I am suggesting that West High remain open and Auburn High School be closed.

  B509177.

  Within three weeks of its original decision to close West High School, the District promulgated, on February 14, 1989, a Modified Reorganization Plan that, among other things, rescinded the closing of West High School. This version of the Plan was also issued for public comment by a 6-1 vote, with the minority member of the Board in opposition. In the RBE minutes of the February 14, 1989 meeting, under a section entitled: "Modifications to Previously Recommended Changes in District Operations," it was noted that "a discussion took place regarding the equality of the revised recommendations . . . [and] the effects the revised plan would have on the elementary children on the West side." Bd. Min., 2/14/89, B21642.

  In the Revised Plan of February 14th, the Board rejected Superintendent Swanson's recommendation to keep West High open and close Auburn High instead. The Board opted, rather, to keep the West High building open by converting it to a middle school. In doing so, the Board adopted measures that, through a domino effect, placed burdens upon the minority students in the Southwest Quadrant. Summary of Modifications of Original Plan, 2/14/89, B509157; Confer Dep. at 59. Those measures included:

  

The West High building became a middle school rather than a high school. To keep the West building open, Defendants removed the GIT, Gifted and Grades 4-8 CAPA students from Wilson, located in the Southwest Quadrant.

  

Wilson was converted to a Grades 3-6 elementary school.

  

Three additional elementary schools, surrounding Wilson in the Southwest Quadrant, were closed: Church, Stiles and Ellis.

  

Two additional split grade structures (K-2) were established at McIntosh and Dennis, feeding into Wilson.

  

Wilson was projected by Defendants to have 1227 students, more than twice as large as any previous elementary school in the system, and four times the size of the average elementary school in the District.

  

Wilson, and its feeder K-2 schools, Dennis and McIntosh, were all projected by Defendants to have 80% minority enrollment.

  The Board's decision to close an additional three Southwest side elementary schools was made despite the fact that the Southwest side schools already lacked needed space. Lack of space on the Southwest side was evidenced by the fact that the District's stated justification for moving, under the January plan, all alternative schools out of the Westside schools was lack of space. Driscoll Dep. at 170. Lack of space on the Southwest side was further evidenced by District staff warnings in early February that even under the January Plan, which closed four Southwest side elementary schools as opposed to seven under the February Plan, the Southwest side schools would lack space. Lyman Memo to Sullivan, 2/3/89, D5940.

  The Board's decision to convert West High School to a middle school and to close an additional three Southwest side elementary schools was made with a projected minimal cost savings of $ 336,000. February 14 Plan at 12, B509190. The Board's decision to create a large elementary school at Wilson, however, was made despite the lack of any advanced planning as to the effects of such a huge elementary school.

  In the Plan's February 14th version, the RSD had dropped from the language of the Plan the stated justification that neighborhood elementary boundaries would "reduce the need for transportation" and the justification that the new secondary boundaries would "abandon the traditional Eastside-Westside pattern" and "more equitably share the need to be transported among majority and minority students." All of these phrases contained in the January Plan were missing in both versions of the February Plan. Compare B509137 with B509163 and B509184.

  The adverse and disproportionate impact of the revised February 14th Reorganization Plan upon the minority community evoked substantial protest from that community. On February 23, 1989, the District received a written objection from the group "Citizens for Educational and Social Equality" (CEASE) to the February Reorganization Plan. D11784. The group presented the District with detailed data showing that the new Plan would place substantial additional mandatory reassignment burdens on Westside students, most of them minority, beyond the substantial disproportionate burdens that already existed. The group's data showed that under the new Plan, at the high school level, there would be a net student movement from West to East of 733 students, compared to a net student movement from East to West of no students. This constituted additional mandatory reassignment in excess of any current West to East busing. Similarly, at the middle school level, the group's figures showed that there would be a net student movement from West to East of 441 students, compared to a net student movement from East to West of no students. Once again, this was in excess of any current West to East busing. CEASE concluded that the Board's February Plan slated the minority students to "bare the brunt of the student disruption." In addition, the group warned the District that the February Plan "exhibits a callous disregard for a large portion of hard-working, tax-paying and voting citizens of the City of Rockford." D11789.

  On February 21, 1989, Rockford Mayor John McNamara urged Superintendent Swanson to withdraw the Board's decision to close three additional Southwest side elementary schools and create a large elementary school with a large attendance at Wilson. Mayor McNamara stated that: "[This plan] is contrary, or appears contrary, to the Board's stated policy of neighborhood elementary schools. It is straining the concept of 'neighborhood' to the limit to consider this area, from the River to Meridian Road, the Wilson attendance area, as an expanded neighborhood." McNamara Letter to Swanson, 2/21/89, D11298. The Mayor further stated that, by closing neighborhood schools on the Southwest side, the Plan would negatively impact the minority community in the Southwest Quadrant and would leave the parents of minority students feeling increasingly distrustful of the Rockford school authorities. Finally, Major McNamara wrote that the cost savings of converting West to a middle school with an attendant closing of three additional Southwest side elementary schools was not substantial enough to justify such action.

  Following presentation of the February 14th revised reorganization plan, Board member Wham testified that a significant number of minority parents disagreed with the school closing plans for the Southwest side. The parents also objected to creation of the Wilson mega-school. Wham 1989 Dep. at 25. Nevertheless, the Board of Education refused to modify the Plan and reaffirmed the Plan by a 6-1 vote on February 28, 1989. Again, the only minority member of the Board opposed the Plan.

  The Deliberative Process In Adopting The 1989 Plan Was Seriously Deficient

  Superintendent Sullivan reviewed the 1989 Reorganization Plan. During trial, he expressed his professional opinion that:

  

a. The Plan was adopted on the basis of an insufficient quantity of data to make decisions of that magnitude.

  

b. The quality of data was bad. The financial projection was based on unwarranted negative assumptions that overstated the size of the deficit.

  

c. The demographic projections contained unwarranted assumptions about decreases in student enrollments.

  

d. For changes of that magnitude, the deliberative process which the District went through was inadequate. For example, the measures were adopted without adequate planning information.

  Sullivan Test., Tr. at 3170-80.

  In the Board's minutes of its February 14th meeting, it states: "Dr. Swanson said that the selection of the schools to be closed had nothing to do with the quality of educational programs in those schools, but involved primarily location and size." Bd. Min., 2/14/89, B21642; D21129.

  Board Member Jo Minor warned the other members of the Board that the Plan would cause resegregation of the schools. Others also made this warning. On December 8, 1988, a report from the elementary school Principals conveyed to Superintendent Swanson the responses of the Elementary School Principals to Swanson's Summary of the 1988 Ad Hoc Committee Report. D0079. In response to the comment in Superintendent Swanson's memorandum to the staff that "assignment of students to schools is made without determining impact on integration requirements," the elementary Principals' responses showed an interesting variation by Quadrant:

  

a. The response from the Southeast Quadrant was "agreement."

  

b. The response from the Northwest Quadrant was "integration must be a consideration."

  

c. The response from the Southwest Quadrant was: "it is unadvisable to assume that political assignments can be made without considering integration."

  Id. The warnings, nevertheless, went unheeded.

  The Effects Of The Reorganization Plan On the RSD Elementary Schools

  The 1989 Reorganization Plan showed a resegregative effect in terms of the enrollment compositions of the individual schools and in terms of the increased percentage of both minority students and majority students assigned to racially-identifiable schools. The RSD adopted measures for individual schools that the District, itself, had identified as constituting de jure segregation. The creation of the so-called "mega schools" resegregated minority students into huge warehouse-type schools. The Plan promised, but did not deliver, educational improvement measures for minority students. The Plan also resegregated the schools by sharply restricting voluntary transfer opportunities. Disproportionate burdens were imposed on Southwest Quadrant minority students by the 1989 school closings. The Plan furthered segregation of the RSD's special education students. Finally, desegregative, non-burdensome alternatives were readily available to the RSD, making the segregative and disproportionate burdens imposed unnecessary. Each of these effects is discussed in detail below.

  The Reorganization Plan Resegregated The District's Elementary Schools And Students In Terms Of School Enrollments

  The resegregation that the 1989 Reorganization Plan created at the elementary level was evident both in terms of individual schools and systemwide segregation proportions. Since the 1989 Plan never went into effect, its racial impact must be measured from the only available document that projects the effect of the Plan. "School Data 1989-90" was issued by the RSD simultaneously with adoption of the Plan on February 28, 1989. B509149; D8388. The percentage minority data from that document has been converted into African-American-plus-Hispanic data.

  Resegregation of Southwest Quadrant Students Had the Reorganization Plan gone into effect, students in several Southwest Quadrant elementary schools would have experienced massive resegregation. The following table shows the percentage of African-American/Hispanic students in certain schools existing in 1988-89, and compares that percentage to the percentage of African-American/Hispanic students in the school the students would have attended under the Plan. 1988-89 % African-American 1988-89 % Af-Amer/Hispanic School /Hispanic in 1989 Plan School Change Dennis 54% 78% 24% Ellis 60% 79% 19% King 40% 54% 14% McIntosh 65% 79% 14% Stiles 38% 78% 40%

  B509103 and B509191.

  Resegregation of Non-Southwest Schools Many non-Southwest schools resegregated in the opposite direction with precipitous drops in minority enrollment under the Reorganization Plan. Most of these, shown in boldface, changed into racially-identifiable white schools. 1988-89 % African-American 1988-89 % African-American /Hispanic School /Hispanic in 1989 Plan School Change Brookview 13% 4%- 9% Carlson 17% 6% - 11% Conklin 49% 11% - 38% Haight 47% 11% - 36% Hillman 29% 11% - 18% Jackson 21% 13% - 8% Nashold 13% 5% - 8% Rolling 15% 7% - 8% Green Vandercook 22% 6% *fn15" - 16% Walker 46% 17% - 29% Westview 26% 17% - 9% Whitehead 23% 13% - 10%

  Id.

  Conklin and Haight went from racially-identifiable minority status to racially-identifiable white status. These Northwest schools, originally white, were assigned so many mandatory African-American transfers in the 1980's that they became racially-identifiable minority schools. Under the 1989 Plan, African-American students were removed from both schools, and Haight was closed with its white students assigned to Conklin.

  Systemwide Resegregation of African-American/Hispanic Elementary Students The resegregation was also apparent in terms of the increased proportion of African-American and Hispanic students who would have attended racially-identifiable, rather than desegregated, elementary schools. 1988-89 % of 1989 Plan % of African-American/ African-American/ Hispanic in: Hispanic in: Change Racially-identifiable minority 56.8 67.2 .4 Desegregated 38.6 22.5 -16.1 Racially-identifiable white 4.6 10.3 5.7

  Id.

  Sixteen percent of the RSD's African-American/Hispanic elementary students were switched from desegregated to segregated settings under the Reorganization Plan. This was a 26% increase in the number of such students in segregated settings. After the Reorganization Plan, 78% of the African-American/Hispanic elementary students would be in segregated settings.

  Systemwide Resegregation of White Elementary Students Similarly, many more white students would have attended racially-identifiable white schools under the 1989 Plan: 1988-89 1989 Plan % of White in: % of White in: Change Racially-identifiable white 41.5 61.8 .3 Desegregated 42.9 27.3 -15.6 Racially-identifiable minority 15.6 10.9 - 4.7

  Id.

  The 1989 Plan changed the educational setting for 20% of the RSD's white elementary students to a racially-identifiable white school. Accordingly, after the Plan, 73% of the RSD's white elementary students were assigned to segregated schools.

  The 1989 Plan Resegregated Schools By Adopting Measures That The District Itself Had Identified As Constituting DeJure Segregation

  Some of the changes adopted by the RSD in the 1989 Reorganization Plan were previously explicitly identified by the RSD staff as constituting de jure segregation.

  De Jure Segregation Criterion in 1981 IBA Report

  In 1981, a team of the RSD senior staff members presented the Board with a document entitled "Individual Building Analysis" (hereinafter "IBA"). IBA, B4889 (dated 2/9/81). The objective of the IBA was to evaluate each school building in the District "to determine if additional or alternative sites, other than the eleven indicated by the NIU consultants, should be potential candidates for closing in the 1981-82 school year." IBA at B4890. The staff team evaluated each building in terms of thirteen criteria. One of those criteria was:

  

De Jure segregation: This factor takes into account whether reassignment of students due to a school closing could have de jure segregation implications, thus limiting the Board's ability to reassign children to the closest school.

  The meaning of this definition was elaborated on by the RSD staff in the 1988 report of the Building Subcommittee of the Board of Education Citizens' Committee. The Subcommittee was appointed to study various school system issues. The Building Subcommittee was staffed by the RSD Assistant Superintendent Erickson and Mr. Driscoll, both of whom had served on the 1981 IBA staff team.

  The Building Subcommittee Report described the 1981 IBA process and elaborated on the meaning of the de jure segregation criterion by adding a second sentence:

  DE JURE SEGREGATION: This factor was rated by taking into account whether closing a school would have de jure segregation implications, thus limiting the Board's ability to reassign children to the closest school. In other words, if a school were closed, and the closure of the school would contribute to the segregation of students by sending them to the closest school, a school might be more difficult to consider for closure, thus would receive a lower rating.

  B509082 at B509085. In other words, the RSD recognized in 1981 and again in 1988, that assigning students as a result of school closing in a way that maintained or increased segregation, constituted de jure segregation. The 1981 IBA Report analyzed individual schools. In doing so, the RSD staff identified certain potential actions that met the foregoing criterion and noted other similar actions that would constitute de jure segregation. Each of these is discussed individually below.

  Church School

  In 1981, on the page discussing Church School, the IBA staff team included this statement:

  

COMMENTS: In approving any boundary changes, the Board would need to avoid action which would result in de jure segregation.

  IBA at B4900.

  In the 1989 Plan, Church, then 83% African-American/Hispanic, was closed and its students reassigned to the closest remaining school, the Wilson/McIntosh/Dennis complex. The RSD projected that complex to have 80% minority enrollment. February 28 Plan at 5, B509183-B509185; cf. January Plan, B509149; February 14 Plan, B509191. Accordingly, the RSD's action concerning Church School in its 1989 Plan constituted de jure segregation.

  Dennis School

  In 1981, on the page discussing Dennis School, the IBA staff team included this statement:

  

COMMENTS: Population: As the boundaries are now established, the area surrounding Dennis School would not support the capacity of the building. A change in boundaries to accommodate strictly a neighborhood population could result in de jure segregation.

  IBA, B4902.

  Under the 1989 Plan, the boundaries of Dennis School were changed in order to accommodate a strictly neighborhood population. Students from the Dennis neighborhood, previously assigned by satellite zones to Haight and Conklin, were reassigned to Dennis. As a consequence, the minority enrollment at Dennis was projected by the RSD to increase from 55% in the Fall of 1988 to 80% under the Reorganization Plan. February 28 Plan at 5, B509183-B509185; cf. January Plan, B509149; February 14 Plan, B509191. Accordingly, the RSD's action concerning Dennis School in its 1989 Plan constituted de jure segregation.

  Stiles School

  No comment as to de jure segregation of Stiles School was made in the 1981 IBA report. The school was, however, segregated by the 1989 Reorganization Plan. In the Fall of 1988, Stiles had an enrollment 38% African-American/Hispanic and was a desegregated school. Under the 1989 Plan, Stiles was closed and its students assigned to the Wilson/McIntosh/Dennis complex, projected by the RSD to have 80% minority enrollment. Id. Accordingly, the RSD's action concerning Stiles School in its 1989 Plan constituted de jure segregation.

  Ellis School

  In 1981, on the page discussing Ellis School, the IBA staff team included this statement:

  Use *-- presently a K-3 building.

   COMMENTS: *However, by returning Grades 4-6 could result in de jure segregation.

  IBA, B4903.

  The 1989 Plan returned Grades 4-6 to the same "neighborhood" assignment as the Ellis Grades K-3 students. Under the Plan, Ellis School was closed and all of its K-6 neighborhood students assigned to the Wilson/McIntosh/Dennis complex, projected by the RSD to be 80% minority. February 28 Plan at 5, B509183-B509185; cf. January Plan, B509149; February 14 Plan, B509191. Previously, the Ellis Grades K-3 students were in a 60% African-American/Hispanic school and the Ellis Grades 4-6 students were assigned to Carlson (17.3% African-American/Hispanic), Jackson (20.9% African-American/Hispanic), Stiles (38.1% African-American/Hispanic), Westview (25.6% African-American/Hispanic), and Welsh (15.7% African-American/Hispanic). D0046. Accordingly, the RSD's action concerning Ellis School in its 1989 Plan constituted de jure segregation.

  McIntosh School

  The minority enrollment at McIntosh was projected to go from 65% in the Fall of 1988 to 80% minority under the 1989 Plan. February 28 Plan at 5, B509183-B509185; cf. January Plan, B509149; February 14 Plan, B509191. This was the consequence of all students from the Church School closing, and a portion of the students from the Ellis School closing, being assigned to McIntosh. Id.

  The New Wilson Elementary School

  Under the 1989 Plan, a new Grades 3-6 elementary school was created at Wilson, with a projected minority enrollment of 80%. Id. This was the consequence of:

  

a. The actions described above that resegregated Dennis, Ellis and Stiles;

  

b. The closing of Church, Ellis and Stiles; and

  

c. The assignment of all Grades 3-6 students from Church, Ellis, Dennis and Stiles to the Wilson building.

  Based upon the criteria set forth in the 1981 IBA report, the RSD's Plan in this regard constituted an act of de jure segregation.

  King and Barbour Schools

  In 1981, on the page discussing King School, the IBA staff team stated:

  COMMENTS: Any future reassignment of students from that neighborhood would have to avoid de jure segregation.

  IBA, B4920. While no similar statement was included on the Barbour page, (B4893), King and Barbour were situated within a few blocks of one another in the same neighborhood and, as such, the same comment would apply to both schools.

  Prior to the 1989 reorganization plan, 222 students from the Barbour neighborhood in Grades 4-6 were assigned to five Eastside elementary schools. B509110. Barbour, through the presence of alternative programs including GIT, enrolled in the Fall of 1988, 60% African-American/Hispanic students. Under the 1989 Plan, Barbour School was closed and all of its K-6 neighborhood students were assigned to the King/Washington complex. The GIT program was removed from the Southwest Quadrant and assigned to Southeast schools. February 28 Plan at 4, 6-7, B509182-B509185; B509149. The projected minority composition of the King/Washington complex was approximately 56% African-American/Hispanic.

  The purported level of total-building white enrollment in the King/Washington complex was derived from the presence of the Centralized Gifted program. The Gifted program existed in a totally separate, segregated environment within the buildings it was assigned. Accordingly, King and Barbour neighborhood students were actually assigned to a neighborhood program at the King/Washington complex that would be approximately 80% African-American/Hispanic, while the Gifted program was only 2.3% African-American and 1.0% Hispanic in the Fall of 1988. D10770.

  Haskell School

  In 1981, on the page discussing Haskell School, the IBA staff team stated:

   COMMENTS: Any reassignment of students would have to avoid de jure segregation.

  IBA, B4914.

  In 1980, a portion of the Haskell attendance area west of Kilburn Avenue was transferred to an Eastside school for two purposes: to desegregate the Eastside school and to open space at Haskell for a full-site Focus Center called the Four-R program. Subsequently, when the Focus Center at Haskell was discontinued, a partial-site alternative program, CASS, was placed at Haskell. B46298.

  Under the 1989 Reorganization Plan, the area between Kilburn Street and Kent Creek, the satellite zone assigned to Eastside schools, was reassigned to the Haskell attendance area. Plan Attendance Map, B509095 (D4446). As a consequence, the students in the Kilburn-Kent Creek area were reassigned by the RSD from a desegregated school to a segregated African-American/Hispanic school. Accordingly, the RSD's action concerning Haskell School in its 1989 Plan constituted de jure segregation.

  Garrison School

  Garrison School received no "de jure segregation" comment in the 1981 IBA report. Under the 1989 Plan, Garrison was closed and its attendance area partitioned. Most of the attendance area was assigned to Walker, which under the 1989 Plan was projected to have a 17% minority enrollment. The western portion of the Garrison attendance area was assigned to Haskell School. Compare Plan Attendance Map, B509095 with Fall 1988 Attendance Map, B509088. This western portion was adjacent to the Kilburn-Kent Creek satellite zone, which was also reassigned by the 1989 Plan to Haskell School.

  Resegregation of Non-Southwest White Schools

  The 1989 Reorganization Plan turned many non-Southwest schools into resegregated racially-identifiable white schools by two separate actions:

  

a. Removing from many non-Southwest schools the African-American and Hispanic students who had previously been assigned to them.

  

b. Closing certain non-Southwest schools and reassigning their predominantly white enrollments to the closest schools, which were also predominantly white.

  The 1981 IBA report stated that it would be an act of de jure segregation to reassign students from a school closing to the closest school, if that action maintained or increased segregation. While the RSD staff only examined the de jure segregation consequences for African-American/Hispanic schools and neighborhoods, the criteria used was equally applicable to white schools and neighborhoods. B29810 (second page of IBA Report, B4890 (omitted in original discovery)).

  Under the 1989 Plan, Haight School was closed and its white students were assigned to Conklin. Haight's African-American/Hispanic students assigned were assigned to Dennis/Wilson. Riverdahl School (5% African-American/Hispanic) was closed and a portion of its students were assigned to Froberg/New Milford, projected by the RSD to be approximately 5% minority. Hallstrom School (2% African-American/Hispanic in the Fall of 1988) was closed and its students were assigned to Nelson and Whitehead, projected by the RSD to be 16% and 15% minority, respectively. Vandercook School was closed and its neighborhood students were assigned to Hillman (projected 15% minority) and to White Swan/Cherry Valley (projected approximately 5% minority). As such, under the 1989 Reorganization Plan, measures were adopted that contained significant resegregative impacts upon most of the elementary schools in the RSD. The measures violated the criterion of de jure segregation established in the 1981 IBA report and re-articulated by the RSD's 1988 Citizens' Building Subcommittee report.

  The 1989 Plan Resegregated African-American/Hispanic Students By Placing Them In Huge Warehouse Schools, Without Promised Educational Support

  The February 1989 version of the Reorganization Plan created huge elementary schools at Wilson and Washington. Reorganization Plan at 5-6, B509183-B509184; Enrollment Projections, B509149 and B509191. Wilson was projected to have 1227 students, more than twice the number of students as any previous elementary school in the system, and four times the size of the average elementary school in the District in 1988. Washington was projected to have 876 students, 332 more students than the Plan's largest white elementary school, Spring Creek.

  Both Wilson and Washington were to be elementary schools placed in former middle school buildings, which enabled them to have this unprecedented size. McIntosh was also projected by the Plan to have 649 students, more than 100 students above the size of the largest white elementary school, Spring Creek.

  The Plan placed more than 1800 African-American/Hispanic elementary students in one highly segregated complex of schools. The students constituted half of all the African-American and Hispanic elementary students in the RSD. Id.

  The Wilson complex was commonly referred to as the "mega-school." The mega-school's boundary extended from the Rock River on the east to Meridian Road on the west, spanning the entire Westside. On the other axis, it ran from Montague Street on the south to north of Auburn Street. Plan Attendance Map, B509094. Superintendent Sullivan, who took office after the 1989 Plan had been adopted, expressed his opinion that the mega-school concept at both Wilson and Washington was unwise because the schools were too large. In his view, the concentration of such large numbers of low-income minority students would have had negative educational effects on the students. Sullivan Test., Tr. at 3181. The same concern had previously been raised by the sole minority member of the Board, Michael Williams, but was not addressed by the Board or staff. Williams Test., Tr. at 2381.

  Superintendent Bill Bowen testified that he began having reservations the longer he considered the proposed "mega-school" portion of the Reorganization Plan. "The idea that the other schools were closing, early on that didn't have as much significance, and what those individual schools meant to people. And to take all those children and put them in one huge facility, it really -- and a great number of those would be African-American children. And that concentration didn't look right, start to feel right." Bowen Test., Tr. at 3370. Bowen further stated, "It started to look like a ghetto." Id.

  The 1989 Plan's elementary reassignment measures were initially undertaken partly to reduce the need for transportation. The February Plan, however, required extensive transportation within the large "neighborhood" proposed for minority students. As such, in the February 1989 version of the Plan, the phrase "reduce the need for transportation" was deleted by the RSD.

  The Wilson mega-school was created by the RSD with little advanced planning as to the educational or social consequences of a 1227 student elementary building or a 2300 student school complex. When asked in discovery in May of 1989 to produce documents concerning advanced planning for the mega-school concept, the RSD produced one memorandum dated February 22, 1989, describing telephone interviews conducted by RSD staff with the Principals of two large elementary schools, one in Belvidere (850 students) and one in Maple Park (1034 students). D5941; D5942. When asked for documentation as to the development and implementation of any special educational program in the mega-schools, the RSD produced only three staff memos, totalling five pages. D5947-48, D5949, D5966. The memos show that as late as June 1989, four months after the mega-schools were established, no educational plan dealing with elementary schools made up of 1227 students and 876 racially-concentrated, low-income elementary students existed.

  The January Plan proposed to "build two large elementary schools - one in the eastern end of the district and one in the western end - as soon as funds become available." B509136. In the February Plan, the RSD stated that the Wilson mega-school complex "eliminates the need to build a new elementary school on the far west side." The Plan retained the proposal to build a large elementary school on the Eastside. B509183-B509184. Furthermore, no funds were allocated in the Plan to provide additional resources or staff to minority students. On February 28, 1989, despite the lack of planning, the questions and the community opposition, the Board rejected a motion by Michael Williams (the only African-American Board member) to delay the vote on the mega-school "for two weeks to allow the administration and Board an opportunity to further explore the impact of this proposal on the community." Bd. Min., 2/28/89, B214674. Superintendent Swanson urged the Board not to delay a vote, saying that "he was firmly convinced that this would be a model for the 21st century." Id.

  The 1989 Plan Segregated The Schools By Promising, But Not Delivering, Educational Improvement Measures For African-American/Hispanic Students

  The first provision of the 1989 Reorganization Plan promised extensive supplemental educational benefits to the newly resegregated African-American/Hispanic elementary schools. Paragraph 1.1 of the January Plan stated:

  

In elementary schools with a high incidence of educationally and economically disadvantaged students, use regular budget and government funds (Chapters 1 and 2) to provide supplemental support staff and smaller class sizes and to offset the inequities created by gifts from parent organizations.

  

Early correction of learning deficits will help students experience academic achievement, progress through school at a normal rate and avoid some of the common causes of leaving school prior to graduation. The provision of supplemental materials and human resources ought not be dependent on the economic status of a school's constituency.

  B509179.

  Soon after assuming his position as Interim Superintendent, Superintendent Swanson became aware that "there was some discrepancy in the resources provided mainly due to the fact that some areas which have higher economic -- parents of higher economic status were able to provide things for their schools that were not available to all schools in the district." Swanson Dep. at 32-33. No district policy on equalization of resources existed at the time. Id. at 34. According to Superintendent Swanson, the intent of the Reorganization Plan was to "particularly provide the human resources, additional human resources, that [disadvantaged] people needed in terms of support personnel. . . . The hope was to distribute resources in with an extra emphasis on low-income schools." Id. at 39.

  Not one of the three versions of the 1989 Plan, however, contained any budget allocation to carry out this provision. No specification of schools or program definitions in support of this proposal were provided. See January Plan, B509142; February 14 Plan, B509169; and February 28 Plan, B509190. The lack of such a budget was in contrast to other initiatives undertaken in the Plan. For example, the Dropout Implementation Committee was provided a budget of $ 75,000 for its initiating recommendations.

  Superintendent Swanson admitted that no decision had been made to allocate any specific amount of funding for paragraph 1.1. programs. Swanson Dep. at 43. The only budget item discussed was a $ 500,000 allocation to schools with disadvantaged students. No specific distribution or implementation plan existed, however, with regard to the expenditure of these funds, being discussed only in general terms. Id. at 45. Similarly, Board member Gage testified that he had seen no proposal that an additional expenditure of funds be made for schools in low achieving areas. Gage Dep. at 73. No discussion between board members was held about providing a specific amount of money to balance inequities. Id. at 76-77.

  The Plan also did not provide supplemental educational benefits to the newly resegregated minority elementary schools. Superintendent Sullivan testified that, in his opinion, the Plan would have had a particularly harmful effect on the RSD's provision of supplementary educational programs such as Art, Music, and Chapter I programs to minority students.

   The 1989 Plan Resegregated the Schools by Sharply Restricting Voluntary Transfer Opportunities

  A fundamental characteristic of a non-segregated school system is a voluntary transfer program, the opportunity for any student to elect to attend any other school in the system if the transfer promotes desegregation and space is available. The 1989 Plan adopted a restrictive voluntary transfer policy, limiting the number of white schools to which minority students could transfer. Minority students were allowed to transfer to only five of the twenty-two elementary schools with white enrollment percentages above the system-wide elementary average. This was true even though fifteen of those schools had more than 82% white enrollment and most of them had available space. The RSD established no voluntary transfer program for white students to transfer to minority schools. Reorganization Plan (final version), B509187; School Data 1989-90, B509149; see also, Turrentine Memos, 3/16/89, D8012; 3/17/89, B502492; Swanson Memo, 6/1/89, B503809; RSD Press Release, 4/14/89, B509171; Lyman List of Available Classrooms, 4/4/89, D1108.

