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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,


The opinion of the court was delivered by: MAHONEY










Within-School Segregation In Mid-1970 "Desegregation Programs"
Intact Busing: The Grade Exchange Plan
Within-School Segregation Through Part-Time Programs
Segregation Of Minority Transfer students Within Receiving Schools
Elementary Schools
Segregation Of Students Within Schools By Tracking
Segregation Of Elementary Bilingual Students
Segregation Of Special Education Students
The RSD'S De-Emphasis Of Full-Site Magnet Programs
May 1972 One-Week Magnet Schools
Bloom Focus Center
Haskell Focus Center
The Alternative Middle and Elementary Schools
Purposeful Creation Of Segregated Partial-Site Alternative Programs
The Gifted Program
Partial Desegregation, Followed by ReSegregation, of the Gifted Program, 1977-1986
The RSD's 1987 Report and Personnel Testimony Revealing Gifted Program Segregation
Continuing Segregation of the Gifted Program Up Through 1989
Physical Segregation of Gifted from Regular Students Within the Schools
The RSD's Separate "Minority" Gifted Program
RSD's "Satellite" Gifted Programs
The Creative And Performing Arts Program (CAPA)
The Academics Plus Program
Arts Alternative
Low-Status Alternative Programs
Student Assignment and School Boundaries Prior to the QUEFAC Lawsuit and the ISBE Investigation
Student Assignment in the Late 1950's and Early 1960's
Attempts By Superintendent McIntosh to Re-Assign Students
Assignment of Northeast Quadrant Students to Guilford Rather Than West High School
Conversion of Jefferson Junior High School to a Senior High School
West Side Elementary School Boundaries - Late 1950's - Early 1960's
Refusal to Reassign Students to Balance School Utilization in 1965
Assignment of Morris Kennedy and Nashold Ninth Graders From School District 125 to Auburn High School
"Rockford Team" 1967 Integration Proposals
The Pupil Placement Committee (PPC)
The Middle Schools Proposal
The Veritas, REA and the RDS Principals' 1970 Redistricting Proposals
New School Construction in 1969-71
1969 Elementary School Attendance Area Boundary Changes and Reassignments
Walker and Carlson Busing of Public Housing Children
Construction of John F. Kennedy and Eisenhower Junior High Schools
Proposals in 1966-67 to Close Old Schools in the Central Rockford Area
Closing of Hall School
Closing of Montague School
Construction of Martin Luther King School
Closing of Franklin School
Packing of White Schools to Maintain Segregation in the 1970's and 1980's
Closing of Morris Kennedy Elementary School in 1971
Packing of African-American schools to Maintain Segregation
Student Assignment and School Boundaries During the QUEFAC Lawsuit and the ISBE Investigation
The Community Desegregation Committee
Closing of Muldoon School and Clustering
Reassignment of Lincoln Park Sixth Grade and use of Portable Classrooms
Noncompliance With The ISBE Rules in September of 1973
1973 QUEFAC Proceedings
Grade Exchange Plan
REA Intervention in the QUEFAC Litigation
Interest Center Implementation
The RSD's Knowledge of Successful Integration Efforts
The RSD 1975 Integration Plan
Mandatory Assignment of African-American Students From Satellite Attendance Zones
Open Enrollment Policies
1975 Status Report on Integration
The RSD's Refusal to Comply With The ISBE's 1976 Rules
Alternative School Programs: Failures, Disparate Burdens and Benefits
1976 RSD Integration Plans
ISBE Finding of Noncompliance
October 1976 Revised of Noncompliance and Probationary Sanction
May 1977 Integration Plan
Revisions of the May 1977 Plan
Construction of New Jefferson High School
Noncompliance With The ISBE Rules in The Late 1970's
The ISBE 1980 finding of RSD Noncompliance
The RSD Difiance of The ISBE Rules - Opposition to Student Assignment Goals
Disparate Burdens on African-American Students By Continuing Mandatory Assignment to Eastside Schools
Student Assignment and School boundaries Subsequent to the QUEFAC
Lawsuit and the ISBE Investigation
1980 Student Reassignments and Closing of Schools
Dismantling of Alternative Programs
Systemwide Disparities In Facilities And EMS
Data Demonstrating Systemwide Disparities
Witness Testimony
Disparity Examples At Individual Schools
The RSD'S Private Gifts Policy Contributed To EMS Disparities
The Extent Of Segregation In The School System Prior To The Reorganization Plan
The January Version Of The 1989 Reorganization Plan
The Revised February 1989 Reorganization Plan
The Deliberative Process In Adopting The 1989 Plan RSD Elementray Schools
The Effects Of The Reorganization Plan On the RSD Elementary Schools
The Reorganization Plan Resegregated The District's Elementary Schools And Students In Terms Of School Enrollments
Resegregation of Southwest Quadrant Students
Resegregation of Non-Southwest Schools
Systemwide Resegregation of African-American/Hispanic Elementary Students
Systemwide Resegregation of White Elementary Students
The 1989 Plan Resegregated Schools By Adopting Measures That The District Itself Had Identified As Constituting DeJure Segregation
De Jure Segregation Criterion in 1981 IBA Report
Church School
Dennis School
Stiles School
Ellis School
McIntosh School
The New Wilson Elementary School
King and Barbour Schools
Haskell School
Garrison School
Resegregation of Non-Southwest White Schools
The 1989 Plan Resegregated African-American/Hispanic Students By Placing Them In Huge Warehouse Schools, Without Promised Education Support
The 1989 Plan Segregated The Schools By Promising, But Not Delivering, Educational Improvement Measures For African-American/Hispanic Students
The 1989 Plan Resegregated the Schools by Sharply Restricting Voluntary Transfer Opportunities
The 1989 Plan R Segregated The System By Removing The Alternative Programs From Southwest Elementary Schools
The Plan, As Initially Adopted and Implemented, Created Segregated Academics Plus Alternative Programs
The Pattern Of Elementary School Closings Imposed Disparate Burdens On Minority Students And Neighborhoods
Complete Closures of Schools
Partial Closures Through Split Grade Structures
Closings and Pairings as a Percentage of Schools in A Quadrant
Under The plan, The Schools In The Southwest Quadrant Were Overcrowded And No Space Was Available For Special Programs
The Effects Of The 1989 Reorganization Plan On RSD Secondary Schools
The 1988 Level Of Desegregation In the RSD Secondary Schools High Schools
High School Attendance Areas As Of 1988
Middle School Attendance Areas As of 1988
Recommendations Of The Ad Hoc Citizens' Committee
The Board's Goals For The Reorganization Plan And Criteria for School Closings
Information Before The Board In Its Deliberations
The Administrative Staff's January 17 Recommendations To The Board
The January 24 Reorganization Plan
Public Reaction To The January Plan
Reconsideration Of The West High Closing
The RSD's February Reorganization Plan
Option Zones In The Final February 28 Secondary Boundaries
The 1989 Plan Promoted Segregated Conditions In Secondary Schools By Eliminating Voluntary Transfer Opportunities For Minority Students
Failure To Meet QUEFAC- Era Hiring Goals And Other Affirmative Action Obligations
Assignment Of Black Teachers To Black Schools
Principals And Other Administrative Staff
Other Staff
Collective Bargaining History: Teachers And Other Professional Staff
Collective Bargaining History: Clerical Employees
Custodial Staff
Other Staff
Transportation Policies And Practices Affecting Desegregation And Desegregation Burdens
Transportation Policies And Practices Diminished Desegregation
1970's and Early 1980's: Transportation Problems Discouraging Open Enrollment Transfers
1970's and 1980's: Discriminatory Provision of Open Enrollment Transportation
1970's and 1980's: Effects of Discrimination and Transportation Problems on Success of Open Enrollment
1980-1989: Direct Restriction of Open Enrollment Transportation
Discriminatory Transportation Policies and Practices As Between Minority Integration Participants and White Integration Participants
Transportation Costs As Pretext For Anti-Busing Stance
Additional Transportation Inequities ("Privy Stops")
Board Members: 1965-1989
Basic information
Board Member Residency
Board Member Race
Electoral System: The RBE's Role In Maintaining An Electoral System That Had A Disparate Impact On Minority Representation On the Board Of Education
RBE Gerrymandering of Subdistrict Electoral Boundaries
Historical Discrimination In The Selection of Cheerleaders
Disproportionate Desegregation Burdens Placed On Hispanic-American
Segregation Of Elementary Bilingual Students
Transportation Discrimination
Educational deficiencies
State of Illinois And U.S. Department of Education Findings of Deficiencies
Failure to Provide Effective Special Education to Non- and Limited- English-Speaking Students
Overview of the Law
Causation - The First Keyes Factor
Intent - The Second Keyes Factor
The Scope of Liability - Once the Keyes Factors Have Been Established
Liability For The Conduct Of Agents And Employees
Natural Residential Segregation/Neighborhood Schools Defense
Incremental Segregative Effect
Equitable Relief Is Appropriate
In the greatest dissent ever written, the first Justice Harlan stated:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievement, in education, in wealth and in power. . . . But in the view of the Constitution, in the eye of the law, there is in this country, no superior, dominant ruling class of citizens. There is no caste here. Our Constitution is color blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights, as guaranteed by the supreme law of the land, are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

