The opinion of the court was delivered by: Joe Billy McDADE, Chief United States District Judge.
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.
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.
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.
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
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
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
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
B. OCR Resolution Agreement
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
assessment and placement practices. EEM ¶ 5D, Bates
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.
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
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.
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
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.
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.
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
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
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:
Booker T. Washington Carrie Busey
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
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:
Booker T. Washington Bottenfield
Garden Hills Carrie Busey
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%