  In the Reorganization Plan as adopted on February 28, 1989, the RSD issued the following voluntary transfer policy:

  

Allow minority students to transfer from schools having minority populations exceeding 50% to schools designated by the District. Allow majority students to transfer from schools having majority populations of more than 50% to schools designated by the District.

  Transportation Director Patricia Turrentine sent a memo, dated March 16, 1989, initially establishing the list of schools to receive minority desegregation transfers as follows:

  Carlson

  Hillman

  Rolling Green

  Westview

  White Swan (K-3)/Cherry Valley (4/6)

  The Turrentine memo of March 17, 1989, then modified the list of receiving schools to the following four schools:

  Brookview

  Rolling Green

  Westview

  White Swan (K-3)/Cherry Valley (4-6)

  Carlson and Hillman were eliminated as receiving schools by the March 17th memo, but those schools did have available classrooms for 1989-90. According to the list of April 4, 1989, prepared by Barbara Lyman, Director of Elementary Education, Carlson had three and Hillman had two available rooms. Carlson was a Northeast Quadrant school that was projected by the District at that time to have 92% white enrollment in the Fall of 1989. Hillman was a Southeast Quadrant school that was projected at that time to have 85% white enrollment in the Fall of 1989-90. School Data 1989-90, B509149.

  Ultimately, the transfer policy publicly announced by the District on April 14, 1989, was as follows: Minority students from the King/Washington complex could transfer to White Swan/Cherry Valley or Rolling Green; minority students from the Dennis/McIntosh/Wilson complex could transfer to Rolling Green, Westview or White Swan/Cherry Valley; and minority students from Haskell could transfer to Brookview. The desegragation transfer system thus established by the District for minority elementary students limited their transfer opportunities in the following ways:

  

Minority students at King/Washington could transfer to only two schools: Rolling Green or the White Swan/Cherry Valley complex.

  

Minority students at Dennis/McIntosh/Wilson could transfer to only three schools: Rolling Green, Westview and White Swan/Cherry Valley.

  

Minority students at Haskell could transfer to only one school: Brookview.

  

The White Swan/Cherry Valley complex was located at the far eastern end of the District, a long distance for minority students. Brookview and Rolling Green were located in the central east portion of the District. Only Westview was located west of the River.

   The restrictions were established even though, at that time, the District projected that fifteen other elementary schools would have white enrollments of 82% or more in the Fall of 1989 and seven of those would have white enrollments of 92% or more. Such schools included Carlson and Hillman, which had originally been identified as transfer receiving schools and then withdrawn from the list. Id. No significant measures were in place to desegregate the enrollments of those fifteen white schools. A possible exception was the Alternative Programs at four schools, two of which had been relocated from predominantly African-American schools to predominantly white schools. According to the February 28, 1989 School Data summary, the Alternative Programs at predominantly white schools were as follows: Bloom Academics Plus Froberg/New Milford GIT Jackson CASS Welsh Academics Plus

  The voluntary desegregation transfer policy established by the District in the 1989 Reorganization Plan was not a two-way policy. Thus, while the Reorganization Plan referred to white students transferring from majority white schools to "schools designated by the District," no action was ever taken by the District to implement this policy. No receiving schools for white transfers were designated and subsequent public announcements referred only to minority students transferring to white schools. See, e.g., RSD Press Release, 4/14/89, B509171.

  The 1989 Plan Resegregated The System By Removing The Alternative Programs From Southwest Elementary Schools

  Relocation of Alternative Programs had the effect of reinforcing the segregation of the predominantly African-American schools and of imposing a disproportionate burden on African-American students. While, the previous location of the programs in Southwest Quadrant schools required white students to transfer into predominantly African-American schools west of the river, the new program locations required African-American students to transfer to schools east of the river. During the 1988-89 school year, the following elementary Alternative Programs were located in Southwest Quadrant predominantly minority schools for the express purpose of contributing to the desegregation of those schools: King Gifted Barbour Gifted, GIT Haskell CASS Ellis Arts Lathrop Montessori

  The February 28, 1989 Reorganization Plan provided that the RSD would "continue all current Alternative Programs. . . ." However, the "School Data 1989-90" indicated that the following Alternative Programs would be relocated from Southwest Quadrant African-American schools to Eastside majority-white schools:

  GIT from Barbour to Froberg/New Milford.

  CASS from Haskell to Jackson (where some CASS classrooms were already located).

  Arts Alternative from Ellis to Rock River.

  According to Board member Fred Wham, "alternative schools were not a big thing with the minority population . . . on a priority basis it didn't seem to be really important to them." Wham 1989 Dep. at 63-63.

  The Plan, As Initially Adopted And Implemented, Created Segregated Academics Plus Alternative Programs

  The Reorganization Plan as adopted by the District on February 28, 1989, established a second Academics Plus program at Welsh School, located on the Westside. The original Academics Plus program was at Bloom School on the Eastside. Reorganization Plan, 2/28/89, B509180. In a meeting on March 15, 1989, Superintendent Swanson and other senior staff established the policy that "Academics Plus students will be assigned to Bloom if they live on the east side of the river and at Welsh if they live on the west side of the river. Students currently at Bloom living on the west side of the river may continue at Bloom but their siblings and all new applicants must go to the program based on their geographic location." D8012.

   The effect of these geographical restrictions was that the Academics Plus program at Bloom was virtually all white and the Academics Plus program at Welsh was predominantly minority. On March 28, 1989, the policy for Academics Plus students was changed, so that students could apply for either the Bloom or Welsh program regardless of their residence in the District. Turrentine Memo, 3/30/89, B502493.

  The Pattern Of Elementary School Closings Imposed Disparate Burdens On Minority Students And Neighborhoods

  Complete Closures of Schools The January 1989 version of the Plan proposed closing six elementary schools in various parts of the District, except the Northeast Quadrant. B509135-B509137. The six school closings were distributed as follows: Northwest 1 Southwest 2 Southeast 3 Northeast 0 Total 6

  The February 1989 version of the Plan proposed closing three additional elementary schools: Church, Stiles and Ellis, all in the Southwest Quadrant. Reorganization Plan, B509183.

  The closing of the three additional elementary schools generated only $ 336,000 in savings, according to RSD data. This was only 4.6% of the total savings projected by the February Plan and only one-third of 1% of the District's 1989-90 budget. Complaint and Answer at PP 27, 27.2. Even the small purported cost savings of closing the additional three elementary schools was overstated because it did not take into consideration the offsetting new transportation cost of busing minority students. The February Plan contained other additional cost reductions so that the revised total savings was $ 7.34 million, $ 870,000 more than the January Plan. Even without the closing of the three additional elementary schools, the February Plan would have generated $ 534,000 more in cost reductions than the January Plan. B509190. School closings under the February Plan were as follows: February Plan Change from January Northwest 1 0 Southwest 5 Southeast 3 0 Northeast 0 0 Total 9

  As a result, the entire burden of additional school closings was placed upon the students in the Southwest minority community. Partial Closures Through Split Grade Structures

  The January version of the Plan would have established split grade structures at four pairs of elementary schools. Schools sharing a split grade structure had a combined, larger attendance area, with all students in certain grades (e.g., K-2) attending one school and all students in the remaining grades attending the other school. One effect of establishing a split grade structure is comparable to the partial closing of each school: the mandatory reassignment of about half of its students to the other school. Due to the increased distance, in a neighborhood school context this would most likely require some of the students, who would otherwise be able to walk to school, to be transported. Another effect of a split grade structure is the psychological and educational burden on the students who are required to change schools in the middle of their elementary schooling.

  Two of the split grade structures were established in the Southwest Quadrant: King-Washington and Stiles-Dennis. This required transportation for some students who otherwise would have been able to walk to school. The two other pairs were to be at the southeast edge of the District: White Swan/Cherry Valley and Froberg/New Milford, where transportation was already required due to the sparse population in this area.

  The February 1989 version of the Plan established an additional split grade structure in Southwest Quadrant schools. Wilson was converted to a Grades 3-6 elementary school and two additional split grade structures, K-2, were established at McIntosh and Dennis, feeding into Wilson. The net result was that 90% of the students in segregated minority elementary schools were placed in split grade structures and were required to change schools at third grade. The only exception was Haskell. Only 12% of the other elementary students in the RSD were subject to the burdens of a split grade structure.

  The scope of the additional transportation burden that these split grade structures imposed on Southwest students was set forth in an April 1989 memorandum from the Director of Transportation. B502494. Focusing on only one of the split grade complexes, Dennis/Wilson/McIntosh, she stated:

  

It will take 23 buses to pick up the Dennis/Wilson students. It will take 805 feet, or 2.7 football field lengths to park these buses. This will place children a considerable distance from school when loading and unloading buses. At McIntosh the buses would be lined up from School Street to the exit of the Auburn parking lot. Students will have to walk in the snow since there are no sidewalks. It will also be difficult for the primary students to find their bus with 23 buses at a building.

  Id.

  Closings and Pairings as a Percentage of Schools in a Quadrant One other way to view the disproportions imposed by the 1989 Plan's elementary closings and pairings is to consider the percentage of elementary schools in each Quadrant that was affected by such actions. The disproportion of existing elementary schools closed by the 1989 Plan, by Quadrant, were: Schools 88-89 Closed % Closed Northwest 6 1 17% Southwest 10 5 50% Southeast 17 3 18% Northeast 6 0 0% The following chart shows the result when split grade structures, which amount to partial closings, are also considered: Closed Schools 88-89 or Split % Closed or Split Northwest 6 1 17% Southwest 10 8 80% Southeast 17 7 41% Northeast 6 0 0%

  Under The Plan, The Schools In The Southwest Quadrant Were Overcrowded And No Space Was Available For Special Programs

  School closings in the 1989 Plan placed Southwest Quadrant elementary schools at or over capacity. As a result of this action, students in minority schools were deprived of both educational programs routinely provided elsewhere in the District and supplemental educational programs that otherwise were provided in the minority schools. Set forth below are the Capital Development Board's capacities and projected enrollments for the 1989-90 school year in minority elementary schools with a projected minimum enrollment of greater than 50%. Projected School Capacity Enroll. Avail. Capacity Dennis 439 410 29 Haskell 494 419 75 King 468 507 (39) McIntosh 523 649 (126) Washington 728 876 (148) Wilson 1448 1227 221

  The February Plan placed over capacity enrollments at three schools with over 50% minority enrollment. These enrollments excluded Special Education students and no apparent provision was made for the extra classrooms required by Chapter 1 programs. Little or no space was available for such special programs. No allowance was made for the "reduced class size" promised by the Plan for schools with "a high incidence of educationally and economically disadvantaged students." The RSD failed to properly consider the space needs for Special Education and Federal Chapter 1 programs in the remaining schools in the Southwest Quadrant. Consequently, the educational opportunities available to minority students in the Southwest Quadrant were adversely affected due to the closing of schools and insufficient space in the remaining schools.

  On February 14, 1989, the RSD staff prepared a listing of the anticipated Fall 1989 location of special programs. 1989-90 Location of Special Programs, 2/24/89, D14149. Of all the special programs in the elementary schools, the only ones scheduled for Southwest Quadrant schools were the Gifted Alternative Program and the Spanish Bilingual Program, both located at King/Washington. The staff listing indicated that schools that contained either Chapter I or transition classrooms in 1988-89 "may or may not have the programs next year" because of uncertainty about available space. Id. With respect to Chapter I, Elementary Director Lyman notified Superintendent Swanson that "we will not have Chapter I teachers housed in full-size classrooms," due to space limitations. She said, "This will be a change for the faculty and, in many cases, it may be difficult for them to become accustomed to." D11077. Further, with respect to special education, Lyman informed Swanson that "we will not have room in each building for Learning Disabled resource teachers to be housed in a full-size classroom." Id.

  The Effects Of The 1989 Reorganization Plan On RSD Secondary Schools

  The 1988 Level Of Desegregation In the RSD Secondary Schools

  High Schools

  In the Fall of 1988, the RSD's overall high school enrollment was 21.46% African-American, meaning that a desegregated school was between 10.7% and 36.5% African-American. Four of the RSD's high schools were desegregated in 1988:

  Auburn 35.3% African-American

  East 21.1% African-American

  Guilford 15.4% African-American

  West 34.9% African-American

  One RSD high school was a racially-identifiable white school:

  Jefferson 7.5% African-American

  On an African-American-plus-Hispanic basis, Auburn was just within the desegregation range and West was just outside the range.

  High School Attendance Areas As Of 1988

  Of the five high schools in the RSD, only West High School was a naturally integrated school, that is, a school with an integrated enrollment derived from a reasonably contiguous attendance area around the school. RSD High School Attendance Map, Fall 1988, B509089. East and Guilford High Schools were desegregated by satellite mandatory assignment zones, and Auburn High School was desegregated by the Gifted and CAPA Alternative Programs, in which most of the students were white. Jefferson High School, having none of these attributes, was a racially-identifiable white school.

  In 1988, West High School had a contiguous attendance area bounded by the Rock River, State Street, Central Avenue and Riverside Boulevard. In addition, West had a small satellite zone in the Southwest Quadrant, between Kent Creek and Montague Street. Without this satellite zone, West would have approached the systemwide level of African-American enrollment, that is, would have been a more integrated school. None of West's students had to be bused to school as none lived more than a mile and a half from the school. In contrast, Jefferson bused 1618 students out of the total student population of 1746. B502836.

  Guilford High School was desegregated by a mandatory assignment satellite zone west of the Rock River. This area was bounded roughly by the Rock River, State Street, Central Avenue and Kent Creek. East High School was also desegregated by a satellite zone west of the Rock River, bounded roughly by Montague on the north and west, Ogilby Road on the south and the Rock River on the east. Jefferson High School had an attendance area at the far Southeast area of Rockford. Lacking any effort at desegregation, Jefferson was a racially-identifiable white school. The desegregation of Auburn High School was accomplished largely by the presence of the Gifted and CAPA Alternative Programs. In the Fall of 1986 the component parts of Auburn were comprised as follows: Gifted 5% African-American/Hispanic CAPA 25% African-American/Hispanic "No program" 53% African-American/Hispanic Total 38% African-American/Hispanic

  B509128. Auburn also had a satellite attendance area in the far Southwest area of the School District, but few students were generated from that area.

   The locations and boundaries of the high schools in the RSD strongly show that the RSD had four centrally located high schools and one remotely-located high school, Jefferson. West, Auburn, East and Guilford were located in areas of relatively dense population. These four schools were also reasonably well-distributed around the populated area of the District. In contrast, Jefferson was located at the far Southeast reaches of the School District, outside the Rockford City limits. No significant residential population was near Jefferson School. The fact that 93% of the students attending Jefferson had to be transported to school by virtue of living more than 1.5 miles from the school underscores this population distribution. No other school even approached that level of required transportation. Even Auburn, with its Gifted and CAPA transfers, had only 51% of its students requiring transportation. B502836.

  The 1988 Level of Desegregation in RSD Secondary Schools: Middle Schools In the Fall of 1988, the desegregation range for middle schools in the RSD was between 10.6% and 36.1% African-American. Three of the middle schools were desegregated in 1988: Eisenhower 14.3% African-American Lincoln 28.7% African-American Wilson 23.3% African-American

  One of the middle schools was racially-identifiable white:

  Flinn 7.4% African-American

  One of the middle schools was racially-identifiable minority:

  Kennedy 37.6% African-American.

  Middle School Attendance Areas As Of 1988

  The pattern of middle school attendance areas was quite similar to the high schools. About half of the Southwest middle school students attended Westside schools, Kennedy and Wilson. The other half were assigned by mandatory satellite zones in order to desegregate Eastside schools. The northern portion of the Southwest Quadrant from Auburn Street to State Street, was assigned to Kennedy School. This assignment paralleled the high school level, where students from this same neighborhood went to West. The central portion of the Southwest Quadrant, from State Street to Kent Creek, was assigned to Eisenhower as a satellite zone. This paralleled the assignment at the high school level, where students from this same neighborhood were assigned to Guilford. The southern portion of the Southwest Quadrant, from Kent Creek to Ogilby Road, was assigned as a satellite zone to Lincoln Middle School, on the Eastside. This differed somewhat from the treatment of this neighborhood at the high school level, where it was divided into two satellite zones, one assigned to East High and one to West High. The far southern portion of the Southwest Quadrant was assigned as a satellite zone to Wilson. This paralleled the assignment of this neighborhood at the high school level to Auburn. Finally, the southwestern portion of the Southwest Quadrant was assigned as a satellite zone to Kennedy. This additional satellite zone caused Kennedy to become a racially-identifiable African-American school.

  In the 1981 IBA report prepared by RSD's senior staff, Lincoln Middle School was described as a school whose "location lends itself to natural integration." IBA, B4889, B4948. Since the IBA report was evaluating buildings for closing, it is reasonable to conclude that the RSD staff considered "natural integration" a factor militating against closing Lincoln Middle School at that time. In its February 1989 Reorganization Plan, the RSD said that its new secondary "boundary pattern provides natural diversity among students." Reorganization Plan at 6, B509184. While the RSD's characterization of its new boundaries was incorrect, the statement does show that the RSD recognized and supported the desirability of natural integration as opposed to mandatory desegregation.

  Recommendations Of The Ad Hoc Citizens' Committee

  The process of developing the 1989 Reorganization Plan began after Superintendent Swanson and the Board received the report of an Ad Hoc Citizens' Committee, which was appointed by the Board and studied school system reorganization questions in 1988. See Suanson Memo to RSD Employees, 11/17/88, B503659. After the Committee's report was received in October 1988, Interim Superintendent Swanson circulated a summary of the Committee's report to all district employees. The Committee recommended that, if buildings were closed for the purpose of cost savings, the guidelines should be to close "50% of the excess buildings." B503662.

  The Board's Goals For The Reorganization Plan And Criteria For School Closings

  The first draft stating the goals of the Reorganization Plan was presented by Superintendent Swanson on November 30, 1988. Swanson Memo to Board, 11/30/88, D13271. Goals eight and nine addressed student assignment:

  

8. Avoid unnatural segregation of racial, ethnic and socio/economic groups;

  

9. Assign pupils, especially at the lower elementary levels, to neighborhood schools.

  The "Goals For Changes In District Operations" actually adopted by the Board on December 21, 1988 changed eight and nine to seven and eight and read as follows:

  

7. Balance the opportunity to attend neighborhood schools with the goal of racial, ethnic and socio/economic diversity in our schools;

  

8. Minimize travel time for students, especially at the lower elementary grade levels.

  On the same day, the Board adopted its "Criteria For Closing Of Schools". B35247. Among the significant criteria were operating costs, capital costs and transportation implications. Absent from the list of eleven criteria was any reference to integration/desegregation factors and the impact of a school closing on the surrounding neighborhood. The next day, the Rockford City Council adopted a resolution stating that the School Board should establish an immediate dialogue with the City Department of Community Development "concerning the total economic, social and educational impact of projected school building closings upon individual neighborhoods." D11256. The RSD thus amended its closing criteria adding "impact on neighborhood." Id. This change was reflected in a letter from Superintendent Swanson to Mayor McNamara, stating that, in response to communications from City officials, "the Board directed the administration to include in its deliberations the impact of a school closing on a neighborhood." Swanson Letter to McNamara, 1/18/89, B38593.

  Information Before The Board In Its Deliberations

  The Superintendent and the Board of Education were committed to closing a high school under the Reorganization Plan. The reason put forth was that declining enrollment necessitated such a closing for cost-reduction purposes. In an information packet that Superintendent Swanson assembled and distributed to Board members, several pieces of relevant information were presented. B35229 (dated January 1989). The second page of that packet contained an analysis of the residential distribution of the RSD's student population. At that time, 41% of the RSD's students lived west of the Rock River, and 59% lived east of the Rock River. The statistics suggest that, assuming four high schools of equal size, the retention of two high schools west of the Rock River would require 9% of the students to cross the river east to west. The retention of three high schools east of the Rock River, however, would require 16% of the students to cross the river east to west. The information packet also discussed high school enrollments and capacities and showed that capacity was not a significant factor in selecting a high school for closing. The data showed the actual and projected enrollment of Grades 9-12 as follows: Actual Fall 1988 7,670 Projected Fall 1989 7,354 Projected Fall 1993 6,829 Projected Fall 1998 7,082 B35232, B35234. Accordingly, in terms of capacity, any of the five high schools could have been closed. In other words, by closing any one high school, any combination of the four remaining high schools would have had enough capacity to handle the projected number of students. The "optimum contract operating size" and the "largest enrollment since 1965" of the five high schools are as follows: School Optimum Size Largest Enrollment Auburn 1,635 2,026 East 2,070 2,886 Guilford 2,020 2,839 Jefferson 2,380 2,380 West 1,765 2,334 Total 9,870 12,465

  B35232. In terms of "optimum size", omitting the largest high school, Jefferson, leaves a total available capacity of 7,490. This exceeds the projected number of students for the Fall of 1989, as well as the projections for 1993 and 1998. Thus, even at "optimum contract operating size," nothing about school capacities compelled any particular conclusion regarding which high school to close. The information packet further discussed projected maintenance and repair costs. Estimated Costs of Major Maintenance and Repair Projects, 1987/88 - 1992/93, B35241. The projected five-year cost for the four high schools was: Auburn $ 416,780 East 440,500 Guilford 370,066 Jefferson 564,005 West 266,305

  Thus, West High School had the lowest repair cost of all the high schools and Jefferson High School had the highest repair cost. The projected costs savings from closing Jefferson rather than West, for example, would have been $ 298,000.

  Apart from the Superintendent's information packet, the RSD's leaders had information on the operating costs of the various high schools. Finally, the RSD had a 1988 report from the North Central Accreditiation Association strongly commending the educational program and educational conditions at West High School. As such, there was no educational justification for closing West High School. The school was functioning well. NCA Report, 1988, B1302.

  The Administrative Staff's January 17 Recommendations To The Board

  On January 17, 1989, Superintendent Swanson presented recommendations as to the form of the Reorganization Plan to the Board of Education. Swanson Memo to Board, 1/17/89, D3925. The introductory note stated:

  

The following recommendations represent a consensus of the District-level Administrative Staff; respond to input from persons in all employee classifications and in many community groups; and are based on considerable data produced by staff personnel.

  The document set forth the goals of the Administrative Staff's recommendations. The first category was "Buildings and Boundaries," for which three goals were articulated:

  Provide optimum enrollment in all schools,

  Assign elementary students to neighborhood schools, and

  Establish secondary school boundaries to attain racial and socio/economic diversity.

  Secondary-level integration was, therefore, the compromise for elementary school resegregation.

  The first recommendation was to "Close West High School." The articulated reasons were as follows:

  

West High has the smallest enrollment of the five high schools; has the second smallest capacity; is located in close proximity to Auburn High School; along with East High, is the oldest of the high schools; and is advantageously located for purchase by a commercial or industrial firm.

  The Administrative Staff's second recommendation was:

  

Design secondary school boundaries as corridors across the city east and west with students in the northernmost section attending Eisenhower and Guilford, near north attending Wilson and Auburn, near south attending Lincoln and East, and the southernmost corridor attending Flinn and Jefferson. Vary boundary lines as needed to achieve racial and socio-economic diversity in each school.

  This boundary pattern abandons the traditional eastside-westside pattern; provides natural diversity among students in each secondary school; equalizes the enrollments in the schools; allows for greater use of RMTD bus routes; and more equitably shares the need to be transported among majority and minority students.

  This recommendation abandoned the traditional Eastside-Westside pattern and more equitably shared transportation. The boundary plan calling for horizontal districts, would have abandoned the Rock River as a barrier. In one of the four corridors, Eastside students would have been assigned to attend Westside schools, Wilson and Auburn. The number of students so assigned would be increased by the fact that the Administrative Staff also recommended moving the high school alternative programs, Gifted and CAPA, out of Auburn and Wilson to East High School.

  Another recommendation of the Administrative Staff dealt with the Rockford Area Career Center:

  Convert the Rockford Area Career Center (RACC) into a Special Program Center.

  

RACC has experienced under-utilization since its opening in 1971. High School students have been reluctant to sacrifice the transportation time. Other districts belonging to the Joint Agreement have not been able to fulfill their student allocations.

  The January 24 Reorganization Plan

  The Administrative Staff's recommendation for two-way, cross-the-River secondary boundaries was not adopted. Just one week later, the RSD publicly issued its January 24th version of the Reorganization Plan, which bore little resemblance to the secondary boundaries proposed by the Administrative Staff. This version reverted to the RSD's historical practice of mandatorily assigning Westside satellite zones in order to desegregate Eastside high schools. In the new version, Guilford and Jefferson each had an elongated strip that snaked across the river to encompass pieces of the Southwest Quadrant. East High and Auburn, however, had relatively compact attendance areas under this Plan. One reason was that the high school alternative programs, CAPA and Gifted, were removed from Auburn and, as a result, Auburn had more minority students from the neighborhood. The most distinctive feature of the January 24th Plan was that it returned to mandatory one-way assignment of Westside minority students.

  Despite the conceptual difference between the January 17th recommendations of the Administrative Staff, and the January 24th Plan released by the RSD, the January 24th Plan took, almost verbatim, the rationale statement presented by the Administrative Staff to justify the now-discarded January 17th recommendations. Thus, the January 24th Plan included each of the following statements that had been in the January 17th Administrative Staff recommendations:

  This boundary pattern abandons the traditional Eastside-Westside pattern;

  Provides natural diversity among students in each secondary school; and

  More equitably shares the need to be transported among majority and minority students. January Plan at 6, § 2.13, B509137. None of these statements were true in relation to the January 24th Plan. The Plan retained, rather than abandoned, the traditional Eastside-Westside pattern. Diversity was based on mandatory satellite zones rather than on a natural residential basis. Inequity in transportation among majority and minority students was increased and required even more minority students than before to be transported to the Eastside.

  The amount of secondary school desegregation projected by the RSD under the January Plan represented only a slight improvement over the preexisting conditions in the Fall of 1988. Auburn would gain a few percent minority and would become a racially-identifiable minority school, with more than 15% minorities above the systemwide average... East would lose half of its minority enrollment, but would be below the systemwide proportion to the same extent, 8%, it had formerly been above that proportion. Guilford's composition would remain unchanged. Jefferson would become a desegregated school with 33% minority. The range between the highest and lowest minority percentages in the various high schools would be reduced only from 32% to 26%. D13891.

   Another provision of the January 24th Plan represented a significant departure from the January 17th Administrative Staff Plan. The Rockford Area Career Center, rather than becoming a "Special Program Center," was closed entirely. January Plan at 5, B509136.

  Public Reaction To The January Plan

  As stated earlier, the proposed closing of West High School aroused intense protest from the community in which that school was located. Northwest side parents formed the "Save West High Committee" for the purpose of opposing the closing of West High School. The Save West High Committee presented the Board with a petition signed by 12,000 persons who opposed the closing of West High.

  Rockford's Mayor, John McNamara, also publicly opposed the closing of West High School. Mayor McNamara stated that "closing West would be a devastation to the city's west side." He said: "This area of the city has had to suffer the vacancy of Roosevelt middle school. Now we're looking at the closing and vacancy of West." B500613. A few days later, Mayor McNamara reiterated his position: "This is not an emotional reaction," adding that West was big enough to house the number of students in the area and was in excellent structural condition. "My basic question is why keep schools open that are surrounded by cornfields and close schools surrounded by kids?" B500614-B500616.

  In a letter responding to Mayor McNamara's comments, Superintendent Swanson and Board President Jackie Confer criticized Mayor McNamara for being "publicly confrontational" and suggested that future communications be directly to Superintendent Swanson. The letter to Mayor McNamara threatened that "pressuring the Board publicly may cause a backlash for you." Swanson-Confer Letter to McNamara, 2/1/89, D13853.

  Reconsideration Of The West High Closing

  In response to criticism of and objections to the decision to close West High School, Administrative Staff began exploring alternatives. One recommendation came from the RSD's Gifted Director, Mr. Gary Heideman. Mr. Heideman's major premises included:

  

1. Failure to maintain two west-side high schools will ultimately result in negative consequences for the community as a whole in later years.

  

2. The Rockford Area Career Center has never achieved its potential to provide effective career/vocational education for Rockford high school students. This Center should remain open but with major operational and programmatic changes.

  B507327. Essentially, Mr. Heideman proposed creating a Jefferson/RACC complex as a vocational magnet high school. His specific comments included:

  

Several factors such as scheduling, student awareness, course availability and transportation have hindered rather than enhanced the availability of RACC offerings.

  

Beginning in 1989/90, Jefferson and RACC should be viewed as a single facility with the capacity to serve upwards of 3,200 students as Rockford's newest alternative or focus center school.

  

A major aspect of the Jefferson complex will be to serve both the academic and vocational training needs of any high school age youngster from throughout the system. Jefferson and RACC will employ all marketing recruitment practices utilized by other alternative programs which have resulted in both popular and appropriate educational programming.