  Plessy v. Ferguson, 163 U.S. 537, 559, 41 L. Ed. 256, 16 S. Ct. 1138 (1896). Justice Harlan was dissenting from a decision of the United States Supreme Court that was later used to allow the separation of races in education. That decision was overturned by a later Supreme Court in the case of Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954). In Brown v. Board of Education, a unanimous Supreme Court pointed out:

In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, when the state has undertaken to provide it, is a right which must be available to all on equal terms.

  Id. at 493.

  The following opinion relates the activities of a school district that has consistently and massively violated the dictates of Brown v. Board of Education. It is the story of a school district that, at times, has committed such open acts of discrimination as to be cruel and committed others with such subtlety as to raise discrimination to an art form.


  This lawsuit was filed on May 11, 1989. It was filed by Plaintiffs as a reaction to the 1989 Reorganization Plan that had been adopted by Defendant, Rockford School District #205, in January and February of 1989. The lawsuit not only attacks the 1989 Reorganization Plan, but also alleges that the school district historically has engaged in a pattern of intentional segregation and discrimination on a system-wide basis.

  Approximately two months into the litigation, the parties entered into an Interim Settlement in response to Plaintiff's motion for a preliminary injunction. The Interim Settlement dealt mainly with the 1989 Reorganization Plan. The settlement was embodied in an Interim Agreed Order entered by the court on July 7, 1989. The order provided for certain modifications of the Reorganization Plan and for other remedial steps to be taken by the District.

  A Second Amended Complaint was filed on November 9, 1989. On April 24, 1991, Plaintiff and Defendant agreed to, and the court approved and entered, a Second Interim Order. The Second Interim Order was a more comprehensive interim remedial plan. The Second Interim Order did not resolve Plaintiff's underlying liability claim and the District made no admission of liability in connection with either of the Interim Remedial Orders. Certain parts of the Second Interim Order were stricken by the Seventh Circuit Court of Appeals. See People Who Care v. Rockford Bd. of Educ., 961 F.2d 1335 (7th Cir. 1992).

