Appeals from the United States District Court for the Northern District of Illinois, Western Division. No. 89 C 20168 P. Michael Mahoney, Magistrate Judge.
Application for Writ of Mandamus to the United States District Court for the Northern District of Illinois, Western Division. No. 89 C 20168 P. Michael Mahoney, Magistrate Judge.
Before POSNER, Chief Judge, and BAUER and KANNE, Circuit Judges.
We have consolidated for argument and decision nine separate appeals, plus one petition for mandamus, arising out of the remedial phase of the Rockford, Illinois desegregation litigation. The current lawsuit is "only" eight years old, but litigation over racial segregation in the Rockford public schools began a quarter of a century ago, see Quality Education for All Children, Inc. v. School Board, 362 F. Supp. 985 (N.D. Ill. 1973), and we have heard many appeals in it. The recent flurry of appeals, threatening to become an avalanche, induced us to direct that all pending and future appeals be submitted to this panel.
We need go no farther back in the history of this litigation than 1994, when the district judge found that the school district had intentionally discriminated against black and Hispanic students in violation of the equal protection clause of the Fourteenth Amendment. 851 F. Supp. 905 (N.D. Ill. 1994). That discrimination was not, of course, commanded or authorized by state or local law, like the school segregation invalidated in Brown v. Board of Education, 347 U.S. 483 (1954); see also Brown v. Board of Education, 892 F.2d 851, 854 (10th Cir. 1989), vacated, 503 U.S. 978 (1992); on remand, 978 F.2d 585 (10th Cir. 1992). The inference of intentional discrimination was drawn primarily from disparities in educational achievement between white and minority students and from the school district's failure to take effective steps to prevent its schools from becoming all-white or all-minority. The school district accepted the determination of liability, and the parties consented to have a magistrate judge preside over the remedial phase of the litigation with power to enter judgment pursuant to 28 U.S.C. sec. 636(c).
The magistrate judge appointed a special master to assist him, pursuant to Fed. R. Civ. P. 53, and in 1996, after evidentiary hearings, entered an elaborate equitable decree (the "comprehensive remedial order"). The decree contains a number of provisions concerning the operation of the school district that are assailed in the appeals by the school district and the teachers' and other school employees' unions. The appeal of the plaintiffs, who brought this suit on behalf of minority children in the school district, focuses on the omission from the decree of provisions proposed by either the plaintiffs or the special master. A number of the provisions in the decree are not challenged by any party, including ones designed to give parents a measure of choice about which school within the school district to send their children to and, most important, ones requiring racial integration of each school in the district. The decree also requires the school district to build additional schools at an estimated cost of $48 million. That provision is not challenged either, but the school district does challenge the method that the magistrate judge decreed, in separate orders, for financing the building program. A third set of challenges by the school district is to two orders by the magistrate judge regarding the special master's role in a hearing on the implementation of one of the remedial measures.
The discretionary power of a district court to formulate an equitable remedy for an adjudicated violation of law is broad. Where necessary for the elimination of the violation, the decree can properly fence the defendant in by forbidding conduct not unlawful in itself. FTC v. National Lead Co., 352 U.S. 419, 430 (1957); Sasnett v. Sullivan, 91 F.3d 1018, 1021 (7th Cir. 1996); Szabo v. U.S. Marine Corp., 819 F.2d 714, 721 (7th Cir. 1987). But equitable discretion is not unlimited, and a number of principles have emerged to guide its exercise. For example, because the violation of an equitable decree is punishable as a contempt of court, the decree should not command the defendants to do something that is entirely beyond their control. Haley v. Pataki, 883 F. Supp. 816, 826 (N.D.N.Y. 1995); Cook v. Rockwell Int'l Corp., 755 F. Supp. 1468, 1483 (D. Colo. 1991); cf. Pasadena City Board of Education v. Spangler, 427 U.S. 424, 438-40 (1976). Moreover, equitable decrees often affect innocent third parties; their interests must be fully considered in the formulation of the decree, especially when the interests are of constitutional dignity. People Who Care v. Rockford Board of Education, 961 F.2d 1335, 1338 (7th Cir. 1992); Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273, 276 (7th Cir. 1992); NLRB v. P*I*E Nationwide, Inc., 894 F.2d 887, 893 (7th Cir. 1990); Duran v. Elrod, 760 F.2d 756, 759 (7th Cir. 1985); cf. Madsen v. Women's Health Center, Inc., 512 U.S. 753, 765-66 (1994). And when the decree is addressed to a branch of government rather than to private persons, it must be formulated with sensitivity to the separation of powers and the dignity of the states as quasi-sovereigns. Rizzo v. Goode, 423 U.S. 362, 378-79 (1976); Association of Community Organizations for Reform Now (ACORN) v. Edgar, 56 F.3d 791, 798 (7th Cir. 1995); Hoover v. Wagner, 47 F.3d 845, 850-51 (7th Cir. 1995). Some of these interbranch decrees are ambitiously designed to reform important public institutions. In such cases the court must be sensitive not only to the concerns of comity but also to the practical limitations of the federal judiciary as an administrative body, in this case a super school board. Turner v. Safley, 482 U.S. 78, 84-85 (1987); Bell v. Wolfish, 441 U.S. 520, 547-48 (1979); Stone v. City & County of San Francisco, 968 F.2d 850, 860-61 (9th Cir. 1992).