  Under this Plan, Auburn High School would retain the Gifted and CAPA programs plus a neighborhood feeder population, with an overall minority enrollment not to exceed 35%.

  Mr. Heideman expressed the view that "West High School is an excellent facility which has many flexible sized classrooms and specialty areas such as the small theater." Mr. Heideman argued that removing the alternative programs and the combining West and Auburn neighborhood students would result in the Westside not having a high school that offered the same level of college preparatory training as other high schools in the District. He recognized that:

  

The ultimate flaw in the thinking which suggests that the student bodies of Auburn and West be combined lies in the impression this combination makes to anyone residing on the west side or considering residency on the west side. If the only high school within their reach fails to provide a comprehensive program, the only alternatives are not to reside in the area or enter into private education. A "catch-22" based upon a self-fulfilling prophecy will ultimately result in a new set of issues within the next 10 years.

  Mr. Heideman recommended keeping West High open and redrawing its boundaries "to encompass the east side of the river, specifically the Guilford High School area along North Alpine Road to Highcrest Road." The minority population would not exceed 35%. East High School was recommended to be closed because it was "not based in any of the major quadrants of the city." Guilford was to remain open, with part of its attendance area transferred to West High, and those students replaced with students from East High. Guilford would thus have "a minority population approximating that of the other three remaining high schools." The primary educational program at Guilford would focus on being a general comprehensive high school with courses ranging from college preparatory to remedial, as in all the other high schools.

  The key concepts in Mr. Heideman's proposal were to desegregate Jefferson High by linking it with RACC as a vocational magnet to attract minority voluntary transfers; keeping Auburn desegregated with alternative programs; keeping West desegregated with the assignment of Northeast white students across the river; and requiring Guilford to be a desegregated school with a full range of student population. For the first time minority students, instead of mandatory assignment through satellite zones, would have the opportunity to make voluntary transfers in response to special program offerings. Also, for the first time, Eastside students would be mandatorily assigned across the river to a Westside school. Nothing was presented to the court, however, indicating that Mr. Heideman's proposal received any serious consideration.

  On February 5, 1989, Superintendent Swanson developed a confidential memo proposing modifications to the January 24th Plan. B503737. This was a draft of the document Superintendent Swanson would submit to the Board on February 8th. Modifications included a plan to return CAPA and Academy alternative programs to Westside schools. Also, a proposal was made to convert West High to a middle school building and to close Kennedy, Wilson and Lincoln Middle Schools. As a rationale for this recommendation, Superintendent Swanson said "this may overcrowd the middle schools temporarily . . .," indicating once again the flexibility of school capacities. The memo further proposed to improve secondary level desegregation: "Modify secondary school boundaries so that all building capacities are used maximally and minority percentages in each school are between 20 and 35%." B503739.

  On February 6, 1989, Deputy Superintendent Bowen sent a memo to the Board members presenting operating cost information for the RSD's high schools. B503741. The information showed, for example, that the annual utilities costs of operating Jefferson were more than twice those of operating West and that keeping Jefferson open instead of West would cost a projected additional $ 1 million in utility costs over the next five years. B503742. The custodial and supply costs at Jefferson were also much higher than at West. Keeping Jefferson open instead of West would cost a projected additional $ 435,000 in this expense category over the next five years. Under the heading of "Major Repairs -- Capital Outlay," the information showed that the projected costs at Jefferson over the next six years would be more than twice those at West. The projected additional five-year cost of keeping Jefferson open instead of West was $ 338,000. Mr. Bowen's information contained a summary page showing five-year projected costs for the items reviewed above plus administrative costs. The additional cost of operating Jefferson as compared to West was: Jefferson $ 5,339,715 West 3,474,037 Cost difference $ 1,865,678 B503746. Mr. Bowen's information also calculated annual operating cost on an alternative basis, per square foot. For Jefferson and West the costs were: Jefferson $ 2.82 per square foot per year West 1.84 per square foot per year

  Mr. Bowen's information contained a calculation regarding the number of students transported. Jefferson involved busing by the RSD of 1,901 students, whereas West involved the busing by the RSD of only twenty-two students. At the RSD's average per-student cost for transportation of $ 225.54, this represented a cost differential of $ 423,790 per year. B509341; B509592. Over a five-year period this amounted to $ 2,118,948 in additional transportation costs to keep Jefferson open instead of West. Mr. Bowen testified that, after considering all of the factors, Jefferson was the school that should have been closed. He maintained that "transportation was more difficult there. It was, as I remember, an energy hog. It was remote." Bowen Test., Tr. at 3341. Considering the fact that the primary rationale for the Reorganization Plan "was to reduce expenditures to offset projected future-year operating deficits," the court finds no evidence that anyone paid any attention to the millions of dollars in additional costs that the RSD was incurring by deciding to close West instead of Jefferson.

  The RSD documents also give no indication of consideration being given to the significance of the decision to close the Rockford Area Career Center. As Mr. Heideman advocated in his proposal, it would have made sense to keep Jefferson open, despite its remote location and high cost, if it were linked with RACC as a vocational magnet high school in order to attract minority transfers on a voluntary basis. The conception of Jefferson/RACC was also contained in the January 17th Administrative Staff Plan, which recommended converting RACC into a "Special Program Center." If RACC were closed, however, as the Board decided in the January 24th Plan, then serious reconsideration should have been given regarding the impact of that decision on Jefferson. With RACC gone, and the Board intending to increase the level of desegregation in all remaining high schools, the only way Jefferson could be desegregated was by the mandatory reassignment of large numbers of Southwest minority students to that remote location. Nevertheless, Superintendent Swanson and the Board focused primarily on whether to undo the West closing decision, and close Auburn instead. The alternative of keeping both West and Auburn open and closing Jefferson, as well as other alternatives presented to the RSD from numerous sources, received no serious consideration.

  Superintendent Swanson, on a copy of the school closing criteria, inserted handwritten columns, for West and Auburn, containing pluses and minuses as the relative merits of closing one school or the other. B503753. He concluded that West was the preferable school to keep in terms of operating and maintenance costs, "viability for sale or lease," and "impact on neighborhood". Keeping Auburn open was preferable, on the other hand, in terms of potential for growth in student enrollment and the number of students required to transfer schools.

  In his deliberations, Superintendent Swanson made certain notes. One was that the "northwest has two high schools and two middle schools -- 28%." B35230. On the same sheet, Swanson noted "Cornfield argument used when East and Guilford built." This was a reference to the fact that Jefferson was located so far outside the city that it had been described by Mayor McNamara as being "in the cornfields." At the same time, however, the RSD was using the "cornfield" argument to justify closing two other schools. With respect to closing Kennedy Middle School, part of the RSD's stated rationale was that the school "is located in an area of current and future sparse student population. . . ." Reorganization Plan, B509183. With respect to closing Haight Elementary School, the February Plan stated "Haight is located in a sparsely populated area. . . . " Id. Haight and Kennedy were located on the far Northwest side, beyond any population center.

   In a February 8th confidential memorandum, Superintendent Swanson presented to the Board his proposed "Modifications to Original Recommendations." Swanson Memo to Board, 2/8/89, B503759. In the memo itself, he recommended converting West to a middle school and keeping Auburn open, with the Gifted and CAPA Programs returned there from Eastside schools. Superintendent Swanson wrote an Addendum to the memorandum, which stated:

  Addendum

  

After hearing the concerns of city officials and the business community, I feel we may not have given sufficient consideration to the impact on the West High business and residential neighborhood. I am suggesting that West High remain open and Auburn High School be closed.

  

In contemplating this change, I urge the Board not to allow the pressures which have been applied by the Mayor and others to affect your objectivity. The important thing is to make the right decision. Changing our recommendations may cause criticism and extend the emotional pressure on us in the short term, but the decision will have long-term consequences for the School District and City. The Board's credibility will only be enhanced by choosing the more difficult but correct course.

  

West High is a larger building and has lower operating and maintenance costs, requires less transportation of students, is fully accessible to the handicapped, and has more impact on the viability of the business and residential neighborhood than has Auburn. The continuing presence of Wilson and McIntosh on the site will reduce the negative impact on the neighborhood even if Auburn is closed. The cost savings will be approximately the same. We would be losing a newer building and a three-school complex currently existing.

  Addendum to Swanson Memo, id. at B503762.

  Of the three schools, Jefferson had by far the highest maintenance cost, the highest utility cost and the highest repair cost. While the cost savings were the same as between closing West or Auburn, closing Jefferson would have saved, over a five year period, $ 1,876,000 compared to closing West. Closing Jefferson would have saved $ 1,688,000 over five years as compared to closing Auburn.

  In comparing Auburn and West, Superintendent Swanson said West "requires less transportation of students." West involved the transportation of only 22 students, whereas Auburn involved the transportation of 836. Jefferson, however, involved the transportation of 1,901 students, at a five-year cost of about $ 2 million. Swanson also said West "has more impact on the viability of the business and residential neighborhood than has Auburn." Jefferson, however, was not located in any neighborhood.

  The motivation on the RSD's part was reflected in a memorandum from Superintendent Swanson to Mr. Driscoll on February 8, 1989, directing Mr. Driscoll to prepare new secondary boundaries based on the conversion of West to a middle school. Superintendent Swanson instructed the Attendance Director to "keep minority percentages between 25 and 35%" and to "leave eastside high school boundaries as close as possible to where they are this year." Swanson Memo to Driscoll, 2/8/89, D10847. Thus, it appears to the court that the RSD was unwilling to assign Eastside students to Westside schools while imposing burdens on minority children in deference to the interests of Eastside majority students.

  The RSD's February Reorganization Plan

  The Board did not follow the urging of Superintendent Swanson in his February 8th Addendum. Instead, the Board selected the option of converting West to a middle school. This new approach was publicly revealed in the modified Reorganization Plan released by the Board on February 14, 1989. B509131. This was also the date on which the RSD converted Wilson to a mega-elementary-school and closed several African-American elementary schools. To execute this plan and, at the same time, return the secondary-level alternative programs to the Westside, the RSD promulgated yet another set of secondary-school boundaries. Revised Attendance Map, B509093.

   The removal of the alternative programs from East, after a short stay of only three weeks, left East far below capacity and with a low minority enrollment. Therefore, East was once again assigned a satellite zone from west of the river. In response, and to these considerations, and to fulfill its objective of improving secondary-school desegregation to offset elementary-school resegregation, the RSD again reorganized areas in the Southwest Quadrant. The following findings compare the February 14th secondary boundaries with the pre-Reorganization boundaries existing in the Fall of 1988. Compare B509093 with B509089.

  In 1988, the central portion of the Southwest Quadrant was Guilford's satellite zone. In the February 14th Plan, it became East's satellite zone. The southern portion of the Southwest Quadrant had previously been assigned as satellite zones to three different schools. One area was assigned to West, one to East, and one to Auburn. In the February 14th Plan, all of these areas became Jefferson's satellite zone. The northern portion of the Southwest Quadrant, which had been the southern part of West's attendance area in 1988, became a satellite zone for Guilford High School. Almost all Southwest Quadrant students, everyone south of Auburn Street and east of Central Avenue, were mandatorily assigned to a different high school than before.

  Compared to the 1988 boundaries, a very large number of additional Southwest Quadrant high school students were assigned by satellite zone to Eastside high schools. This included:

  

The former southern one-third of the West attendance area, between Auburn and State, was now assigned to Guilford.

  

The former West students between Kent Creek and Montague Street, were now assigned to Jefferson.

  

A few students at the far southwest end of the district who were formerly assigned to Auburn were assigned to Jefferson.

  Only a small portion of the Southwest Quadrant, west of Central Avenue between Auburn and Linden, was still permitted to attend high school on the Westside, at Auburn.

  In accordance with Superintendent Swanson's direction to Mr. Driscoll that Eastside high school boundaries be disturbed as little as possible, Guilford's boundaries east of the river were virtually unchanged. Also, a small portion of Jefferson's attendance area was assigned to East, but otherwise the boundaries of East and Jefferson remained the same east of the river. Thus, the only Eastside white students required to change schools at the high school level were a few students moving from Jefferson to East. The vast majority of Eastside high school students were undisturbed.

  The pattern at the middle school level was very similar. The only difference was due to the fact that in 1988, and prior years, Southwest Quadrant satellite zones at the middle school level did not exactly match those at the high school level. Comparing the Fall of 1988 middle school boundaries to the February 14th boundaries, Southwest middle school students were subjected to the following changes:

  

The central portion of the Southwest Quadrant, previously assigned to Eisenhower, was switched to Lincoln.

  

The southern portion of the Southwest Quadrant, previously assigned to Lincoln, was switched to Flinn.

  

The northern portion of the Southwest Quadrant, previously assigned to Kennedy, was switched to Eisenhower. Another piece of the Southwest Quadrant at the west end, previously assigned to Kennedy, was assigned to the new West Middle School.

  Thus, at the middle school level, as at the high school level, virtually every middle school student in the Southwest Quadrant was required to change schools. The number of Southwest Quadrant middle school students required to attend Eastside schools through satellite zone assignments was significantly increased. This increase consisted of the area bounded by Auburn, Central, State and the Rock River, which previously had been assigned to Kennedy. This is the same area that, at the high school level, was reassigned from West to Guilford. On the Eastside, relatively few middle school students were required to change schools. Only a few small areas shifted between Eisenhower, Lincoln and Flinn.

  In the section of the Reorganization Plan stating and explaining its secondary-school boundary policy, the RSD deleted two of the rationale statements that had been present in both the January 17th and January 24th Plans. The deleted statements were:

  This boundary pattern abandons the traditional Eastside-Westside pattern;

  More equitably shares the need to be transported among majority and minority students. B509163. These rationale statements had their origin in the January 17th Staff Plan, that called for secondary boundaries to be east-west corridors across the city and for some Eastside students to be assigned to Westside schools. The deletion of these rationale statements indicates the RSD knew it was maintaining, rather than abandoning, the traditional Eastside-Westside pattern of mandatory satellite zone assignments. The RSD also knew that the new boundary pattern maintained, and even increased rather than more equitably distributed, the disproportionate transportation burdens on minority students. Compare B509137 with B509163. Prior to adoption of the final Reorganization Plan, the Board was aware of the concerns of the minority community regarding the inequitable burdens and effects of the Plan on minority students. The Board, however, did not address the concerns of the minority community.

  Option Zones In The Final February 28 Secondary Boundaries

  Despite continuing protest against the decision to close West High School and against the February 14th secondary boundary changes, the RSD finalized its decision on February 28, 1989 with only one significant change. The change was the creation of two optional attendance zones. Bd. Min., 2/28/89, B21674. One option zone on the Eastside, allowed students whom the Plan had transferred from Jefferson/Flinn to East/Lincoln to remain at Jefferson/Flinn if they wished. The affected students were white and this option zone increased the white enrollment percentage at Jefferson. RSD Secondary Schools Attendance Map, B38689 (final revision). The other option zone was established in the Southwest Quadrant, encompassing predominantly African-American/Hispanic students. These students, whom the Plan had assigned to Guilford/Eisenhower, were allowed to attend Auburn/West if they wished to do so. The effect of this change was to increase minority enrollment at Auburn/West and decrease minority enrollment at Guilford/Eisenhower. As a result of these option zones, the eventual Fall 1989 enrollments in the RSD's secondary schools were not as racially-balanced as predicted. Before the option zones were adopted, RSD projected that the four high schools would be within a range of 25-29% minority, so that the difference between the highest and lowest minority enrollment would be only four percentage points. School Data 1989-90, 2/24/89, B509150. Due to increased white enrollment at Jefferson and increased minority enrollment at Auburn, the outcome in the Fall of 1989 was a variation of thirteen percentage points between the highest and lowest minority enrollments, three times as large a range as the RSD had projected. The actual high school minority percentages in the Fall of 1989 were as follows: Auburn 36.4% East 30.0% Guilford 28.2% Jefferson 23.2%

  B0033.

  The 1989 Plan Promoted Segregated Conditions In Secondary Schools By Eliminating Voluntary Transfer Opportunities For Minority Students

  The new voluntary transfer policy under the 1989 Plan provided that minority students could only transfer out of schools having more than 50% minority enrollment. No secondary school under the Plan, however, was projected to have more than 50% minority enrollment and no secondary school in the District's history ever had more than 50% minority enrollment, with the exception of Washington Middle School in the 1970's. The effect of this new policy, therefore, was that voluntary transfers by minority students were not permitted at the secondary level. Conversely, white students were permitted to transfer out of every secondary school because all secondary schools were over 50% white.

  CONCLUSIONS OF LAW

  School desegregation cases have described the many kinds of unconstiutional conduct which causes or maintains segregation. See, e.g., Reed v. Rhodes, 455 F. Supp. 546 (N.D. Oh. 1978), aff'd in part, rev'd in part, 607 F.2d 714 (6th Cir. 1979), cert. denied, 455 U.S. 1018 (1982). The prime factor to consider in evaluating the Reorganization Plan is that the constitutional rights of minority students are violated when intentional discriminatory conduct results in a lower quality education for minority students than that provided to white students. See United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1530 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2d Cir. 1987), cert. denied, 487 U.S. 1251 (1988); Morgan v. Hennigan, 379 F. Supp. 410, 463 (D. Mass 1974), aff'd sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert. denied, 421 U.S. 963, 44 L. Ed. 2d 449, 95 S. Ct. 1950 (1975). This is true not only in instances in which school officials initially bring about educational inequalities, but also where school officials fail to eliminate inequalities with respect to matters within their continuing charge. Price v. Denison Indep. School Dist., 694 F.2d 334, 371 (5th Cir. 1983).

  The 1989 Reorganization Plan was a plan to resegregate Rockford's elementary schools. The Plan assigned African-American and white students to racially identifiable schools. The February version of the Plan proposed the creation of two huge "warehouse" elementary schools, one at Wilson, projected to have 1227 elementary students, and one at Washington, projected to have 876 elementary students. McIntosh School was close behind the mega schools with a projected enrollment of 649 elementary students. All of these schools were in the Southwest Quadrant. The mega schools would have created a ghetto warehouse for minority students. Wilson would have been four times the size of the average elementary school in the District in 1988. The Plan would have placed 1800 African-American and Hispanic elementary students in one highly segregated complex of schools, equivalent to one-half of the District's minority elementary student population. In contrast, the Plan called for no white elementary school to have an enrollment of over 550 students. The court finds that the 1989 Reorganization Plan would have had a devastating impact on the Rockford School District's minority community. The impact of this Plan is evidence that the Board intentionally sought to racially isolate minority elementary students in the Rockford School District.

  At the secondary education level, the 1989 Reorganization Plan closed the only naturally integrated high school that existed in the District. The Board offered cost savings as the reason for closing West High School. The court finds that reason to be a pretext. Keeping Jefferson and closing West was not cost effective. Instead, it futhered the disparity in burdens placed on African-American students and white students. The court further finds the Plan was adopted with discriminatory intent on the part of Defendant.

  EMPLOYMENT DISCRIMINATION

  INTRODUCTION

  In 1973, the District approved a plan setting forth goals for minority employment. For the past twenty years, RSD has failed to meet those goals. While the minority population of the district has grown, minority staff in certified positions in the School District has remained at approximately 7% from 1974-75 through 1988-89. The District has not effectively recruited minority applicants, nor has it undertaken steps to remedy underrepresentation of minorities in upper level positions in the District.

  FINDINGS OF FACT

  Failure To Meet QUEFAC -Era Hiring Goals And Other Affirmative Action Obligations

  The Board, at its regular Board meeting on April 23, 1973, considered and approved the objectives and "overall" plan for desegregating the Rockford schools. The objectives and overall plan were approved by a vote of 4 to 3, with Members Schade, Seeber, Tucker and Webster voting aye and Members Gustafson, Hauman and Heath voting nay. One of the points of the overall plan approved by the Board was that: "The Administration shall actively recruit minority personnel and shall integrate this personnel throughout the district." Bd. Min., 4/23/73, B0013820-B0013821.

  At this meeting, Superintendent Salisbury presented a desegregation proposal prepared by the RSD's administrative staff. Included in this proposal was a commitment to integrate the entire staff of the district "as rapidly as possible." The hiring goal established by this proposal was to achieve a level of minority employment of 15% of employees in all categories employed by the District, including, central administration personnel, administrators, teachers, clerks, secretaries, building engineers, custodians, tradesmen, food service workers and all classifications of paraprofessional personnel. The program set a time frame of three to five years to achieve this goal, and the program was to begin immediately. Adoption of the Superintendent's proposal was moved by Hauman and seconded by Heath. Id.

  A special meeting of the Board of Education was held on April 30, 1973. The Board approved a modified version of the Superintendent's desegregation proposal by a vote of five to two with Hauman and Heath voting nay. The proposal, as approved, contained the 15% employment goal and the three to five year time table set forth in the original proposal.

  In this court's 1973 opinion in QUEFAC v. School Board of School District #205, 362 F. Supp. 985 (N.D. Ill. 1973), it was found that in the 1972-73 school year the RSD employed 1679 school teachers, of whom, 100 or 5.95% were minority teachers. The court further found that 4.74% of all high school teachers were minority teachers, 7.55% of all middle school teachers were minority teachers and 5.63% of all elementary school teachers were minority teachers. The RSD submitted to the court a document, which was marked as group exhibit 15, depicting year by year hiring goals for minority teachers at each school level for the five year period ending with the school year 1977-78. This document reflected a hiring goal of 130 minority teachers at the elementary school level by 1978, 52 middle school minority teachers by 1978 and 73 high school teachers by 1978. Id.

  For the 1973-74 school year, the RSD had committed itself to hiring sixteen minority teachers at the elementary school level, six minority teachers at the middle school level and eight minority teachers at the high school level. Dr. George D. Aschenbrenner, who was then the Assistant Superintendent for curriculum and instruction, was assigned the additional duty of insuring that the District meet its minority hiring goals. Bd. Min., 1/22/73, B0013680.

  For the 1973-74 school year, the RSD failed to meet its hiring goals. As of June 25, 1973, the District had sent letters of intent to hire only eight minority staff members at the elementary school level, three minority staff members at the middle and high school level combined and five minority staff members for special education. Accordingly, recruitment and hiring for minority staff members for the 1973-74 school year failed to meet the goals established by the District.

  During a Board meeting held on September 10, 1973, Dr. Aschenbrenner reported that the RSD had hired only 23 minority professional staff of a total of 178 new hires, which was 13% of new hires. Bd. Min., 9/10/73, B0014066. Specifically, the District achieved only 50% of its goal for elementary school teachers and only 21% of its hiring goal for secondary school teachers. B048599. At that meeting, Dr. Aschenbrenner identified the following recruitment methods for minority staff:

  Mailings and follow-up mailings to 58 schools with predominately minority staff;

  Reliance on current minority staff to provide names of friends; and

  

Contact with Northern Illinois University to discuss the situation with a placement officer.

  Dr. Aschenbrenner stated that the level of minority hiring was "not as high as we would like it to be," but that it "represented a substantial increase" over the prior year. Id.

  At its meeting of February 12, 1973, the Board received a verbal report from Greg Luna, Chair of the Latin American Committee for Desegregation and a member of the steering committee of the Lay Advisory Committee on Desegregation regarding minority hiring. Mr. Luna recommended that a community advisory panel be established to assist Dr. Aschenbrenner in the recruitment of minority staff. The RSD did not create such a committee. The Board stated that "one of the best means of input is with minority members of our staff." Bd. Min., 2/21/73, B0013683.

  On April 2, 1973, the Board received a report from the Central Committee on Desegregation from its Chair, Lee Shervey. This report recommended that an assistant be appointed for Dr. Aschenbrenner to assist in minority recruitment. Bd. Min. 4/2/73, B001377-B0013782. An assistant was never hired for this purpose. Aschenbrenner Dep., 12/28/92, at 21. Mr. Shervey also recommended that an advisory committee be established for recruitment of new minority staff. Bd. Min., 4/2/73, B001377-B0013782. This recommendation was also not adopted.

  Although Dr. Aschenbrenner was charged with the responsibility for minority recruitment, he had no role with respect to recruitment and hiring of faculty. When shown his job description setting forth this duty, Aschenbrenner testified that his only recollection of any role in hiring or recruitment of staff was to sign-off on recommendations from building principals who were responsible for recruitment and hiring. Aschenbrenner Dep. at 13, 16-17. If Dr. Aschenbrenner had any responsibility for recruitment and hiring, it occupied a very small percentage of his time. The initial contacts in hiring was done by individual building principals. Dr. Aschenbrenner's role was basically to sign-off on their selections. Id. at 20. At the time Dr. Aschenbrenner was assigned responsibility for minority recruitment and hiring, the RSD did not have a director of personnel. The first such director was Thomas Boyer, who began working for the RSD on January 1, 1978. Boyer Dep., 12/29/92, at 9, 12.

  At its regular meeting of October 14, 1974, the Board adopted a document entitled "Equal Employment Opportunity Policy and Regulations." Bd. Min., 10/14/74, B0014621. This policy, which was unanimously adopted, provided as follows:

  EQUAL EMPLOYMENT OPPORTUNITY POLICY

  

That the Rockford School District shall at all times give equal employment opportunity to all persons regardless of race, creed, color, sex or national origin.

  

REGULATIONS TO IMPLEMENT EQUAL EMPLOYMENT OPPORTUNITY POLICY

  

1. That Equal Employment is a fundamental School Board policy and shall be implemented by Affirmative Action, including goal setting programs with measurements and evaluations thereof, and accountability by administrators and those exercising employment responsibility.

  

2. Affirmative Action with respect to Equal Employment Opportunity shall be implemented in all employment practice, including (but not limited to) recruitment, hiring, transfer, promotion, training, compensation, benefits, layoff and terminations.

  

3. All administrative personnel, as well as all of those exercising employment duties, share a responsibility in the Affirmative Action Equal Employment Opportunity Program and performance thereof will be evaluated as in the implementation of other School Board Policies.

  At the time of his hire, Mr. Boyer was interviewed by Arthur Johnson, then-Superintendent of the RSD. Mr. Boyer never discussed minority recruitment or hiring with Mr. Johnson despite the District's commitment to engage in such recruitment and hiring made in the QUEFAC case. Boyer Dep. at 15. Moreover, Mr. Johnson never discussed minority recruitment or hiring with the director of personnel at any time between 1978 and his leaving the RSD in 1984. Id. at 36. Although Mr. Boyer had the responsibility for implementing the RSD's affirmative action policy, he was never made aware of the District's pledge regarding minority hiring in the QUEFAC case. Id. at 35. Therefore, he did not incorporate hiring goals or timetables into any of his affirmative action efforts on behalf of the District. Id.

  The RSD maintained data on percentage of minorities in various categories by years. Starting in the 1974-75 school year, this data was compiled manually by an employee of the personnel department. Id. at 100. These manual compilations reflected the percentage of minorities in three categories: (1) certified staff; (2) non-certified staff; and (3) total staff, along with numbers of minority and majority employees in those categories. Annual Compilation of Min. Staff, 1974-75, B041285. A similar document was prepared for each school year thereafter (with the exception of the 1980-81 school year) until the 1984-85 school year, in which the reporting format was changed. See Annual Compilations of Min. Staff, 1975-76, B041190; 1976-77, B041106; 1977-78, B041106; 1978-79, B040949; 1979-80, B040969; 1981-82, B040729; 1982-83, B041666; 1983-84, B040606. Starting in the 1984-85 school year, the reporting format was changed to show minority employment by job category. B040539. The 1984-85 format was utilized until the 1988-89 school year, when the format was again changed. B040286. The format for subsequent years has remained basically the same.

  The RSD's progress in minority hiring may be charted by comparing the statistics from each of these time periods. Following the first format change, the RSD did not report total staff or total professional and non-professional staff in each year. Thus, for the school years 1985-86, 1986-87 and 1987-88, this data does not exist. For the period after 1987-88, it is possible to aggregate the discrete categories of employees listed to reach a number of total employees, total certified employees and total non-certified employees.

  The RSD maintained no other data to measure progress in minority employment. For example, the RSD made no effort to code applications by race to determine whether they were attracting a sufficient pool of minority applicants for positions. Boyer Dep. at 58. The RSD also did not evaluate its hiring or recruitment procedures to determine whether these procedures lead to an under-utilization of minority employees. Id. at 135-136. Using this methodology and eliminating those years for which comparative data do not exist, an evidence summary of minority staff is incorporated herein as follows: Total % Min. % Min. Total % Min. NonCert NonCert Year Total Staff Total Staff Cert. Staff Cert. Staff Staff Staff 1974-75 3702 8.00% 2333 7.00% 1369 9.00% 1975-76 3734 7.10% 2324 6.97% 1411 7.30% 1976-77 3276 7.39% 2043 7.05% 1233 7.95% 1977-78 3324 8.69% 2043 6.95% 1281 11.48% 1978-79 3538 7.72% 2190 6.35% 1348 9.94% 1979-80 3760 7.69% 2521 5.91% 1239 11.30% 1981-82 3754 8.28% 2333 6.30% 1421 11.54% 1982-83 3722 8.60% 2278 6.32% 1444 12.19% 1983-84 3449 8.81% 2115 6.38% 1334 12.67% 1984-85 3587 9.17% 1948 7.03% 1639 11.71% 1988-89 3636 10.70% 2204 7.08% 1432 16.27% 1989-90 3488 10.46% 2047 7.43% 1441 14.78% 1990-91 3575 10.97% 2147 7.27% 1428 16.53% 1991-92 3769 11.83% 2239 7.24% 1530 18.56%

   The RSD never met its 1973 goal of 15% employees in all categories of employment. For certified employees, the percentage of minority employees has not changed since the 1974-75 school year, which was the first year following its pledge to this court in QUEFAC that it would achieve those levels of employment for all categories of employees within three to five years. *fn16" Moreover, within these gross categories of employees, the employment of minorities within the RSD reveals a pattern of uneven minority representation in various occupations. RBE Minority Report, 1988-89, B040286.