  On June 29, 1992, District Court Judge Stanley J. Roszkowski, by Minute Order, referred all matters pertaining to Plaintiff's motion for a supplemental remedial order to the Magistrate Judge for ruling. By Order of September 8, 1992, Judge Roszkowski, pursuant to Local Rule 1.7(b)(4) of the General Rules of the Northern District of Illinois, and pursuant to 28 U.S.C. § 636(a)(b)(c), transferred to Magistrate Judge P. Michael Mahoney all "matters currently pending."

  On April 8, 1993, Judge Roszkowski reiterated the referral to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and in April of 1993 the Magistrate Judge commenced hearing the motion for a permanent injunction.

  The injunction hearing began April 2, 1993. Approximately thirty witnesses testified on behalf of Plaintiff and approximately nine witnesses testified on behalf of Defendant and Intervenor-Defendants. Over 3,500 pages of testimony were taken over the twenty-four days of trial. In addition, the court has taken into consideration 150 depositions presented to the court as evidence in lieu of testimony, as well as the literally thousands of pages of documents that have been presented to the court.

  Pursuant to an "Agreement of Plaintiffs, Defendant Rockford School District 205 and the Intervenor-Defendants Concerning the Liability Hearing Adjudication Process and Certain Remedial Matters," dated May 5, 1993, all parties stipulated that the Magistrate Judge would make a Report and Recommendation to Judge Roszkowski, who would then rule upon the permanent injunction and liability issues. Pursuant to the May 5th Agreement, the parties agreed that all present and future remedial matters in this case, without limitation, would be referred to the Magistrate Judge under 28 U.S.C. § 636(c)(1) and (c)(3), and under the rules of the United States District Court for the Northern District of Illinois. Therefore, pursuant to Minute Order entered on May 5, 1993, Judge Roszkowski has referred all present and future remedial matters to the Magistrate Judge. The Agreement also allowed Plaintiffs to file an amended complaint which conformed to the proofs presented. This Third Amended Complaint was filed June 23, 1993. The following is the Report and Recommendation of the Magistrate Judge pursuant to the referral of the District Court and the stipulation of all parties.



  The court finds that the ability grouping and tracking practices of the Rockford School District (hereinafter "RSD") did not represent a trustworthy enactment of any academically acceptable theory or practice. The RSD tracking practices skewed enrollment in favor of whites and to the disadvantage of minority students. The court finds that it was the policy of the RSD to use tracking to intentionally segregate white students from minority students, and that the policy existed in 1989 and had existed for many years prior thereto.


  The most devastating witness testifying on behalf of Plaintiffs was Dr. Jeannie Oakes. Dr. Oakes is one of the leading experts in student tracking and related fields. *fn1" She received her Ph.D from the University of California, Los Angeles in 1980. From 1981 to 1985 she was senior research associate, Graduate School of Education, UCLA. In 1985 she joined the RAND Corporation as Sr. Social Scientist. In 1989 she returned to UCLA to accept the position of Associate Professor, Graduate School of Education. Dr. Oakes currently holds the position of full professor and is the vice-chair of the Department of Education in the Graduate School of Education at UCLA.

  Dr. Oakes testified that she had studied the tracking practices in the Rockford School District. She examined the broad range of objective documentary material provided by the District. Her analyses included data tapes of the 1st through 6th grades for the years 1986 and 1987. She also reviewed the 10th and 12th grades for the same years. In addition, she examined middle school student data from 1988-89 and 1989-90. The data tapes examined by Dr. Oakes, therefore, cover the time period from 1987 through 1990.

  Dr. Oakes testified that tracking is ability grouping. Tracking constitutes a set of strategies that a school and school district use to organize students for instruction. The object of ability grouping is to group students together in ways that narrow the range of their ability or prior achievements so that a teacher is able to target instruction to the level of the students within the identified group.

  Three core features are always present in every tracking system: 1) Adults in the school system make judgments about how much intelligence children have and how likely is their potential for learning; 2) After the adults make their judgment, the children are placed into groups; 3) The groupings are then publicly labeled. This public labeling can take on a hierarchical nature. The groups are not thought of as equal. The highest grouped children are on the top, and the lowest children are on the bottom. It is easy, and people often slip, to associate the top children with being "the best kids" and the bottom children with being "the worst kids."

  The educational reason for tracking is to tailor a curriculum and an instructional strategy for the children that are tracked into the class. What occurs in reality, is that different children are given different opportunities to learn and children in different groupings are given different access to knowledge. *fn2"

  The court finds, based upon Dr. Oakes' testimony, that the RSD tracked students in a variety of ways. The tracks were different paths that Rockford students followed through the curriculum of the RSD. Some of the paths led to certifying a student as being prepared for college, some led to specific occupational preparation and other paths led essentially nowhere.

  The heart of the tracking placement process were intelligence tests supplemented by other strategies such as teacher recommendations. Defendant claimed, however, that the objective test scores were supposed to be the primary basis across the grade levels for placement into groups and tracks. *fn3"

  The stated purpose of ability grouping in the RSD was to narrow the range of achievement levels in classes so that instruction could be targeted to the appropriate level of the students. Dr. Oakes pointed out that the RSD, therefore, was making four fundamental assumptions: 1) Students were going to learn better if grouped; 2) low ability classes and low track general and vocational programs would provide a safe haven for students who were not very smart; 3) The RSD knew how to track students into groups to achieve homogeneous ability groups and they knew how to do it in ways that were accurate and fair; and 4) teaching is easier if one does not have to deal with a diverse group of students. *fn4" Ability grouping in the RSD began at the end of the kindergarten year. At that time students were put into either a regular first grade or a transition class based upon a standardized test score and a teacher's recommendation. The transition class was essentially low-track first grade, and operated to put the transition class students approximately one year behind. Further, tracking and ability grouping at the elementary level consisted of both within and between class ability grouping. Students were divided into groups within classes; slow, middle, and fast learners; or were divided across classrooms so that teachers taught all of one ability group.

