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JOHNSON v. BOARD OF EDUCATION OF CHAMPAIGN UNIT

January 29, 2002

SA'DA AND TYJUAN JOHNSON, MINORS, BY THEIR PARENT AND NEXT FRIEND FELICIA JOHNSON, ET AL., PLAINTIFFS,
V.
BOARD OF EDUCATION OF CHAMPAIGN UNIT SCHOOL DISTRICT #4, DEFENDANT.



The opinion of the court was delivered by: Joe Billy McDADE, Chief United States District Judge.

ORDER

Before the Court is the parties' Joint Motion for Approval of the Proposed Second Revised Consent Decree [Doc. #41]. Having conducted a fairness hearing in accordance with Rule 23(e) of the Federal Rules of Civil Procedure on November 13, 2001, and in consideration of the evidence adduced at that hearing comprising several hundred pages of documents and affidavits, the written and oral objections of several third parties, and having reviewed the pleadings in this case, the Court finds that the Proposed Second Revised Consent Decree is fair, reasonable, and adequate to the class. The Court further finds that the Proposed Second Revised Consent Decree meets all applicable legal standards for the entry of consent decrees in general and desegregation consent remedies in particular. The Court makes the following findings of fact and conclusions of law and approves the Proposed Second Revised Consent Decree for the reasons discussed infra.

FINDINGS OF FACT

PROCEDURAL HISTORY

This action arises pursuant to 42 U.S.C. § 1983 for the deprivation of Plaintiffs' rights under the Fourteenth Amendment to the Constitution of the United States, Title VI of the Civil Rights Act of 1964 codified as 42 U.S.C. § 2000(d), the regulations promulgated under the authority of Title VI of the Civil Rights Act of 1964, 34 C.F.R. § 100.3 et seq., 42 U.S.C. § 1981, and the Equal Protection Clause of the Constitution of the State of Illinois. This Court has jurisdiction to hear the claims under 28 U.S.C. § 1331, 28 U.S.C. § 1343(3), and 28 U.S.C. § 2201, 2202.

The individual Plaintiffs in this case are African-American public school students of Unit 4 Champaign Illinois School District.

Defendant, Board of Education Champaign Community Unit School District #4 ("Unit 4" or "District"), is a body politic and school district of the State of Illinois organized and operating in Champaign County. The Board of Education is charged with and responsible for the operation of the public schools within the District.

In May and July 1996, several African-American families initiated complaints with the United States Department of Education, Office for Civil Rights ("OCR"), alleging race discrimination by Unit 4 schools. In October 1996, the law firm of Futterman & Howard, Chtd., on behalf of African-American students, amended the OCR complaints to include additional allegations of discrimination. CCM ¶¶ 2-3, Bates No. 1.

The initial complaints addressed student assignment and educational services provided to approximately 550 mandatorily bused African-American students. CCM ¶ 2, Bates No. 1.

The amended OCR complaints added four other issues: system wide discrimination in student assignment, within-school segregation practices and tracking, discipline, and staff hiring and assignment. EEM n. 2, Bates No. 12.

In September 1996, OCR initiated a proactive compliance review of Unit 4 to investigate the over-representation of minorities in special education and the under-representation of minorities in upper level courses. OCR also included the areas identified in the parents' complaints as part of their investigation. CCM ¶ 3, Bates No. 1; OCR 1, Bates No. 25.

Following a period of study and community input, the Board of Education of Unit 4 in November 1996 established a redistricting plan ("Redistricting Plan"). CCM ¶ 5, Bates No. 2.

Plaintiffs asserted that the Redistricting Plan did not reduce the disparate impact of educational practices, nor fully resolve their complaints, and that the Unit 4 student assignment system required additional modification to ensure diversity and educational equity. CCM ¶ 6, Bates No. 2.

Accordingly, in or around May 1997, Plaintiffs notified Unit 4 that they were contemplating the commencement of class action litigation against the District challenging, among other things, the student assignment methods used in 1968-97 and the Redistricting Plan. CCM ¶ 6, Bates No. 2.