  In 1988-89 (the school year in which this lawsuit was filed), the RSD employed 3636 employees, 66 less employees than it employed in the first full year following its pledge to achieve minority employment of 15% in all categories of employment. Only 8.6% of the 127 managers (including both central office and school based administrative staff) employed by the RSD were minority; similarly, only 7.0% of the teachers were minority. In the service (or non-certified) occupations, only 3.7% of the clerical employees were minority. The level of overall minority employment of 16.27% in the non-certified occupations was achieved because minorities had representation in other employment categories at high rates. Thus, 30% of the bus drivers were minority, as were 21.1% of aides. In the custodial category, minorities represented 17.6% of all employees; in food service, only 10.3%.

  Prior to the filing of this lawsuit, the RSD had no regular plan for aggressively recruiting minority applicants for teaching or other professional positions within the RSD. In 1987-88, after Rockford School Board member Michael Williams raised the issue of the low percentage of minority teachers in the RSD, the RSD hired Constance Lane, a former RSD employee, to "go out on a recruiting expedition, to recruit minority applicants." Bowen Dep. at 122-123. Ms. Lane visited colleges with significant numbers of African-American education majors. Although Ms. Lane identified thirty-two graduating African-American college students that could have been recruited by the RSD, the RSD hired only four of the students. Prior to this time, the RSD had no regular minority recruitment effort that involved visiting campuses with large minority student enrollment. Id. This recruitment effort did not continue past a single school year. Id. The RSD never had a full-time minority recruitment officer.

  Mr. Williams also attempted to get the RBE to address issues relating to its poor minority hiring performance and its lack of an affirmative action policy. Williams raised the following issues with RBE:

  

(1) the complete absence of minorities in the position of school secretary;

  

(2) the lack of minority administrators;

  

(3) the disproportionate assignment of minority employees to West and Southwest side schools; and

  

(4) the existence of a disproportionate number of minorities in menial jobs.

  Williams' efforts to address these issues met with the response that the RSD already had an affirmative action policy.

  At a 1988 RBE meeting, Michael Williams addressed the issue of the lack of minority high school principals and the need to recruit them. The reaction from fellow RBE member Darlene Hanna was that Rockford was "not ready" for an African-American high school principal. Accordingly, no minority candidates were sought for the position of high school principal during Williams' four and a half year tenure with the RSD.

  Mr. Williams also raised the issue of the low percentage of African-American and other minority clerical employees at meetings of the Board. He was referred to Oscar Blackwell, who was responsible for testing potential clerical employees and determining their eligibility for employment. Mr. Williams spoke with Mr. Blackwell in 1987 regarding the underrepresentation of minorities in the clerical work force. He was advised by Mr. Blackwell that clerical vacancies were filled through word of mouth when a building principal would advise his or her staff that a clerical employee was leaving and that a vacancy would be available. No posting of clerical vacancies or any regularly scheduled testing of potential applicants occurred.

  As a result of the discussions between Williams and Blackwell, the RSD developed a posting and selection procedure for clerical vacancies. This procedure included regularly scheduled tests and referral of more than a single, self-selected candidate to the principal for selection.

  The RSD also did not measure its hiring of minority employees against any standard until the 1986-87 school year. In that year, for the first time, the RSD began to annually compare its percentage of minority employees in each category of employment to the available minority pool in the Rockford area. B32977.

  CONCLUSIONS OF LAW

  Discrimination in the recruiting, hiring, and promotion of staff is a proper subject to be considered in a school desegregation case. See, e.g. Morgan v. Kerrigan, 530 F.2d 401, 430 (1st Cir.), cert. denied, 426 U.S. 935, 96 S. Ct. 2648, 96 S. Ct. 2649, 49 L. Ed. 2d 386 (1976); Arthur v. Nyquist, 415 F. Supp. 904, 946-47 (W.D.N.Y. 1976); Johnson v. San Francisco Unified School Dist., 339 F. Supp. 1315, 1332 (N.D. Cal. 1971); Spangler v. Pasadena Cty. Bd. of Educ., 311 F. Supp. 501, 515 (C.D. Cal. 1970). In the school desegregation context, however, the rights of students, and not those of employees or applicants for employment, are at issue. Morgan v. Kerrigan, 379 F. Supp. at 456. Accordingly, courts do not strictly apply legal principles developed in employment discrimination cases. See Morgan v. O'Bryant, 671 F.2d 23, 27 (1st Cir. 1982) (proof of individual hiring discrimination irrelevant); Arthur v. Nyquist, 520 F. Supp. 961, 966 (W.D. N.Y. 1981), appeal dismissed mem., 697 F.2d 287 (2nd Cir. 1982).

  The individual parts of a full spectrum school discrimination suit are not isolated from each other. See Keyes v. School Dist. No. 1. Denver, Colo., 413 U.S. 189, 207, 37 L. Ed. 2d 548, 93 S. Ct. 2686 (1973). Thus, the overall evidence of racial discrimination in other areas of the school system and in particular, the assignment of like-race staff and administrators to racially identifiable minority schools, provides relevant support for finding that disproportionately low minority hiring was purposeful. Arthur, 429 F. Supp. 206, 212 (W.D.N.Y. 1977). In this context, school desegregation plaintiffs have frequently proven discrimination in the hiring and promotion of teachers and staff. See Arthur, 415 F. Supp. at 946-47 (11.4% minority teachers in a city that was 21% black); Oliver v. Kalamazoo Bd. of Educ., 368 F. Supp. 143, 177, 180 (W.D. Mich. 1973) (7.5% black teachers in district containing roughly 20% black students); Johnson, 339 F. Supp. at 1332 (9% black teachers and 8% black administrators in district with 28.7% black pupils).

  For the past twenty years, the RSD has unlawfully failed to hire minority teachers and staff and has failed to meet its own hiring goals and affirmative action obligations. The RSD never met its QUEFAC -era goals. The only employment areas in which minorities exceeded 15% employment were bus drivers, teacher aides and custodial staff. The RSD has also failed to undertake any serious efforts in the areas of recruitment, hiring and promotion of minorities.

  STAFF ASSIGNMENT

  INTRODUCTION

  Since at least 1963, the overwhelming majority of African-American teachers, at all school levels, taught in predominately racially identifiable schools. The same pattern of assignment of minority teachers to schools with high numbers of minority students existed for non-professional staff. The highest percentage of minority principals ever employed by the RSD was five out of fifty (or 10%) which was in the 1987-88 school year. With one exception, no African-American principal has ever been assigned to a racially-identifiable white school. In the history of the RSD, no minority has ever been employed as a high school principal.

   The first collective bargaining agreement covering teachers and other professional staff of the RSD was negotiated in 1968. By the time the agreement was negotiated, the pattern of assignment of minority staff to schools with large concentrations of minority students was already established.

  FINDINGS OF FACT

  Assignment Of Black Teachers To Black Schools

  On July 24, 1963, officials of the National Association for the Advancement of Colored People (hereinafter "NAACP") requested a list of all African-American personnel employed by the RSD. B41498. In response to that request, a document was prepared setting forth the African-American employees of the District divided into three categories: teachers, clerical employees and custodial employees. Id. At that time, the District employed approximately twenty-six African-American teachers. Of those teachers for whom a geographical assignment could be determined, 55% were employed in schools located in the Southwest Quadrant of the city. Seventy-five percent of those African-American teachers were employed in schools in the Western portion of the city; that is, in schools located west of the Rock River. In addition, 23% of the African-American teachers were employed in the special education program. Of those schools and programs in which African-American teachers were employed, only three schools had more than one African-American teacher on its staff: Washington Middle School, Henrietta School and Wilson Middle School. Each of these schools was located in the Southwest Quadrant of the city and had on their teaching staffs four, three and 1.5 African-American teachers, respectively. The special education program employed six African-American teachers. The 1963 report prepared by the District for the NAACP, when correlated to the figures for percentage of African-American enrollment in the schools as of 1960, demonstrated that:

  

1. At the high school level, one teacher was employed half time as a foreign language instructor. This teacher taught at Auburn School, which was a segregated white school.

  

2. The District employed six and one-half full-time equivalent minority teachers in its middle schools in 1963. Four of those teachers, or 61.54% of all African-American teachers employed in the middle schools, taught in racially-identifiable minority middle schools. One and one-half, or 23%, of the African-American teachers employed in the middle schools taught in integrated middle schools and one, or 15.38%, of the African-American teachers employed in the middle schools taught in racially-identifiable white middle schools.

  

3. In 1963, the District employed twelve African-American teachers at the elementary school level. Two, or 16.67%, of those teachers taught in racially-identifiable minority elementary schools. Three, or 25%, of those teachers taught in integrated elementary schools and seven, or 58.33%, of those teachers taught in racially-identifiable white elementary schools.

  An evidence summary exhibit graphically representing these correlations is reproduced herein as follows: Correlation of 1960 PPC Attendance Data To 1963 Report To NAACP On African-American Staff By African-American Enrollment School % African- # African- #Other Total African- American American African- American Enrollment Teachers American Staff Staff HIGH SCHOOLS West 5.0% .0. 4.0 4.0 East 1.0% 0.0 2.0 2.0 Guilford 0.0 0.0 2.0 2.0 Auburn 0.0% 0.5 4.0 4.5 TOTAL 0.5 12.0 12.5 MIDDLE SCHOOLS *fn17" Washington 22.0% 4.0 1.5 5.5 Wilson 7.0% 1.5 2.0 3.5 Jefferson 3.0% 0.0 1.0 1.0 Roosevelt 1.0% 1.0 1.0 2.0 Lincoln 0.0% 0.0 4.0 4.0 TOTAL 6.5 9.5 16.0 ELEMENTARY SCHOOLS *fn18" Dennis 78.0% 0.0 0.0 0.0 Lathrop 43.0% 1.0 0.0 1.0 Rock River 42.0% 1.0 0.0 1.0 Montague 33.0% 0.0 1.0 1.0 Barbour 24.0% 0.0 1.0 1.0 Haskell 23.0% 0.0 0.0 0.0 Ellis 22.0% 1.0 0.5 1.5 Franklin 16.0% 0.0 0.5 0.5 Hall 10.0% 0.0 0.5 0.5 Kishwaukee 6.0% 1.0 1.0 2.0 Hallstrom 4.0% 1.0 0.0 1.0 Garrison 3.0% 0.0 0.0 0.0 Riverdahl 2.0% 0.0 1.0 1.0 Peterson 1.0% 1.0 1.0 2.0 Henrietta 1.0% 3.0 0.0 3.0 Welsh 1.0% 0.0 2.0 2.0 Highland 0.0% 0.0 0.0 0.0 Gregory 0.0% 0.0 0.0 0.0 Hillman 0.0% 0.0 0.0 0.0 Church 0.0% 0.0 0.0 0.0 Bloom 0.0% 1.0 2.0 3.0 Conklin 0.0% 0.0 0.0 0.0 Evergreen 0.0% 0.0 0.0 0.0 Freeman 0.0% 0.0 0.0 0.0 Fairview 0.0% 1.0 1.5 2.5 Alpine 0.0% 0.0 0.0 0.0 Vandercook 0.0% 0.0 0.0 0.0 Jackson 0.0% 0.0 0.0 0.0 Walker 0.0% 1.0 0.0 1.0 West View 0.0% 0.0 0.0 0.0 Wight 0.0% 0.0 0.0 0.0 Whitehead 0.0% 0.0 0.0 0.0 Whig Hill 0.0% 0.0 0.0 0.0 Turner 0.0% 0.0 0.5 0.5 Summerdale 0.0% 0.0 0.0 0.0 Latham Park 0.0% 0.0 0.0 0.0 Johnson 0.0% 0.0 1.0 1.0 Lincoln Park 0.0% 0.0 0.0 0.0 Nelson 0.0% 0.0 0.0 0.0 Stiles 0.0% 0.0 0.0 0.0 Rolling Green 0.0% 0.0 1.0 1.0 Page Park 0.0% 0.0 0.0 0.0

  B41498.

  Teachers

  In November of 1968, the District prepared a summary of African-American teachers in the Rockford elementary schools. B41493. As of that date, the District employed twenty-nine African-American elementary school teachers, excluding special education teachers. Of these twenty-nine teachers, twenty-one or 72.4% were employed in schools in the Southwest Quadrant. In addition, while six schools within the Southwest Quadrant had more than one African-American teacher on their staff, no school outside the Southwest Quadrant had more than one African-American teacher on its staff. Of the forty-two elementary schools in operation in Rockford in 1968, only seventeen schools had any African-American teaching staff. Twenty-five of the forty-two elementary schools within the District (59.5%) had no African-American teaching staff.

  During the 1968-69 school year, the District had in operation five middle schools: Jefferson, Lincoln, Roosevelt, Washington and Wilson. Of the 400 teachers employed in the middle schools, twenty-three (5.75% of the total) were African-American. Approximately 90% of those twenty-three African-American teachers were employed in two schools: Washington and Wilson, which were schools located in or near the African-American community.

  A subcommittee of the Pupil Placement Committee (hereinafter "PPC") was formed and was composed of the following persons: John C. Swanson (Guilford Principal), Chair, Lona Huffington, Constance Lane, Margie Sturgis and Richard Stank. On January 15, 1968, the subcommittee submitted its analysis of data gathered through a questionnaire sent to principals regarding the professional staff in the Rockford public schools. The subcommittee's analysis revealed that the percentage of African-American teachers (less than 5%) appeared to be significantly lower than the percentage of African-American students. The subcommittee recommended that efforts be made to increase the number of African-American teachers, especially at the secondary level. The subcommittee report also noted that the majority of African-American teachers were located in "Title One" schools. This concentration of African-American teachers was "explained in part by the desires of principals in these schools to have negro staff members." The subcommittee recommended that efforts be made to maintain a balance of teachers by race, education and training throughout the system. These recommendations were never implemented by the Board. T. Shaheen Letter to Jerris Leonard, Assistant Attorney General, 6/13/69, at 12, D23522.

  The PPC report also provided the Board with a tabulation of the number of professional staff assigned to each school. Included within this category were counselors, teachers, librarians and special education personnel. Nurses were not included in the tally. The report further provided to the Board a tabulation of the percentage of African-American professional staff in each school. B21810.

  In 1967, 10.4% of the total enrollment of the District was African-American with African-American students accounting for 8.6% of secondary school enrollment and 11.4% of elementary school enrollment. Based upon these figures an elementary school was racially identifiable minority if it had more than 26.4% African-American enrollment; a school was racially identifiable white if it had less than 5.7% African-American enrollment. Further, in 1967, a secondary school was racially identifiable minority if it had more than 23.6% African-American enrollment and was racially identifiable white if it had less than 4.3% African-American enrollment.

  At the high school level, the District employed three African-American professionals. One (or 33.33%) of those professionals was assigned to an integrated high school and two (or 66.67%) were assigned to schools that were racially identifiable white. The District employed 11 African-American professionals at the middle school level. Four (or 36.36%) were employed in racially identifiable African-American schools. Seven (or 63.64%) were employed in integrated schools and none were employed in racially identifiable white schools. Finally, the District employed 34 African-American professionals at the elementary school level. Twenty-six (or 76.47%) worked in racially identifiable African-American schools, four (or 11.76%) worked in integrated schools and 4 (or 11.76%) worked in racially identifiable white schools. The following evidence summary exhibit graphically represents these correlations: PPC Enrollment And 1967-68 Professional Staff Data Correlated - By % African-American Enrollment School % African- % African- # African- American American American Enrollment Professional Staff Professional Staff HIGH SCHOOLS *fn19" Auburn 15.0% 1.0% 1.0 West 12.0% 0.0% 0.0 East 2.0% 0.0% 0.0 Guilford 0.0% 1.7% 2.0 MIDDLE SCHOOLS *fn20" Washington 50.0% 8.8% 4.0 Wilson 22.0% 5.7% 5.0 Roosevelt 8.0% 1.3% 1.0 Jefferson 5.0% 1.1% 1.0 Lincoln 0.0% 0.0% 0.0 ELEMENTARY SCHOOLS *fn21" Dennis 91.0% 20.8% 5.0 Montague 70.0% 28.4% 4.0 Lathrop 66.0% 16.6% 4.0 Henrietta 66.0% 10.0% 1.0 Ellis 50.0% 4.7% 1.0 Barbour 47.0% 7.4% 2.0 Rock River 45.0% n/a n/a Franklin 41.0% 5.8% 1.0 Lincoln Park 40.0% 31.8% 7.0 Haskell 37.0% 4.3% 1.0 Hall 22.0% 10.0% 1.0 McIntosh 20.0% 14.2% 2.0 Kishwaukee 11.0% 0.0% 0.0 Hallstrom 6.0% 5.8% 1.0 Jackson 2.0% 0.0% 0.0 Welsh 2.0% 2.7% 1.0 Alpine 1.0% 0.0% 0.0 Riverdahl 1.0% n/a n/a Garrison 1.0% 0.0% 0.0 Wight 1.0% 0.0% 0.0 Gregory 0.0% 0.0% 0.0 Church 0.0% 0.0% 0.0 Bloom 0.0% 0.0% 0.0 Conklin 0.0% 0.0% 0.0 Evergreen 0.0% 0.0% 0.0 Fairview 0.0% 4.1% 1.0 Johnson 0.0% 4.3% 1.0 Summerdale 0.0% 0.0% 0.0 Highland 0.0 0.0% 0.0 Vandercook 0.0% 0.0% 0.0 Walker 0.0% 0.0% 0.0 West View 0.0% 0.0% 0.0 Turner 0.0% 0.0% 0.0 Latham Park 0.0% 0.0% 0.0 Rolling Green 0.0% 0.0% 0.0 Hillman 0.0% 0.0% 0.0 Nelson 0.0% 0.0% 0.0 Peterson 0.0% 6.2% 1.0

  In 1968, employees of the District prepared a list of elementary schools employing African-American teachers and a copy of the directory of the Rockford public schools showing total staff for each school with hand written notations as to those staff members who were African-American. B41462. When this data is correlated to the 1967 student enrollment percentages set forth in the PPC report, it reveals the following.

  The District employed eight African-American teachers at the high school level during the 1968-69 school year. Of those eight teachers, six (or 75%) taught in integrated schools and two (or 25%) taught in racially identifiable white schools. No racially identifiable African-American high schools existed in the Rockford school system in 1968-69. The high schools employing six of the eight African-American teachers were Auburn High School, with an African-American student enrollment of 15% and West High School, with an African-American student enrollment of 12%. East High School, which had an African-American student enrollment of 2%, employed no African-American teachers. Guilford High School, which had an African-American student enrollment of 0%, employed two African-American teachers.

  At the middle school level, the District employed twenty-three African-American teachers. Ten (or 43.48%) of the African-American teachers employed in the middle schools were assigned to Washington School, which had a 50% African-American enrollment and was a racially identifiable minority school. Eleven of the twenty-three teachers employed at the middle school level taught at Wilson High School, which had an African-American student enrollment of 22%. Roosevelt Junior High and Jefferson Junior High, which respectively had an 8% and 5% African-American student enrollment, each employed one African-American teacher. Lincoln School, which was a racially identifiable white school with a 0% African-American student enrollment, had no African-American teachers on its staff. Grouping Wilson, Roosevelt and Jefferson together, the District employed thirteen African-American teachers (or 56.52%) in integrated or racially identifiable middle schools.

  At the elementary school level, the District employed thirty-four *fn22" African-American teachers. Twenty-four (or 70%) of those African-American teachers were assigned to racially identifiable minority schools. Five (or 14%) of those teachers were assigned to integrated schools and three (or 8%) of those teachers were assigned to racially identifiable white schools. An evidence summary exhibit graphically represents these correlations:

  Comparison Of Percentage of African-American Student Enrollment to Number and Percentage of African-American Teaching Staff *fn23" - 1968-69 School % African- # African- # Total % African- American American Teachers American Enrollment Teachers Teachers to Total By School HIGH SCHOOLS *fn24" West 15.0% 3 98 3.06% Auburn 13.0% 3 98 3.06% East 1.0% 0 117 0.00% Guilford 0.0% 2 122 1.64% MIDDLE SCHOOLS *fn25" Washington 50.0% 10 46 21.74% Wilson 22.0% 11 90 12.22% Roosevelt 8.0% 1 73 1.37% Jefferson 5.0% 1 94 1.06% Lincoln 0.0% 0 97 0.00% ELEMENTARY SCHOOLS *fn26" Dennis 92.0% 3 24 12.50% Montague 71.0% 4 16 25.00% Henrietta 70.0% 1 10 10.00% Lathrop 63.0% 2 22 9.09% Franklin 45.0% 1 14 7.14% Haskell 44.0% 3 20 15.00% Barbour 44.0% 4 28 14.29% Rock River 40.0% 1 22 4.55% Lincoln Park 36.0% 5 24 20.83% Ellis 36.0% 0 21 0.00% McIntosh 28.0% 2 15 13.33% Kishwaukee 20.0% 1 26 3.84% Hall 14.0% 1 9 11.11% Hallstrom 4.0% 1 18 5.56% Church 4.0% 0 19 0.00% Welsh 2.0% 0 35 0.00% Riverdahl 2.0% 0 19 0.00% Alpine 1.0% 0 9 0.00% Wight 1.0% 0 17 0.00% West View 0.0% 0 21 0.00% Garrison 0.0% 0 14 0.00% Fairview 0.0% 1 23 4.35% Nelson 0.0% 0 13 0.00% Evergreen 0.0% 0 17 0.00% Walker 0.0% 0 20 0.00% Bloom 0.0% 0 24 0.00% Conklin 0.0% 0 22 0.00% Whitehead 0.0% 0 24 0.00% Gregory 0.0% 0 13 0.00% Whig Hill 0.0% 0 27 0.00% Johnson 0.0% 0 24 0.00% Vandercook 0.0% 0 11 0.00% Latham Park 0.0% 0 6 0.00% Rolling Green 0.0% 0 18 0.00% Peterson 0.0% 1 17 5.88% Stiles 0.0% 0 16 0.00% Summerdale 0.0% 0 22 0.00% Jackson 0.0% 0 17 0.00% Turner 0.0% 0 18 0.00% Highland 0.0% 0 20 0.00% Hillman 0.0% 0 20 0.00%

  On or about December 16, 1971, employees of the District prepared a listing of minority group staff members employed in the schools. B41377. As part of this document, the District noted that it had 1,758 teachers employed at all levels within the District and that ninety-one (or 5.18%) of those teachers were members of minority groups: eighty-eight African-American, one Native American, one Hispanic and one Asian.

  During the 1971-72 school year the District employed forty-four minority teachers at the elementary school level. Twenty-eight of those minority teachers (or 68.29% of the total minority elementary school teachers) were employed in nine schools located in the Southwest Quadrant. Those schools were: Barber, Dennis, Ellis, Haskell, Henrietta, Lincoln Park, McIntosh, Muldoon and Peterson. Sixteen of the twenty-two minority teachers at the middle school level were employed in two schools, both of which were located in or near the minority community. These two middle schools were Washington and Wilson. The District employed twenty-five minority teachers out of 493 at the high school level. Seventeen of these minority teachers were assigned to two schools, Auburn and West, which served the minority community in the District. These seventeen teachers represented 68% of the minority teachers employed by the District. An evidence summary exhibit graphically representing these correlations is reproduced herein as follows: Comparison of Percentage of African-American Student Enrollment to Number and Percentage of African-American Teaching Staff - 1971-72 Schools % African-American % African-American # African-American Enrollment Professional Staff Professional Staff HIGH SCHOOLS *fn27" Auburn 28.1 *fn28" 6.0 West 13.3 7.84 8.0 East 8.6 1.65 2.0 Jefferson 5.8 1.77 2.0 Guilford 0.5 1.57 2.0 Total 20.0 MIDDLE SCHOOLS *fn29" Washington 56.6 53.57 15.0 Wilson 46.5 17.86 10.0 Roosevelt 19.2 4.65 2.0 Lincoln 3.4 2.44 2.0 M. Kennedy 0.8 0.0 0.0 Eisenhower 0.7 3.39 2.0 J. Kennedy 0.4 0.0 0.0 Total 31.0 ELEMENTARY SCHOOLS *fn30" Dennis 92.5 20.83 5.0 Montague 84.0 50.0 8.0 Muldoon 74.4 38.89 7.0 Ellis 74.2 13.64 3.0 Henrietta 74.1 11.11 1.0 Lathrop 70.1 12.50 2.0 Barbour 65.1 21.74 5.0 Haskell 63.6 18.18 4.0 Lincoln Park 54.8 16.67 4.0 Rock River 41.2 20.0 5.0 Beyer 38.5 18.75 3.0 McIntosh 34.8 17.39 4.0 Church 20.6 0.0 0.0 Garrison 14.1 5.88 1.0 Kishwaukee 13.5 4.35 1.0 Welsh 4.9 0.0 0.0 Guilford 3.6 0.0 0.0 Center Nashold 2.8 0.0 0.0 Hallstrom 2.5 0.0 0.0 Riverdahl 1.7 0.0 0.0 West View 1.7 0.0 0.0 Carlson 1.3 0.0 0.0 Gregory 1.2 0.0 0.0 Sky View 1.1 0.0 0.0 Evergreen 1.0 0.0 0.0 Summerdale 0.9 0.0 0.0 Peterson 0.9 13.33 2.0 Haight 0.8 0.0 0.0 Stiles 0.7 0.0 0.0 Alpine 0.5 0.0 0.0 Walker 0.5 0.0 0.0 Fairview 0.4 5.56 1.0 Spring Creek 0.4 0.0 0.0 Thompson 0.4 0.0 0.0 Brookview 0.4 0.0 0.0 Whig Hill 0.4 0.0 0.0 Vandercook 0.2 0.0 0.0 Froberg 0.2 0.0 0.0 Marsh 0.1 0.0 0.0 Bloom 0.0 0.0 0.0 Conklin 0.0 0.0 0.0 Bell 0.0 0.00 0.0 Cherry Valley 0.0 0.0 0.0 Gunsolas 0.0 0.0 0.0 Turner 0.0 0.0 0.0 White Swan 0.0 0.0 0.0 Wight 0.0 0.0 0.0 Whitehead 0.0 0.0 0.0 New Milford 0.0 0.0 0.0 Rolling Green 0.0 0.0 0.0 Nelson 0.0 0.0 0.0 Hillman 0.0 0.0 0.0 Highland 0.0 0.0 0.0 Jackson 0.0 0.0 0.0 Johnson 0.0 5.56 1.0

  In July of 1973, testimony in the QUEFAC case revealed the following facts: Eighty-five percent of minority elementary students and 96% of minority elementary teachers were clustered in twelve elementary schools that were not in compliance with State desegregation guidelines. Seventy-five percent of minority middle school students and 75% of minority middle school faculty were clustered in two middle schools that were not in compliance with State desegregation guidelines.

  Principals And Other Administrative Staff

  In 1963, despite the presence of African-American teachers and minority clerical and custodial personnel, the District employed only one minority principal. Constance Renick (Lane) was made principal of Henrietta School in the 1963-64 school year. No other minority assistant principals or other administrators were employed by the District. During the school year 1968-69, the District employed approximately 109 administrative employees, including central office administrators and principals and assistant principals in the schools. Of these 109 employees, three (or approx. 1.5%) were African-American. B41463; D23513; D23526. These three employees were: Constance Lane, Delridge Hunter and Robert Black. T. Shaheen Letter to Jerris Leonard, Assistant Attorney General, 6/13/69, at 3, 16; D23513, D23526. Mr. Hunter's name was deleted from the list of persons for reappointment by Board action on June 7, 1969. D23515; Bd. Min., 7/28/69, D23510-D23529. Mr. Black, who had been hired by the Board on November 11, 1968 as an administrative assistant to Dr. Shaheen, submitted his resignation to the Board on December 8, 1969.