  At the middle school and junior high level, tracking was a much more formalized system where the academic subjects were divided into three different levels designed for students with different abilities: 1) Below grade level classes called "basic" classes; 2) at-grade level classes called "regular" classes; and 3) above grade level classes called "honors" classes. Separate programs were also available for highly gifted and talented students.

  At the senior high school level there was an overlapping of these two systems. The first system had two or three ability/achievement levels of the same course in the same subject areas (e.g. basic, general and honors English). The second system consisted of tracks of different courses in other subjects (e.g. math and science). Tracks, therefore, existed that: 1) prepared a student to go to college; 2) prepared a student for college but at a slower pace; 3) provided accelerated progress toward college preparation; and 4) did not prepare a student for college.

  Dr. Oakes' testimony analyzed the various tracks that existed in the RSD and their racial composition. She found that "the evidence is absolutely consistent." Whether one looks at the District's public figures or the statements of district officials or does a completely separate analysis of the data itself, as she has done, one inescapably comes to the same finding, which the court hereby adopts: African-American students were enrolled in consistently disproportionate numbers in the slow track, low ability classes. (Compared to the representation in the school as a whole). Furthermore, these students were consistently over-represented in classes for those students identified as having special educational needs. This conclusion is also true in regard to Latino students.

  In contrast, the overwhelming evidence finds white students at all grade levels disproportionately assigned to high ability, college preparatory programs. In the RSD, the higher level of class examined, the whiter the class. The actual statistical analysis is contained in the graphs produced by Dr. Oakes, and the court incorporates those graphs into this opinion. Suffice it to say that the court finds, as was testified by Dr. Oakes, that these numbers were so striking that one could, simply by walking into a class and looking at the color of the children's skin, determine if the class was a high, middle or low ability class.

  Text continued on[slip op.] p. 18.

  Enrollment in Gifted and Regular Programs by School and Race Grade 2, 1986-87 Gifted Regular Total N Percent N Percent N Percent Barbour White 10 52.6 5 11.9 15 24.6 Black 6 31.6 33 78.6 39 63.9 Hispanic 3 15.8 4 9.5 7 11.5 Other 0 0 0 0 0 0 Beyer White 35 92.1 39 67.2 74 77.1 Black 1 2.6 13 22.4 14 14.6 Hispanic 1 2.6 5 8.6 6 6.3 Other 1 2.6 1 1.7 2 2.1 Haight White 15 100 27 54.0 42 64.6 Black 0 0 22 41.0 22 33.8 Hispanic 0 0 1 2.0 1 1.5 Other 0 0 0 0 0 0 District White 60 83.3 1434 71.6 1494 72.0 Black 7 9.7 434 21.7 441 21.2 Hispanic 4 5.6 87 4.3 91 4.4 Other 1 1.4 49 2.4 50 2.4 District Gifted 72 3.5 Regular 2004 96.5

  Note. Grade 2 Gifted Program at these three elementary schools only.

  Enrollment in Gifted and Regular Programs by School and Race Grade 5, 1986-87 Gifted Regular Total N Percent N Percent N Percent King White 49 98.0 2 12.5 51 77.3 Black 0 0 10 62.5 10 15.2 Hispanic 0 0 4 25.0 4 6.1 Other 1 2.0 0 0 1 1.5 District White 49 98.0 1265 71.5 1314 72.2 Black 0 0 388 21.9 388 21.3 Hispanic 0 0 66 3.7 66 3.6 Other 1 2.0 50 2.8 51 2.8 District Gifted 50 2.7 Regular 1769 97.3

  Note. Grade 5 Gifted Program at King Elementary only.

  Enrollment in English Tracks by School and Race Grade 8, 1989-90 Track 1 Track 2 Track 3 Honors Regular Basic Total * N Percent N Percent N Percent N Percent Eisenhower White 52 88.1 220 78.9 15 31.9 287 74.7 Black 3 5.1 41 14.7 28 59.6 71 18.5 Hispanic 0 0 7 2.5 3 6.4 10 2.6 Other 4 6.8 11 3.9 1 2.1 16 4.2 Flinn White 52 85.2 218 77.3 10 62.5 280 78.0 Black 6 9.8 48 17.0 4 25.0 58 16.2 Hispanic 0 0 10 3.5 2 12.5 12 3.3 Other 3 4.9 6 2.1 0 0 9 2.5 Lincoln White 61 85.9 152 77.2 No Track 3 213 79.5 Black 1 1.4 25 12.7 at Lincoln 26 9.7 Hispanic 2 2.8 9 4.6 11 4.1 Other 7 9.9 11 5.6 18 6.7 West White 68 85.0 104 57.5 40 46.0 212 61.3 Black 9 11.3 71 39.2 44 50.6 122 35.3 Hispanic 2 2.5 3 1.7 3 3.4 8 2.3 Other 1 1.3 3 1.7 0 0 4 1.2

  * Total excludes those students who did not take English and excludes West GIT Program students.

  Enrollment in Math Tracks by School and Race Grade 8, 1989-90 Track 1 Track 2 Track 3 Honors Regular Basic Total * N Percent N Percent N Percent N Percent Eisenhower White 73 89.0 198 75.0 18 41.9 289 74.3 Black 2 2.4 48 18.2 22 51.2 72 18.5 Hispanic 0 0 9 3.4 3 7.0 12 3.1 Other 7 8.5 9 3.4 0 0 16 4.1 Flinn White 75 85.9 204 75.0 39 60.0 318 75.0 Black 5 5.9 53 19.5 20 30.8 78 18.4 Hispanic 3 3.5 9 3.3 4 6.2 16 3.8 Other 4 4.7 6 2.2 2 3.1 12 2.8 Lincoln White 72 80.0 139 72.8 33 70.2 244 75.1 Black 4 4.4 23 12.0 13 27.7 37 11.4 Hispanic 5 5.6 16 8.4 0 0 21 6.5 Other 9 10.0 13 6.8 1 2.1 23 7.1 West White 104 78.8 128 57.4 23 45.1 255 62.8 Black 21 15.9 90 40.4 24 47.1 135 33.3 Hispanic 4 3.0 3 1.3 4 7.8 11 2.7 Other 3 2.3 2 .9 0 0 5 1.2

  * Total excludes those students who did not take a math class.