On September 16, 1997, Unit 4 and Plaintiffs entered into an agreement, memorialized as the Champaign Controlled Choice Plan Memorandum of Understanding (the "Controlled Choice Memorandum"), which established a comprehensive plan and program for addressing Plaintiffs' complaints as to the assignment of African-American students among Unit 4 schools. CCM, Bates Nos. 1-11.

In June 1998, the District completed a comprehensive educational equity audit ("Education Equity Audit") with the assistance of Dr. Robert Peterkin and James Lucey to evaluate the performance of Unit 4 schools. EEA, Bates Nos. 63-162.

On June 15, 1998, the District entered into a Resolution Agreement with OCR resolving both the OCR proactive investigation and the Complaints filed by the African-American families. OCR, Bates. Nos. 25-62.

On July 6, 1998, Unit 4 and Plaintiffs entered into an agreement, memorialized as the Memorandum of Understanding of Civil Rights Issues Relating to Education Equity (the "Education Equity Memorandum"), which established a comprehensive plan and program for addressing certain additional complaints of Plaintiffs regarding alleged inequitable treatment of African-American students in Unit 4 schools. EEM, Bates Nos. 12-24.

In June 2000, Unit 4 adopted an Education Equity Implementation Plan ("Implementation Plan"), which included timetables and goals to fulfil the Controlled Choice, Equity, and OCR Resolution Agreements. IP, Bates Nos. 163-83.

At the time the OCR complaints were filed, the African-American parents and later Futterman & Howard, were aided in their efforts by the association "Of the People" (OTP), a predecessor of the association "Racial Justice Now" (RJN).

"[A] dispute arose," however, between OTP and Plaintiffs' counsel regarding implementation of the Controlled Choice Plan. 8/16/01 Ct. Order at 2. Thereafter, OTP became RJN. On July 28, 2000, RJN filed a school desegregation case against the School District. Plaintiffs then filed the instant action on October 4, 2000, and simultaneously with the filing of the complaint, submitted the Plaintiffs' and Defendant's Joint Motion for Approval of Consent Decree. Basically, the proposed Consent Decree adopts and incorporates the Controlled Choice Memorandum, the Resolution Agreement with OCR, and the Education Equity Memorandum and Implementation Plan.

RJN sought to intervene in the present case, alleging collusion between Plaintiffs and Defendant School District. The Court on August 16, 2001, denied the motion, finding that RJN had failed to allege sufficient facts to support its charge of collusion. 8/16/01 Ct. Order at 11.

On August 22, 2001, this Court certified the named Plaintiffs in the Johnson case as class representatives and approved Futterman & Howard as class counsel. 8/22/01 Ct. Order.

After proper public notice of the fairness hearing on the parties' joint motion for approval of the consent decree, written objections to the consent decree were received by the Court. See Public Notice, Tab 2 of the Proposed Consent Decree filed 10/15/01.

On November 13, 2001, the Court held a fairness hearing. The parties presented documentary evidence and affidavits in support of or in opposition to the proposed consent decree, and each supplemented the joint presentation with their own additional comments and evidence. In addition, oral objections were heard by the Court by all interested persons wishing to make such objections.

AGREEMENTS UNDERLYING THE CONSENT DECREE

A. The Controlled Choice Plan

On September 16, 1997, the parties agreed to implement the Controlled Choice Plan which:

1. Guarantees racial diversity, provides individual choice regarding school enrollment within racial fairness guidelines, and promotes school reform CCM ¶ 9a, Bates No. 3.
2. Ensures equitable access and burdens by allocating the District's total basic school capacity to each part of the city in proportion to the number of students that reside there. CCM ¶ 9f, Bates No. 3.
3. Provides educational opportunities for individual students by permitting each student to choose, from a number of schools in the system, two or more schools that the student desires to attend, and to rank the schools by personal preference. CCM ¶ 9g, Bates No. 3.
5. May contain a sibling preference which provides a first preference, within racial fairness guidelines, to all students who have a brother or sister already attending the student's school of choice. CCM ¶ 9m, Bates No. 4.
6. Contains a neighborhood preference which provides a preference within racial fairness guidelines to students who can walk to their chosen school. CCM ¶ 9n, Bates No. 4.
7. Creates one or more Parent Information Centers ("PIC") with sufficient resources to perform the day-to-day operations of the Plan and provide outreach, information, and advocacy to parents. The PIC(s) shall be located and conducted in a manner which maximizes minority parent participation in the Controlled Choice Process. CCM ¶ 9o, Bates No. 4-5.
8. Requires all eligible students to fill out an application indicating a minimum of two schools of choice. Every effort will be made to insure that minority students are aware of and participate in the application process. CCM ¶ 9p, Bates No. 5.
9. Addresses over-chosen schools by conducting a lottery after all students with preferences who meet the racial fairness guidelines have been assigned. CCM ¶ 9q, Bates No. 5.
10. Identifies, publicly lists, and provides technical assistance, and if necessary, changes in personnel in under-chosen schools. The purpose of these actions is to upgrade and improve the quality of education received in under-chosen schools. CCM ¶ 9aa, Bates No. 6.
11. Established a community-based Controlled Choice Community Task Force to assist in developing and implementing the Controlled Choice Plan. The Task Force represents the District's racial, economic, civic, governmental, business, and other major constituencies. CCM ¶ 12, Bates No. 7.

The parties formed a Planning and Implementation Committee ("PIC") comprised of an equal number of representatives of each party, including counsel. Throughout the Plan's duration, PIC will continue to monitor, evaluate, refine, and improve the Controlled Choice Plan. CCM ¶ 15, Bates Nos. 7-8.

In the 1998-99 school year, Controlled Choice was implemented at the Kindergarten level in all 11 elementary schools, and is phased in by grade each year thereafter:

School Year Grades Affected
1998-99 Kindergarten
1999-2000 K, first grade
2000-01 K, 1, 2
2001-02 K, 1-3
2002-03 K, 1-4
2003-04 K, 1-5

CCM ¶ 10a, Bates No. 6.

B. OCR Resolution Agreement

To resolve the Complaints filed by African-American parents in May and July 1996 and the proactive review initiated by OCR in September 1996, OCR and the District reached an agreement as to the appropriate actions to be taken by the District to further its commitments to ensure that minority students are provided equal access to high standards and a high quality education in accordance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et. seq., and its implementing regulation at 34 C.F.R. Part 100. OCR 1, Bates No. 25.

To demonstrate its compliance with the OCR requirements, the District agreed to submit annual status reports regarding its implementation of the resolution to OCR. The last annual report is to be submitted to OCR by the District in August 2002. OCR, however, may require reports after August 2002 to the extent that any portion of the resolution is not fully implemented. OCR 37, Bates No. 61. The OCR resolution includes the following principles and goals:

1. Students, regardless of race or national origin, must be provided access to high quality curriculum which enables students to achieve high standards;
2. A school climate which promotes learning and success and encourages students to support each other; and
3. Development of a diverse staff that will assist in a positive and supportive learning environment for all students. OCR 1, Bates No. 25.

The OCR resolution also includes specific goals and implementation timetables for gifted and upper level courses, discipline, special education, alternative programs, staff hiring, and within-school segregation. These specific elements of the OCR Resolution were incorporated into the Implementation Plan for the Equity Agreement. IP, Bates Nos. 163-183.

