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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 essential educational function of the Bilingual Program, however, distinguished it from the educationally supplemental white alternative and focus (magnet) programs. For example, State regulations require that whenever a school has twenty or more non-English-speaking children or children for whom English is a second language, there is to be a bilingual program in that school. 105 ILCS 5/14C-3, formerly Ill. Rev. Stat. ch. 122, P 14C-3. In contrast, the predominantly white alternative/focus programs provided enhanced educational experiences for their students.

The RSD persisted in its discriminatory use of the bilingual students as involuntary participants in desegregation despite opposition by the Hispanic-American community. The transfer of the bilingual students from Barbour and King to Whitehead drew opposition from Hispanic-American parents concerned about the removal of the program from the heart of the Hispanic community. B32708. In December of 1979, the Bilingual Parent Advisory Council (hereinafter "BPAC") initiated a boycott of the Bilingual Program because of transportation problems, frequent relocation of the Program and placing of the program so far away from the Hispanic community so that parents could not easily get to the schools. Gerdes Dep. at 38; Bd. Min., 12/10/79, B16586-B16596; Pulido-Logeman Dep. at 16. Despite a promise to the BPAC (in response to the boycott) that it would attempt to curtail the frequent transfer of the Bilingual Program, the RSD failed to keep its promise. Gerdes Dep. at 42. In 1986, Hispanic parents met with Superintendent Mell Grell voicing opposition to the relocation of the bilingual program. The response of the Board was another relocation.

Given the fact that bilingual education is essential for non- or limited-English-speaking students, transfer of the Bilingual Program from school to school over the years was essentially a mandatory reassignment of the Hispanic-American students for desegregation purposes. Like the burden placed on African-American students in the RSD, the mandatory reassignment of Hispanic-American students for desegregation purposes was unmatched by the mandatory reassignment of white students for desegregation purposes.

 Segregation Of Elementary Bilingual Students

 When the RSD's Bilingual Program began at Barbour School, the curriculum consisted of participants attending classes with regular students for part of the day and then attending "pull out" bilingual classes for the other part of the day. Such a multi-cultural system served to integrate bilingual students into the school's student body.

 Despite this success, however, the RSD terminated the pull out program and instituted a full-time Bilingual Program. Ms. Victoria Mayer testified that bilingual students spent a whole day with the bilingual teacher. Thus, the only interaction they had with the "regular" students at the school was during lunch and recess.

 Transportation Discrimination

 The RSD transportation for bilingual students was qualitatively different from the transportation provided for white desegregation students. White student participation in desegregation was voluntary in the RSD. The RSD transportation policy with regard to the voluntary alternative/focus programs (predominantly white) was to provide a yellow school bus to students who lived more than 1.5 miles from school, regardless of their proximity to an RMTD bus stop.

 The bilingual students were provided with Board-paid transportation. Unlike alternative and majority focus program students, however, the transportation for bilingual students was, in most cases, through the Rockford Mass Transit District (hereinafter "RMTD") and not by yellow school buses. This was so, even though, for reporting purposes, the RSD called bilingual students "focus program" participants. See, infra, Inequitable Acess to Transportation. Transportation Department documents showed that majority open enrollment, focus and alternative students qualified for Board-paid transportation both if they lived less than 1.5 miles from an RSD stop and if they lived more than 1.5 miles from an RMTD stop. Accordingly, these white desegregation students qualified for Board-paid transportation under all circumstances. In contrast, when transportation was provided to bilingual students, it is always "mass transit only." No similar notation appeared next to any majority alternative, open enrollment or focus transfers. Id.

 Even for those few bilingual students who rode yellow school buses, the burden of crosstown busing was substantial. Raul Medrano, a former student in the RSD's bilingual program, was bused, along with other students in his neighborhood, to Whitehead School. Medrano testified that because of the great distance and the long bus ride, his day usually began at 6:30 a.m. He walked five or six blocks to a bus stop for the 7:30 a.m. bus. The bus ride usually lasted 45-50 minutes. The bused students would then arrive 10-15 minutes before school began but were forced to remain on the school bus while neighborhood students were allowed on the playground.

 Educational Deficiencies

 Serious educational deficiencies in the Bilingual Program existed in the RSD. The educational services received by Bilingual Program students were not equal to those received by students in the regular instructional program. Furthermore, the RSD failed to adequately identify and assess students who were in need of bilingual services.

 State of Illinois And U.S. Department of Education Findings of Deficiencies

 In April of 1980, the Illinois State Board of Education (hereinafter "ISBE") issued findings with regard to the "degree of district conformance with requirements for transitional bilingual education programs." Bethke Letter, 4/17/80, B500230. As to the Bilingual Programs districtwide, the ISBE found that procedures for the identification of students in need of bilingual education "were inadequate." No standard procedures existed and "program personnel evidenced little understanding as to how students enter and exit the program." The ISBE further found that referrals for special services were not processed in a timely manner. Finally while the administrative staff at the building level demonstrated support for the efforts of the program, the ISBE reported that the RSD failed to provide the necessary leadership at the central staff level for communicating with parents and developing staff and curriculum. The RSD provided leadership that was said to be "diffused and unfocused." Id. at B500231.

 The ISBE also reported numerous deficiencies with the Bilingual Program at both the elementary and secondary levels. At Gregory, for example, the ISBE found that the staff appeared to be "insufficient" for the English reading instruction, and stated that it was "doubtful that students received a full program." Id. at B500230. At Flinn Middle School, the ISBE reported that the "[English as a Second Language] ESL instruction was insufficient." Mr. Bethke of the ISBE explained:

Only one period of ESL is available to most students. Two periods per day should be the minimum. Required courses must be available to the students and 90 minutes of instruction using Spanish is required. This program should be examined thoroughly and restructured for the next year.

 Id. at B500231.

 The same findings were made with regard to the program at West High School. The West High program did "not conform to statutory requirements" and was ordered to be modified for FY-81. Id.

 In July of 1980, after an investigation of the RSD's practices with regard to non- and limited-English-speaking students, the U.S. Department of Education, Office for Civil Rights (hereinafter "OCR") made several findings of educational discrimination by the Rockford School District. B32390-B32399. First, the OCR found that the RSD failed to identify and assess adequately those students who were non- and limited-English-speaking and who were, therefore, unable to participate effectively in the RSD's regular program of instruction. B32390. Identification and assessment procedures were said to be seriously flawed. To illustrate, on an annual basis, the District determined which students were from non-English-language backgrounds and, thus, potentially non- and limited-English speaking. Principals, classroom teachers and secretaries generally relied on personal knowledge about the student's families to provide this information. In two schools, the Ethnic Code from the Student Information Form was used to identify non- English-language background students, even though ethnicity and home language background are not synonymous. In several other elementary schools, such information was provided by the students themselves or "in conjunction with students." B32391. The OCR considered this last method to be especially inappropriate with elementary-age students who may not have fully understood the questions or the reasons for which the information was sought. Id. The RSD also placed students in nonexistent language groups, for example, "East India, Oriental, Hawaiian, and Indian."

 District staff admitted that students from non-English language backgrounds were missed, thus confirming the inadequacy of the identification process. Id. The result was that the non- English-speaking students were excluded from further consideration for bilingual or other special language services. As only the students who were from non-English backgrounds, according to the District's own records, were assessed for their English proficiency, those students who had not been initially identified in the screening process simply fell through the cracks. B32392.