  * Total excludes students who did not take an English Class. Enrollment in Math Tracks by School and Race: Grade 10, 1986 -- 87 Track 1 Track 2 Track 3 Honors/ Regular Slow Track Accelerated College-Bound College-Bound N Percent N Percent N Percent Auburn White 27 79.4 5 62.5 39 58.2 Black 5 14.7 3 37.5 27 40.3 Hispanic 0 0 0 0 1 1.5 Other 2 5.9 0 0 0 0 West White 27 81.8 10 83.3 64 64.0 Black 3 9.1 2 16.7 30 30.0 Hispanic 3 9.1 0 0 5 5.0 Other 0 0 0 0 1 1.0 East White 54 87.1 27 73.0 135 71.8 Black 7 11.3 5 13.5 36 19.1 Hispanic 0 0 2 4.5 8 4.3 Other 1 1.6 3 8.1 9 4.8 Guilford White 77 90.6 48 96.0 117 85.4 Black 0 0 0 0 13 9.5 Hispanic 0 0 0 0 2 1.5 Other 8 9.4 2 4.0 5 3.6 Jefferson White 58 96.7 26 96.3 174 94.6 Black 1 1.7 0 0 9 4.9 Hispanic 0 0 0 0 1 0.5 Other 1 1.7 1 3.7 0 0 Track 4 Non College-Bound Total * N Percent N Percent Auburn White 43 43.9 114 55.1 Black 50 51.0 85 41.1 Hispanic 5 5.1 6 2.9 Other 0 0 2 1.0 West White 30 40.0 64 41.8 Black 36 48.0 71 46.4 Hispanic 7 9.3 15 9.8 Other 2 2.7 3 2.0 East White 64 61.0 281 71.5 Black 37 35.2 85 21.6 Hispanic 3 2.9 13 3.3 Other 1 1.0 14 3.6 Guilford White 50 60.2 292 82.2 Black 31 37.3 44 12.4 Hispanic 2 2.4 4 1.1 Other 0 0 15 4.2 Jefferson White 97 81.5 355 91.0 Black 16 13.4 26 6.7 Hispanic 5 4.2 6 1.5 Other 1 0.8 3 0.8

  * Total excludes students who did not take a math class. Racial Composition of High School Vocational Tracks 1986-1987 Engineering Business/Computer Trades Total Vocational N % N % N % N % Auburn White 0 0 6 66.7 12 52.2 18 47.1 Black 2 100 3 33.3 11 47.8 16 52.9 Hispanic 0 0 0 0 0 0 0 0 West W 1 100 18 81.8 19 70.4 38 76.0 B 0 0 4 18.2 3 11.1 7 14.0 H 0 0 0 0 5 18.5 5 10.0 Guilford W 2 100 39 86.7 16 72.7 57 82.6 B 0 0 5 11.1 5 22.7 10 14.5 H 0 0 0 0 0 0 0 0 East * W 3 100 24 68.6 17 54.8 44 63.8 B 0 0 11 31.4 8 25.2 19 27.5 H 0 0 0 0 3 9.7 3 4.3 Jefferson W 8 100 50 94.3 48 87.3 106 91.5 B 0 0 2 3.8 4 7.3 6 5.1 H 0 0 1 1.9 0 0 1 .9 Non-Vocational Total School N % N % Auburn White 209 55.6 227 55.4 Black 152 40.4 168 41.0 Hispanic 10 2.7 10 2.4 West W 207 60.5 245 62.5 B 110 32.2 117 29.5 H 20 5.8 25 6.4 Guilford W 557 85.2 634 85.0 B 75 11.1 85 11.4 H 4 0.6 4 .5 East * W 558 75.3 602 74.3 B 113 17.9 152 18.8 H 20 2.7 23 2.8 Jefferson W 570 93.1 676 92.9 B 29 4.7 35 4.8 H 8 1.3 9 1.2

  * One White student in Dent Aux Per included in Trades.

   Three White students in Dent Aux Per included in Trades.

  Note. Percents might not total to 100 because Race = "Other" was not included.

  Note. Totals (total vocational, non-vocational, and total school) include only those 10th and 12th grade students included in the districts' 1986-1987 CAP test data files. No data about [Illegible Text].

  In regard to tracking and steering practices in the elementary schools and beyond, Superintendent William Bowen's testimony is indeed revealing. He stated:

Somewhere in our school system, I think it probably starts when reading groups are formed, some decisions are made about tracking [of minority students] that need to be reviewed. . . . It looks to me as an observer that once you get into a particular track, or sometimes I refer to them as tubes, it's very difficult to get out of them.
Bowen Dep. at 110-111.
Mr. Bowen served as a teacher at Auburn High School in the early 1960's, as a counselor at Guilford High School for ten years, as principal at East High School for eleven years, and at the time of his deposition, was the superintendent of schools. When Mr. Bowen was at Auburn, the school had remedial, regular and honors tracks. The honors level was relatively more white in its composition than the total composition of the school. The remedial level was relatively more African-American. The regular track was not easily identifiable in racial terms, according to Mr. Bowen. Most African-American students tended to be either in the remedial or regular track. In Mr. Bowen's opinion, the students in the remedial track did not get more help in any quantitative way. The school administration did not expect that the students in the remedial track would be able to improve and move on to any of the regular tracks. If a student was placed in a remedial track in seventh grade, that student probably would stay in that track throughout the rest of his or her junior and senior high years.
Occasionally Mr. Bowen would notice minority students who he believed had a level of ability inconsistent with their being in the remedial tracks. These observations were based upon such matters as speaking skills, competence, self respect and, sometimes, writing skills. Mr. Bowen indicated that he, himself, often made an effort to try to move these students into higher track classes, but he would receive resistance from the student's counselors. Mr. Bowen at times, however, was able to move a student from one track to another track.
When Mr. Bowen went to East High School in the early 1970's, he observed essentially the same phenomena. This bothered him so much that after he had been at East for approximately seven years, around the year 1980, he undertook, as East's principal, to eliminate the remedial track classes in English and history.
It was my observation that if you were in remedial English, you were with the same remedial kids all day. If you were in one remedial class, you were in everything remedial. . . . You were even in the same PE because that's the way the schedule worked. Everybody in school knew where you were, and all the kids that were in this situation all knew each other. It was an identifiable group, and they were dissatisfied with their lot.
Id. at 117.
Remedial English and history were eliminated by Mr. Bowen. After he left, however, East High School reinstituted the remedial tracks. The court finds, based upon Mr. Bowen's testimony, that there was no other high school in Rockford during the 1970's or early 1980's that undertook to eliminate basic courses or otherwise to address racially disparate tracking practices.
Mr. Nathaniel Martin worked in the RSD for the past twenty years. He was the first African-American principal of a secondary school in Rockford and in 1981, became the first African-American person appointed principal of a predominately white school. In April 1993, he became the director of secondary education. Mr. Martin testified extensively about what he had seen in the Rockford school system regarding tracking and steering practices. He related his observations from his experience at Flynn Elementary School in the 1980's. He estimated that 75% of the African-American students enrolled at Flynn were in the basic or lower track and the rest were in the regular track. He stated that he could recall no African-American student enrolled in the honors track. He believed that the African-American students were perceived as a discipline problem and once this perception occurred, the students were tracked lower in their abilities. The African-American students were more likely to be seen as discipline problems than were the white students.
Mr. Martin confirmed Mr. Bowen's observation that once an individual was tracked in the Rockford school system, there was little movement and very little interaction between the tracks. Mr. Martin was of the opinion that the tracking system at Flynn was similar to the other RSD's tracking systems. Mr. Martin described the system as "a system of apartheid."
Nathaniel Martin engaged in approximately fifty to sixty conversations with high level administrators regarding the discriminatory effects of the tracking system. He was told by the then superintendent of schools that the tracking system could not be eliminated because it would upset the teaching staff and because the community would not buy into elimination of tracking. The court finds it clear that the RSD had substantial notice and intimate knowledge of the racial disparities found within its system.
The fact that white students were in honors classes and minorities were in basic classes did not mean there was intentional institutional discrimination, however. The white students of Rockford could have been innately smarter than the minority students in Rockford. Accordingly, Dr. Oakes had to address the issue of intentional discrimination.
In her analysis, the first question that Dr. Oakes asked regarding intent was whether the RSD used valid and objective measures in assigning students to ability groups. Dr. Oakes found that the measures used by the RSD were either invalid or, at the very best, had highly questionable validity for the purposes for which they were used. The tests were described by Dr. Oakes as outmoded and she largely discredited them.
The tests that were used by the Rockford School system as the basis for its tracking system were tests that were generally not recommended by their publishers to be used for class placement. The tests were not, in fact, intelligence tests. The tests did not measure a child's critical thinking ability, such as problem solving or applying knowledge in new situations. The tests measured a very narrow range of a child's knowledge and skills at one point in time. *fn5"
The court finds that not only were the standardized tests for class placement inaccurate, they were culturally biased and did not fairly measure the capacities of minority children. Dr. Oakes summed up the finding of the court when she stated:
The measures used in the Rockford system did not represent a sound, valid or objective enactment of the theory, the theory of ability grouping and tracking.
Oakes Test., Tr. at 888.
Further, the court finds that the Rockford School District knew, or reasonably should have known based upon the information and literature that was available, that the measures it was using were not valid.
This conclusion, however, does not end the inquiry. This is still, as has been repeatedly brought to the court's attention, an intentional discrimination lawsuit. Simply because the RSD set up a tracking system that worked to the disadvantage of minority students and that system was based upon a measuring standard and methodology that was invalid, does not mean the RSD intended to discriminate against minority students. The possibility exists that the RSD may have just incompetently administered its tracking system. As a matter of fact, incompetency seems to be one of the main defenses offered by this school district.
As a result, Dr. Oakes then asked the next question: Did the RSD use these measures to narrow the range of ability among students and groups so that instruction could be appropriately targeted at homogeneous levels of ability that comprised each group? In other words, did it use this allegedly objective standard to do what it said it was trying to do? The court finds that the District did not.
Text continued on [slip op.] p.32.