C. Education Equity Agreements

On July 6, 1998, the District voluntarily entered into a Memorandum of Understanding ("Education Equity Memorandum") to address educational equity issues. In doing so, the District acknowledged data reflecting disparity between white and African-American students in the District, and sought to improve access and equity in areas cited by Plaintiffs. EEM 1, Bates No. 12. The Education Equity Memorandum was intended to address elimination of unwarranted disparities with respect to both the availability of educational services to African-American students, and also the participation and performance of African-American students in such services. EEM ¶ 2B, Bates No. 14. The Education Equity Memorandum includes the following standards:

1. A standard for participation of African-American students in each of the regular programs, courses, classes and extracurricular activities. EEM ¶ 5A, Bates No. 17.
2. Standards for reasonably and practicably comparable educational outcomes for African-American and non-African-American students with respect to attendance, grades, standardized achievement scores, alternative assessment scores, discipline rates, and dropout/graduation rates. EEM ¶ 5B, Bates No. 17.
3. Standards for comprehensive, supplemental educational and social support to African-American students as needed to achieve and maintain the performance standards identified in the Equity Memorandum. EEM ¶ 5C, Bates No. 17.
4. Standards to eliminate to the greatest extent practicable any over-representation of minority students in subjective special education categories. The District bears the burden of demonstrating that any such over-representation is clearly justified by the application and outcome of valid, nondiscriminatory special education assessment and placement practices. EEM ¶ 5D, Bates No. 17.
5. Noting the special relationship between discipline and school climate, standards in each area, including systemwide comprehensive multi-cultural initiatives and staff development programs regarding equitable discipline. EEM ¶ 5E, Bates No. 17.
6. Standards to achieve a substantial level of racial diversity among the District's certified and non-certified staff members systemwide and within individual schools, focusing on recruitment, hiring, assignment and transfer standards. EEM ¶ 5F, Bates No. 18.

The PIC was designated to monitor, evaluate, refine and improve the Education Equity Memorandum. EEM ¶ 3, Bates No. 15.

In June 2000, the District adopted an Education Equity Implementation Plan ("Implementation Plan") to cohesively implement the Controlled Choice, Education Equity and OCR Resolution Agreements. IP i, Bates No. 165.

The purpose of the Plan was to set forth a comprehensive framework for improving the District's educational programs and opportunities in order to "close the achievement gap" between minority and non-minority students. IP i, Bates No. 165.

The Plan identified objectives, established flexible goals and enumerated actions to be performed by the District in the following areas: (1) climate and discipline; (2) special education; (3) gifted education; (4) student performance; (5) Columbia Center and alternative programs; and (6) hiring and staff placement and retention. IP, Bates Nos. 164-183.

The PIC developed the Implementation Plan and the Board of Education adopted it in June 2000. EEA Update 3, Bates No. 350.

INVOLVEMENT OF EXPERTS IN THIS CASE

Since Plaintiffs began negotiations with the District in 1997, several experts have been involved in analyzing data and developing remedies: Dr. Robert Peterkin, Dr. Michael Alves, and James Lucey. These experts are experienced in school equity issues and have testified or participated in numerous school desegregation cases or have worked extensively with school districts addressing issues of race and equity.

A. Dr. Robert Peterkin

Dr. Peterkin currently serves as the Keppel Senior Lecturer on Education at the Harvard Graduate School of Education; Chair of Programs in Administration, Planning and Social Policy at the Harvard Graduate School of Education; Director of the Urban Superintendents Program at Harvard University; and as President of the Peterkin Consulting Group. Peterkin 1st Aff ¶ 1, Bates No. A9.

Dr. Peterkin has received numerous awards, participates in numerous professional and community organizations, has published numerous book chapters, articles, papers and reports on educational equity issues, and has been a featured speaker at more than 55 presentations during the last decade to address leadership and educational equity. Peterkin 1st Aff ¶ 2-3, Bates Nos. A9-A10.

Dr. Peterkin has focused his entire career on urban education, with an emphasis on school restructuring, development of school programs for children isolated by poverty, gender or race, and advocacy for equitable school choice. Peterkin 1st Aff ¶ 4, Bates No. A10.

Dr. Peterkin has served as a consultant and expert witness on federal school desegregation cases across the country. Peterkin 1st Aff ¶ 5, Bates No. A10.