 Where students had successfully been identified as being from non-English backgrounds, classroom teachers and principals were personally responsible for determining whether students were limited English proficient and, therefore, eligible for bilingual services. District personnel indicated that these determinations were not based upon the results of a standardized valid instrument measuring English language proficiency; instead, District staff relied on other information (e.g., observations of students) which the OCR found to be an invalid method of determining English language proficiency. Id.

 In addition, even when students were assessed by these flawed methods, there was no consistent District-wide procedure for evaluating the students' English language proficiency. For example, at one school, the only students who were identified as having limited English proficiency were those who spoke virtually no English (level I of the ISBE definition of English language fluency). In other schools, limited-English students were defined as those whose English language proficiency corresponded to levels I, II, III and IV of the ISBE definition. The bilingual coordinator indicated that it may have been appropriate to include even level V students in this category. Id.

 In sum, many students who needed bilingual services were missed. In fact, the OCR investigators found that a number of recently-immigrated Laotian students who spoke very little English were not so identified. Id. The net effect of the District's procedures was that many students who were non-English-speaking or limited-English-speaking were entitled to bilingual services but never received such services since only those students who were initially identified as having limited English proficiency were eligible to receive a bilingual education. Id.

 Second, the OCR found that the RSD failed to take adequate affirmative steps to insure that all non- and limited-English-speaking students received educational services equally effective to those offered students in the regular instructional program. B32393. The OCR determined that students who spoke a non-English language other than Spanish and those who had not been identified as needing bilingual services due to the above-described methods, were not receiving the bilingual education to which they were entitled. Id.

 To illustrate, the OCR found that three Hispanic students attended schools in which no bilingual program existed. Furthermore, sixty non- and limited-English-speaking Hispanic students in twenty-two schools were not receiving bilingual services. Id. District staff maintained that these students could transfer, at District expense, to a school with a Bilingual Program. The OCR determined, however, that otherwise-eligible students did not choose to so for two primary reasons: (1) the District had no uniform procedure to notify parents, in their own language, that their children were eligible for bilingual instruction; and (2) some parents believed their children would have to be transported an unreasonable distance in order to participate in the Bilingual program. Id. The OCR concluded that parental notification of the Bilingual Program availability was not calculated to actually inform the parents since the notices were sent home in English. No translations of these notices to languages other than Spanish were available. The OCR also found that the perceived "unreasonable" distances to bilingual programs that caused parents not to exercise the school transfer option did not obviate the District's responsibility to provide special bilingual services to non- and limited-English-speaking students. Id.

 Third, and finally, when bilingual education was actually delivered despite these obstacles, the OCR found that the District did not deliver "equally effective educational services" as required by Title VI. For example, non- and limited-English-speaking Hispanic students at Flinn Middle School and West High School learned only one required subject in Spanish, Social Studies. No mathematics or science courses, also required subjects, were taught in Spanish. B32394. The net effect of the District's failure to offer all required courses in Spanish was that some non- and limited-English-speaking students were enrolled in only three one-period courses: BBP (bilingual bicultural program) social studies, BBP English and physical education. Id. The OCR further found that at Flinn Middle School, the main emphasis of the bilingual social studies course was on Latino American countries. As such, the course was not comparable to the curriculum received by English-speaking students in the regular classroom.

 Educational Deficiencies Persist

 Educational deficiencies in the Bilingual Program of the RSD remain today. Hispanics in Rockford have the highest dropout rate of all racial and ethnic groups. Pulido-Logeman Dep. at 8. Specifically with regard to the Bilingual Program, the RSD's failure to provide sufficient space has resulted in overcrowding of bilingual students and the holding of bilingual classes in inappropriate areas.

 At Nashold, two bilingual classes at one time were held in the same room. Approximately fifteen to twenty students were on each side of the room. Children would turn around and listen to the other teacher. Noise and instruction from each class interfered with the other. Also at Nashold, the bilingual classes were moved into the gym. The bilingual students were put "on the stage while gym classes were going on" or the students "would stand in the aisle . . . waiting for the gym to empty in order for them to go" back to class. Sometimes the class was held in the hallway. Campos Dep. at 19-24.

 Ms. Mercado, a bilingual teacher at East, testified that during each of her four years at East, she ordered bilingual algebra books. She never received the books and the students had to share books. Ms. Mercado filed a grievance, but the algebra class was subsequently dropped, so the grievance was never handled. Mercado Dep. at 37.

 Educational deficiencies in the Bilingual Program extended to problems in the manner in which counselling was provided to the bilingual students. Ms. Mercado testified that the counselors at East High School rejected her attempts to help bilingual students schedule their classes. When Ms. Mercado explained to the head counsellor that the students didn't speak English, the counselor replied "we understand each other." Id. at 31.

 Ms. Mercado also testified that counselors steered the bilingual students toward easier classes. Every year Ms. Mercado helped her students prepare their schedules prior to their guidance counseling appointments and every year at least half of them came back to her with changed schedules. Instead of upper level classes, the girls were put into food and child development and the boys into technology. The justification offered by the counselor at East was that the classes that the bilingual students requested were too hard for them. Id. at 32. Ms. Mercado also observed a counselor at East laugh in a bilingual student's face because the student wanted to take French. Id. at 33.

 Failure to Provide Effective Special Education to Non- and Limited-English-Speaking Students

 In 1980, during the course of its investigation into the practices of the RSD with regard to the Bilingual Program, the OCR discovered that the RSD also failed to assess and serve appropriately non- and limited-English-speaking students who required special education services. The RSD used bilingual psychologists to evaluate such students, and when bilingual psychologists were not available, the District obtained evaluations through the Northwestern Illinois Association (hereinafter "NIA"). The OCR found, however, that often there was a considerable delay between the referral to the bilingual NIA psychologist and the completion of the evaluation. B32396. For example, one student was referred for an NIA evaluation on November 28, 1979, but was not scheduled to be tested until June 19, 1980. Id. In contrast, District officials told the OCR investigators that monolingual-English-speaking special education students were generally evaluated and staffed within sixty days, as prescribed by State regulations. Id.

 Even when non- and limited-English-speaking students were timely evaluated, the appropriateness of those evaluations was doubtful. No determination was ever made of the student's English language proficiency, even though the District conducted evaluations of these students in English by monolingual English-speaking professionals. Id.

 In addition to the flawed and inadequate evaluation procedures, the OCR found that the RSD did not provide appropriate special education services to non- and limited-English-speaking students in a language they could understand. Id. The RSD employed only one Spanish-speaking learning disabilities (hereinafter "LD") teacher. However, because of the District's practice of assigning LD teachers to particular schools, Spanish-speaking students in schools to which she was not assigned could not be evaluated or receive direct services from her except in unusual circumstances. B32397. Additionally, because this teacher conducted a large number of evaluations during the first year of her assignment to schools with bilingual programs, Spanish-speaking LD students did not receive direct services from her comparable to that received by monolingual English-speaking LD students from other LD teachers. Id. The OCR found that there was at least one limited-English proficient Spanish-speaking student who was determined to be mentally impaired (hereinafter "MI"). However, because there was no bilingual MI teacher, this student received educational services in the regular bilingual program; no direct services were provided by an MI teacher in either language. Id.

 In light of its findings, the OCR ordered the RSD to "develop a comprehensive plan acceptable to the Department [of Education] which provides equally effective educational services to non- and limited-English-speaking national origin minority students." Id. In response to the OCR's mandate, the RSD made several changes. The RSD addressed the problem of parental notification of the existence of Bilingual Programs by distributing a survey to determine the home language background of all students in the District. B2598-B2603. The District followed up its survey with an assessment procedure to determine the English language fluency of students from non-English language backgrounds. B2598.