  A summary showing the number and percentage of minority principals for selected years from 1964-65 to 1988-89 is reproduced herein as follows: Comparison of Minority Principals - Selected Years School Year # Minority # Total % Minority Principals Principals Principals to Total 1964-65 1.0 43.0 2.33% 1974-75 5.0 70.0 7.14% 1984-85 2.0 49.0 4.08% 1987-88 5.0 50.0 10.00% 1988-89 3.0 48.0 6.25%

  Correlating the data on principal assignment to student enrollment data by year, the District exhibited a pattern of assigning minority principals to schools having a high percentage of African-American and Hispanic-American enrollment. A summary demonstrating such a correlation is reproduced herein as follows: Correlation of Minority Principals by School and Year to Percentage of Minority Enrollment Principal School Year % Afr-Am % His-Am % Afrḫ Anderson, Wilson 1971-72 38.33 1.60 39.92 Curtis 1972-73 46.52 2.02 48.54 1973-74 48.29 2.51 50.79 1974-75 46.55 3.04 49.60 1975-76 37.36 1.74 39.10 1976-77 33.43 2.24 35.67 1977-78 26.20 1.33 27.53 Burrell, Haskell 1991-92 66.03 6.09 72.12 Rachel Cox, Fay McIntosh 1986-87 56.17 3.74 59.91 1987-88 59.44 3.43 56.62 Franklin, Wilson 1985-86 24.86 2.14 27.00 Jeanette 1986-87 23.56 2.93 26.49 1987-88 20.82 2.65 23.47 Hildreth, G New Milford 1990-91 4.27 2.51 6.78 1991-92 1.54 0.77 2.32 Holley, Ellis 1972-73 74.26 2.70 76.96 Sterling 1973-74 79.65 3.02 82.66 1974-75 75.00 1.19 76.19 1975-76 74.24 0.91 75.15 1976-77 78.55 0.35 78.89 1977-78 76.41 0.00 76.41 Lane, Henrietta 1964-65 Constance 1965-66 1966-67 1967-68 66.00 1968-69 67.61 0.47 68.08 McIntosh 1966-67 1967-68 22.00 1968-69 27.56 0.26 27.82 1969-70 1970-71 34.65 1.97 1971-72 35.66 1.99 1972-73 34.86 1.53 1973-74 41.43 1.84 1974-75 45.12 2.09 1975-76 41.44 3.50 1976-77 45.45 4.21 1977-78 34.95 2.74 1978-79 36.80 3.40 Lara, Pedro Cherry Valley 1991-92 2.88 1.44 4.33 Mannery, Beyer 1985-86 19.47 3.63 23.09 Jacki 1986-87 20.21 4.68 24.89 1987-88 23.46 4.32 27.78 1988-89 22.53 4.08 26.61 1989-90 30.32 6.45 36.77 1990-91 29.84 4.33 34.17 Martin, Washington 1971-72 53.74 3.83 57.57 Nathaniel 1972-73 60.55 7.27 67.82 1973-74 61.58 4.78 66.36 1974-75 62.81 5.69 68.50 1975-76 64.57 7.09 71.66 1976-77 20.46 6.99 70.46 1977-78 70.55 7.82 70.18 1978-79 64.63 4.27 63.01 1979-80 64.99 3.56 62.26 1980-81 51.54 2.69 50.19 Flinn 1981-82 5.13 1.51 6.64 1982-83 3.34 2.17 5.52 1983-84 5.34 1.72 7.06 1984-85 7.20 1.29 8.49 Eisenhower 1985-86 16.43 1.21 17.63 1985-87 15.84 1.11 16.96 1987-88 15.78 1.30 17.08 1988-89 14.29 1.12 15.41 1989-90 18.10 2.53 20.63 1990-91 19.87 2.73 22.60 1991-92 23.41 3.06 26.47 Price, Marge McIntosh 1979-80 39.25 2.08 41.32 1980-81 45.05 3.79 48.84 1981-82 53.42 3.42 56.84 1982-83 53.55 3.85 57.40 1983-84 55.60 3.38 58.99 1984-85 55.38 3.74 59.12 1985-86 57.24 3.91 61.15 Walker 1986-87 6.43 36.58 43.01 1987-88 5.74 37.78 43.52 1988-89 6.33 39.60 45.93 1989-90 16.73 11.45 28.18 1990-91 16.39 11.84 28.23 1991-92 15.85 4.92 20.77 Revels, Helen Muhl Center 1973-74 21.13 0.70 21.83 1974-75 21.71 0.00 21.71 1975-76 16.28 1.55 17.83 1976-77 16.19 0.95 17.14 1977-78 19.00 2.00 21.00 1978-79 15.46 2.06 17.53 1979-80 13.16 3.95 17.11 1980-81 20.37 1.85 22.22 1981-82 1982-83 1983-84 Van, Dennis 1989-90 55.67 1.48 57.14 Giovanni 1990-91 61.27 1.45 62.72 1991-92 62.73 1.48 64.21

  From 1964 to the end of the 1989-90 school year, only six elementary schools, Beyer, Dennis, Ellis, Henrietta, McIntosh and Walker, had any African-American or Hispanic-American principals during any period, excluding Muhl Center, which was a special education facility. Of the middle schools, only Washington, Wilson, Flinn and Eisenhower had African-American principals during any period. Three of those assignments, at Flinn, Eisenhower and Washington, were held by one employee, Nathaniel Martin.

  In the history of the RSD, there have been two non-white middle school principals, Nathaniel Martin and Curtis Anderson. Of the middle schools, Washington was racially identifiable minority during the entire time it had an African-American principal. Wilson school was racially identifiable minority from 1971 through the 1975-76 school year; from the 1977-78 school year until 1988, it was desegregated. Wilson did not have an African-American principal again until the 1985-86 school year. At that time it was still desegregated. Eisenhower school had an African-American principal from 1985 through 1992, and was desegregated during that entire period. The only racially identifiable white middle school in which an African-American principal has been assigned is Flinn, where Nathaniel Martin was employed from 1981-85, following the closing of Washington. The District has never employed an African-American or Hispanic-American principal in its high schools.

  Dr. David Bennett, a desegregation expert proffered by Plaintiffs, testified that he observed public schools in Rockford were not only racially identifiable by students, but also by staff. Dr. Bennett began his analysis by looking at the assignment of minority principals within the District. He used this as a starting point because school districts have the fewest constraints placed upon them in the assignment of principals to schools. Principal assignment can, therefore, be a very revealing measure of racial identifiability of staff assignment. In addition, the principal of a school is a high profile, leadership position and plays a major role with regard to a school's racial identifiability. Dr. Bennett discovered that, through 1989, the Rockford School District had employed only eight minority principals. These eight principals had, collectively, thirteen separate assignments among them. Of those thirteen assignments, only one was to a school that was a school without a high minority enrollment. This evidence led Dr. Bennett to conclude that principal assignment in the RSD was made on a clearly segregated and racially identifiable basis. Dr. Bennett also analyzed the staff assignment data prepared by Dr. Michael Stolee to determine whether this racially segregated assignment of staff also carried over to teacher assignment. His review of the data led him to conclude that the same pattern was apparent with respect to teacher assignment and that the District assigned minority faculty to schools with large numbers of minority students. The persistence of racially segregated staff assignment continued despite the Board's awareness of the problem as early as 1973. Bennet Test., Tr. at 2693.

  Dr. Bennett testified that some institutions assert that schools and staffs are racially identifiable to provide "role models" for minority students. Dr. Bennett believes, however, that it is important for all students, especially whites, to see "individuals of color in responsible positions, like principal positions and like teacher positions." Id. at 2690.

  During his twenty-eight year tenure as a teacher and principal in the RSD, Nathaniel Martin noted the pattern of disproportionate assignment of minority staff to schools with high concentrations of minority students. In Mr. Martin's opinion this pattern resulted from the manner in which the RSD assigned teachers when they were first hired to work for the District, and not that African-American teachers desired to be placed in or transferred to schools with large African-American populations. Martin Test., Tr. at 2510-12.

  Other Staff

  As of July 24, 1963, the District employed four African-American clerical employees, two of whom were located at the central administrative office and two of whom were located in Auburn High School and Washington Junior Middle School. In 1963, the District employed thirty-eight African-American custodial personnel. Of these thirty-eight employees, 84.2% were employed in the janitor 2 position, 13.6% were employed as janitor/firefighter, and 2.6% were employed as custodian/engineer.

  The African-American custodial employees employed in the four Quadrants and the central administration were assigned as follows: twelve employees (31.5%) in the Northeast Quadrant, eleven employees (29.0%) in the Northwest Quadrant, six employees (15.8%) in the Southeast Quadrant, five employees (13.2%) in the Southwest Quadrant and four employees (10.5%) in central administration. An evidence summary exhibit comparing the 1960 Pupil Placement Committee Report data on African-American student enrollment in the schools with the location of African-American staff in those schools, is incorporated herein as follows: Correlation Of PPC Attendance Data For 1960 To 1963 Report To NAACP On African-American Staff By African-American Enrollment % Afr-Am # Afr-Am # Other Afr- Total Afr-Am Schools Enrollment Teachers Am Staff Staff HIGH SCHOOLS West 5.0% 0.0 4.0 4.0 East 1.0% 0.0 2.0 2.0 Guilford 0.0 0.0 2.0 2.0 Auburn 0.0% 0.5 4.0 4.5 TOTAL 0.5 12.0 12.5 MIDDLE SCHOOLS Washington 22.0% 4.0 1.5 5.5 Wilson 7.0% 1.5 2.0 3.5 Jefferson 3.0% 0.0 1.0 1.0 Roosevelt 1.0% 1.0 1.0 2.0 Lincoln 0.0% 0.0 4.0 4.0 TOTAL 6.5 9.5 16.0 ELEMENTARY SCHOOLS Dennis 78.0% 0.0 0.0 0.0 Lathrop 43.0% 1.0 0.0 1.0 Rock River 42.0% 1.0 0.0 1.0 Montague 33.0% 0.0 1.0 1.0 Barbour 24.0% 0.0 1.0 1.0 Haskell 23.0% 0.0 0.0 0.0 Ellis 22.0% 1.0 0.5 1.5 Franklin 16.0% 0.0 0.5 0.5 Hall 10.0% 0.0 0.5 0.5 Kishwaukee 6.0% 1.0 1.0 2.0 Hallstrom 4.0% 1.0 0.0 1.0 Garrison 3.0% 0.0 0.0 0.0 Riverdahl 2.0% 0.0 1.0 1.0 Peterson 1.0% 1.0 1.0 2.0 Henrietta 1.0% 3.0 0.0 3.0 Welsh 1.0% 0.0 2.0 2.0 Highland 0.0% 0.0 0.0 0.0 Gregory 0.0% 0.0 0.0 0.0 Hillman 0.0% 0.0 0.0 0.0 Church 0.0% 0.0 0.0 0.0 Bloom 0.0% 1.0 2.0 3.0 Conklin 0.0% 0.0 0.0 0.0 Evergreen 0.0% 0.0 0.0 0.0 Freeman 0.0% 0.0 0.0 0.0 Fairview 0.0% 1.0 1.5 2.5 Alpine 0.0% 0.0 0.0 0.0 Vandercook 0.0% 0.0 0.0 0.0 Jackson 0.0% 0.0 0.0 0.0 Walker 0.0% 1.0 0.0 1.0 West View 0.0% 0.0 0.0 0.0 Wight 0.0% 0.0 0.0 0.0 Whitehead 0.0% 0.0 0.0 0.0 Whig Hill 0.0% 0.0 0.0 0.0 Turner 0.0% 0.0 0.5 0.5 Summerdale 0.0% 0.0 0.0 0.0 Latham Park 0.0% 0.0 0.0 0.0 Johnson 0.0% 0.0 1.0 1.0 Lincoln Park 0.0% 0.0 0.0 0.0 Nelson 0.0% 0.0 0.0 0.0 Stiles 0.0% 0.0 0.0 0.0 Rolling Green 0.0% 0.0 1.0 1.0 Page Park 0.0% 0.0 0.0 0.0

  Based upon this data, four (33.33%) of the African-American clerical and maintenance staff assigned to high schools worked in integrated high schools and eight (66.66%) of the African-American clerical and maintenance staff assigned to high schools worked in racially identifiable white schools. Further, 1.5 (15.79%) of the African-American clerical and maintenance staff assigned to middle schools worked in racially identifiable African-American schools, three (31.58%) worked in integrated schools and five (52.63%) worked in racially identifiable white schools. In the elementary schools, this data shows that two (13.79%) of the African-American maintenance staff were assigned to racially identifiable African-American schools, 2.5 (17.24%) were assigned to integrated schools, and ten (68.97%) were assigned to racially identifiable white schools. The District employed no African-American clerical staff in its elementary schools in 1963.

  A summary comparing the 1960 Pupil Placement Committee Report data on African-American student enrollment in the schools with the location of African-American staff in those schools, is reproduced herein as follows: PPC Report On African-American Student Enrollment For 1967 Correlated To African-American Custodial And Clerical Staff For 1968-69 School Year % Afr-Am # Afr-Am # Afr-Am Total Afr-Am Schools Enrollment Custodians Clerical Staff HIGH SCHOOLS Auburn 15.0% 1.0 0.0 1.0 West 12.0% 3.0 0.0 3.0 East 2.0% 3.0 0.0 3.0 Guilford 0.0% 3.0 0.0 3.0 TOTAL 10.0 0.0 10.0 MIDDLE SCHOOLS Washington 50.0% 2.0 1.0 3.0 Wilson 22.0% 3.0 0.0 3.0 Roosevelt 8.0% 2.0 0.0 2.0 Jefferson 5.0% 2.0 0.0 2.0 Lincoln 0.0% 2.0 0.0 2.0 TOTAL 11.0 1.0 2.0 ELEMENTARY SCHOOLS Dennis 91.0% 0.0 0.0 0.0 Montague 70.0% 1.0 0.0 1.0 Lathrop 66.0% 1.0 0.0 1.0 Henrietta 66.0% 1.0 0.0 1.0 Ellis 50.0% 0.0 0.0 0.0 Barbour 47.0% 1.0 0.0 1.0 Rock River 45.0% 0.0 0.0 0.0 Franklin 41.0% 0.0 0.0 0.0 Lincoln Park 40.0% 1.0 0.0 1.0 Haskell 37.0% 0.5 0.0 0.5 Hall 22.0% 0.0 0.0 0.0 McIntosh 20.0% 0.0 0.0 0.0 Kishwaukee 11.0% 1.0 0.0 1.0 Hallstrom 6.0% 0.0 0.0 0.0 Jackson 2.0% 0.0 0.0 0.0 Welsh 2.0% 2.0 0.0 2.0 Wight 1.0% 0.0 0.0 0.0 Alpine 1.0% 0.0 0.0 0.0 Garrison 1.0% 0.0 0.0 0.0 Riverdahl 1.0% 0.0 0.0 0.0 Evergreen 0.0% 0.0 0.0 0.0 Church 0.0% 0.0 0.0 0.0 Conklin 0.0% 0.0 0.0 0.0 Bloom 0.0% 0.0 0.0 0.0 Gregory 0.0% 0.0 0.0 0.0 Freeman 0.0% 0.0 0.0 0.0 Fairview 0.0% 1.0 0.0 1.0 Latham Park 0.0% 0.0 0.0 0.0 Highland 0.0% 0.0 0.0 0.0 Walker 0.0% 0.0 0.0 0.0 Vandercook 0.0% 0.0 0.0 0.0 West View 0.0% 0.0 0.0 0.0 Whig Hill 0.0% 0.0 0.0 0.0 Whitehead 0.0% 0.0 0.0 0.0 Turner 0.0% 0.0 0.0 0.0 Summerdale 0.0% 0.0 0.0 0.0 Johnson 0.0% 0.0 0.0 0.0 Hillman 0.0% 0.0 0.0 0.0 Nelson 0.0% .0 0.0 0.0 Page Park 0.0% 0.0 0.0 0.0 Stiles 0.0% 0.0 0.0 0.0 Rolling Green 0.0% 0.5 0.0 0.5 Peterson 0.0% 0.5 0.0 0.5 TOTAL 10.5 0.0 10.5

  By 1968, the assignment pattern for African-American custodial and clerical staff had changed. Four of ten (40%) African-American custodial and clerical employees worked in desegregated high schools with the balance working in racially identifiable white schools. For the middle schools, three (25.0%) of the African-American custodial and clerical employees assigned to the middle schools worked in racially identifiable African-American schools, seven (58.33%) worked in integrated schools and only two (16.67%) worked in racially identifiable white schools. At the elementary school level, 5.5 (52.38%) of the African-American custodial and clerical staff assigned to elementary schools worked in racially identifiable African-American schools, one (9.52) worked in integrated schools and four (38.10%) worked in white racially identifiable schools. During the 1968-69 school year, the District employed approximately 170 clerical employees, of whom only three (or approximately 1.75%) were African-American.

  Dr. Michael Stolee compared minority staff to the percentage of minority pupils in schools at all levels from the early 1970's to the present. His data shows a correlation between African-American enrollment and a significant percentage of African-American staff, both professional and non-professional, at all school levels.

  Collective Bargaining History: Teachers And Other Professional Staff

  Prior to 1967, the RSD did not recognize any union or employee association as the exclusive representative for any category of its employees. The District did, however, conduct informal discussions with two organizations representing teachers employed by the District: the Rockford Education Association (hereinafter "REA "), and the Rockford Federation of Teachers (hereinafter "RFT"). At its meeting of April 3, 1967, the Board of Education passed a resolution authorizing the District to conduct an election between these two groups to determine who would be the exclusive bargaining representative for teachers in their negotiations with the School Board. At its meeting of April 17, 1967, the Board approved a motion defining the employees eligible to vote in this election. This motion defined the bargaining unit as all certified personnel and nurses, excluding central administrative office personnel, assistant principals, principals and deans of girls' secondary schools. The certification election was conducted on May 10, 1967 and the REA received the highest number of votes cast, thereby becoming the exclusive representative of these employees. Bd. Min., 4/3/67, B11482; Bd. Min., 4/17/67, B11496-B11500; B34080.

  The District and the REA negotiated and entered into a collective bargaining agreement for the 1968-69 school year, with an effective date of July 1, 1968, and an expiration date of June 30, 1969. B34080; B50557. This contract embodied agreements reached between the District and the REA regarding wages, hours and certain working conditions for all certified personnel and nurses, exclusive of administrators and central office head supervisors. Included among the provisions of this agreement was Article XI, governing transfers by members of the bargaining unit. This provision gave tenured staff members the right to apply for a transfer to any available position in the school system. The provision further required the District to post a list of known and anticipated vacancies on or before February 1st of each school year and to supplement that list between May 1st and May 15th of each year. The provision also required the District to consider "the convenience and wishes of the individual staff member," but only "to the extent that . . . [those wishes] . . . do not conflict with the instructional requirements and best interests of the school system." B34080. In cases where more than one staff member applied for a position, the provision allowed the District to select the staff member "best qualified" for the position. In the event that qualifications were "substantially equal" seniority in the school system was to be the controlling factor.

  The transfer provision obligated the District to notify teachers affected by a reassignment by August 15th of the year in which the change was to be made. In the event that notification by August 15th did not take place, the change in assignment was to be "voluntary on the part of the affected staff member." Id. The District retained the right to involuntarily transfer staff members, subject to the following conditions:

  a. a staff member had the right to be released from his contract if he so requested;

  

b. a staff member was entitled to priority consideration for transfer to future vacancies; and,

  

c. a staff member was to receive his assignment for the following contract year prior to the end of the year spent in involuntary transfer.

  Disputes regarding transfer or reassignment were subject to protest through the "procedures for resolving a professional problem." Id.

  Superintendent Thomas A. Shaheen advised the Board of Education in December of 1968, that the restrictions placed on the District's ability to transfer teachers was a matter that needed "early revision." Dr. Shaheen advised the Board that the District needed "greater flexibility in the transfer of teachers." B34074. In response to a questionnaire submitted by the United States Department of Justice to the Board, Superintendent Shaheen further discussed the impact of the agreement on teacher assignment issues. D23510. The questionnaire asked specifically what steps had been taken to correct the PPC findings that low achievement schools had a greater percentage of non-degree teachers and teachers with less experience. D23524. In his response, Dr. Shaheen noted that "the Professional Agreement with the Rockford Education Association set some very rigid bounds on the movement of teachers from one school to another without their permission. It was, therefore, very difficult to take any major steps to implement the ideas of the Pupil Placement Report." Id. Dr. Shaheen also noted that "the Professional Agreement . . . gives some right of choice to teachers within the system, resulting in teachers from low achieving junior high schools often requesting transfer to high achieving junior high schools or to high schools. There was a substantial number of teachers who either resigned or requested transfer from the low achieving Wilson Junior High School to other schools within the city." Id.

  The RBE and the REA entered into a collective bargaining agreement for the 1969-70 school year. B50521. This agreement contained Article XVI regarding teacher transfers. With respect to involuntary transfers, the contract provided that such a transfer would only be allowed for "exceptional circumstances resulting from the adoption of the middle school concept, school construction, housing construction and/or the entrance of new school districts." Id. at 12, B50535. Involuntary transfer decisions were subject to the contract grievance procedure, which provided for binding arbitration before a third-party arbitrator of all grievances not successfully resolved by the parties. Id. at 7-9, B50530-B50532. The agreement also provided that "the staff member who has submitted a transfer to the Grievance Procedure shall be maintained in the status quo." Id. at 13, B50536. The net effect of these provisions was to decrease the District's ability to transfer teachers in accordance with the contract terms.

  The contract between the RBE and the REA also contained a new provision, Article XXXIII, Section C, regarding vacancies in promotional positions. Id. at 23-24, B50456-B50457. This section provided, inter alia as follows:

  

All vacancies in promotional positions, including specialists and/or special projects teachers, excepting the position of Superintendent, shall be filled pursuant to the following procedures:

  

. . . .

  

3. Teachers who desire to apply for such vacancies shall submit their applications in writing to the Superintendent. . . .

  

4. Such vacancies shall be filled on the basis of qualifications for the vacant post, provided, however, that where two or more applicants are substantially equally qualified, seniority in the Rockford School System shall control.

  Id. This provision, if followed, obligated the RBE to fill all administrative positions, including principals, assistant principals, head teachers and all central office administrators (excluding the Superintendent), with qualified teachers applying from within the district before any other person, if qualifications of internal and external applicants were "substantially equal."

  In 1969, an employee of the District named Howard Getts filed a grievance over the denial of a promotion to the position of Director of Personnel and Recruitment. Arbitration Award in REA and RBE, Case No. 51 39 0509 70 (March 23, 1971) at 6, B510713; Bd. of Educ. School Dist. No. 205 v. Rockford Educ. Ass'n., 3 Ill. App. 3d 1090, 280 N.E.2d 286 (IlI.App. 2nd Dist. 1972). This grievance alleged a violation of Article XXXIII, Section C of the 1969-70 agreement. Id. Following a hearing on December 29, 1969 in which the arbitrator found that the grievance regarding the failure to promote Getts was arbitrable, the RSD filed an action in the Circuit Court of Winnebago County, entitled Board of Education in and for the School District of the City of Rockford, No. 205, Winnebago County, Illinois, a Municipal Corporation v. Rockford Education Association, Inc., a Corporation, and Howard L. Getts, Case No. G-21860, seeking an order for declaratory judgment setting aside the decision regarding arbitrability of grievances regarding staffing decisions. B510723-B510725. On May 12, 1971, the circuit court granted declaratory and injunctive relief, finding that "the matter of selection or promotion of employees by Plaintiff are not subject to binding arbitration under any circumstances and that such a provision is void as an unlawful delegation of Plaintiff's discretionary powers." The court further held that Article XI of the agreement [the grievance provision] was "void and of no force and effect" in its provisions "relating to arbitration of matters of selection or promotion of employees. . . ." Id. The REA appealed the decision and it was affirmed. Board of Educ. School Dist. No. 205 v. Rockford Educ. Ass'n, 3 Ill. App. 3d 1090, 280 N.E.2d 286 (Ill.App. 2nd Dist. 1972).

  In affirming the decision, the Illinois Appellate Court stated that "a Board of Education does not require legislative authority to enter into a collective bargaining agreement" and that "such an agreement is not against public policy." 280 N.E.2d at 287 (citation omitted). The court nevertheless held that "a Board may not, through collective bargaining or otherwise, delegate to another party those matters of discretion that are vested in the Board by statute . . ." including the duty to select employees for positions, and determine their qualifications. Id. at 287-288.

  Despite this clear ruling, the District and the REA negotiated a series of collective bargaining agreements containing provisions, which, if valid and enforceable, would have limited the Board's power to select employees for vacant positions. The agreements, covering the period from 1972 through 1980, exempted decisions regarding promotional assignments from the grievance procedure, but still required the Board to select the senior qualified internal applicant over other applicants, unless the other applicant was better qualified. The collective bargaining agreement covering the period 1980-82 deleted the requirement of selecting the most senior applicant for promotion where two applicants were substantially equally qualified. This agreement also deleted the language exempting promotional decisions from the grievance and arbitration provision.

  Beginning with the contract covering the 1972-73 school year, the District and the REA entered into an agreement containing the following language regarding promotional vacancies: "All appointments to the aforesaid [promotional] vacancies and openings shall be made without regard to age, race, creed, color, religion, nationality, sex, or marital status." B50479. Thus, the agreement prohibited the District from taking the race of applicants into account, even in those situations where significant under representation of minorities in administrative positions was found to exist. This provision was also present in subsequent collective bargaining agreements.

  Then, beginning with the contract covering the 1984-87 school years, the District and the REA entered into an agreement combining the transfer, promotional and reduction-in-force (hereinafter "RIF") provisions into a single article entitled "General Employment Practices." B50236-B50239. Article 12 of this agreement covered all vacancies for administrative and teaching positions (excepting the Superintendent). It further required that "if more than one applicant has applied for the same vacancy the applicant best qualified for that vacancy shall be appointed and qualifications being substantially equal, seniority in the system shall control." B50236-B50237. Article 12 also incorporated the race neutral selection procedure for all vacancies (not just promotions, as in past years) and made all decisions regarding appointments to vacancies subject to the grievance and arbitration provisions of the agreement. B50237-B50238. The language in Article 12 did not distinguish between the filing of promotional and other vacancies. The parties interpreted the agreement to require posting of promotional vacancies and bidding by bargaining unit members, but not requiring the selection of the most senior applicant in circumstances where the qualifications of two or more applicants were substantially equal.

  In the agreement covering the 1988-89 school year, the REA and the District agreed that the District could reassign all high school and middle school principals without following the vacancy, posting and seniority provisions. These provisions applied only to vacancies resulting from such reassignments. B50149. The District further agreed to use its "best efforts" to follow the same procedure with respect to elementary principal vacancies. Id. This provision appeared in each of the subsequently negotiated provisions.

  Throughout the history of the collective bargaining relationship between the District and the REA, the union has attempted to enforce provisions regarding teacher assignment and promotion. These enforcement efforts included filing grievances over denial of promotion and assignment decisions and periodic requests for arbitration of such grievances when they were denied at the final step prior to arbitration. Requests for arbitration continued even after the REA was enjoined from enforcing the promotion and assignment provisions of its contract by the courts. Despite the injunction prohibiting enforcement of the provisions through arbitration, the District voluntarily complied with some of these obligations, often adjusting grievances in favor of teachers who complained of involuntary transfer or failure to be appointed to a vacancy for which they applied.

  In 1983, the District filed an action against the REA seeking injunctive relief with respect to its authority in employee selection matters. Bd. of Educ. v. Rockford Educ. Ass'n, Case No. 83 MR 120 (Circuit Court for the 17th Judicial District, Winnebago County); B510943. On July 13, 1984, the court entered an order against the REA and its agents "permanently enjoining [them] from filing arbitration demands on questions of discretionary teacher appointment." The court further found that the decision in Board of Educ. v. Rockford Educ. Ass'n, 3 Ill. App. 3d 1090, 280 N.E.2d 286 (Ill.App. 2d Dist. 1972) was "the controlling precedent for all issues" presented in the case, and that "notwithstanding anything to the contrary contained within the professional agreement between the parties . . . the discretionary appointment of teachers to employment positions is vested exclusively in the School District, is not a delegable power, and is therefore not arbitrable." Id. This decision was affirmed by the appellate court in Board of Educ. v. Rockford Educ. Ass'n, 150 Ill. App. 3d 198, 501 N.E.2d 338, 103 Ill. Dec. 317 (Ill.App. 2nd Dist. 1986).

  In 1983, the Illinois General Assembly passed, and the governor signed, the Illinois Education Labor Relations Act (hereinafter "IELRA" or "the Act"). 115 ILCS 5/1 et seq., formerly Ill. Rev. Stat. ch. 48, P 1701, et seq. The IELRA is a comprehensive legislative scheme regulating the selection of employee representatives and governing collective bargaining in public school districts. The IELRA created a state agency, the Illinois Education Labor Relations Board (hereinafter "IELRB"), to enforce the Act. 115 ILCS 5/5, formerly Ill. Rev. Stat. ch. 48, P 1705. The IELRA contains a section describing a public school district's duty to bargain with an employee representative. 115 ILCS 5/10, formerly Ill. Rev. Stat. ch. 48, P 1710. This paragraph provides that the educational employer and employee representative have the "authority and duty" to engage in collective bargaining and that the employer has a duty "to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, and to execute a written contract incorporating any agreement reached by such obligation. . . ." 115 ILCS 5/10(a), formerly Ill. Rev. Stat. ch. 48, P 1710(a). The Act further provides that "the parties to the collective bargaining process shall not effect or implement a provision in a collective bargaining agreement if the implementation of that provision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of Illinois." 115 ILCS 5/10(b), formerly Ill. Rev. Stat. ch. 48, P 1710(b). Finally, the Act makes inclusion of a grievance and binding arbitration provision for resolving disputes under the collective bargaining agreement mandatory, 115 ILCS 5/10(c), formerly Ill. Rev. Stat. ch. 48, P 1710(c), and makes refusal to comply with an arbitration award an unfair labor practice that can be remedied by the IELRB through an order requiring the employer to comply with the award. 115 ILCS 5/14(a)(8), formerly Ill. Rev. Stat. ch. 48, P 1714(a)(8).