In 1997, Unit 4 retained Dr. Peterkin, with assistance from James Lucey, to conduct a comprehensive examination of the District, evaluate the ability of all students to share equitably in the educational opportunities offered, and to make recommendations to the Board to improve and ensure equity. Peterkin 1st Aff ¶ 6, Bates No. A10.

Between July 1997 and June 1998, Dr. Peterkin engaged in extensive data collection and analysis, evaluating all components of the District's educational community, detailed in the Educational Equity Audit. Peterkin 1st Aff ¶ 7, Bates No. A10.

From 1998 to June 2000, Dr. Peterkin continued to conduct various reports and assist the District in developing plans to ensure educational equity. Peterkin 1st Aff ¶ 8, Bates No. A11.

Dr. Peterkin has reviewed the Proposed Consent Decree and has no specific objections to its provisions. Dr. Peterkin generally supports and recommends the provisions contained within the Decree. Peterkin 2nd Aff ¶¶ 2-4, Bates No. A12.

Dr. Peterkin believes that, as set forth in the Decree and the underlying agreements between the parties, the parties have developed a comprehensive program and process to further educational equity for African-American students in Champaign public schools that includes, but is not limited to, involving the community, enhancing student assignment desegregation, furthering educational equity, utilizing the PIC, continuing the collaborative working relationship among counsel for Plaintiffs and the District, and designing provisions to monitor the District's progress toward its goals. Peterkin 2nd Aff ¶ 5, Bates No. A13.

It is Dr. Peterkin's opinion, based on his extensive experience with school desegregation, that the program and process set forth in the Decree increases the probability of success in meeting the Decree's goals. Peterkin 2nd Aff ¶ 6, Bates No. A13.

Dr. Peterkin believes that when, as in this case, both parties voluntarily commit to racial equity initiatives, the likelihood of success in meeting the goals of the Decree increases. Peterkin 2nd Aff ¶ 7, Bates No. A13.

B. Dr. Michael Alves

Dr. Michael Alves is the Senior Educational Planner and Equity Specialist for the Education Alliance and Equity Assistance Center at Brown University. He is also President of the Alves Educational Consultants Group, Ltd. Alves Aff ¶ 1, Bates No. A1.

Dr. Alves has served as a high school teacher, Project Director for State Desegregation Assistance Programs, and Director of the Federal Title IV Civil Rights Act Unit for the Bureau of Equal Educational Opportunity, Office of the Commissioner, Massachusetts Department of Education. Alves Aff ¶ 2, Bates No. A1.

Dr. Alves has extensive experience as an educational consultant and desegregation planner specializing in the design, implementation, and monitoring of "controlled choice" student assignment and school improvement plans. Alves Aff ¶ 3, Bates No. A1.

Dr. Alves has worked on controlled choice plans in more than 27 school districts across the country, including cases where he was retained as an expert witness and controlled choice planner in federal desegregation lawsuits. Alves Aff ¶ 4, Bates No. A2. Dr. Alves has served as a desegregation planner and consultant to various federal education agencies and national and local civil rights organizations, including the U.S. Department of Justice, U.S. Department of Education, Office for Civil Rights, NAACP Legal Defense Fund, and others. Alves Aff ¶ 5, Bates No. A2.

In 1998, Unit 4 retained Dr. Alves as a controlled choice and student assignment planning expert to develop and implement, with Dr. Robert Peterkin, a Controlled Choice Plan for the District's elementary schools (grades K-5). Alves Aff ¶ 8, Bates No. A2.

Since the 1997-1998 school year, Dr. Alves has advised the District on its implementation of the Controlled Choice Plan in its elementary schools. Alves Aff ¶ 9, Bates No. A3.

C. James Lucey

James Lucey is the Principal Consultant at Lucey Consulting, where he serves as an independent consultant, primarily involved in public school district federal desegregation cases. Lucey Aff ¶ 1, Bates No. A7.

Mr. Lucey has 15 years of previous teaching and administrative experience in local school systems and in state youth service agencies, as well as more than 11 years of previous experience in various Information Technology and Financial Management positions in the private sector. Lucey Aff ¶¶ 2-3, Bates No. A7.