 Despite these steps, the RSD's assessment of non- and limited-English-speaking students for special education remains inadequate and its education of special needs students who are non- and limited-English-speaking remains inferior to the special education it provides English-speaking students. Although English-speaking students are provided with self-contained special education classes at the middle and high school levels, the RSD does not presently offer a self-contained learning disabilities classroom or resource room or a behavior disorder class for bilingual students at the middle and high school levels. Mercado Dep. at 6-8. The result is that bilingual students who need special education are either left in bilingual classes without special education or are placed in special education classes where only English is spoken. Id. at 13-17. Furthermore, the RSD does not employ a bilingual learning disability/behavior disorder teacher at the secondary level. Id. at 8. The RSD also does not employ a LD/BD resource person for bilingual students at the high school level. Id. at 12. Accordingly, bilingual teachers must attempt to deal with the problems of the LD or BD student while trying to conduct a regular class. Id. The lack of bilingual teacher's aides has aggravated the problems caused by the shortage of bilingual special education teachers.

 The absence of effective special education for students with non- or limited-English speaking ability has left such students in the middle of an administrative stalemate. Ms. Mercado testified that she has expressed her concerns about bilingual LD/BD students to the Director of Special Education and to the coordinator of bilingual education:

I have asked them both for help. I have expressed my concerns about the students. I have told them their behaviors. And I have asked them if we could get someone to work with these kids. And the special education lady said that it is bilingual's job to hire a teacher to work with them. And bilingual said that it is special education's job to hire a teacher to work with those kids.

 Id. at 23.

 In addition to failing to provide effective special education services for non- or limited-English-speaking students, the RSD's LD/BD assessment procedure is also lacking. Though the OCR, thirteen years ago, found that the RSD's referral of bilingual students to an outside bilingual psychologist for evaluation of learning behavior disorders resulted in an unjustifiable delay in the assessment of these students, the RSD, at present has no bilingual psychologist on staff. The students continue to be referred to an outside contractor and the delays in assessment continue to result. Id. at 7-8.


 A court may consider the school district's conduct relating to Bilingual Education Programs in evaluating the entire school system. See e.g., Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141 (6th Cir. 1992); Coalition to Save Our Children v. Buchanan, 744 F. Supp. 582 (D. Del. 1990); United States v. Bd. of Educ. of City of Chicago, 588 F. Supp. 132, 169 (N.D. Ill. 1984), vacated on other grounds, 744 F.2d 1300 (7th Cir. 1985), cert. denied, 471 U.S. 1116 (1985).

 In reviewing the appropriateness of a school district's language remediation program, three factors are relevant: (1) whether the school system is pursuing a program informed by an educational theory recognized as sound by experts in the field; (2) whether the programs and practices actually used by a school system are reasonably calculated to implement effectively the educational theory adopted by the school; and (3) whether, after a sufficient period of time, the program actually overcomes the language barriers confronting students. Castaneda, 648 F.2d at 1009-10. Further, the school district's transportation policies with respect to specialized programs, such as bilingual education, should not place disproportionate or stigmatizing burdens on minority students. See United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1455 (S.D.N.Y. 1985).

 The court finds that the RSD operated its Bilingual Education Program in violation of the constitutional rights of Hispanic students. The RSD placed an unlawful transportation burden on Hispanic students by requiring the involuntary movement of bilingual students for desegregation purposes. No involuntary transfer burdens for desegregation purposes were imposed on majority students. Repeated relocation of the Bilingual Program furthered the unlawful transportation burden on Hispanic students. Bilingual students were provided transportation that was qualitatively inferior to that provided to white desegregation students.

 The court further finds that the RSD administered the Bilingual Program in violation of the constitutional rights of Hispanic students. The RSD converted the elementary half-day pull-out bilingual program which allowed bilingual students to interact with the general school population into a whole-day program completely segregated from the rest of the school. Bilingual students were steered toward easier and less beneficial classes by English-only speaking counselors and were inadequately provided with educational services and curricula comparable to white students. Furthermore, the RSD failed to adequately identify and assess non- and limited-English-speaking students as eligible to participate in the Bilingual Program. Finally, the RSD failed to provide effective and meaningful special education services to non- and limited-English-speaking students.



 Special Education students should be exempt from desegregation programs. They have enough problems without being moved around in order to make a building appear numerically integrated. In the school year 1988-89, the RSD assigned 99.6% of the Southwest Quadrant elementary students to non-Southwest schools. The court has not been convinced that the assignment was an act of intentional discrimination. The RSD should continue to exempt special education students from desegregation programs.


 In June of 1974, the RSD recommended to the QUEFAC court that elementary special education students be "exempt" from participating in desegregation programs due to their needs for special facilities and equipment. In subsequent status reports to the court, the RSD restated its position that special education students were exempt from desegregation programs.

 Notwithstanding the RSD's stated policy that elementary special education students were "exempt" from desegregation activities, the RSD assigned all elementary students to non-Southwest schools. Most of these students were assigned to Eastside schools. This practice was evident as early as the first school-by-school Self-Contained Special Education (SCSE) data in 1980 and continued until entry of the Second Interim Order in 1991.

 Dr. David Bennett testified regarding the RSD's assignment of SCSE students. Dr. Bennett noted that behavior disorder students are provided a program based in self-contained environments because of their fragile nature. Dr. Bennett noted that usually an effort is made by a school district to keep SCSE as close to the child's home as possible. Parents and guardians are frequently brought into the school to deal with the day-to-day behavior of these students. Illustrating this point, Dr. Bennett stated that parents are often brought in to the school because of behavior problems involving the child, emergency situations based upon the delicate nature of the child's behavior, and also to discuss with teachers and administrators appropriate program choices. Dr. Bennett found, however, that SCSE students in the RSD who lived on the Southwest side of Rockford were assigned to schools outside of the Southwest Quadrant. He observed this trend from 1981 to 1989. In the 1980-81 school year, full-time SCSE students were much more likely to be assigned to non-Southwest schools. While the Southwest schools constituted roughly a third of all elementary schools, they received only 13.6% of the SCSE students. As a result, non-Southwest schools had an average number of full-time elementary SCSE students that was roughly double that for Southwest schools (an average of 42 versus an average of 22, respectively). Total Number of Number of full- Percentage of all schools schools with time special full-time special SCSE programs education education [elementary [elementary SCSE] students SCSE] students Southwest 12 4 86 13.6 % schools All other 42 13 548 86.4 % schools

 Thereafter, the policy of assigning minority SCSE students out of the Southwest Quadrant became pervasive. In the school year 1988-89, prior to commencement of this lawsuit, there were virtually complete racial disproportions in the RSD's assignment of students. During the school year, 36% of the elementary SCSE students lived in the attendance areas of the ten Southwest Quadrant elementary schools and, consequently, were predominantly minority students. The RSD, however, assigned 99.6% of elementary SCSE students to non-Southwest schools. All Southwest elementary SCSE students, except two, were assigned by the RSD to attend non-Southwest schools, but no SCSE students from elsewhere in the District were assigned to attend Southwest elementary schools. See D5291, D5334, B507386, B507061.

 A similar, but somewhat less severe, pattern occured at the high school level. During this same period, 44% of high school SCSE students lived in the attendance areas of Auburn and West, Southwest Quadrant schools, but 82% of all high school SCSE students were assigned to attend Eastside facilities. A less pronounced pattern occurred at the middle schools: 46% of SCSE students lived in the attendance areas of Kennedy or Wilson, also Southwest Quadrant schools, but 59% were assigned to Eastside schools.