   On March 29, 1989, the Illinois Supreme Court issued its decision in Board of Educ. of Warren Twp. v. Warren Twp. High School Fed'n of Teachers, 128 Ill. 2d 155, 538 N.E.2d 524, 131 Ill. Dec. 149 (Ill. 1989) (rehearing denied, May 26, 1989). In that case, the court held that the IELRA divests the circuit court of jurisdiction to enjoin arbitration hearings and further held that exclusive primary jurisdiction for deciding questions of arbitrability is vested by the legislature in the IELRB. 538 N.E.2d at 529.

  Following this decision, the District and the REA agreed in April, 1989 to then try of a court order dissolving the permanent injunction entered in 1984. Both before and after the entry of this injunction and its dissolution, the REA continued to file grievances over staff appointment issues and the District continued to resolve grievances regarding appointment issues.

  Collective Bargaining History: Clerical Employees

  The District entered into its first collective bargaining agreement covering clerical employees in 1984. B50796. The second agreement covered the period January 1, 1988 through December 31, 1990. B50772. Unlike the agreement covering professional employees, the clerical agreement contained no provision requiring assignment based upon seniority where candidates were substantially equally qualified. The agreements required, however, first consideration for internal qualified applicants over qualified non-employees of the District. B50807; B50782-B50783. Selection of an external candidate by the RSD was allowed only if there was no qualified candidate already within the employ of the District.

  On June 22, 1981, the Board adopted a resolution creating the Rockford Public Schools Employee Service System. B49488. The purpose of this system was to test and recruit employees for all non-certified positions, including clerical positions. Boyer Dep. at 27-28. This system was created in order to replace the services provided by the City of Rockford in testing and certifying applicants for such positions. Id. In the area of promotional examinations for clerical and custodial positions, the rules of the Commission created a system of assigning additional examination points for longevity as a District employee. B49528.

  Thomas Boyer was the District's personnel director from January 1, 1978 until March 26, 1990. Boyer Dep. at 6. Mr. Boyer supervised the District's employee who was responsible for administering the testing procedures and he participated in meetings of the Employee Service Commission, a three member body created by Board resolution, to oversee operation of the testing and recruitment system. Id. at 94; B49532. Mr. Boyer testified that the use of longevity points in scoring promotional examinations resulted in a "skewing [of] the test scores so badly that they were meaningless." Boyer Dep. at 105. Accordingly, on December 21, 1988, it was reported to the Board that the Employee Service Commission decided to amend its rules to delete references to longevity points. Bd. Min., 12/21/88, at 3, B49503.

  African-Americans and Hispanics were underrepresented in the clerical employment workforce during the entire time Mr. Boyer was employed by the District. Boyer Dep. at 36-37. For those years in which data exists comparing minority employment in this category to total employment by category (1986-1992), minority employment among clericals reached its highest level in 1987-88 when minorities represented 3.6% of the total clerical workforce. For the 1990-91 school year, this figure declined to 2.8%. The effect of this historical underrepresentation, coupled with the assignment of longevity points for seniority, was to keep those few minorities employed as clericals locked in the lower-paying clerical jobs and prevented movement of those employees by promotion in order to achieve integration of clerical staff.

  Conversely, seniority was never a factor in clerical transfers. Thus, to the extent that minority clerical employees were isolated in schools with high minority enrollment, as demonstrated by the high concentrations of minority staff of all types within the District, the isolation was not a function of the operation of a seniority system. Id. at 90.

   Custodial Staff

  The custodial staff, including building engineers, custodians, assistant building engineers, stockroom employees, truck drivers, printers, painters, electricians, steamfitters, plumbers, brickmasons, carpenters, grounds maintenance employees, mechanics, and others, were first covered by a collective bargaining agreement in 1987. B50649. The contract was renegotiated twice. B50622 and B50586. The agreement covering custodial staff required non-promotional vacancies to be filled based upon seniority. B50659-B50660. Further, the contract required seniority be considered along with test scores and other criteria in filling promotional vacancies. Id. Finally, the agreement prohibited involuntary transfer of custodial staff unless: (1) The employee's position was eliminated, or (2) The District could "demonstrate that the employee's transfer [was] in the best interest of the District and/or the employee." Id.

  Prior to 1987, however, the District was under no obligation to assign custodial employees by seniority. Thus, the pattern of assigning minority custodial employees to racially identifiable schools, which predated the advent of collective bargaining for those employees, was not a function of the operation of a seniority system.

  Other Staff

  The District negotiated its first collective bargaining agreement covering teacher aides, library aides, clerical aides, hall aides and special education aides for the period July 1, 1985 through June 30, 1988. B50710. This agreement was subsequently renegotiated twice. B50695 and B50674. Each of the agreements contained a provision regarding job posting and bidding for vacancies. B50714-B50715. The agreements provided that where a permanent vacancy occurred, it would be posted and aide employees would be allowed to bid. Seniority played no role in the selection of candidates for vacancies, with the sole limitation that qualified candidates inside the District were given preference over external candidates. Id. Prior to the advent of collective bargaining, there was no restriction on the ability of the District to assign aides within the school system. Accordingly, the assignment of minority aides to racially identifiable minority schools cannot be explained by reference to collective bargaining agreement provisions.

  CONCLUSIONS OF LAW

  The assignment of faculty and staff on the basis of race is a significant contributor to school segregation. See, Reed v. Rhodes, 607 F.2d 714, 725 (6th Cir. 1979); NAACP v. Lansing Bd. of Educ., 559 F.2d 1042, 1052 (6th Cir. 1977); Morgan v. Kerrigan, 509 F.2d 580, 597-98 (1st Cir. 1974); Oliver v. Michigan St. Bd. of Educ., 508 F.2d 178, 185 (6th Cir. 1974); Berry v. School Dist of Cty. of Benton Harbor, Mich., 505 F.2d 238, 242 (6th Cir. 1974). Assignment of teachers on the basis of race adds to the racial identifiability of a school, and, as such, it may hasten the segregation of a school (or help to preserve it in a segregated state). Berry v. School Dist of Benton Harbor, 442 F. Supp. 1280, 1301 (W.D. Mich. 1977).

  Segregative faculty and staff assignment practices are clearly unlawful. See, United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1527 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2nd Cir. 1987) (assignment of disproportionate numbers of minority staff to disproportionately minority schools); Reed v. Rhodes, 455 F. Supp. 546, aff'd in part, rev'd in part, 607 F.2d 714 (6th Cir. 1979) (84% of African-American elementary and junior high school teachers and 90% of African-American senior high school teachers taught in schools that had 90% African-American student enrollment); Berry, 442 F. Supp. at 1301 (in schools that were 15-100% white, 1.3% of teachers were African-American; in schools that were 75-100% African-American, 41.24% of the teachers were African-American); Lansing, 429 F. Supp. 583, 606 (W.D. Mich. 1976), aff'd, 530 F.2d 401 (1st Cir. 1976) (Board stipulated that it assigned African-American teachers to predominantly African-American schools); Arthur v. Nyquist, 415 F. Supp. 904, 944 (W.D.N.Y. 1976), aff'd on reconsideration, 429 F. Supp. 206 (1977), aff'd in part, rev'd in part, 573 F.2d 134 (2nd Cir. 1978) (significant number of teachers and administrators assigned to schools on basis of race); Morgan v. Hennigan, 379 F. Supp. 410, 459 (D.Mass.), aff'd sub nom., Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974) (in school district in which approximately 1/3 of the schools were majority African-American, 2/3 of the African-American teachers were sent to those schools); Oliver v. Kalamazoo Bd. of Educ., 368 F. Supp. 143, 177 (W.D. Mich. 1973), aff'd, 508 F.2d 178 (6th Cir. 1974) (direct correlation between racial proportions of students and teachers at all levels of instruction); United States v. School Dist. 151 of Cook County, 286 F. Supp. 786, 793 (N.D. Ill. 1968), aff'd, 404 F.2d 1125 (7th Cir. 1969) (with few exceptions, faculty assigned on basis of race).

  In some cases, school authorities have tried to offer educational justifications for segregative faculty assignment policies. See, Morgan, 379 F. Supp. at 460 (assignment of African-American teachers to predominantly African-American schools purportedly allowed African-American teachers to serve as adult role models to African-American pupils). Such attempts to justify teacher segregation have been uniformly rejected. Omaha, 521 F.2d at 538-9 n.14; Morgan, 509 F.2d at 596-98; Reed, 455 F. Supp. at 566; Lansing, 429 F. Supp. at 606; Arthur, 415 F. Supp. at 946; Oliver, 368 F. Supp. at 177; cf. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274-75, 90 L. Ed. 2d 260, 106 S. Ct. 1842 (1986) (interest in providing minority role models insufficient to justify racial classification in layoff provision). Intentional racial segregation, whether the motive behind it is evil or benign, does not pass scrutiny under the 14th Amendment. Arthur, 415 F. Supp. at 946; Oliver, 368 F. Supp. at 177.

  Similarly, attempts to justify faculty segregation on the grounds that African-American teachers desired and requested assignment to African-American schools have also been rejected. "Even if . . . black teachers requested assignments to black schools, this would not overcome the prohibition of the fourteenth amendment which bans intentional racial segregation in public schools whatever may be the desires of black teachers or parents." Morgan, 379 F. Supp. at 461.

  The court finds that the RSD's assignment practices with respect to teachers violated the constitutional rights of Plaintiffs through the intentionally disproportionate assignment of minority teachers to schools with a high percentage of minority students and majority teachers to schools with a high percentage of majority students. *fn31" The court further finds that the RSD's assignment practices with respect to minority principals also violated the rights of Plaintiffs through the intentionally disproportionate assignment of minority principals to schools with a high percentage of minority students and majority principals to schools with a high percentage of majority students. Similarly, the court finds that the RSD's assignment practices with respect to African-American custodial and clerical staff violated the rights of Plaintiffs through the intentionally disproportionate assignment of minority persons in these positions to schools with a high percentage of minority students and majority persons in these positions to schools with a high percentage of majority students. Finally, the court finds that the RSD's assignment practices with respect to total minority staff (professional and non-professional) violated the rights of Plaintiffs through the intentionally disproportionate assignment of minority staff to schools with a high percentage of minority students and majority staff to schools with a high percentage of majority students.

   INEQUITABLE ACCESS TO TRANSPORTATION

  INTRODUCTION

  Unequal burdens in relation to transportation must not be placed on students by a school district because of the color a student's skin. The RSD placed disparate transportation burdens on minority students. At times, minority students even had to pay for transportation to their assigned schools, while similarly situated white students did not. Further, the RSD's integration policies included mandatory one-way busing of minority students. No white student was ever involuntarily bused for integration purposes.

  The major voluntary integration opportunity for minority students was the Open Enrollment Plan. Through incompetency and intentional discrimination, the RSD transportation policies scuttled the Open Enrollment Plan. The RSD provided no substitute for the Plan.

  FINDINGS OF FACT

  Transportation Policies And Practices Affecting Desegregation And Desegregation Burdens

  The only significant, voluntary integration plans ever offered by the RSD were open enrollment and full-site focus centers. Though the RSD's stated policy with regard to these plans made provision for Board-paid transportation, the RSD's transportation practices discouraged and diminished voluntary integration.

  The effect of these practices was the elimination of the open enrollment program at the secondary level and a significant decrease in elementary open enrollment transfers. The virtual loss of the voluntary open enrollment program left the RSD with a system of integration that was involuntary for minority students and voluntary for white students. Within this discriminatory system of integration, the transportation policies and practices were both discriminatory and contradictory.

  Transportation Policies And Practices Diminished Desegregation

  The RSD historically employed four types of integration methods: mandatory reassignment of minority students to predominantly white schools through attendance boundary adjustments and school and grade closings; voluntary transfers to alternative programs; voluntary transfers to focus centers; and voluntary open enrollment. Students transferred by mandatory reassignment were predominantly minority. Students transferred by alternative programs were predominantly white. Accordingly, the focus centers and the open enrollment offered the only significant opportunity for minority voluntary transfer. Open enrollment transfer students were predominantly minority.

  In a document entitled "Reflections of District 205 Court Appearance," Director of Transportation Oscar Blackwell noted that "under the existing voluntary plan blacks were the majority that took part in voluntary busing." B35781, B35784. In September of 1974, only 47 of the 636 students (7%) in the RSD taking advantage of the open enrollment program were white. B38448. In 1975, only 3% of the open enrollment students were white. Desegregation Progress Report, B31345. As stated by a memorandum dated June 22, 1979 from Patricia Turrentine, Coordinator of Transportation, to RBE member Colleen Holmbeck, 88 white students and 766 minority students were bused for open enrollment in the school year 1978-79.

  Focus centers were originally primarily full-site programs benefitting both minorities and white students. Eventually, focus centers became partial-site programs and predominantly white. The RSD's original stated transportation policy with regard to open enrollment and focus transfers was to provide transportation to all open enrollment and focus transfer students if the transfers aided integration. In a memorandum entitled "Meeting on Transportation Policy for School Year 1977-78," Transportation Director Blackwell stated that the transportation policy with regard to open enrollment was "All students that contribute to integration will be bused. Students must continue to aid in desegregation in order to continue in the feeder pattern school." B34416. In that same memorandum, Mr. Blackwell reported that for focus center transfers, the transportation policy was that "Students attending the Focus Centers will be transported providing they do not live in the school attendance area. Only students certified for the Focus Center by the Attendance Department or other authorized office, will be transported." Id.

  In the next school year, 1978-79, the open enrollment transportation policy remained the same as in previous years, while transportation to focus centers was to "be determined by the open enrollment policy stated above." B34380 at B34385. Under the suggestion from the ISBE, the RSD, in the school year 1979-80, made "aiding integration" a condition of enrollment rather than of transportation for open enrollment and focus transfers. B32632. The resulting open enrollment policy was to provide transportation to all open enrollment students permitted to transfer under the "aiding integration" criteria for admittance. Id. at B32633-B32636.

  1970's and Early 1980's: Transportation Problems Discouraging Open Enrollment Transfers

  The open enrollment policies, both before and after the 1979 change urged by the ISBE, provide board-paid transportation to all voluntary transfer students whose movement aided integration. The actual practices during the 1970's and early 1980's were, however, contrary to the stated policy and served to confuse and discourage open enrollment and focus center transfers. For example, Transportation Director Blackwell believed that prior to the intervention of the ISBE, transportation policies and practices regarding open enrollment transfers were deliberately confusing. Mr. Blackwell stated:

  

It has been my experience that when you place the transportation and admittance policy together, interpretation is often not clear, and promises are made contrary to interest. I must say that I sincerely believe that often times this confusion has been done by design.

  Id. at B32636.

  As early as 1974, those students who volunteered for open enrollment and who had an early class schedule had to provide their own transportation without any reimbursement from the RSD. Blackwell Memo, 10/2/74, B33228. Mr. Blackwell recognized that the RSD policy of not providing transportation for open enrollment students taking early classes was "counter-productive to voluntary desegregation." The policy placed several burdens on minority students:

  

Minority students volunteering to a middle or high school for desegregation purposes who happen to start late in the school day would not be able to finish with school by noon. This fact would not permit them to obtain an afternoon-evening job if they wanted one.

  

. . .

  

Some of the general public could charge District 205 with not providing equal educational opportunity to all youngsters, in as much as the desegregation youngsters may have to start at a later time in order to take part in the desegregation program.

  Id. Mr. Blackwell agreed that this policy was contrary to the stated policy of the Transportation Department to provide open enrollment students with transportation on the same basis that other students would receive it, thereby allowing students to have schedules of their own choosing. Id.

  Other transportation problems existed, including: late buses, delays in starting open enrollment transportation at the beginning of the school year and lack of transportation altogether in some circumstances. These problems served to discourage open enrollment transfers. In 1974, Mr. Blackwell wrote a memorandum to John Wyeth, Assistant Superintendent in Charge of Operations, highlighting some of the transportation problems for open enrollment students:

  

In another memo of this date I informed you of the complaint I received from a Mrs. Cousin. I think that when a parent is interested in seeing that his youngster goes to school, arrives on time, and attends classes while in school, we certainly should not be a contributing factor for the constant tardiness of this youngster.

  

I have also been concerned about the fact that it takes 2 to 3 weeks for a youngster to get transportation provided to various schools under the desegregation program, and I would like to call to your attention that I am aware of at least 21 youngsters who have withdrawn from the desegregation program since school opened because of inability to receive transportation or the lack of a free lunch program.

  Id. at B33229.

  Despite the RSD's knowledge regarding problems with transportation for open enrollment students and its attendant negative effect on the success of the open enrollment program, problems remained from 1977 through 1979, showing little improvement.

  In September of 1977, Ms. Margaret Newell, Chair of the Bloom School teachers, wrote to Mr. Blackwell on behalf of the Bloom School teachers regarding inadequate transportation "to Bloom School for our students from the west side of town." B27691-B27692. Ms. Newell related problems with bus drivers and with late buses. She stated that the same problems were "defeating our purposes and that of voluntary desegregation." Id. Bloom School principal Keith Wilson testified that when he first arrived at the school in 1975, there was a period of approximately nine weeks when none of the Southwest side students arrived on time for school. Many arrived about an hour after school started.

  In January of 1978, Mr. Blackwell met with school principals and with Jelco Bus officials, the persons with whom the RSD contracted for bus services, in order to discuss the open enrollment transportation problems. Mr. Blackwell's notes of that meeting covered the scope of the problems:

  

Dr. Connie Tucker, principal of Lathrop/McIntosh, stated that while the purpose of transportation is to aid integration, "at this point, I cannot give parents any assurance that transportation will be reliable."

  

Kent Meyers, principal of Carlson School, stated: "We have been experiencing deteriorating services. Two hundred sixty-two (262) lost student days have been logged so far."

  

Curtis Anderson, principal of Wilson stated: "There have been numerous late pickups in the morning and late pickups for children after school. As a result, there has been disorder and discipline problems on some of the buses. Some of the drivers have poor driving habits."

  

Harry Hulick, principal at Lincoln Middle School described how the transportation problems affected the white students' impression of the African-American students: "We have late buses almost daily. The black children are coming in late and naturally make noise. The white students get the impression that this is common behavior of blacks and this increases prejudice instead of aiding the integration of society which is the intent of the district."

  

Ed Ruef from Guilford Center reported that the effect of the transportation problems was discouraging open enrollment transfers: "Five students have requested to go back to their home schools because of the frustrating busing. They like the program at Guilford Center but the parents feel that the children are missing too much school because of the poor service."

  

Robert Greene from Haskell School stated: "This is the first year of busing to Haskell. Blacks are asking to come back to their neighborhood school. Although the whites are sticking it out, 1/3 are not riding buses but the parents are bringing them in."

  Blackwell Report of 1/25/78 Meeting, B502874-B502875. While Jelco officials admitted that some of the problems were attributable to poor handling by Jelco, they pointed out that a great deal of the problems originated with the RSD's failure to provide the necessary administrative and informational support and the RSD's failure to provide the necessary administrative and informational support and the RSD's failure to act to correct disciplinary problems. Id. at B502876-B502877. Although Mr. Blackwell stated in a letter to the president of the Bloom P.T.O. that "Mr. Johnson, Superintendent of Schools, Mr. Rundquist, President of District 205's Board of Education, and all board members have been kept advised as to the many difficulties we have had . . . involving transportation," the problems continued. B28009.

  In 1979, Mr. Blackwell received a letter from Mrs. Hyatt, the parent of a minority open enrollment transferee. Mrs. Hyatt related that her son had frequent absenteeism at his new school, Spring Creek, because of transportation problems. He had missed a full month of school the previous year because a bus never came to pick him up and he had developed bronchitis because he was forced to stand out in the cold many times waiting for a bus that was often late, if it came at all. Letter to Blackwell, 11/2/79, B34333.

  The RSD further limited transportation to Guilford High School, expressly including a limitation on transportation for open enrollment students. Regular *fn32" bused students were transported to Guilford for periods four through nine, while open enrollment students were bused to Guilford for periods three through eight. Ms. Patricia Turrentine from the Transportation Department stated:

  

My understanding was that unless the students signs [sic] up for classes which correspond with the above busing schedule they will not be transported by school bus. I further understood that even if children are qualified to ride we will not put them on a bus route unless their schedule corresponds with the above because the school does not want them to be in the school for unassigned periods.

  Turrentine Memo, 1/27/78, B502872.

  1970's and 1980's: Discriminatory Provision Of Open Enrollment Transportation

  The RSD provided transportation to majority open enrollment students on a more generous basis than that provided to minority open enrollment students, despite the fact that the open enrollment and focus center methods offered the only significant opportunity for voluntary minority transfer.

  The RSD's transportation documents, beginning with the school year 1979-80, show that the RSD employed a coding system for qualifying students for transportation. The available codes under this system were "1" and "3." Notes on the documents defined a "1" as "more than 1.5 miles from both school and mass transit," and a "3" as "less than 1.5 miles from mass transit." B41527 at B41529. For the school years in which the qualifying codes were used (1979-80, 1980-81 and 1981-82), majority open enrollment and focus center students at the secondary level, that is, those attending Westside Auburn High School and Washington Middle School, qualified for Board-paid transportation under a combined "1/3" code. Id. at B41531. The combined "1/3" code meant that a student living more than 1.5 miles from school and mass transit would receive Board-paid transportation. Students living less than 1.5 miles (all other students) would also get Board-paid transportation. Id. All minority open enrollment students, except those attending Kennedy Middle School, qualified for Board-paid transportation under either a "1" or a "3" code.

  Notations detailing transportation for minority open enrollment and focus center students indicate that the qualifying criteria for minority students were more restrictive than the criteria applied to majority open enrollment and focus center students. For example, the notation next to "minority open enrollment" at Jefferson stated "all outside Jefferson area - mass transit only." The "mass transit only" notation also appeared next to: Bilingual-Focus at West High School; Bilingual Focus at Flinn Middle School; open enrollment at Flinn Middle School; minority open enrollment at Lincoln Middle School; and Bilingual Focus at Lincoln Middle School, with additional notation "Board paid, except Washington Area our bus." Id. The "mass transit only" notation never appeared next to a majority open enrollment or majority focus center classification. A RSD document entitled "Current Transportation Situation" and dated July, 1981 suggested that, not only should the Bilingual Focus transportation be by mass transit only, but also the regular focus center program at Lincoln. B507511 at B507512. The recommendation for mass transit only transportation for the Lincoln focus center students was implemented in the 1982-83 school year. B41533. In a transportation document entitled "Transportation by Categories 1981-82," data shows that thirty-three focus center transfers to Lincoln Middle School received Board-provided buses while 115 students rode mass transit buses. In contract, focus center transfers to Wilson Middle School received Board-provided buses in substantial numbers: 513 focus center students received Board-provided buses while only sixteen focus center transfer students to Wilson rode mass transit buses. Wilson Middle School had predominantly white transfers because Wilson, itself, was predominantly minority.

  1970's and 1980's: Effects of Discrimination and Transportation Problems on Success of Open Enrollment

  The problematic transportation practices utilized for open enrollment had the effect of discouraging open enrollment transfers. Numerous students in the open enrollment program had opted to return to their neighborhood schools because of transportation problems. Teachers and principals from the schools receiving open enrollment transfers related that the transportation problems were discouraging open enrollment transfers and threatening the success of voluntary minority movement for integration purposes. See Newell Letter, B27691; Blackwell Letter, B27688; Blackwell Memo, B502874.

  John Johnson, Conklin School Principal, stated in a memorandum to Mr. Blackwell in December of 1977 that one of the first students to attend Conklin through voluntary integration from the Westside had decided to transfer back to her neighborhood school, Haskell, because of an inability to get to Conklin by bus. Mr. Johnson believed that this was just the beginning of a trend of minority students returning to their neighborhood schools because transportation had become so uncertain. J. Johnson Memo, B27600. Mr. Johnson's prediction in 1977 was correct. In 1978, the number of students transported for open enrollment was 1296; by the 1980-81 school year, the total open enrollment was 674, nearly half of the enrollment for 1978. B33202; D5523.

  1980-1989: Direct Restriction of Open Enrollment Transportation

  In addition to the policies and practices that had the effect of discouraging open enrollment transfers, the RSD instituted transportation policies directly restricted open enrollment transfer options. In 1980, the RSD adopted and implemented a new open enrollment policy that restricted open enrollment transfer by geographic area. The policy was the first to restrict open enrollment on a district-wide scale.

  Restricting open enrollment transfers by geographic area was first recommended in April of 1980 by Patricia Turrentine, Coordinator of Transportation, as means of saving money. B34705. Ms. Turrentine's recommendation was adopted as the new open enrollment policy of the RSD a few months later. B33166 at B33167; Bd. Min., 6/23/80, B16781. The new policy read as follows:

  Open Enrollment

  

Open enrollment transportation is provided when the transfer contributes to integration at both the sending and receiving schools. Students living south of Kent Creek and East State Street will be transported to schools in that geographic area where efficient transportation can be provided and space is available. Students living north of Kent Creek and East State Street, but east of the Henrietta/McIntosh/Whig Hill area will be transported to schools designated in the northeast quadrant where efficient transportation can be provided and space is available. Students living west of Ellis/Church area and north of Kent Creek and west of the Rock River will be transported to schools designated in the northwest quadrant where efficient transportation can be provided and space is available.

  Id. Figure 1 is a map of the RSD showing the geographic areas created by this policy.

  The geographic restrictions in relation to open enrollment transportation split up the Southwest Quadrant into three areas and limited Board-paid transportation to schools within each geographic area. Under the policy, of the eighteen Southwest Quadrant schools, students from only six schools (Church, Ellis, Haskell, Garrison, Walker and Roosevelt) were given Board-paid transportation and allowed to transfer to the desirable Northeast Side schools.

  1980-81 Open Enrollment

  Transportation Policy Map Key

  Boundaries

  Northeast: North of Kent Creek and East State Street East of Henrietta/McIntosh, Whig Hill

  Northwest: North of Kent Creek and West of Ellis/Church and West of Rock River

  South: South of Kent Creek and West of Ellis/Church and West of Rock River

  Elementary School

  1. Stiles

  2. Dennis

  3. Lincoln Park

  4. McIntosh

  5. Henrietta

  6. Church

  7. Ellis

  8. Haskell

  9. Garrison

  10. Walker

  11. Welsh

  12. Summerdale

  13. Whig Hill

  14. Conklin

  15. West View

  16. Elmwood

  17. Haight

  18. Barbour

  19. Lathrop

  20. King

  21. Evergreen

  22. Evergreen

  23. Gunsolas

  24. Froberg

  26. Riverdahl

  27. Rock River

  28. Peterson

  29. Hillman

  30. White Head

  31. Rolling Green

  32. Thompson

  33. Vandercook

  34. Gregory

  35. White Swan

  36. Cherry Valley

  37. Carlson

  38. Spring Creek

  39. Brookview

  40. Guilford Center

  41. Bloom

  42. Johnson

  43. Jackson

  44. Kishwaukee

  45. Beyer

  46. Wight

  47. Nelson

  48. Hallstrom

  49. Turner

  Middle School

  1. JFK

  2. Wilson

  3. Roosevelt

  4. Washington

  5. Eisenhower

  6. Marsh

  7. Morris Kennedy

  8. Lincoln

  High School

  1. Auburn

  2. West

  3. Guilford

  4. East

  5. Jefferson

  1980-81 Open Enrollment Transportation Policy: Geographic Restriction of Transportation [SEE MAP IN ORIGINAL]

   Students from the remaining twelve southwest side schools were restricted in their choice of transfer school to those located in the Southeast and Northwest in terms of Board-paid transportation.

  The 1980 policy on open enrollment transportation had a tremendous effect on open enrollment transfers. In a document listing "students . . . not eligible for transportation . . . for the 1980/81 school year," students transferring into schools that were not their "home" schools were identified as being denied transportation to the receiving school. B33176-B33191. Three hundred, thirty-eight elementary students were denied transportation to receiving schools. Thirty-two secondary students were denied transportation to receiving schools.

  In 1981-82, the RSD completely eliminated open enrollment transfers to secondary schools. Transportation documents for the 1981-82 school year, and for every year thereafter, specified "no open enrollment in or out of any middle or high school." B41531 at B41533. The effect of eliminating all secondary open enrollment transfers was to eliminate open enrollment in the RSD. In the school year 1980-81, the number of students involved in voluntary integration transfers was 674; in the school year 1981-82, that number dropped to 277. The number of open enrollments for the next three years never reached higher than 331. D5523. By the 1988-89 school year, the total number of students transported for open enrollment was 124. B502591.