Reading Achievement NP Ranges in Grade 5
Gifted v. Non-Gifted Classes
The graph indicates that students in the gifted reading program scored between the 60th percentile and the 99th percentile. The RSD's stated criteria for placement in the gifted reading program was a score of 90% or higher. Oakes, Test., Tr. at 892. Graph is based on two classes of fifth grade students at one unnamed school in the RSD during 1986-87.
1. National Percentile Range = 0 to 100%
2. Each vertical column suggests one entire student population. Each vertical box within the column equals a quartile. (25 percent of that population of students scored within each one of the boxes.)
3. The dots or zeroes located underneath the vertical column indicate outliers. Outliers represent individual students, or small groups of students, that had extreme scores not included in the quartile boxes. This is done so that one or two individual scores do not distort the over-all quartile box.
Reading Achievement NP Ranges in Grade 8
English Tracks -- West Middle School by Quartiles
The graph depicts student placement in grade eight English classes at West Middle School. The placement is based upon reading achievement scores. The graph shows that students in the honors track scored from the 40th percentile to the 99th percentile. The RSD's stated criteria for enrollment in honors English was a score of 85% or higher.
Students in the regular English track scored from about the 10th percentile to the 90th percentile. Students in the basic English track scored from the bottom of the scale to the 75th percentile.
Reading Achievement NP Ranges in Grade 8
Social Studies Tracks -- Lincoln Middle School by Quartiles
The graph depicts students reading achievement enrolled in grade eight honors Social Studies track scored from approximately the 60th percentile to the 99th percentile. Students in the regular track scored from about the 5th percentile to the 95th percentile. Students in the basic English track scored from approximately the 5th percentile to the 60 percentile.
"Particularly striking here again is that the regular track spans almost the entire achievement range, and the low track again extends into well over 50 percent." Oakes, Tr., Tr. at 894.
Math Achievement NP Ranges in Grade 8
Science Tracks -- Flinn Middle School by Quartiles
The graph depicts students math achievement enrolled in grade eight honors Science track scored from the 50th percentile to the 99th percentile. Students in the regular Science track scored from about the 5th percentile to the 99th percentile. Students in the basic Science track scored from the bottom of the scale to about the 60 percentile.
As the graph depicts, there are students in the basic track who scored higher than students who are in the honors track.
Math Achievement NP Ranges in Grade 10
Science Tracks -- West Senior High School by Quartiles
The graph "shows that there's almost no difference, that all three levels -- honors, regular, and basic -- span nearly the entire range of achievement. And here there's virtually no difference between the average scores of the honors and the regular track. Oakes, Test., Tr. at 896.
Math Achievement NP Ranges in Grade 10
Mathematics Tracks -- West Senior High School by Quartiles
Math Achievement NP Ranges in Grade 10
Science Tracks -- Auburn Senior High School by Quartiles
Reading Achievement NP Ranges in Grade 10
English Tracks -- West Senior High School by Quartiles
"Again, we see this picture of very little differentiation in the scores, . . ." Oakes, Test., Tr. at 898.
The RSD did not track students objectively. The RSD did not narrow the range of student achievement to justify the targeting of curriculum and instruction to groups of students who were similar. Students at all levels of ability were found in nearly all classes. In fact, the grouping that was done by the RSD was not homogenous or achievement grouping. The tracking system was an arbitrary system where children were placed into rigid tracks. The court further finds that the Rockford school system consistently used test scores that did not relate to or match the class in which the students were being grouped.
The court also specifically finds that once a child was ability grouped in the RSD it was very difficult or almost impossible to change ability groups. Mr. Bowen called these groups "tubes" and referred to the fact that the initial placement of a child by ability grouping set the child on a course, or put him in a tube, from which he was unlikely to emerge at any time during his contact with the RSD. This conclusion was enforced by the curriculum guide of Jefferson High School in 1988-89 which stated:
English, social studies, mathematics, and science offer different difficulty levels of the same subject. The most difficult are labeled accelerated or honors, and the least difficult fundamental or basic. Every attempt is made to properly place students upon their entry into Jefferson High School, and it is rare that a student is moved from one level to another.
The RSD set up a rigid tracking placement program. Once a student was labeled as being basic, low level or honors, the student maintained that label from kindergarten through twelfth grade.
In addition, the court finds that a low level or basic ability grouping would deprive students of the opportunity for various educational experiences, particularly in the mathematics and science field. If a child did not take algebra in the eighth grade, for example, he or she had no chance of taking calculus before completing his or her education in the RSD. In mathematics and science there was a system of prerequisite courses that meant that only the honors students in the lower grades could take certain courses in high school. Dr. Oakes described this system as:
The most rigid system I have ever seen. It is the only instance where I've seen a written policy that specifies such a complex and multi-layered process that the student has to go through if there is a sense that the student has been misplaced.
Oakes Test., Tr. at 914-915.
Dr. Oakes also examined the relationship between the way the District used its measurements of achievement in placing students in groups and the rigidity of that grouping system in maintaining disproportionate class assignment. Dr. Oakes made several complex analyses. The court will not repeat all of those analyses. The syllogism is, however, quite easily restated. Most of the honors programs in the RSD were dominated by white students. Most of the basic programs were dominated by minority students. The placement of these students was by allegedly objective standardized tests. The tests were of questionable value as far as being used for this purpose and were probably culturally biased. Leaving that aside, the Rockford School District did not objectively use this testing procedure. A African-American student scoring well on the test did not have the same placement opportunities as a similar scoring white student. A white student scoring poorly on the test had more opportunities than a similar scoring African-American student. A white student scoring well on these tests was virtually guaranteed opportunities that high scoring blacks were denied.
Text continued on [slip op.] p.77.
5. Did the way the district used scores for placement and/or the rigidity of the grouping system contribute to racially disproportionate class assignments?
5.1. Within the wide, overlapping ranges of achievement among Rockford's tracks and class ability levels, there are clear patterns of racial bias in class placements at the elementary, junior, and senior high levels. The result was that groups of higher track students whose scores fell within a range that would qualify them for participation in either a higher or lower track (i.e., their scores were the same as students in the lower track) were consistently "whiter" than groups of students whose scores fell within that same range but were placed in the lower track. (See attached figures showing percentages of black students in overlapping ranges of track levels.)