 Not only did these conditions exist, but the RSD special education staff were well aware of the SCSE assignment patterns. On January 12, 1989, Janet Jones, then Director of Special Education, submitted a memorandum to John Hartwig, Director of Student Services, presenting data that compared the residence and school assignments of SCSE students. Ms. Jones' stated in her memorandum: "It is interesting to see where most children who are bused to self-contained programs live. . . You may want to share this with [Supt.] Swanson." D5334. This memorandum was written during the month that the 1989 Reorganization Plan was being formulated. Ms. Jones apparently recognized the inequity of the RSD's assignment policy for SCSE students and suggested rectification of the disparities. However, no corrective action was taken. This fact was reflected by Ms. Jones' May 26, 1989 list of special education locations for the Fall of 1989 showing all elementary SCSE classes still located outside the Southwest Quadrant.

 The burdensome pattern of SCSE student assignment is depicted on the map below. Each dot on the map represents a 1990 SCSE student and each star on the map represents a school to which SCSE students were assigned. The court is not able to tell from the record whether these transfered minority students were in fact "counted" for desegregation purposes. The court states, however, that the District would have a potential numerical motive to have made these kinds of transfers.



 Evidence of discrimination in the operation of a special education program is relevant in a school desegregation case. See United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1377 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2nd Cir. 1987), cert. denied, 486 U.S. 1055, 100 L. Ed. 2d 922, 108 S. Ct. 2821 (1988). In Yonkers, for example, the court found the defendant school district liable for discriminatory classification, transportation and other unlawful treatment of minority Special Education students. Id. The assignment policy of the RSD placed a burden on minority students and constituted an instance of within-school segregation through the placement of substantially minority special education classes in otherwise predominantly white schools. The court, however, does not have sufficient evidence to come to the conclusion that the actions of the RSD constituted an act of intentional discrimination.


 Overview of the Law

 In Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), the United States Supreme Court held that "in the field of public education, the doctrine of 'separate but equal' has no place" and that "separate educational facilities are inherently unequal." Id. at 495. The Court further observed that "to separate [minority children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Id. at 494.

 The law governing liability in a school desegregation case can be summarized in one sentence: a State or local authority may not intentionally segregate or discriminate against minority students because of their race. A prima facie case establishing liability contains three elements: (1) "segregation or discrimination" (minority students must, in fact, experience either segregated conditions or suffer the detrimental effects of discriminatory conduct -- or both); (2) "causation" (school authorities must have caused, created or maintained such segregation or discrimination); and (3) "intent" (the conduct of school officials must have been undertaken "intentionally").

 This standard derives from the Equal Protection Clause that provides that "no state . . . shall deny to any person within its jurisdiction the equal protection of the laws." The Equal Protection Clause requires State and local governments to treat similarly situated groups of persons in similar fashion when classifying individuals to receive particular benefits and burdens. Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618, 86 L. Ed. 2d 487, 105 S. Ct. 2862 (1985). While courts ordinarily defer to governmental classifications unless they lack a rational justification, classifications that burden "discrete and insular minorities" are "inherently suspect" and are subject to "strict" judicial scrutiny. See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4, 82 L. Ed. 1234, 58 S. Ct. 778 (1938).

 Race is the paradigm "suspect" classification triggering strict scrutiny. Palmore v. Sidoti, 466 U.S. 429, 433-34, 80 L. Ed. 2d 421, 104 S. Ct. 1879 (1984). State action that, on its face, involves a racial classification is presumptively invalid and can be upheld only upon an extraordinary justification. Personnel Administrator v. Feeney, 442 U.S. 256, 272, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979). Facially neutral State action violates the Equal Protection Clause when the action is intended to have a racial effect and, in fact, has such an effect. Washington v. Davis, 426 U.S. 229, 240-41, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976).

 The mere existence of racially segregated schools does not constitute a constitutional violation nor does it create an obligation on the part of a school board to take remedial action. Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464, 61 L. Ed. 2d 666, 99 S. Ct. 2941 (1979). Racial imbalance in a school system only violates the Equal Protection Clause when intentional government conduct has caused or perpetuated the situation. Keyes v. School Dist. No. 1, Denver, Col., 413 U.S. 189, 213-14, 37 L. Ed. 2d 548, 93 S. Ct. 2686 (1973). A State statute or constitutional provision requiring separation of the races in schools is the most obvious type of government conduct causing or perpetuating segregation and is facially unconstitutional under Brown, 347 U.S. at 495.

 Cases subsequent to Brown, however, have clearly established that many less blatant forms of government conduct that lead to racial imbalance in school systems also violate the Constitution. A constitutional violation occurs in school districts that have never been subject to statutorily-mandated racial segregation where "school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system." Keyes, 413 U.S. at 201. In order to prove unconstitutional racial imbalance in a school system, a plaintiff must show that (1) the governmental authorities created or maintained racial segregation in the schools and (2) their actions were motivated by segregative intent. Keyes, 413 U.S. at 208; Diaz v. San Jose Unified School Dist., 733 F.2d 660, 662 (9th Cir. 1984), cert. denied, 471 U.S. 1065, 85 L. Ed. 2d 497, 105 S. Ct. 2140 (1985).

 In a racially unbalanced school system, the existence of racial segregation need not be numerically absolute so long as the public schools are substantially segregated and "racially identifiable." United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1378 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2nd Cir. 1987). What constitutes a racially identifiable school will depend upon the facts of each particular case. Keyes, 413 U.S. at 196. A court must examine the racial and ethnic composition of particular schools as well as "every facet of school operations -- faculty, staff, transportation, extra-curricular activities and facilities." Green v. County School Bd. of New Kent County, 391 U.S. 430, 435, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968). Further, a court should consider the quality of education afforded to both white and minority students. See Freeman v. Pitts, U.S. , 112 S. Ct. 1430, 1446 (1992). Thus, a plaintiff may provide a school system is racially identifiable by factors that may, but need not, include student assignment. Brown v. Bd. of Educ., 892 F.2d 851, 861 (10th Cir. 1989), vacated on other grounds, U.S. , 112 S. Ct. 1657 (1992).

 With respect to causation, the first Keyes factor, the conduct of school authorities need not be the sole cause of racial segregation, but such conduct must have more than a de minimis impact. Yonkers, 624 F. Supp. at 1379. A plaintiff must demonstrate that the defendant's conduct contributed in a substantial manner to the creation or perpetuation of racial segregation. Berry v. School Dist. of Benton Harbor, 442 F. Supp. 1280, 1292 (W.D. Mich. 1977). The "conduct" under scrutiny includes acts of omission as well as affirmative acts. Yonkers, 624 F. Supp. at 1379.

 In addition to proving that the defendant's conduct created or maintained racial imbalance in the schools, a plaintiff must show that the conduct was motivated by segregative intent, the second Keyes factor. Ordinarily, only circumstantial evidence is available to establish segregative intent. Diaz, 733 F.2d at 662. Evidence of the discriminatory impact of acts, omissions or policies is one type of circumstantial evidence supporting an inference of segregative intent. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). Other types of circumstantial evidence relevant to proving segregative intent include: (1) the historical background and sequence of events leading up to the conduct maintaining or exacerbating racial imbalance in the schools; (2) departures from typical procedural sequences or substantive criteria normally considered important by the decisionmaker; and (3) contemporaneous evidence concerning the decision-making process. Id. at 267-68. If a plaintiff succeeds in establishing a prima facie case of intentional segregation, the burden then shifts to the defendant to establish that the same segregative conduct would have occurred "even had the impermissible purpose not been considered." Id. at 271, n.21.