The court must also bear in mind the general precept, which is the valid core of equity's former reluctance to decree mandatory relief, 1 Dan R. Dobbs, Law of Remedies: Damages -- Equity -- Restitution sec. 2.9, pp. 224-25 (2d ed. 1993), that decrees which prohibit specified conduct are generally preferable to those that impose affirmative duties. They are easier to obey and easier to enforce than decrees that command the defendant to do something rather than to desist from doing something, and by so commanding enmesh the federal courts in administration. Affirmative decrees are a formula for protraction. Forty-eight years after it had first been initiated, litigation to desegregate the public schools of Topeka was still producing appeals generating 100-page judicial opinions. Brown v. Board of Education, supra, 892 F.2d at 851-957.
It should go without saying that equitable remediation must be guided by norms of proportionality. Dalton v. Little Rock Family Planning Services, 116 S. Ct. 1063, 1064-65 (1996) (per curiam); Dayton Board of Education v. Brinkman, 433 U.S. 406, 417, 419 (1977); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22 (1971); Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 785 (2d Cir. 1994); Gulf Oil Corp. v. Brock, 778 F.2d 834, 842-43 (D.C. Cir. 1985); Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875, 888, 890 (3d Cir. 1986). That is, the remedy must be tailored to the violation, rather than the violation's being a pretext for the remedy. Violations of law must be dealt with firmly, but not used to launch the federal courts on ambitious schemes of social engineering. Cf. Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 22. Children, the most innocent of the innocent persons occasionally brushed by draconian decrees, should not be made subjects of utopian projects.
A related point, as we shall see, is that the guidelines for the admissibility of expert testimony that the Supreme Court laid down in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), apply to the testimony of social scientists as well as to that of natural scientists. Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997); Tyus v. Urban Search Management, 102 F.3d 256, 263 (7th Cir. 1996). And not only to their testimony at the liability stage of a lawsuit, but also to testimony offered at the remedy stage.
Every one of these precepts was violated by one or more provisions of the decree in this case. Consider first the provision that at least 13.5 percent of the teachers in each school in the school district be black or Hispanic and that they be given superseniority so that in the event of layoffs the percentage of minority teachers will not dip below the prescribed level. No teachers are even plaintiffs in this suit. And while there are references in the district judge's opinion on liability to the under-representation of minority teachers (currently 8.7 percent) in the school district's teaching staff, there is no finding that the school district has ever discriminated (by which we mean discriminated intentionally -- the only kind of discrimination that violates the equal protection clause, Dayton Board of Education v. Brinkman, supra, 433 U.S. at 413; Washington v. Davis, 426 U.S. 229 (1976); Barnett v. Daley, 32 F.3d 1196, 1198-99 (7th Cir. 1994)) in the hiring, promotion, firing, assignment (to one school or another), or transfer of teachers. See 851 F. Supp. at 923-24. The magistrate judge thought he was finding intentional discrimination in hiring, see id. at 1130, but he based his finding of intentional discrimination on statistical disparities, which need not reflect discrimination, intentional or otherwise, and on the school district's failure to reach its self-imposed hiring goals -- so that failure to achieve affirmative action was treated, erroneously, Yatvin v. Madison Metropolitan School District, 840 F.2d 412, 415-16 (7th Cir. 1988); Mozee v. American Commercial Marine Service Co., 940 F.2d 1036, 1051 (7th Cir. 1991), as a form of intentional discrimination against the beneficiaries of the affirmative action. The record does not support an inference of intentional discrimination against black or Hispanic teachers. The white teachers currently employed by the school district who will lose seniority rights, and future white applicants for teaching jobs who will be discriminated against in favor of minority applicants, cannot be deemed to owe their jobs, their job prospects, or their seniority to being beneficiaries of past discrimination against minorities.
These white teachers are to be made victims of court-decreed racial discrimination in order to secure to the minority students the conjectural benefits of making it more difficult to identify particular schools as "white" or "black" (or Hispanic), of reducing the disciplinary problems of minority students -- problems assumed to be less serious if their teachers are black or Hispanic -- and of fostering achievement by providing minority students with role models of their own race or ethnicity. Although such benefits may be real, the evidence for them in the record of this case is scanty. More important, it is not the kind of evidence that justifies infringing the constitutional right not to be ...