5.2. At the elementary and junior high level, in particular, black students whose achievement scores qualified them for two or more tracks were far more likely to be placed in the lower than the higher track for which they qualified. For example, one would expect the representation ratio for students whose scores "qualified" them for either a higher or lower track to be 1.00. However, racial differences in representation in tracks were such that Black students had considerably lower representation ratios and whites considerably higher. (See attached table.) At the elementary level, this is exemplified by comparing the placements of similarly scoring Black and white students in Gifted and non-Gifted classes. Here, we find that the representation ratio in the 2nd grade Gifted classes for Black students whose scores qualified them for either the Gifted or regular class was .75 for math and .84 for reading (considerably lower than what would be normally expected). In contrast, their representation ratio in the non-gifted class was 1.02 slightly larger than expected. Whites in the same achievement range had a representation ratio of 1.04 and 1.01 in the gifted classes and 1.00 in the non-gifted classes, as would be expected. Even so, these ratios for 2nd graders are conservative, and undoubtedly inflated for Blacks, given the inclusion in our analysis of the separate, minority "pilot" gifted program at Barbour. More striking, at grade 5, none of the Black students whose reading and/or math achievement matched those of gifted white students were placed in gifted classes at King.
Similar, striking patterns are found at the junior high school level. (See attached table.) For example, at West, the representation ratio in the 10th grade honors English classes for Black students whose scores qualified them for either the honors or regular course was .50 (only half what would be normally expected). In contrast, their representation ratio in the regular track was 1.32, considerably greater than expected. In contrast whites in the same achievement range had a representation ratio of 1.21 in the honors course, and only .87 in the regular course. This pattern of lower than expected representation ratios in higher tracks for qualifying Black students and higher than expected ratios in the lower track classes for which they qualified was found in 37 of the 39 instances that were examined (i.e., in every subject area at every middle school in 1989-1990 --the exceptions were found in science at Lincoln and in social studies at West). In contrast, qualifying White students were represented in higher tracks at expected or greater than expected ratios in 33 of 37 instances that were examined, and had ratios of representation in low tracks that were greater than expected in only 4 of the 37 instances. (Note: The smaller number of minority students and the larger number of classes in which they were dispersed made these representation ratios analyses unreliable at the senior high school. Small numbers of Hispanics also prevented drawing conclusions from these analyses at either the junior or senior high schools level.)
5.3. Other analyses underscore Rockford's racial bias in placement, beyond what would be expected by group differences in group achievement levels. In a number of cases, high track classes included exceptionally low scoring white students, but this was rarely the case for Blacks. Conversely, quite high scoring Blacks were often excluded from high track classes and, were often found, instead, in low track classes. Again, this was seldom the case for whites. For example, at both Jefferson and Guilford high schools in 1987, none of the Black students who scored in the top quartile (75-99 NP) on the CAP reading comprehension test were placed in high track English, compared with about 40% of top quartile whites who were enrolled in the high track. In contrast, at both these two schools and at West, a small fraction of white students who scored in the bottom quartile (1-25 NP) were in high track classes, while no similarly scoring Blacks were so placed. At East and Auburn, while some top-quartile Blacks were placed in Honors English, nearly twice as many top-scoring Blacks at East were in the Basic class. West High also placed a proportion of its top-quartile Black students in Basic English; no low scoring whites were so placed. Similar patterns are found in other subjects at the high schools. See attached figures.
At the junior highs, other specific examples are striking. For example, at Eisenhower, the range of reading comprehension scores among 8th graders enrolled in Basic English classes was from the 1st to the 72nd National Percentile. Of these, ten students scored above the national average of 50 NP. Six of the highest scoring, above average students were Black, including the highest achieving student in the class. One other of the above average students was Hispanic.
All of these analyses support the conclusion that Rockford's placement practices skewed enrollments in favor of whites over and above that which can be explained by measured achievement.
Supporting Data and Analyses
Percentage of students in overlapped range of qualifying achievement scores in regular & gifted grade 5 -- 1986-1987 -- by race (black, Hispanic, & white) and school -- See attached figures.
New analyses of the percentage of students in overlapped range of qualifying achievement scores in junior high school basic, regular, honors (or accelerated), and gifted courses in English & mathematics -- 1989-90 -- grade 8 by race (black, Hispanic, & white) & school. (Computed pairwise -- e.g., compare percentage of "overlap" students by race (black, Hispanic, & white) in basic and regular; then regular and honors, etc.)
New analyses of the percentage of students in overlapped range of qualifying achievement scores in high school basic, regular, honors (or accelerated), and gifted English and Science courses -- 1986-1987 grade 10 by race (black, Hispanic, & white) & school (Computed pairwise)
New analyses of the percentage of students in overlapped range of qualifying achievement scores in 4 types of high school math courses: a) non-college-bound math (basic, general, consumer, & business) b) slow-track college-bound math (Fund of Alg 1A-B; Fund of Algebra 2A-B), c) regular college bound (Geometry 1-2), d) fast-track college-bound (Honors Geometry, Intermediate Algebra, Algebra 3) by race (black, Hispanic, & white) & school (Computed pairwise)
Ranges of Student Achievement in Courses at Different Track Levels
Overlap in Qualifying Ranges Between Track Levels
Racial Composition of Overlapping Achievement Ranges
Honors/regular overlapping qualifying score range =50-99 NP
% of overlapping range in honors level comprised of black students = 5%
% of overlapping range in regular level comprised of black students = 6%
Regular/basic overlapping qualifying score range = 1-72 NP
% of overlapping range in regular level comprised of black students = 24%
% of overlapping range in basic level comprised of black students = 56%
Honors/basic overlapping qualifying score range = 50-72 NP
% of overlapping range in honors level comprised of black students = 5%
% of overlapping range in basic level comprised of black students = 60%
Note: 6 of 7 highest scores in basic class are black, including the top scoring student at 72 NP
Note: Some of the percentages on this figure and those that follow (5.1-2-15) have been adjusted slightly from those presented in the March 9 report to make them consistent with the data presented in Tables 5.1 -- 16, 17, and 18. Changes in these percentages result from new analyses performed subsequent to closely ...

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