 Causation - The First Keyes Factor

 In Keyes v. School Dist. No. 1, 413 U.S. 189, 37 L. Ed. 2d 548, 93 S. Ct. 2686 (1973), the United States Supreme Court developed two factors that must be established in a desegregation school case. The first of these factors is causation. Id. at 208. Accordingly, in order to prevail in a school desegregation case, the plaintiffs must show that the conduct of the defendant school system was State action that caused or maintained racial isolation and segregation. Yonkers, 624 F. Supp. at 1379; Berry, 442 F. Supp. at 1292; N.A.A.C.P. v. Lansing Bd. of Educ., 559 F.2d 1042 (6th Cir.) cert. denied 434 U.S. 997, 54 L. Ed. 2d 491, 98 S. Ct. 635 (1977); Oliver v. Kalamazoo Bd. of Educ., 368 F. Supp. 143, 159 (W.D. Mich. 1973), aff'd 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963, 44 L. Ed. 2d 449, 95 S. Ct. 1950 (1975).

 The plaintiffs must demonstrate that the defendant's conduct, including acts of omission, contributed in a substantial degree to the creation or perpetuation of racial segregation in the schools. Dayton Bd. of Educ. v. Brinkman, 443 U.S. 449, 99 S. Ct. 2941, 61 L. Ed. 2d 666, (1979); Oliver 368 F. Supp. at 159; Reed v. Rhodes, 455 F. Supp. 546, 553 (N.D. Ohio 1978), aff'd in part, rev'd in part, 607 F.2d 714 (6th Cir. 1979), cert. denied, 455 U.S. 1018 (1982). The defendant is not liable if it only occasionally committed segregative or discriminatory acts and these acts were of trivial importance with no significant relationship to current conditions in the school district.

 To meet their burden of proof, the plaintiffs in a school desegregation case are not required to prove de jure segregation as to each segregated school or student in the system. As the Court in Keyes explained:

Where plaintiffs prove that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system.

 413 U.S. at 201.

 In school desegregation cases, courts have imposed liability upon defendants for conduct that entails both affirmative acts and failures to act. Lansing, 559 F.2d at 1046; Oliver, 508 F.2d at 182; Yonkers, 624 F. Supp. at 1379; Berry, 442 F. Supp. at 1293; Bradley v. Milliken, 338 F. Supp. 582, 587-88 (E.D. Mich. 1971). Affirmative acts include segregative techniques such as gerrymandering boundaries, assigning staff on the basis of race and employing intact busing. Acts of omission include, for example, a school board that, with segregative purpose, allows a racially-identifiable white school to operate at overcapacity rather than transfer or reassign white students to a nearby racially-identifiable minority school operating at undercapacity. The Board's failure to act in this instance is hardly benign. See Reed, 455 F. Supp. at 565. As noted by the court in Oliver, "where public issues are framed and questions posed which bear directly on the quality of education, a deliberate negative response from school authorities or a deliberate omission to act, can affect the shape of subsequent circumstances just as materially as can affirmative decisions and action." 368 F. Supp. at 178.

 Similarly, in Keyes, the U.S. Supreme Court established that the proscribed conduct not only includes conduct that causes or brings about segregation, but also includes conduct that maintains segregation. The Keyes Court described the relevant inquiry as determining whether the school district's "policies and practices . . . were . . . taken in effectuation of a policy to create or maintain segregation." 413 U.S. at 213-14.

(1) The tracking of students by race into various educational programs offered by the RSD;
(2) The drawing and alteration of school attendance area boundaries in such a way as to create, maintain or increase racial or ethnic segregation of students;
(3) The maintenance of racially and ethically segregated branches of schools;
(4) The assignment of teachers and staff to schools in such a way as to match the race of the faculty and staff with the race of the students attending the schools;
(5) The failure to design and implement an effective desegregation plan even when ordered to do so by a Federal Court and by the ISBE;
(6) The provision of inequitable transportation and access to transportation to students based upon their race and ethnic origin;
(7) The disproportionate placing of the burdens of desegregation on minority students;
(8) The disparate placement of facilities and equipment so as to burden minority students and not provide them with an equal educational opportunity; and
(9) The perpetuation of discriminatory conditions in the make-up of the Rockford Board of Education.

  These practices, among others discussed in this order, occurred over a substantial period of time and in a substantial portion of the Rockford public schools and constituted a system-wide attempt to separate the races.

  Intent - The Second Keyes Factor

  The second principle established by Keyes is that there must be "a finding of intentionally segregative school board actions in a meaningful portion of a school system." 413 U.S. at 208. Justice Brennan's opinion defined purposeful segregation as the equivalent of de jure segregation. "We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation . . . is purpose or intent to segregate." Id. at 208. However, the Keyes Court did not fully explain the concept of "segregative intent." *fn36" The question of who must harbor the requisite intent, individual school officials or the institution of the school board, and whether the standard of proof is subjective or objective, remained unanswered.

  During the time period immediately following the Court's decision in Keyes, lower courts interpreted the segregative intent of school officials in a variety of ways. Those courts decided cases based on the subjective segregative intent of: assistant superintendents, United States v. School Dist. of Omaha, 521 F.2d 530, 540 n.20, 544 n.30 (8th Cir.) cert. denied, 423 U.S. 946, 46 L. Ed. 2d 280, 96 S. Ct. 361 (1975), superintendents, Amos v. Board of School Directors, 408 F. Supp. 765, 809 (E.D. Wis. 1976), school board members, Soria v. Oxnard School Dist. Bd. of Trustees, 386 F. Supp. 539, 540-42 (C.D. Cal. 1974), parents, Morgan v. Hennigan, 379 F. Supp. 410, 427, 438 (D. Mass.), 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) and voters, United States v. Missouri, 515 F.2d 1365, 1370 (8th Cir.), cert. denied, 423 U.S. 951 (1975). Other courts interpreted Keyes as requiring institutional, rather than individual, intent. Oliver v. Michigan State Board of Education, 508 F.2d 178, 182 (6th Cir. 1974), cert. denied, 421 U.S. 963, 44 L. Ed. 2d 449, 95 S. Ct. 1950 (1975); Hart v. Community School Board of Education, 512 F.2d 37, 50 (2nd Cir. 1975); Arthur v. Nyquist, 573 F.2d 134 (2nd Cir.), cert. denied, 439 U.S. 860c (1978).

  Some of the language in the Keyes majority opinion appears to endorse the interpretation that segregative intent refers to the subjective motivation of individual school officials. See, Keyes, 413 U.S. at 233 (1973) (Powell, J., concurring in part and dissenting in part) (interpreting majority as referring to subjective intent of school authorities). However, the Court presumed that intent continued among successive boards, despite changes in the identity of individual members. The Court asserted that evidence of the illicit motivations of prior school board officials was relevant to the issue of their successors' decisions "where, as here, the case involves one school board." 413 U.S. at 207. Further, the reference to the "board's intent" as opposed to the intent of the members of the board indicate that the Court may have conceived of segregative intent as being institutional rather than individual. See id.