  In the early 1980's, the RSD discontinued transportation to four full-site focus center programs at the elementary level, resulting in decreased voluntary transfers for integration purposes to those schools. In meetings of the RBE in January of 1987 and in January of 1988, the Superintendent admitted that the four elementary focus center programs, those at Bloom, Walker, Haskell and Conklin, were effectively shut down by the discontinuation of transportation to those programs in the early 1980's. Bd. Min., 1/27/87, B19961; Bd. Min., 1/18/88, B20892.

  The RSD eliminated transportation to Bloom Elementary School in 1982. B22615; B22604. According to the individual histories contained in Part M of Michael Driscoll's 1987 Demographic Study, the focus center at Bloom started in the school year 1977-78. No explanation was given for the elimination of transportation. Id. In the 1981-82 school year, prior to elimination of transportation to Bloom, the number of African-Americans at Bloom was seventy-five; in the 1982-83 school year, after transportation was eliminated, the number of African-Americans at Bloom dropped to fifty-nine. Stolee Tab 24. Although African-American enrollment increased to seventy-three in the 1983-84 school year as a result of students transferred because of the closing of Guilford Center, minority enrollment declined consistently every year thereafter down to fifteen African-American students in 1989. Id.

  In 1982-83 the RSD eliminated transportation for transfer students to the focus center program at Walker School. The focus center was started at Walker in the 1975-76 school year. B22772. After transportation was eliminated for focus center students, African-American enrollment at Walker fell from 13.42% in 1982-83 to 7.33% in 1983-84, reaching a low of 5.74% in 1987-88. Id.

  In approximately 1981-82, transportation for focus center transfer students at Haskell School was terminated. Bd. Min., 1/27/87, B19961. The focus center at Haskell, a Southwest side school, was started in the 1977-78 school year. Prior to the focus center, African-American enrollment at Haskell was 60.06% in the 1976-77 school year. By the 1980-81 school year, the transfer of white students to the focus center reduced the percentage of minority enrollment to 49.39%. After the elimination of transportation for focus center transfers in 1981-82, white enrollment decreased by more than 10% by the 1982-83 school year, while the percentage of African-American students enrolled at Haskell increased to 57.36% and reached 62.81% the following year. B22772.

  In the 1981-82 school year, the RSD eliminated transportation for focus center transfers at Conklin Elementary School on the northwest side. The focus center at Conklin had been started in the 1976-77 school year. At the same time that focus center transportation was eliminated to Conklin, the RSD mandatorily reassigned minority students to Conklin from Eastside Highland School. The RSD effectively terminated voluntary transfers as a means of integrating Conklin, a predominantly white school prior to the institution of the focus program, and substituted involuntary transfer of minority students who had been attending Highland. B22635.

  By instituting policies and practices that nearly eliminated all open enrollment, the RSD eliminated the only significant opportunity for voluntary minority transfers. Without open enrollment and transfers to focus centers, the remaining types of movement for integration purposes in the RSD were involuntary movements of minorities through mandatory reassignments in the form of boundary changes, school closings and grade closings and voluntary movements of majority students through alternative programs.

  Discriminatory Transportation Policies and Practices As Between Minority Integration Participants and White Integration Participants

  The RSD transportation policy with regard to alternative program participants was to provide transportation if a student lived more than 1.5 miles from school, regardless of the student's proximity to a Rockford Mass Transit District (hereinafter "RMTD") bus stop. Students mandatorily reassigned by way of school boundary changes were not governed by a distinct transportation policy as were alternative program students. Rather, such students qualified for transportation only under the "regular" transportation policy. The regular transportation policy provided that a student qualified for Board-paid transportation only if he/she lived more than 1.5 miles from school and more than 1.5 miles from a RMTD stop. B34390. Since mandatory reassignment students were from the Southwest Quadrant, most lived within 1.5 miles from a RMTD bus stop and so were required to ride a bus and pay for it themselves. The RMTD route map showed four bus lines servicing the Southwest Quadrant. RMTD Route Map, B51195.

  A Transportation Department document dated January 7, 1986, revealed the extent to which minority students were dependent on the RMTD. The document discussed the possible reduction in RMTD services due to a lack of Federal funding. The effect of a RMTD reduction on minority students was noted: "should this occur, they [the RSD] would anticipate reducing service to East and West High Schools which would affect students living in Southwest Rockford." Turrentine Memo, 1/7/86, B507475. Superintendent Bowen testified that when he was principal at the Northeast side East High School, "the city bus lines were always within a mile and a half of where they [minority students] lived." Bowen Dep. at 99. This meant that "there was [sic] black students at East that were never provided transportation ever and still are not. And that was -- they had to pay to ride the city bus. There's no yellow buses at East High School." Id. Transportation documents confirm that mandatorily reassigned students, including all minority mandatorily reassigned students at the secondary level, received no Board-paid transportation. In 1988, the total number of mandatory reassignment students who attended Eastside high schools and middle schools, but who did not receive Board-paid transportation were: East 389 Guilford 172 West 148 Eisenhower 117 John F. Kennedy 145 Lincoln 271 Total: 1242 students

  In 1986, 250 minority students were mandatorily reassigned to Eisenhower Middle School. B19103. A 1986 transportation document showed that none of these 250 students received Board-paid transportation. B41659.

  Students who were mandatorily reassigned by way of school closings received some Board-paid transportation at the elementary level but received no Board-paid transportation at the secondary level. Although the RSD sometimes regarded school closing students as open enrollment transfers, the mandatory nature of the transfers, resulting from closing schools or grades, was recognized by the RSD. See B33176-B33191; see also, B25500. Director of Transportation and Integration, Oscar Blackwell, referred to the Muldoon School closing students as mandatory reassignments: "The closing of Muldoon resulted in one-way busing of blacks to all-white schools, placing great burdens, inconveniences, and responsibility to those blacks being bused." B35783.

  Transportation documents for the years 1979-1988 showed that some school closing students at the elementary level received Board-paid transportation, while school closing students at the secondary level were treated as "regular" for transportation purposes, thus receiving no Board-paid transportation. B41527-B41549; B41656-B41657; B511216. Transportation documents for the school years 1980-81, 1986-87 and 1988-89 showed Board-paid transportation by student category. The 1980-81 document showed no Board-paid transportation under the school closing category for secondary students, except for three students at Lincoln, whether by Board bus or Board-paid RMTD bus. Similarly, the 1986-87 and 1988-89 documents showed no Board-paid transportation for school closing students at the secondary level. These documents were consistent with other transportation documents that stated that school closing students at the secondary level were "treated as regular." B41527-B41549.

  These same transportation documents highlighted the contrast between the provision of transportation for alternative program students and the absence of Board-paid transportation for mandatory reassigned students. The 1986-87 document showed that the RSD provided Board-paid transportation for 453 of Auburn's alternative program students in the school year 1986-87 and Board-paid transportation for 484 of Auburn's alternative program students in 1988-89. B511216; B41659. An enrollment document prepared by the District's Director of Attendance, Michael Driscoll, showed that the total alternative program enrollment at Auburn for the 1987-88 school year was 587. Driscoll Report, 1987, B24820-B24821. These figures revealed that a majority of alternative program students at Auburn, almost 500 out of 587, received Board-paid transportation. The form of transportation for these students was by yellow bus, since the Board provided RMTD travel to Auburn for only sixteen students during the 1988-89 school year. B511217.

  Eleanor Brown, a former student in the gifted program at Wilson testified that the disparities in transportation did not end with transportation to and from school. The transportation provided for field trips taken by alternative students and "regular" students was also unequal. Ms. Brown stated: "I know they went to the zoo when we went to the Madison and Chicago area, we all went to that. We went separate, but we all went." E. Brown Dep. at 14. She also noted the difference in the mode of transportation. Regular education students rode on regular yellow school buses, but the gifted students rode on the more expensive motor coaches. Id.

  The inequities of the RSD's transportation practices were summed up by Michael Driscoll, the RSD's Attendance Director:

  

Qualifications for riding District 205 buses do not depend entirely on district or state regulations but on a program or where you live in the city. Students who live on the southeast side of town may be treated differently from students who live on the northwest side of town even when similar situations exist. Students in the regular high school programs are treated differently than students in alternative programs even though distance and situations may be comparable.

  

. . .

  

After reviewing the situation only one recommendation seems to be in order and that is to have a single set of clear, concise rules. These rules should be applied to all students. This would alleviate any ill feelings about any certain groups being treated unfairly at the expense of others.

  B46276 at B46277.

  The RSD ignored the demands of minorities for equitable distribution of transportation services, while generously providing transportation to alternative program students. In 1975, RBE member Dick Parrott met with the "Save Our Children Committee." The Committee demanded that the Board provide free transportation to the Southwest Quadrant students because there was no high school in that section of the District. The RBE did not pay for minority transportation in response to this demand. B15183. In contrast, the RBE provided transportation to white students who had been mandatorily reassigned. In February of 1970, the RBE approved a motion regarding transportation that stated:

  

Within the existing Board policy and within state statutes, students who choose to attend high schools in which they are now enrolled, and who have received free transportation from the Board of Education for high schools shall continue to receive such free transportation on the same basis.

  B12488.

  Similarly, at a RBE meeting on September 5, 1973, parents brought to the attention of the RBE transportation problems with regard to alternative program enrollees. A demand was made for the provision of Board-paid transportation to the alternative program sites. On September 10, 1973, a report was submitted to the RBE regarding the alternative programs at Latham Park, Haight and First Presbyterian Church. The report stated that all three alternative schools were without Board-paid transportation. Bd. Min., 9/10/73, B14066. One month later, Superintendent Salisbury announced that the RSD had an adequate number of drivers to alternative schools and all students who were supposed to receive transportation to alternative schools were getting it. B14120.

  On February 18, 1981, the Superintendent recommended to the RBE that additional monies could be saved by charging all families with alternative education bus riders for the actual cost of transportation to such programs, with those charges being waived for any family who currently or in the future qualified under the RSD's free lunch program. The RBE rejected the Superintendent's recommendation. B16967-B16968.

  The differing transportation policies for minority integration students and majority integration students created various burdens for the minority students. The RSD did little to alleviate these burdens. The cost of transportation alone was burdensome for minority mandatory reassignment students. At the student rate of $ 0.35 per round trip on the RMTD bus for 176 school days per year, minority parents of two children mandatorily assigned to Eastside secondary schools would pay $ 61.60 per child per year, for a total transportation expenditure of $ 123.00 annually. In contrast, under the RSD's policy, parents of alternative program students would expend $ 0.00 per year on transportation costs.

  The RBE was placed on notice that the cost of RMTD transportation was burdensome for minority parents. At a meeting of the Education Committee of the RBE on February 24, 1976, a Southwest side parent protested the inequitable provision of transportation to majority voluntary desegregation students and minority mandatory desegregation students. The minutes of the Committee read:

  

Mrs. Florence Ausler, a parent, said since the district provides free transportation for elementary and middle school children in integration programs, all high school children in the southwest quadrant should have free transportation because there is no high school in that area. "That 40 cents a day per child is killing us on the southwest side," Mrs. Ausler said.

  B3824.

  In September of 1982, Henrietta Washington told the Board she represented fifteen mothers upset with the Board's busing policies for high school students. Ms. Washington stated that eight years after the voluntary desegregation plan the RSD had one-way busing. She believed that the transportation burden was on the minority community and that the Board policy of requiring some Westside students to take city buses to Eastside high schools was costly to the family. Bd. Min., 9/28/82, B506488.

  Beyond the cost factor, qualitative differences between transportation by the RMTD and transportation by yellow school bus existed. Travel by the RMTD for mandatory desegregation students meant crowded conditions, with many more students than bus seats. Superintendent Bowen explained:

  

Well, they had what they call trippers, where the mass transit would have several buses lined up there and pack the kids in. If there was seats for 30, they'd have 80 and drive to East High School. And when I complained about that, one guy actually told me, well, if it tipped over, it's better off to have more kids in there because they wouldn't get as hurt when it rolled around. They wouldn't tip.

  Bowen Dep. at 103.

  Travel by the RMTD also meant a longer trip for minority mandatory reassignment students because of the need to transfer buses. Id. at 102-104. Superintendent Bowen testified that due to the public transportation rule, students on the Westside had to walk to the bus, ride downtown to the transfer point and then get on another bus out to East High School. The entire process from home to the bus line to the transfer point to East would take an hour and a half. Id. at 103-104. The situation was even worse for those students who wished to go to the Vocational Center. These students had to go through all of the transfer steps from the Southwest Quadrant to East High School and then take a special bus from East to go out to the Vocational Center. Id. at 104. In order to accommodate the increase in transportation time occasioned by having to transfer buses, minority students mandatorily reassigned to Eastside schools had to wake up especially early. Id. Moreover, because public transportation to the Eastside high schools was only available immediately after the end of the school day, the students riding the RMTD bus back to the Southwest side were impaired in their ability to participate in extra-curricular activities. Id. at 138.

  Transportation Costs As Pretext For Anti-Busing Stance

  The RBE members and the RSD top administrators have, over the years, opposed mandatory busing using the purported justification that the transportation costs for mandatory busing were prohibitive. Despite this stated reason, the RSD provided Board-paid transportation for many reasons including: mandatory busing for purposes other than desegregation; mandatory busing of minority students; and busing for white voluntary desegregation transfers. In fact, the RSD's transportation of students increased precipitously over the past three decades, thus exposing the RSD's cost concerns as pretextual. The RSD's opposition to mandatory busing for desegregation was, in reality, opposition to forced busing of white students for desegregation purposes.

  Over the years, the RSD cited the cost of transportation as prohibitive of mandatory busing for integration purposes. Cost was offered as a factor in opposition to mandatory busing for integration purposes despite the RBE's knowledge that most transportation costs were reimbursable by the State. In November of 1973, in response to a survey regarding the community's opinion on various desegregation plans, Director of Integration Oscar Blackwell said that the plan for 7% to 21% minority enrollment at all schools was most likely impossible because of the transportation problems and costs. B506294. In February of 1975, the RBE prepared and presented to Judge Bauer and the ISBE its "Recommendations for Student Housing in 1975-76 and Proposals for the Integration of the Rockford RSD #205." This document was prefaced by a statement from the RBE that "the transportation fund will permit little, if any additional transportation of students for the next school year." In December of 1976, Superintendent Johnson told representatives of several community groups that "finances will determine the progress of integration in Rockford Public Schools. . . . If we don't have the money for transportation, then we've got to pull the ring in, so to speak." B506426. In a special meeting of the Board on January 19, 1988, the Board discussed the program delivery study. Board President Kearny asked if transportation costs were involved in the delivery study. Don Erickson responded that transportation costs were not considered because most in relation to transportation were reimbursable. B20892.

  Despite its purported concern with the cost of transportation for integration purposes, the RSD transported an increasingly greater percentage of the student population since 1968. The RSD's figures show that during the period 1968 to 1986, the RSD's provision of transportation increased from 4% of the student population transported in 1968 to 60% transported in 1986. B24848-B24849. Board minutes from May 2, 1988 established that in 1988, the RSD was still transporting 60% of the student population. Bd. Min., 5/2/88, B21145. In fact, during the period of time from 1980 to 1986, when the RSD retreated on integrative measures, the RSD's provision of transportation actually increased at a rate greater than the entire preceding eleven year period. The period 1968-1979 showed an increase in Board-paid busing from 4% of student population in 1968 to 24% in 1979. B24848-B24849. In the period 1980-1986, Board-paid transportation increased from 28% of student population in 1980 to 60% in 1986. Id. The RSD prepared a graph that illustrated this rapid increase in Board-paid transportation from 1980 to 1986. Id. (Figure 2).

  Figure 2

  [SEE FIGURE IN ORIGINAL]

   None of the transportation figures represent mandatory busing of white students for integration purposes as white students were never involuntarily bused for this reason. The transportation figures, however, do represent Board-paid busing for many other purposes, including voluntary busing of students for integration purposes and a publicly unknown practice of providing privileged transportation services, or "privy stops," discussed below.

  Comments and actions from Board members and top administrators over the years indicated that the RSD was willing to provide transportation for purposes such as overcrowding, safety, annexation and voluntary integration movement. Also, in at least one instance where the RBE opted to forego transportation, the Board did so where the transportation would have constituted mandatory busing of white students into minority schools, even though the cost of foregoing transportation was greater than the cost of the transportation itself. The following findings illustrate the RSD's willingness to transport for any reason other than mandatory integration movement of white students.

  In May of 1968, Assistant Superintendent Dr. Herbert Smith and Superintendent Shaheen stated that the purpose of busing was to relieve crowding, not necessarily to achieve racial balance. B506101. In July of 1969, in a move aimed at integrating schools and reducing overcrowding, the Board voted 4-2 to move approximately 150 minority students from public housing areas to elementary schools outside of their neighborhood. The Jane Adams Village students were bused to Carlson School and the Fairgrounds Housing Project students were bused to Walker School. B506135; Bd. Min., 7/10/69, B12224-B12225.

  At its Board meeting of August 11, 1969, a motion was made and passed authorizing Board-paid transportation for two groups of students: students from an annexed district and students affected by the pilot project at Walker and Carlson Schools. Bd. Min., 8/11/69, B12267. In June of 1970, the RBE unanimously voted to move the Carlson students back to their neighborhood schools. The Board voted to extend for one year the busing program at Walker School only because there was no room in the neighborhood schools for students from the Fairgrounds Housing Project who were being bused to Walker. Bd. Min., 6/22/70, B12682.

  For safety reasons, the RBE closed Montague School in the Southwest Quadrant, after intense protest from the minority community, and agreed to bus students free of charge to Page Park School for the 1971-72 school year. The busing had nothing to do with busing for integration purposes. B506180.

  At a special meeting of the RSD in September of 1973, Dr. Michael Bakalis of the ISBE responded to the RBE's resistance to an involuntary desegregation plan. Dr. Bakalis stated: (1) transportation of students is not foreign to Rockford or to the State of Illinois; (2) students have been transported since 1945 in vehicles everyday going back and forth to school and that is not anything new or made up by the courts; (3) the majority of the communities in Illinois that bus students have nothing to do with desegregation; and (4) when you say you don't want transportation, we can empathize, but it is not appropriate or accurate to say that students are not transported. In response to Dr. Bakalis' comments, Board member Ronald Webster stated that there was a difference between transportation and forced transportation. Dr. Bakalis replied that after the consolidation of schools through annexation, transportation was forced. B14035.

  In January of 1980, the RBE unanimously voted to buy the Lou Bachrodt Chevrolet Dealership for 1.4 million dollars. The District did so in order to operate its own bus system out of the facility. With this purchase, the RSD made a commitment to run its own bus service for regular and vocational-education students, starting with the 1980-81 school year. B506461.

  At a RBE meeting in January of 1981, when the Board was discussing whether to close Roosevelt School, Darlene Hanna, a parent of a student at Roosevelt School, pointed out to the Board that no busing was necessary at Roosevelt. Roosevelt was the only school that was naturally integrated. B16951. Despite the fact that closing Roosevelt would create additional transportation burdens where none otherwise existed, the RBE voted in February of 1981 to close Roosevelt. Bd. Min., 2/18/81, B16963.

  Similarly, in 1989, the RBE adopted its Reorganization Plan that called for the closing of naturally integrated West High School. The RBE closed West High School despite the fact that West required less transportation than the other high schools in the district. Over a five-year period, the decision to close West instead of, for example, Jefferson High School, cost the district $ 2,118,948 in additional transportation costs.

  Additional Transportation Inequities ("Privy Stops")

  Prior to 1989, the RSD developed an unpublicized system of privileged transportation stops. Bowen Letter to Sullivan, B46283. These "privy" stops, as they were called, constituted an exception to the regular transportation policy that permitted transportation of a student who lived 1.5 miles from both a RMTD stop and a school. "Privy" stops were also an exception to the rule that students were required to walk up to six blocks in order to take a yellow bus. Id.

  Privy stop practice allowed a student who would not otherwise qualify for transportation, or who would otherwise be required to walk to a designated bus stop, to receive transportation or to receive transportation pick-up at a location contrary to the six block rule. Id. The granting of privy stops was a wholly subjective process. The RSD's transportation consultant, Michael Turza, reported: "No set criteria or guidelines were established for adding these stops." Id. The result of the privy stop practice was a little known system of privileged transportation that disproportionately benefited students whose parents were knowledgeable and articulate enough to request and pursue special treatment with regard to transportation. Privy stops were granted in response to parent requests and/or complaints. B46283. The highest number of privy stops was in the Spring Creek Elementary School area on the Northeast side, with nineteen privy stops in that area. Sullivan Dep., Ex. 5, B507294. The second highest number of privy stops was in the Bloom Elementary School area, also on the Northeast side, with sixteen privy stops. Id. Added Stops after summer routing requested by parents Northeast Northwest Southeast Southwest 10 AUBURN 6 1 1 2 11 EAST 13 GUILFORD 3 1 01 JEFFERSON 4 12 WEST MIDDLE 9 2 9 4 07 EISENHOWER 8 18 ELMWOOD CENTER 64 FLINN 4 06 J.F. KENNEDY 02 LINCOLN 22 BARBOUR 1 1 1 23 BEYER 24 BLOOM 16 1 3 1 26 BROOKVIEW 1 1 95 CARLSON 11 29 CHERRY VALLEY 1 27 CHURCH 28 CONKLIN 4 2 30 DENNIS 2 32 ELLIS 34 EVERGREEN 35 FAIRVIEW 38 FROBERG 10 39 GARRISON 40 GREGORY 45 HASKELL 50 HILLMAN 5 52 JACKSON 1 2 53 JOHNSON 4 3 62 KING 8 8 1 55 KISHWAUKEE 58 LATHROP 7 3 5 2 61 McINTOSH 17 MUHL CENTER 65 NASHOLD 4 66 NELSON 67 NEW MILFORD 5 69 PAGE PARK 73 RIVERDAHL 75 ROCK RIVER 2 76 ROLLING GREEN 2 2 79 SKY VIEW 81 SPRING CREEK 19 78 STILES 1 80 SUMMERDALE 1 3 82 THOMPSON 85 VANDERCOOK 87 WALKER 1 88 WELSH 1 1 1 2 89 WEST VIEW 3 91 WHITEHEAD 9 92 WHITE SWAN 8 13 Washington 6 4 14 4 Total 111 18 102 41 292

  CONCLUSIONS OF LAW

  Transportation is one of the "Green factors" used to determine whether a school district is operating a dual system. Transportation, and its attendant burdens must be operated in a unitary and non-discriminatory fashion. Clearly, a school district may not intentionally allocate inferior services or equipment to minorities. See, Carr v. Montgomery Bd. of Educ., 289 F. Supp. 647, 655 (M.D. Ala. 1968), aff'd, 395 U.S. 225, 23 L. Ed. 2d 263, 89 S. Ct. 1670 (1969).

  In school districts implementing desegregation programs, transportation policies that unduly burden minority students are unlawful. Lansing, 429 F. Supp. at 620. Desegregation must not be effectuated solely, or even primarily, by transporting minority students to majority schools. Diaz v. San Jose Unified School District, 861 F.2d 591, 596 (9th Cir. 1988); Parent Ass'n of Andrew Jackson High School v. Ambach, 598 F.2d 705, 717 (2nd Cir. 1979). Such one-way busing programs place the burden of desegregating a school system disproportionately on minorities and have the effect of maintaining a neighborhood school policy a reality for majority students, while making such a policy chimerical for minorities. As a result, courts must closely scrutinize charges that the burdens of desegregation have been distributed inequitably. Id.

  Unequal burdens must not be borne by certain racial groups unless a compelling justification is present. Diaz, 861 F.2d at 596; United States v. Lawrence County School Dist., 799 F.2d 1031, 1049 (5th Cir. 1986); Higgins v. Bd. of Educ. of City of Grand Rapids, 508 F.2d 779 (6th Cir. 1974). Whether a group is burdened impermissibly turns on "the validity of the Board's justifications for its proposals and the availability of feasible alternatives" to the objectionable measures. Diaz, 861 F.2d at 596; Arvizu, 495 F.2d 499, 504; see also Keyes v. School Dist. No. 1, Denver, 521 F.2d 465, 479 (10th Cir. 1975). Courts have condemned one-way busing plans that ignore other opportunities to achieve integration and place the burdens of integration solely on minorities. Lansing, 429 F. Supp. at 620; Brice v. Landis, 314 F. Supp. 974, 978 (N.D. Cal. 1969). Even if the motivation for instituting such plans is not pernicious, the plans are nonetheless impermissible. Lansing, 429 F. Supp. at 621.

  The RSD's longstanding practice of requiring the mandatory assignment of minority students to schools outside their neighborhoods for desegregation purposes, while imposing no similar burden on white students, was unfair, impermissible and unconstitutional. The RSD persisted with its practice of one-way busing despite widespread protests from the minority community. The transportation policies adopted by the RSD restricted and discouraged open enrollment and transfer to full-site focus centers.

  Furthermore, the RSD discriminated against minority students by providing more generous transportation services to voluntary integration students, predominantly majority students, as opposed to involuntary integration students, predominantly minority students. Minority secondary students were required to bear the cost of RMTD transportation and to suffer the qualitative differences of transportation from the transportation provided to majority students. The RSD's invocation of transportation costs as a justification for its anti-busing stance was pretextual. The RSD's opposition to mandatory busing for desegregation purposes was, in reality, opposition to the forced busing of white students for desegregation purposes. The RSD also unlawfully developed an unpublicized system of preferential transportation services that benefited white students.

  DISCRIMINATORY CONDITIONS IN THE COMPOSITION OF THE BOARD

  INTRODUCTION

  The minority community and the Southwest Quadrant have been severely underrepresented in the makeup of the Rockford Board of Education. From 1965 to 1989 only two Board members resided in the Southwest Quadrant. From 1965 to 1989 only three Board members were African-American and none were Hispanic.

  The RBE intentionally maintained an electoral system that it knew would minimize minority participation on the Board. Substantial evidence exists showing that the RBE, from 1965 through 1989, intentionally pursued a policy to keep the Southwest Quadrant underrepresented on the Board.

  FINDINGS OF FACT

  Board Members: 1965-1989

  From the time of the first elected Board in 1965 until the filing of the present suit in April 1989, a disproportionate number of RBE members resided in the Northeast Quadrant. This geographic underrepresentation resulted in severe minority under-representation on the RBE and a concomitant dominance on the Board of opponents of busing for integration during the critical 1970's. Additionally, the underrepresentation of elected minorities was aggravated by the RBE's manipulation of appointments to preclude or minimize Southwest/minority representation on the RBE.

  Basic information

  Prior to 1965, the RBE members were appointed by the Mayor of Rockford. Bd. Min., 10/28/63, B009228. On numerous occasions in 1963, the RBE discussed changing the method of Board member selection from appointment by the Mayor to election at-large. See, e.g., Bd. Min., 11/26/63, B009249; B009260; Bd. Min., 1/13/64, B010499. In January 1964, the RBE adopted a resolution to place on the ballot of April 14, 1964, a proposition to elect School Board members. Bd. Min., 1/13/64, B010499. In that election, the voters passed the referendum for the election of Board members at large. Bd. Min., 4/27/64, B010614. The first elected Board Members were then chosen in the April 1965 election. Bd. Min., 4/12/65, B011006.

  Board members elected and appointed (to fill vacancies) from 1965 through 1989 were as follows:

  

1965: Carlson, Harris, Severin, Thompson, Hollingsworth, Zaugg and Shafer elected.

  

1966: President Clifford Carlson reelected; John Floden elected.

  

1967: Marcella Harris reelected; Robert Taylor elected.

  

1968: Monte L. Atkinson, Harry E. Olson elected; Ben Zaugg reelected. Harry Olson resigned.

  

1969: Ben Zaugg resigned; an election held in April to replace the two resigned Board members and to fill vacancies for two expired terms of Board members. R. Page Reese, John Floden, Dr. John Schade and Robert Spangler elected to three and two year terms.

  

1970: Harold Seeber, Robert Cook, Edward Calhoon and W. Crawford Tucker elected.

  

1971: David Gustafson elected.

  

1972: David Hauman and Alice Heath elected to three year terms.

  

1973: Ronald Webster and Harold Seeber elected for three year terms.

  

1974: Richard A. Rundquist, Harry W. Darland and R. R. Dick Parrott elected to three year terms.

  

1975: Robert Beck, David Peterson and Mary Lou Yankaitis elected.

  

1976: Harold Seeber reelected; Delores Nilson elected.

  

1977: Dick Parrott and Richard Rundquist reelected; Carol Parker elected.

  

1978: Harry Darland and Colleen Homebeck elected to three year terms.

  

1979: Delores Nilson and Harold Seeber reelected to three year terms; Robert Niemann elected to a one year term.

  

1980: Carol Parker reelected; Robert Bates and Donald Goldman elected.

  

1981: Donald Goldman resigned and Carl Towns appointed. Colleen Holmbeck and Dr. Harry Darland elected to four year terms; and Carl Towns elected to two year term.

  

1982: Dr. Robert Bates resigned. Norman Kearney appointed. Harry Darland submitted his resignation. Randy Sturm appointed.

  

1983: Norm Kearney, Edward Conklin, Darlene Hanna, Robert McCarthy, Steven Imholt and Helene Price elected.