Mr. Lucey has focused his career on data analysis. His area of emphasis is school desegregation cases in which he conducts extensive data analyses, prepares the results, and presents his findings to educational decision-makers, senior organizational staff, politicians, and the courts. Lucey Aff ¶ 4, Bates No. A7.

Mr. Lucey has served as a consultant on federal school desegregation to a number of school districts across the country. Lucey Aff ¶ 5, Bates No. A7.

Unit 4 retained Mr. Lucey in 1997 to conduct a comprehensive examination of the District, evaluate the ability of all students to share equitably in the educational opportunities offered, make recommendations to the Board of Education to improve and ensure equity, and to otherwise assist consultant Dr. Robert Peterkin. Lucey Aff ¶ 6, Bates No. A7.

Between July 1997 and June 1998 Mr. Lucey engaged in extensive data collection and analysis, evaluating all components of the District's educational community, detailed in the Educational Equity Audit. Lucey Aff ¶ 7, Bates No. A7.

Since 1997, Mr. Lucey has continued to conduct various reports and assist the District in developing plans to ensure educational equity. Lucey Aff ¶ 8, Bates No. A7.

CONDITIONS IN THE DISTRICT

A. Student Assignment

1. Seat Capacity as of the 1996-97 School Year

In the 1996-97 school year there were 10 elementary schools in the District. Four were located in the north side of the District and six were located in the south, with University Avenue defining the distinction between north and south Champaign:

North Side South Side
Columbia Bottenfield
Booker T. Washington Carrie Busey
Garden Hills Kenwood
Dr. Howard Robeson

South Side

Westview

Alves 2nd Report 5, Bates No. 343.

Dr. Michael Alves, whom the District retained to conduct the initial audit of the Champaign School District, determined the following with respect to seat capacity in Champaign:

Capacity K-5 Resident Resident Geographic No. of of Student Utilization Location Strands Students Population Rate
North 11 1,585 1,812 114.3%
South 18 2,590 2,421 93.5%

Alves 2nd Report 6, Bates No. 344.

Overall the District's total resident utilization rate for elementary schools was 101.4%. Alves 2nd Report 6, Bates No. 344. Students living in the north were being structurally displaced and assigned to south side schools in the 1996-97 school year. For example, if all the students who resided in the north wanted to attend schools in the north, 227 would not have been able to. All south side students would have been able to attend their area schools. Alves 2nd Report 6, Bates No. 344. See chart below.

1996-97 STRUCTURAL DISPLACEMENT

Student Utilization Shortfall/ Population Capacity Strands Rate Excess Capacity
South Side 2,421 2,590 18 93.5% 힯
North Side 1,812 1,585 11 114.3% -227

This information indicates that the District needed to increase elementary capacity in both areas of the District. See Alves 2nd Report 6, Bates No. 344 and Alves 2nd Report 9, Bates No. 347.

77.1% of African-Americans resided in the north side and 22.9% resided in the south side. Therefore, according to Dr. Alves, the data strongly suggests that the structural displacement*fn1 of north side students may have been a major contributing factor to the disproportionate transportation of some 546 African-American students in the 1996-97 school year. Alves 2nd Report 6, 8, Bates Nos. 344, 346.

2. Seat Capacity as of the 2001-02 School Year

As of the 2001-02 school year, the District has 11 elementary schools, one more than it had in the 1996-97 school year:

North Side South Side

Stratton*fn2 Barkstall

Booker T. Washington Bottenfield
Garden Hills Carrie Busey
Dr. Howard Kenwood

Robeson

South Side

Westview

Alves 2nd Report 7, Bates No. 345.

Dr. Alves determined the following with respect to seat capacity:

K-5 Resident Resident Geographic No. of Capacity of Student Utilization Location Strands*fn3 Students Population Rate
North 12 1,656 1,745 105.4%
South 21 2,898 2,448 ...

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