  The institutional concept of segregative intent was furthered by the Court's decision in Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). The Washington Court, citing Keyes, held that strict scrutiny would be applied only where a discriminatory impact on a suspect class was accompanied by a showing of invidious purpose. Id. at 242. The adoption of the Keyes segregative purpose requirement forced the Court to reconsider its earlier decision in Palmer v. Thompson, 403 U.S. 217, 29 L. Ed. 2d 438, 91 S. Ct. 1940 (1971), which rejected motivation as an element of equal protection analysis. In Palmer, the Court held that the segregative purposes of the Jackson, Mississippi, city councilmen could not invalidate an ordinance closing municipal swimming pools in the face of a desegregation order. Washington reconciled its adoption of the "discriminatory purpose" requirement with the holding in Palmer v. Thompson by interpreting Palmer as holding "that the legitimate purposes of the ordinance . . . were not open to impeachment by evidence that the councilmen were actually motivated by racial considerations." Washington 426 U.S. at 242. The Washington Court's reading of Keyes suggests that segregative purpose or intent refers to the subjective motivation of the school board as an institution. This interpretation was fostered by the Court in Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977):

Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the "dominant" or "primary" one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality.

  Id. at 266. The court holds that the Rockford School Board, as an institution, must be shown to have the requisite segregative intent for the Plaintiffs to prevail.

  The court now turns to the question of which standard, objective or subjective, is to be used in order to find the requisite intent. The objective theory focuses on the natural and probable consequences of the actor's conduct, while the subjective theory focuses upon what the actor actually intended.

  The post-hoc determination of why various acts and policies were undertaken in the past is often difficult and the subjective intent of a school board is, at best, a nebulous concept. Thus, some courts have found the institutional theory of intent problematic because they have looked to the motives of individuals in order to discern the purposes behind the public acts of a deliberative body.

  Hart v. Community School Bd. of Educ., 512 F.2d 37, 50 (2nd Cir. 1975); See also, Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976) (Stevens, J., concurring). In Arthur v. Nyquist, 573 F.2d 134, (2nd Cir. 1978), the Second Circuit explained their earlier decision to reject the subjective standard.

In Hart, we rejected a purely subjective standard of proof because we were unable to make good sense of the notion of a "collective will" which "intends" a certain outcome, and because of the "injustice of ascribing a collective will to articulate remarks of particular bigots. . . . We steered a course between objective and subjective theories of segregative intent by holding that foreseeable consequences, while not specifically identifiable with intention, can provide evidence for its presence.

  Arthur, 573 F.2d at 142 (citation omitted).

  The second circuit approach focused on the actions taken by the board itself and not on the mental processes of a changing group of school board members.

  At least one other court had harbored similar misgivings attempting to determine the collective will by looking at the subjective motivations of individuals. In Oliver v. Michigan State Bd. of Educ., 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963, 44 L. Ed. 2d 449, 95 S. Ct. 1950 (1975), the Sixth Circuit avoided the problem by shifting the focus from what the individual actors intended to the foreseeable results of the school official's actions.

A presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials' action or inaction was an increase or perpetuation of public school segregation. The presumption becomes proof unless defendants affirmatively establish that their action or inaction was a consistent and resolute application of racially neutral policies.

  Id. at 182.

  The Supreme Court subsequently rejected the use of such a presumption as a means of establishing segregative intent or shifting the burden of persuasion on the intent issue to the defendant. Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 536 n.9, 97 S. ct. 2766, 53 L. Ed. 2d 851 (1977). Nonetheless, the Court reaffirmed that "proof of foreseeable consequences is one type of quite relevant evidence of racially discriminatory purpose." Id. See also, Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464-65, 99 S. Ct. 2941, 61 L. Ed. 2d 666 (1979) (foreseeable effect of decision is "one of the several kinds of proofs from which an inference of segregative intent may be properly drawn"); Alexander v. Youngstown Bd. of Educ., 675 F.2d 787, 792-93 (6th Cir. 1982) (court may infer discriminatory intent from acts or policies with foreseeable segregative result; inference is permissible rather than mandatory).

  The court interprets requisite segregative intent be the institutional intent of the Rockford School Board. Therefore, this court has focused upon what the institution, as actor, actually intended. Further, and upon close review of the Keyes, Washington and Arlington Heights opinions, this court interprets the Supreme Court as requiring the subjective theory of proof regarding segregatory intent. The relevant standard of proof for intent in this case is: Plaintiff must prove that a motivating institutional purpose of the Rockford School Board was to keep the races separate.

  The court draws an analogy between the school board's institutional intent and the concept of legislative intent. "Legislative intent" is not usually reduced to the subjective intents or motives of individual legislators, but rather is conceived as a characteristic of the actions of legislatures as institutions. See, e.g., MacCallum, Legislative Intent, 75 Yale L.J. 754 (1966); See also, Fletcher v. Peck, 10 U.S. 87, 130-31, 3 L. Ed. 162 (1810). Thus, given any specific school board policy or decision, the individual board member's subjective intent, and what subsequently becomes the school board's subjective institutional intent, may or may not be one in the same. "Legislation is frequently multipurposed: the removal of even a "subordinate purpose" may shift altogether the consensus of legislative judgment supporting the statute." Arlington Heights, 429 U.S. at 266 n.11 (citing McGinnis v. Royster, 410 U.S. 263, 276-77, 35 L. Ed. 2d 282, 93 S. Ct. 1055 (1973)).

  Further proof of discriminatory intent must not be confused with proof of evil motive, racial hostility or a subjective desire to harm minority children. Omaha, 521 F.2d at 535; Higgins, 508 F.2d at 793; Armstrong, 451 F. Supp. at 7; Morgan, 379 F. Supp. at 478. As noted in Oliver, "when constitutional right are involved, the issue is seldom whether public officials have acted with evil motives or whether they have consciously plotted with bigotry in their hearts to deprive citizens of the equal protection laws." 508 F.2d at 182. The required intent in relation to segregation is simply the intent to keep the races separate. Omaha, 521 F.2d at 535; Armstrong, 451 F. Supp. at 866. Such intent may be shown even when there is no desire to inflict educational harm upon any racial group. Id.

  The issue of the presence or absence of unlawful intent is one of fact. Armstrong v. O'Connell, 451 F. Supp. at 822. The ultimate determination of segregative intent rests upon examination of the record as a whole, including the multiplicity and cumulative effect of the defendant's policies and practices. Morgan, 379 F. Supp. at 479. A plaintiff may prove intent by direct, indirect or circumstantial evidence. Armstrong, 451 F. Supp. at 826; Berry, 442 F. Supp. at 1291; Lansing, 429 F. Supp. at 590. Since direct evidence is difficult to obtain, ordinarily only circumstantial evidence is available to establish segregative intent. Diaz, 733 F.2d at 662.

  In the context of school desegregation cases, courts have cited a myriad of factors that by themselves or in combination with other facts support an inference of discriminatory intent. Evidence of the foreseeable segregative impact of decisions is one type of circumstantial evidence supporting an inference of segregative intent. See Arlington Heights, 429 U.S. at 266. Arlington Heights identifies several other types of evidence this court has used that supports the inference of intent:

1) "The historical background of the decision . . ., particularly if it reveals a series of official actions taken for invidious purposes;"
2) "the specific sequence of events leading up to the challenged decision;"
3) "contemporary statements by members of the decision making body, minutes of its meetings or reports;"
4) "departures from the normal procedural sequence;"
5) "substantive departures [from prior policies] . . . particularly if the factors usually considered important by the decision maker strongly favor a decision contrary to the one reached;" and
6) "the legislative or administrative history . . . especially where there are contemporary statements by members of the decision making body, minutes of its meetings, or reports."

  Arlington Heights, 429 U.S. at 266-69. The Supreme Court explicitly recognized this list as being non-exhaustive of the potential factors probative of intent. Id. at 268.