  

1985: Steven Imholt resigned. Michael Williams appointed. Jacqueline Confer, Terry Hodges, Robert McCarthy and Michael Williams elected.

  

1987: Robert McCarthy dies; Avery Gage appointed. Jo Minor and Mr. George Stevens elected.

  

1988: School Board President Norm Kearney resigns.

  

1989: Jacqueline Confer, Charles Holzwarth, Sara Ingrassia, Fred Wham and Terry Hodges elected.

  Figure 1 shows the composition of the RBE from 1965 to 1989.

   Figure 1

  COMPOSITION OF THE RBE FROM 1965-1989

  [SEE FIGURE IN ORIGINAL]

  Board Member Residency

  From 1965 to 1989 Board members resided in the following Quadrants of Rockford:

  27 Board members resided in the Northeast Quadrant;

  6 Board members resided in the Southeast Quadrant;

  15 Board members resided in the Northwest Quadrant;

  2 Board members resided in the Southwest Quadrant.

  Figure 2 shows the geographic representation of the RBE from 1965 to 1989.

  Defendant has stipulated to this Figure/Table.

  Figure. 2 Map Key

  RBE Member Residency by Quadrant (1965-1989)1

  NW (15 people)

  R. E. Hollingsworth

  Frances Shafer

  Ben Zangg

  R. Page Reese

  Robert Spengler

  John Schade

  David Gustafson

  Dick Parrott

  Robert Berk

  Marylou Yankaites

  Ed Conklin

  Darlene Hanna

  Jacqueline Confer

  George Stevens

  Terry Hodges

  SW (2 people)

  Marcella Harris

  Michael Williams

  SE (6 people)

  Montie Atkinson

  Robert Cook

  David Peterson

  Dolores Nelson

  Carl Towns

  Terry Hodges

  NE (27 people)

  Clifford Carlson

  Armer Severin

  John Pheden

  Sanwel H. Thomson

  Robert Taylor

  Edward Calhoun

  W. Crawford Tucker

  Hardd Seeley

  David Hauman

  Ron Webster

  Alice Heath

  Harry Darland

  Richard Rundquist

  Carol Parker

  Colleen Holmbeck

  Robert Nieman

  Robert C. Bates

  Stephen Inholt

  Avery Gage

  Fred Wham

  Sara Ignassia

  Donald Goldman

  Norm Kearney

  Robert McCarthy

  Helen Price

  Jo Minor

  Charles Holzwarth

  Board Member Race

  Although minorities constituted an increasingly greater portion of the RSD from 1965 to 1989 (10% in 1967 to 25% in 1989), an overwhelming percentage of Board members were white. Marcella Harris, Carl Towns and Michael Williams were the only African-American members on the RBE from 1965-1989. No Hispanics ever served as members of the RBE. Hiram Gregory Luna, an Hispanic and former member of the School Desegregation Committee, was a candidate for the RBE in 1973. He lost the election to Dr. Harold Seeber, an anti-bussing candidate supported by the Community Education Committee. Of the 175 Board member years from 1965 to 1989 (25 years times 7 board seats), only 12 and one-half years, or 7%, have been served by African-Americans, and zero by Hispanics. *fn33"

   Figure 3 shows the racial makeup of the RBE for the years 1965 to 1989.

   Figure 3

  Racial Make-Up Of The RBE From 1965-1989

  [SEE FIGURE IN ORIGINAL]

   Electoral System: The RBE's Role In Maintaining An Electoral System That Had A Disparate Impact On Minority Representation On the Board Of Education

  At present, Rockford School Board members are elected by geographic subdistrict. Though the Illinois statute authorizing election by subdistrict was first passed eighteen years ago, the first election of Board members by subdistrict in Rockford was held in November 1991. Over the years, beginning as early as 1973, the Board received recommendations from minorities, county officials, its own advisory committees and others that election by geographic subdistrict was necessary to "broaden the democratic base of Rockford's educational system" and to correct the virtual nonrepresentation of minorities on the Board under the existing at-large election system.

  In mid-November, 1972, as part of its discussions relating to school desegregation, the Board of Education created an Advisory Committee to prepare a study and report on a system of electing Board members by geographic subdistrict. The basic tenant of the study was that geographic elections would facilitate a broadening of the democratic base of Rockford's education system. The Advisory Committee's conclusion was that election by geographic subdistrict would enable "minorities to be more effectively represented."

  On December 10, 1973, the Advisory Committee submitted its finished report to the Board regarding election of Board members by geographic district. Despite Committee member comments in July to the contrary, the Committee concluded that the election of School Board members by geographical area "was a step in the fight direction" to broadening the democratic base of Rockford's education system. The Committee submitted its final report to the Board on December 10, 1973. The Committee's report enumerated the following list of pros and cons of geographical representation:

  Pros

  (1) Minorities will be more effectively represented.

  (2) More citizens will be interested in running.

  (3) Campaigning will be easier and less expensive.

  (4) Pressure groups' ability to dominate will be minimized.

  (5) Board members will be accountable to specific constituents.

  (6) People will have a more direct involvement in both:

  (7) The election of their representative;

  (8) Working with their representative.

  (9) Elections will be less partisan and less expensive to conduct.

  Cons

  (1) A Board member will tend to represent only his/her district.

  (2) All minorities will not be represented.

  (3) District boundaries will change periodically and therefore cause confusion.

  (4) Citizens will vote less often in voting by district.

  (5) Pressure groups will be better able to dominate.

  B506362. After consideration of these pros and cons, the Committee stated: "We affirm the principle of election by geographic areas . . . and we recommend that the Board request our local legislative representation to initiate . . . legislation. . . ." Id.

  In February of 1973, a subcommittee appointed by the RBE to study desegregation proposed a seven point desegregation plan to the Board. Part one of the plan related to school governance. That section of the plan stated:

  

[The condition of segregation] is directly attributable to the present school electoral process: At Large School Elections. It is our feeling that this process in itself is discriminatory. In this regard, we make the following recommendations: (a) that the Rockford School District No. 205 move toward electing its School Board Members by geographic sub-divisions, rather than at-large; (b) that a committee be set up by the Board of Education, composed of the Superintendent, teachers, and parents, (selected from the four quadrants), to investigate and make recommendations regarding Board selection by districts; (c) that this process be begun immediately, upon acceptance of the School Desegregation Plan.

  B003003, B003010.

  At its meeting of February 21, 1973, the RBE received the desegregation proposals of numerous groups, including a group representing the Latin American community. Among other things, the Latin American group proposed that election of School Board members be by geographic subdistrict. No action was taken by the Board.

  On April 2, 1973, the Central Committee on Desegregation (steering committee for the Community Desegregation Committee) presented to the RBE its recommendations. As part of its recommendations, the Committee urged the RBE to consider the election of Board members by geographic subdistrict for the April 1974 election. No action was again taken by the Board.

  In 1975, a second Advisory Committee was appointed by the Board to again study the pros and cons of election by geographic subdistrict enumerated by the 1973 Committee. The second Advisory Committee studied the election returns from all School Board elections since before the District became at-large in 1965. The Committee also did a demographic study of all the School Board candidates since 1965. Still no action was taken by the Board.

  In August 1984, more than fifty Southwest residents met with Superintendent Mell Grell. The meeting was sponsored by the Booker Washington Center and was composed of minority organizations. The minority organizations expressed to Grell their concerns about minority under-representation on the School Board and in the school system.

  Despite numerous attempts, *fn34" the RBE only once placed the issue of election by subdistrict on the ballot. Then in 1989, 10% of the electorate placed the issue on the ballot by petition and the referendum for election by subdistrict was finally passed.

  RBE Gerrymandering of Subdistrict Electoral Boundaries35

  Subsequent to the November 1989 referendum, the Board adopted an electoral map that interfered with the voting and representational rights of minority voters in the District. Also, after passage of the subdistrict referendum in November 1989, and prior to the first election by subdistrict in November 1991, Board member Holzworth, on several occasions during Board or Board committee meetings, urged the RBE to gerrymander the new subdistricts to avoid creating a subdistrict with a majority of African-Americans.

  Holzworth further objected to hiring someone to draw the districts. He stated that he could draw them himself if he was given a pen. Holzworth also wanted to pick people in the community to draw them. Additionally, Holzworth made comments to the effect that he would not be responsible for creating a minority district. Mr. Holzworth believed that no such district should be created. Minor Dep. at 45; Confer Dep. at 104-106.

  On more than one occasion, Holzworth stated that if the boundaries were drawn correctly no minority candidate would win a board seat. He again offered to draw districts that could accomplish this result. Minor Dep. at 47; Confer Dep. at 106. In the fall of 1991, while the issue of the electoral map was pending in this court, Holzworth stated that he didn't want to have "a district where an ignorant black could be elected," and that the subdistricts could be gerrymandered to avoid such a result. Minor Dep. at 48; Confer Dep. at 105-106, 114.

  Although other former Board members have subsequently disavowed any sympathy for Holzworth's position, the RBE did, in fact, adopt an electoral subdistrict map that did not create a subdistrict with a majority of African-Americans and that fractured the African-American community. The map was adopted by the RBE as drawn despite the fact that it was possible to create a subdistrict with a majority of African-Americans.

  On May 21, 1991, the RSD adopted the proposed subdistrict electoral map for the election of Board members by subdistrict and submitted it to the court for approval. Plaintiffs filed an alternative electoral map with the court on July 15, 1991. This alternative map created a subdistrict with a strong African-American majority of total population and a 50% African-American voting age population.

  On September 12, 1991, Judge Stanley J. Roszkowski made the following findings of fact:

  

The African American community in School District 205 is sufficiently large and geographically compact to constitute a majority in a single subdistrict.

  

The census figures demonstrate that almost 70% of Rockford's African American population resides in a geographically contiguous and cohesive area in the southwest quadrant of Rockford. Within the borders of the African American community live approximately 25,671 persons, of whom approximately 15,489 (60.37%) are African-Americans.

  

Using the average subdistrict size of 25,884, there is ample population within the African American communities to form a subdistrict with a total population over 60% African American and a voting age population over 50% African-American.

  

Despite these facts, the Defendant by its map failed to create a single subdistrict with a voting age population over 50% African-American.

  

No subdistricts under the Defendant's Map contained even an African-American majority of total population.

  

Under the Defendant's map, the African-American population was "fractured" and significant groups of African-American voters were separated from contiguous African-American communities and assigned to white majority subdistricts.

  

Under the Defendant's Proposed Map, the African-American community in the southwest quadrant was divided among three subdistricts that contain a large white majority of both total and voting age population and one subdistrict that is comprised of 47% white voting age and 39% African-American voting age population.

  

The African-American community is politically cohesive. African-Americans tend to vote as a group and to vote for African-American candidates.

  

The African-American community is subject to majority bloc voting against its candidates. In addition to lay witness testimony in this regard, the evidence is that no non-incumbent African-American candidate has ever been elected to the School Board.

  

There exist significant additional social and historical factors which interact with the Defendant's proposed fracturing of the African-American community to cause minority vote dilution.

  

These additional factors include lower income levels, depressed housing conditions, and school segregation, for African-Americans in Rockford.

  

These additional factors are supportive of Plaintiffs' claim of minority vote dilution.

   In its September 12, 1991 Order, the court held that the evidence "suggests a reasonable possibility that electoral subdistrict boundaries can be drawn which comport both with the dictates of the Voting Rights Act, and with the state law requirements and the federal legal norms of compactness and contiguity." The court then ordered the parties to immediately commence a joint effort to conform subdistrict boundaries to the requirements of Section 2 of the Voting Rights Act and Section 7-4(c) of the Illinois School Code. In sum, the court ordered the parties to create a map that would contain:

  

a. a subdistrict with a voting age population over 50% African-American;

  

b. a second subdistrict with a significant concentration of African-American and other minority voters;

  

c. no subdistrict which has an "excessive majority" of African-Americans (in line with Thornburg v. Gingles, 478 U.S. 30, 46 n.11, 92 L. Ed. 2d 25, 106 S. Ct. 2752(1986)); and

  

d. subdistrict boundaries which circumscribe only territories which are "compact and contiguous", as that phrase is defined under Illinois law.

  On September 23, 1991, the parties submitted to the court a joint electoral map. The joint map created a subdistrict with a voting age population over 50% African-American; a second subdistrict with a significant concentration of African-American and other minority voters; no subdistrict with an excessive majority of African-Americans; and subdistrict boundaries that circumscribed only territories that were compact and contiguous. On October 18, 1991, the court subsequently approved the parties' joint map as meeting the legal requirements of the Voting Rights Act in that, as drawn, it did not diminish or defeat the representational rights of African-American voters.

  CONCLUSIONS OF LAW

  The court finds that the RSD pursued an intentional policy to keep minorities off the Board. The RSD did this in two ways. It unlawfully manipulated appointments to preclude or minimize minority representation. It further refused to allow election to the Board by subdistricts. By keeping election to the Board systemwide, the RSD assured that the Board would be white dominated. The actions of the Board subsequent to 1989 repugnantly display this intent to the court.

  EXTRACURRICULAR ACTIVITIES

  INTRODUCTION

  As Defendant has pointed out, literally hundreds of minority students in the RSD have excelled in football, basketball, baseball, and other sports. This includes both male and female students. Plaintiff does not challenge this fact. If given equal opportunity, minority students have faired well, if not excelled. The evidence indicates that minority students were not at all times given an equal opportunity. Two specific examples of such discrimination were the RSD's transportation policies and the selection of students for activities such as the cheerleader squads.

  FINDINGS OF FACT

  Desegregation Transportation Policies

  The RSD had a desegregation policy that involved the mandatory busing of minority students. This policy forced minority students away from their neighborhoods. School buses would operate based upon the normal school day. For the most part, the buses would not run in late afternoon or early evening. Therefore, if minority students wanted a ride back to their neighborhood, they would have to take the school bus home when the normal school day was over. Without access to alternate transportation, they could not participate in after-school activities.

  Superintendent William Bowen testified that when he was principal at East High School, mandatory reassignment students attending East were effectively precluded from participating in extracurricular activities by virtue of the fact that mass transit transportation was not available after regular school hours and the RSD did not provide buses for after-school activities. No activity buses were provided by the RSD to allow minority participation in extracurricular activities. Bowen Dep. at 138-139.

   Several witnesses testified on behalf of Plaintiffs attesting to this fact and the resulting problems. Mr. Ousley Walker, an African-American, testified that he participated in a multi-racial parents group at East High School in 1973. One of the problems the group attempted to address was the lack of African-American students in extracurricular activities at East. Walker Dep. Ex. at P 9. Linda Brown, an African-American female, had two children who attended the Rockford Public Schools. Ms. Brown enrolled her daughter, Eleanor, through the open enrollment program at Maud Johnson Elementary School. She testified that it was "impossible for Eleanor to join in after school activities because her school bus left right after class." Brown Dep. Ex. 1 at P 14. Sidella Hughes testified that her children were bused to Brookview School in the Northeast Quadrant. Her children were unable to participate in certain programs since those programs "began 15 minutes after buses left the school to return children to the west side."

  Finally, Alicia Benford, an African-American female who was mandatorily assigned to Guilford High School and graduated from Guilford in 1991, testified that "because I rode the school bus, I was prevented from joining many of the extracurricular activities at Eisenhower and during my first two years at Guilford." For example, she testified, "I wanted to join the Student Council at Guilford, but I did not try because the group met after school and if I stayed for a meeting I may not have had a way home." Benford Dep. at 11.

  Despite RSD recognition of the transportation problem faced by desegregation students desiring to participate in extracurricular activities, the lack of transportation remained an obstacle to minority access to after-school programs. As early as 1974, the Board recognized that lack of transportation diminished minority access to extracurricular activities. The Board discussed transportation for desegregation students who wished to participate in intramural events. According to the handwritten notes of the meeting, the following alternatives were proposed: (a) one bus was to come early and another to come later; (b) one late bus going to several schools; and (c) one additional late bus for one school only. B34059. Despite the Board's early recognition of the problem, lack of transportation has remained in recent years an obstacle to extracurricular participation by minorities involved in movement for desegregation.

  In response to a drop-out study presented to the Rockford Board of Education by the Research and Development Committee on April 12, 1988, minority Board member Mike Williams pointed out that extracurricular activities are less accessible to students who are at high risk of dropping out (minorities). He attributed the inaccessibility to lack of transportation. Williams noted that parents wanted their children to participate in after school activities but lacked transportation for such activities. Bd. Min. 4/12/88, B21080; Williams Test., Tr. 2364.

  Historical Discrimination In The Selection of Cheerleaders

  RSD Superintendent William Bowen testified regarding the entrenched nature of racially exclusive cheerleader squads at East High School in the 1970's. When Mr. Bowen first became principal at East in the 1970's, "one of the huge issues" for African-American parents and African-American students in terms of unfair treatment was the fact that there were no African-American cheerleaders. The cheerleader selection process in the 1970's was such that all the judges were white and the white girls "had a farm system." Bowen testified: "Their sisters were cheerleaders, their neighborhood had a cheerleader, they taught each other the cheers that were used in the selection process. They knew what to do. They knew how to do those cheers. They were trained, and so consequently when they tried out they would do better." Bowen 1992 Dep. at 71-72.

  In connection with the multi-racial parent committee at East, Bowen changed the cheerleading faculty advisors the second year, developed a new judging process intended to be more objective and offered workshops for children in minority neighborhoods so they could learn the cheers. Bowen's acts of changing the faculty advisor and changing the selection process, were both signals that he, as the school's principal, wanted to change the racial composition of the cheerleading staff. He also sent a lot of other signals showing that the intention of these changes was to have some African-American cheerleaders, and "everybody knew that this was a big issue in the school." Despite the change in procedures, the result was the same -- all white cheerleaders. Id. at 73-74.

  At that point, even though the Athletic Conference rule was a maximum of six cheerleaders, Bowen increased the number to eight and put two African-American cheerleaders on the squad. Bowen testified that once on the squad, they were competent cheerleaders, as good as anybody else. Id. at 74, 77.

  Bowen further testified that his integration of the cheerleading staff was "not universally accepted" by the school staff. Staff members thought he had unfairly advantaged the minority cheerleaders to the detriment of the traditional selection process, the same process that resulted in all white cheerleaders. Some staff members were angry about Bowen's actions. Next year, Bowen put the African-American members of the faculty on the cheerleader selection team, provided more training for minority students and invited parents to come and watch the selection process. That year the selection process resulted in two or three African-American cheerleaders out of eight. This integration of the cheerleading squad remained during Bowen's tenure as principal. Id. 78-79. Based on his experience at East and later as Director of Secondary Education, Bowen testified that the same racial disproportion problems existed at other RSD high schools. Id.

  Former Auburn High School student Gwen Robinson, an African-American, also testified regarding the racial identifiability of the cheerleading squad at Auburn. Before 1964, Auburn, like other Rockford high schools, had a history of whites-only cheerleading teams. Ms. Robinson testified that during her middle school years, all of the older neighborhood minority girls who tried out for high school cheerleading were rejected and were consistently rejected over the years, despite their selection to cheerleading squads at the junior high level. When Ms. Robinson tried out during her junior year (1964), some members of the boys' basketball team threatened to boycott practice the day of the tryouts and threatened to quit the team if she was not selected as a cheerleader. The selection process involved instructors "walking among us and watching us, and then they began to weed out those who they felt were not qualified. . . What was interesting is that when they finally got the group down to, I would say, a magic number of, I am not sure what that number was, I was the only minority or black participant left." Robinson Dep. at 7-8.

  Ms. Robinson's selection to the team was a major event in Rockford, gaining newspaper coverage. The selection process and her participation on the team, however, were not without incident. When Robinson was selected to the cheerleading team, her family and she received death threats and harassing phone calls at her home. "I remember callers saying that I had better not show up to cheer at particular schools. Another caller told me that he didn't want to see a 'nigger messing up the cheers.'" Robinson Dep. Ex. at P 9.

  When the Auburn cheerleaders went to other schools, they were frequently jeered and booed by people in the stands. The cheerleading coach would not allow the girls to do flips because people "had complained to the coach that they did not want to 'see some nigger girl's ass.'" Id. at P 10. After she made the squad, Robinson was treated differently from the other cheerleaders by the RSD staff. She was told by the staff at Auburn High School that she would not be going to the cheerleading camp at Williams Bay since her parents could not afford the clinic. She attended the camp, nonetheless, since her parents, in fact, could afford to send her there. Id. at P 11.

  CONCLUSIONS OF LAW

  A unitary school system extends beyond the classroom to extracurricular activities. Green v. County Schoo. Bd. of New Kent Co., Va., 391 U.S. 430, 435, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968). Segregation or discrimination in extracurricular programs is unlawful. See Arvizu v. Waco Independent School District, 732 F. Supp. 721, 725 (W.D. Tex. 1989). The full range of extracurricular programs is subject to strict scrutiny. See, Quarles v. Oxford Municipal Separate School Dist., 868 F.2d 750, 757 (5th Cir. 1989) (school musical); Arvizu, 732 F. Supp. at 724-25 (cheerleader tryouts).

  Every child, no matter their color, should have the opportunity to participate in all activities offered by a public school system. The RSD allowed subjective selection criteria to be used in connection with a student's participation in certain extracurricular activities. This subjective selection criteria resulted in racial identifiability and underrepresentation of minorities in these extracurricular activities. No barrier to participation in extracurricular activities based upon a child's skin color may exist.

  Further, the RSD's desegregation policy of busing minority students away from their neighborhoods while retaining neighborhood schools for white students, coupled with the RSD's policy of refusing to provide after-school transportation services to be bused minority students, resulted in the inability of minority students to participate in after-school events due to a lack of transportation home. The RSD has a legal obligation to see that this type of discrimination does not continue.

  BILINGUAL EDUCATION AND OTHER EDUCATIONAL DISCRIMINATION ISSUES AFFECTING HISPANICS

  INTRODUCTION

  The RSD engaged in discriminatory conduct against Hispanic-American students with regard to the District's Bilingual Program and with regard to other educational issues. The discriminatory actions of the RSD included the following:

  

1. Involuntary movement of bilingual students for desegregation purposes while imposing no involuntary transfer burdens for desegregation purposes on white students;

  

2. Segregation of bilingual students within receiving schools;

  

3. Provided transportation for bilingual students that was qualitatively inferior to the transportation provided to voluntary white desegregation students;

  

4. Refused to provide bilingual special education programs for Hispanic-Americans while providing special education programs for English-speaking students; and

  

5. Provided lower quality education to bilingual students as compared to white students.

  FINDINGS OF FACT

  Disproportionate Desegregation Burdens Placed On Hispanic-American Students

  Like other minority students, Hispanics in the Bilingual Program were mandatorily reassigned for desegregation purposes while white student participation in desegregation programs was voluntary. The RSD frequently moved the Bilingual Program for purposes of desegregation. The relocations had negative effects on the bilingual students involved.

  The Bilingual Program was established in 1972 at the urging of the Hispanic-American Community. Mr. Andy Campos, an activist in the Rockford Hispanic community, approached Superintendent Johnson regarding the institution of a bilingual program in the RSD. A need for a bilingual program existed in the school system as Spanish speaking students were tested and taught in English. Accordingly, many Hispanic students failed classes and were labeled as mentally retarded because they could not respond to the tests in English. Campos Test., Tr. at 3470.

  In March of 1972, the Education Committee of the RBE voted unanimously to approve a bilingual education program. Bd. Min., 3/4/72, B506205. The committee reported that the Bilingual Program "was designed to exit the bilingual student when the language proficiency of the student [was] equal in both English and Spanish, and the student [was] performing at grade level." B27697.

  The RSD's first Bilingual Programs were housed at Southwest Quadrant Barbour and King schools. The curriculum initially consisted of a pull-out program in which children in kindergarten through third grade spent half a day with a bilingual teacher implementing the curriculum in their native language. The other half of the school day was spent in the regular English-speaking classroom. Through this method, the program gave the students the assistance they needed and integrated them into the population of the building. In subsequent years, the program expanded to include a preschool program at King Elementary School, kindergarten-sixth grade at Barbour, a junior high school program at Washington and a high school component. Throughout this period, Ms. Victoria Mayer served as head teacher and then coordinator of the Bilingual Program. The Bilingual Program was successful at Barbour. Mayer maintained that in the six years of the program, the bilingual children experienced interaction and cohesiveness with the other children in the building. She believed that the program provided a real opportunity for cultures, especially Latino and African-American, to meet and interact. The same cohesiveness existed between the bilingual teaching staff and the other teachers in the school. Mayer further observed that there was a great deal of communication between parents and teachers in the program.

  Hispanic-American parents were also pleased with the programs at Barbour and King, in part because the programs were housed in the center of the Latino community in Rockford. B32708; Gerdes Dep. at 21. In 1977, however, the RSD moved the King and Barbour programs out of the Southwest Quadrant to the Southeast Quadrant as part of its desegregation program.

  The RSD desegregation plan included the transfer of the Bilingual Program to Whitehead School, from Barbour and King Schools, in order to reduce the minority population at King and Barbour. The distance from the King/Barbour area to Whitehead school was approximately 5.5 miles. The RSD moved the bilingual program to the Eastside despite the existence of an alternative option that would have accomplished desegregation but retained the Bilingual Program at the Southwest side Barbour School. This alternative option involved the pairing of Barbour with a majority school. Such an alternative was illustrated in a memo to the RBE on January 10, 1977 from Superintendent Johnson in which he stated:

  

%

  

Another option would be to retain the bilingual-bicultural program at Barbour and pair Barbour with a majority school interested in such a program so that the number of majority and minority students are balanced to comply with school district integration objectives.

  Johnson Memo, 1/10/77, B544117.

  Parents of the bilingual students expressed many concerns about moving the program to Whitehead School. The children had become quite attached to Barbour and the move of the Hispanic students to an Eastside site had the effect of removing the program from the center of the Latino community in Rockford. B32708. Even though Mayer was coordinator of the Bilingual Program, neither she nor anyone on her staff was consulted by Superintendent Johnson, or any other administrator, before the decision was made to move the Bilingual Program to Whitehead. Resistance to the Bilingual Program occurred once it was moved to Whitehead. Mayer recounted one particular incident where a sign stating "Speak English Here" was placed in the faculty lounge. According to Mayer, the obvious reference was directed to the Bilingual Program teachers who often spoke Spanish in the lounge.

  Even though the RSD moved the Bilingual Program from Barbour and King to the predominantly white Whitehead School in order to reduce the minority percentages at King and Barbour, the RSD failed to effectuate any significant changes at Barbour. The movement of the Bilingual Program only reduced the minority percentage at Barbour by less than two percent. No white students were added to Barbour after the Hispanic American students were relocated. Enrollment data for the school years 1976-77 and 1977-78 reveal that, while the transfer of the Bilingual Program out of Barbour reduced the Hispanic American percentage at Barbour from twenty-six to four percent, the total minority percentage at Barbour changed only slightly, from 85.66% in 1976-77 to 83.27% in 1977-78. Stolee Tab 24, Barbour and Whitehead Schools.

  The use of the Bilingual Program over the years as a desegregation device (beginning with the Barbour-Whitehead move), served to place greater desegregation burdens on Hispanic American students than on white students. The elementary Bilingual Program was moved an average of once every three years beginning with the move to Whitehead in 1977-78, up to and including the most recent move in 1989-90. The Bilingual Program remained at Whitehead for only two school years. Id., Staff History at 1.

  In 1979-80, the Program in the lower elementary grades was moved from Whitehead to New Milford (predominantly white), a Southeast side school. The upper elementary grades were moved to Gregory (predominantly white), a Southeast side school. Id. ; B500248. Gregory was seven miles from the Latino community in the King/Barbour area of the Southwest Quadrant; New Milford was eight miles. Milage Chart, B2018. In 1983-84, the RSD moved the Program from New Milford to Walker (predominantly white) in the Northeast Quadrant. Bd. Min., 4/30/83, B506500; Stolee Tab 24, Staff History at 1. Walker was three miles from the Hispanic-American community in the King/Barbour area of the southwest quadrant. Milage Chart, B2018. In 1989-90, the RSD moved the elementary Bilingual Program from Walker, in the Northwest Quadrant, back to the Southeast Quadrant to Nashold (predominantly white). Stolee Tab 24, Staff History at 1. The distance from the Barbour/King area to Nashold was six miles. Milage Chart, B2018.

  The RSD's express purpose in moving the Bilingual Program was to establish increased minority enrollment at predominantly white schools. The RSD always labeled the Bilingual Program as a desegregation program. The move from King and Barbour to Whitehead was primarily for desegregation purposes. B39277. The Program was moved from Whitehead because that school was overcrowded. The Program was moved to New Milford because New Milford had a minority enrollment of only 0.4%. B500248. All subsequent moves were made to schools where the majority enrollment exceeded 80% (Walker 85.26% and Nashold 82.88%). Stolee Tab 24, Hispanic at 1. In transportation documents, the Bilingual Program over the years was consistently referred to as a "focus" program, the name assigned to the voluntary magnet schools.

  The RSD's labeling of the Bilingual Program as a "focus" program implied that it was voluntary in the same sense as the predominantly white alternative and focus (magnet) programs established to lure white students to Southwest side schools.


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