  Of particular significance in assessing whether segregation is the result of intentional acts is whether there is evidence of "classic" segregative techniques, including: intact busing; busing minorities to racially identifiable minority schools that are further away than majority schools with extra capacity; use of optional or multiple attendance zones; the existence of disparities between the physical quality of minority and majority schools; gerrymandering of attendance zones; and discriminatory use of transfer policies. Higgins, 508 F.2d at 787. In the present case, as the foregoing sections have shown, the RSD has engaged in all of these segregative practices.

  Based upon an examination of the record as a whole, including the multiplicity and cumulative effect of the RSD's policies and practices, the court concludes that the RSD's conduct in eleven of the twelve areas covered by the foregoing findings *fn37" was undertaken with unlawful intent.

  The Scope of Liability - Once the Keyes Factors Have Been Established

  When intent and causation are established, the Keyes court advanced two presumptions to aid a trial court in determining the scope of liability. The first Keyes presumption is that:

Common sense dictates the conclusion that racially inspired school board actions have an impact beyond the particular schools that are the subjects of those actions. This is not to say, of course, that there can never be a case in which the geographical structure of, or the natural boundaries within, a school district may have the effect of dividing the district into separate, identifiable and unrelated units. Such a determination is essentially a question of fact to be resolved by the trial court in the first instance, but such cases must be rare. In the absence of such a determination, proof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of the existence of a dual system.

  413 U.S. at 203 (emphasis added).

  The second presumption established in Keyes is that:

[A] finding of intentionally segregative school board actions in a meaningful portion of a school system . . . creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions.
. . . .
. . . It is not enough, of course, that the school authorities rely upon some allegedly logical, racially neutral explanation for their actions. Their burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions.

  413 U.S. at 208, 210.

  On the factual record established in this case, both principles are operative. First, since Plaintiffs have proven state-imposed segregation in a substantial portion of the RSD, a finding that the RSD has operated as a dual system is warranted. Second, inasmuch as Plaintiffs have proven intentionally segregative conduct by the RSD in a meaningful portion of the school system, a presumption arises that other segregated conditions and discriminatory conduct in the system were not adventitious. This shifts the burden to the RSD to establish that these other conditions and conduct were not intentional. The RSD has completely failed to meet this burden. The court will discuss the actual and implied defenses offered by the RSD.

  Liability For The Conduct Of Agents And Employees

  Defendants have argued that they should not be held accountable for conduct of individual employees because the conduct was not taken pursuant to official policy of the Board. This argument has been made by other defendants. See Yonkers, 624 F. Supp. at 1447 n.112; Armstrong, 451 F. Supp. at 847. The reason that this argument is incorrect is because the liability of a school board in a school desegregation case is not predicated on a theory of respondeat superior. Yonkers, 624 F. Supp. at 1447 n.112.

   In Yonkers, the court explicitly rejected the school board's argument that it could not be held liable for the individual acts of employees (principals, guidance counselors and teachers) because the acts were not pursuant to official board policy. Id. The district court held that the defendant's liability was "not predicated on an isolated instance of unauthorized discriminatory conduct against an individual victim but on the Board's conduct in the face of a pattern of discriminatory acts and omissions over time." Id. ; see also, Turpin v. Mailet, 619 F.2d 196 (2nd Cir.), cert. denied, 449 U.S. 1016, 101 S. Ct. 577, 66 L. Ed. 2d 475 (1980); Owens v. Haas, 601 F.2d 1242 (2nd Cir.), cert. denied, 445 U.S. 980 (1979). Imposing liability in these circumstances comports with the general rule that a municipality may be held liable for the unconstitutional acts of its employees in circumstances where there was a continued widespread pattern of such conduct. See, e.g., Brown v. City of Ft. Lauderdale, 923 F.2d 1474, 1480-81 (11th Cir. 1991); Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 752, 98 L. Ed. 2d 765 (1988). In Yonkers, the fact that the school board's conduct, in the face of a pattern of discriminatory acts and omissions over time, was consistent with its own segregative practices, strengthened the basis for holding the school board legally responsible for the discriminatory conduct of its employees. Yonkers, 624 F. Supp. at 1447, n.112.

  An additional reason for rejecting this defense was noted in Armstrong. In that case, the defendant school board argued that it should not be held liable for the decision by individual school principals to have segregated recesses. 451 F. Supp. at 847. Despite the fact that the school board never had a policy requiring separate recesses, the district court held the school board accountable for the actions of the principals stating: "The requirements of the Constitution cannot be avoided by a fragmentation of authority among various government agents." Id.

  Natural Residential Segregation/Neighborhood Schools Defense

  Defendant's response to the overwhelming evidence brought forth by Plaintiffs was minimal at best. Defendant suggested that its actions over the past thirty years were, for the most part, motivated by the racially benign policy of neighborhood schools. Defendants argued that it should not be held liable because the segregated conditions in its schools arose from a combination of residential segregation, including the impact of public housing, and the neighborhood school policy, rather than Defendant's intentional segregative conduct. Defendant's defense is completely unavailing in this action.

  The interrelationship between racial segregation in the schools and residential segregation has been recognized in many school desegregation cases. See Freeman v. Pitts, 118 L. Ed. 2d 108, 112 S. Ct. 1430 (1992); Columbus Bd. of Educ. v. Penick, 443 U.S. at 465 n.13; Keyes, 413 U.S. at 202; United States v. Bd. of School Commissioners of Indianapolis, 573 F.2d at 408-09 n.20; Lansing, 559 F.2d at 1049 n.9; Armstrong v. O'Connell, 463 F. Supp. at 1307; Hart, 383 F. Supp. at 706. These cases observe that "housing and school patterns feed on each other." Hart, 383 F. Supp. at 706.

  As a general matter, assigning children to schools in their neighborhoods does not offend the Constitution. See, e.g., Lansing, 559 F.2d at 1049; Higgins, 508 F.2d at 790. The application of a neighborhood school policy is supported by a variety of nondiscriminatory considerations and therefore may generally be considered a permissive form of action. See Keyes, 413 U.S. at 245-48 (Powell, J., concurring in part and dissenting in part); United States v. Texas Education Agency, 564 F.2d at 168-69 & n.9; Lansing, 559 F.2d at 1049; Deal, 369 F.2d at 60.

  First, as long recognized in this Circuit, a valid neighborhood school doctrine presupposes "innocently arrived at" de facto segregation with "no intention or purpose" of segregating minority students. United States v. School District No. 151 of Cook County, 404 F.2d 1125, 1130 (7th Cir. 1969), cert. denied, 402 U.S. 943, 29 L. Ed. 2d 111, 91 S. Ct. 1610 (1971). If, on the other hand, the school board made discriminatory decisions and followed discriminatory practices that contributed to the racial identifiability of the schools, the neighborhood school policy offers no defense. School Board of Indianapolis, 474 F.2d at 84. In fact, maintenance of a neighborhood school policy in such circumstances provides additional grounds for inferring segregative intent. Keyes, 413 U.S. at 208; Yonkers, 837 F.2d at 1229; Morgan, 379 F. Supp. at 473-74. As noted by Judge Bauer in the QUEFAC litigation: "All things being equal, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation." Quality Education For All Children, Inc. v. School Bd. of School Dist. No. 205 of Winnebago County, Illinois, 385 F. Supp. 803, 809 (N.D. Ill. 1974). The litany of segregative conduct for which Defendant is guilty precludes a valid neighborhood school/residential segregation defense. *fn38"

  Second, the neighborhood school defense is available only if the neighborhood school policy is a genuine one and is applied in a consistent manner. Yonkers, 624 F. Supp. at 1381. If a defendant's adherence to a neighborhood school policy is selective, and there is a pattern of deviations or manipulations which exacerbate the racial identifiability of the schools, the court should infer segregative intent. Yonkers, 837 F.2d at 1229. In the present case, the RSD had no coherent or consistent "neighborhood school" policy. For example, the RSD considered the gargantuan 1989 mega-school boundary extending from the Rock River on the east to Meridian Road on the west, and from Montague Street on the south to north of Auburn Street, a "neighborhood school." Similarly, the RSD's purported "neighborhood school" policy was no impediment to satellite attendance zones, the one-way busing of minority students (such as the Muldoon-Ellis students) or the intact busing of minority bilingual education students.

  Third, the RSD made segregative student assignment and school construction decisions were less segregative alternatives were available and could have been implemented without violating a neighborhood school policy. Diaz, 733 F.2d at 665; Reed, 455 F. Supp. at 556; Lansing, 429 F. Supp. at 624. This consideration recognizes the distinction between a policy requiring students to attend schools within neighborhood attendance areas and the decisions relating to the siting of schools and drawing of attendance zones. While a school district may insist that it follows a neighborhood school policy, "it must be emphasized that generally the Board defines the "neighborhood" when it draws the boundaries." Diaz, 733 F.2d at 665; Lansing, 429 F. Supp. at 624. In the present case, the RSD's pattern of segregative school construction and attendance zone decisions were inconsistent with a viable neighborhood school defense.

  Finally, the RSD's neighborhood school defense was unsupported by evidence in the record and was actually at odds with the demographic evidence submitted at the liability hearing. Dr. Lichtman's testimony indicates that residential segregation in Rockford decreased during the 1970's and 1980's. (Lichtman Dep. Ex. 2; see also, Walhout Test., Tr. at 482) During the 1980's, however, segregation in RSD schools increased (whereas in 1980-1981, 46.14% of minority elementary students attended schools with minority enrollments 15% greater than the district average, in 1988-89, 56.66% of minority elementary students attended such schools). Under these circumstances, it is hardly tenable for the RSD to blame the increasingly segregated conditions in the schools on decreasingly segregated residential housing. The direct and clearly predominant cause of segregation in RSD schools was the pervasive pattern of affirmative segregative conduct by the RSD, and not residential segregation.

  In school desegregation cases where only a few discrete and isolated incidents of discrimination are established, a court must determine how much incremental segregative effect the violations had on the racial distribution compared to what would have occurred in the absence of the violations. Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420, 53 L. Ed. 2d 851, 97 S. Ct. 2766 (1977). However, when the violations proven are widespread, as in this case, a plaintiff need not "prove with respect to each individual act of discrimination precisely what effect it has had on current patterns of segregation." Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 540, 61 L. Ed. 2d 720, 99 S. Ct. 2971 (1979) ("Dayton II"); United States v. Board of School Commissioners, 637 F.2d 1101, 1113 (7th Cir.), cert. denied, 449 U.S. 838 (1980). Moreover, the policies of systemwide application in this case necessarily had systemwide impact. Penick, 443 U.S. at 466-67. Thus, Plaintiffs need not show the incremental segregative effect of violations in this action.

  Equitable Relief Is Appropriate

  To be entitled to permanent injunctive relief, a plaintiff not only must prevail on the merits of its claim but also must carry the burden of what is referred to as "balancing the equities" or as drawing the "balance of convenience". 7 Moore's P 65.18[3], at 65-136. As the Supreme Court put it in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 3 L. Ed. 2d 988, 79 S. Ct. 948 (1959): "The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies."

  Moore's explicitly (and Beacon Theaters implicitly) suggest that a district court considering a permanent injunction should apply the same criteria our court of appeals has required for preliminary injunctive relief, substituting actual victory on the merits for a mere reasonable likelihood of success. See, e.g., United States v. Rural Electric Convenience Co-Op. Co., 922 F.2d 429, 432 (7th Cir. 1991).

  Applying these principles to the present case, Plaintiffs meet the burden with regard to each of the criteria:

1. Plaintiffs have prevailed on the merits of their claim and have established that the Defendant has violated the constitutional rights of Plaintiffs;
2. Plaintiffs have demonstrated that the balance of equities weighs in favor of the grant of injunctive relief, inasmuch as:
a. Plaintiffs have no adequate remedy at law;
b. Plaintiffs face irreparable injury in the absence of injunctive relief;
c. No undue or unnecessary hardship is placed on Defendant by requiring it to carry out its affirmative duty to remedy the effects of its intentionally segregative and discriminatory acts; and,
d. The public interest is best serviced by granting permanent injunctive relief.
3. There are no inherent difficulties in shaping injunctive relief that is appropriate, narrowly tailored and adequate to protect Plaintiffs' rights.

  A federal court in a school desegregation case has broad remedial authority and may employ its full equitable powers upon determining that intentional systemwide segregation or discrimination has occurred. Milliken v. Bradley, 433 U.S. 267, 280-81, 53 L. Ed. 2d 745, 97 S. Ct. 2749 (1977). A school desegregation remedy should be tailored to the nature and scope of the constitutional violation and designed to restore the victims to the position they would have occupied had the discrimination not occurred. Id. Within these parameters, however, a district court may order remedial programs even in areas in which intentional discrimination has not existed if it concludes that the remedy is necessary to "treat the condition that offends the Constitution" and that the "constitutional violation caused the condition for which remedial programs are mandated." Id. at 282, 286 n.17, 287. Each action of the school system, even though not unconstitutional in itself or prompted by discriminatory motives, may be examined by a district court and set aside if it interferes with efforts to desegregate the system. Wright v. Council of City of Emporia, 407 U.S. 451, 462, 33 L. Ed. 2d 51, 92 S. Ct. 2196 (1972).


If one factor is uniform in a continuing series of events that are brought to pass through human intervention, the law would have to have the blindness of indifference rather than the blindness of impartiality not to attribute the uniform factor to man's purpose. The purpose may not be of evil intent or in conscious disregard of what is conceived to be a binding duty. Prohibited conduct may result from misconception of what duty requires. *fn39"

  It is the Report and Recommendation of the Magistrate Judge that an appropriate Injunction and Declaratory Order be entered by the District Court. Further, the Magistrate Judge recommends that, pursuant to the consent of the parties and Order of this court, this matter be referred to the Magistrate Judge for a remedial hearing in the near future.




  DATE: November 3, 1993


  The court hereby finds and does employ the following definitions throughout this opinion:

1) "The Academy ": Gifted program at Auburn High School.
2) "The Board ": Rockford Board of Education, School District #205.
3) "CAPA ": Creative And Performing Arts alternative program.
4) "CASS ": Career Awareness and Survival Skills alternative remedial program.
5) "CDB " and/or "CDB Capacity ": Capital Development Board capacities for schools as indicated in the Final Report Facility Utilization Study, Rockford School District #205, dated November, 1980.
6) "CDC ": The Community Desegregation Committee formed by the Rockford Board of Education in 1973 to develop desegregation plans.
7) "Desegregated School " or "Integrated School ": Having a school minority population of not more than 15% above and not less than 50% of the district-wide minority population percentage for that category or level of school in a given year.
8) "The District ": Rockford School District #205.
9) District Quadrants : The terms "Northeast quadrant", "Northwest Quadrant", "Southeast Quadrant" and "Southwest Quadrant" have been employed by the Rockford School District in describing the areas of the District and are adopted by the court. The east/west boundary of the Quadrants is the Rock River; the north/south boundary west of the Rock River is Auburn Street; the north/south boundary east of the Rock River is ...

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