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United States District Court, N.D. Illinois

March 1, 2004.


The opinion of the court was delivered by: CHARLES KOCORAS, District Judge


This matter comes before the court on the joint motion of the parties to modify the consent decree entered in this case in 1980. For the reasons set forth below, the motion is granted.*fn1 Page 2


  This 24-year-old case has a necessarily extended history, little of which is directly necessary to this decision.*fn2 In 1980, the United States filed a complaint alleging that the Board of Education of the City of Chicago engaged in unconstitutional segregation within the Chicago Public Schools ("CPS"). The same day, the parties filed a consent decree that resolved the litigation. This decree was not incredibly detailed, and three years later the parties submitted a comprehensive plan to effect the objectives of the consent decree — specifically, to establish the greatest practicable number of stably desegregated schools within the CPS and to provide compensatory programs in any schools that could not be stably desegregated. In January 2003, we requested that the parties examine the continued viability of and necessity for the consent decree. Both parties, as well as the amici curiae, agreed that CPS had not yet reached a point where the decree could be terminated whole-cloth. Instead, the parties set out to formulate a modification of the original decree that would remain true to its objectives while accounting for the realities of the situation that is, in material respects, different from the one the parties faced 24 years ago. They have jointly moved for entry of the modified decree. Page 3


  Before we begin our examination of the motion to modify, we note that this is a complex case requiring the parties and the court to grapple with many difficult issues. Even in small communities, school segregation and its disassembly present intricate problems. In an exceptionally large and varied system such as CPS, the complexities and unique challenges are multiplied many times over, and the intricacies begin to resemble labyrinths. We acknowledge this reality and recognize the labors of the parties, particularly the Board, in pursuing the goals espoused within the consent decrees.

  There is no question that the Chicago of 1980 and before is not the Chicago of 2004. It was a recognition of this truism, in part, that prompted this court's initiation of inquiry into the continued vitality of the 1980 decree and the wisdom of maintaining the status quo under the original decree. All the parties agree that the 1980 decree is no longer capable of achieving its primary objectives. The good faith of the Board and the United States in reaching this new agreement is apparent; we sincerely appreciate their willingness to combine their talents and energies to reach a mutually acceptable result. We also commend amici for their efforts in bringing a third-party perspective to these proceedings. Page 4

 1. Applicable Legal Standard

  As an initial matter, we address the legal standard applicable to the decision before us. The leading case on modification of consent decrees, particularly those involving governmental entities in institutional settings, is Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748 (1992). In their joint reply, the Board and the United States contend that the standard set forth in Rufo neither applies to this case nor controls our consideration of the proposed modification. They argue that this is because Rufo involved a contested motion to modify, whereas the motion here is agreed. The parties have not cited any case law explicitly addressing the applicability of Rufo in this type of circumstance, nor has our research revealed any.

  It is true that Rufo dealt with the situation in the context of a contested motion, and much of its discussion focused on that type of situation. However, we find no indication in the case that it should be limited solely to application in that specific circumstance. While it is undoubtedly important to foster agreement between the parties to the extent that we can to obtain all of the benefits that cooperation brings, such as reducing the time and cost of litigation and promoting a collegial atmosphere that will allow the most efficacious long-term solutions, a consent decree is not an exclusively private contract, impacting only the parties directly involved. See Rufo, 502 U.S, at 378.112 S.Ct. at 757; Evans v. City of Chicago, 10 F.3d 474, 477 (7th Cir. Page 5 1993); see also B.H. v. McDonald, 49 F.3d 294, 300 (7th Cir. 1995) (discussing the differences between settlements and consent decrees). It is a judicial order, rooted in equity and incorporating principles of fairness. See In re Hendrix, 986 F.2d 195, 198 (7th Cir. 1993).

  Particularly in cases such as this one, with direct and strong connections to the public interest, the duty of this court to independently assess the justness of the terms the parties propose cannot be understated. See Fed.R.Civ.Proc. 60(b); Heath v. De Courcy, 888 F.2d 1105, 1109 (6th Cir. 1989). Rufo reinforces the idea that consent decrees, though not immutable, should not undergo substantial revision without careful consideration. This principle applies with added force in institutional settings, where the public interest is so fundamentally implicated. The parties have not offered any reasoned basis why these tenets are erased by virtue of their collaboration.

  The parties do not contend that our decision is standardless or that our review is a mere formality. Rather, they argue that we need only consider whether the modification is constitutional, lawful, reasonable, and consistent with public policy. These criteria are enumerated in United States v. Bd. of Pub. Instruction of St. Lucie County, 977 F. Supp. 1202 (S.D. Fla. 1997), and Stanley v. Darlington County Sch. Dist., 879 F. Supp. 1341, 1371 (D.S.C. 1995). St. Lucie involved a motion by a school board to terminate a consent decree in which the board, the United States, and Page 6 plaintiff — intervenors submitted a joint stipulation of factual findings as well as conclusions of law. In reaching its decision to adopt the parties' recommendations, the court employed standards adapted from those applied to approval of class-action settlements, as well as extensive procedures designed to maximize public input. The opinion, in laying out the court's methodology, expressly noted the court's application of the "general principles that govern the acceptance or rejection of `consent orders'" in the school desegregation context. Id. at 1205. Moreover, the court explicitly stated that it had "considered whether adoption of the stipulation would be in the public interest." Id. at 1206. The case makes no mention of Rufo, perhaps because it involved a complete termination of the decree, as opposed to a modification.

  Stanley involved a school district that had operated under a desegregation order for over 30 years. The plaintiffs were a class of African — American schoolchildren; at various times the case included other governmental entities such as the State of South Carolina and the United States. Just prior to trial on issues surrounding the degree of the district's compliance with the court's orders since the district was commanded to desegregate, the parties submitted a proposed consent order. Stanley, 879 F. Supp. at 1368. The order represented the agreed plan of the parties to remedy the lion's share Page 7 of the problems remaining within the district.*fn3 Id. at 1368-69. Without any discussion of Rufo, the court assessed and ultimately approved the consent order under standards similar to those used in St. Lucie, Id., at 1371. As in St. Lucie, this is perhaps because the consent order was not a modification of an existing order but a brand-new agreement the parties had formed. Also, the plaintiffs in Stanley were a class; it is not surprising that the judge in that case employed the standard typically used for examining class — action settlements.

  The reply in this case insists that the standard used in these cases, borrowed from Fed.R.Civ.Proc. 23,*fn4 is the correct legal standard to apply in this case, despite the parties' statement in their earlier brief that the modified consent decree is not subject to this same standard. Memorandum in Support, at 24. We do not quarrel with the legal principles advanced in the cases cited by the Board and the United States. However, the cases that they cite differ in important legal and factual ways from the case before us — ways that are much more relevant than the shared characteristic of Page 8 joint action. As a result, we conclude that the operative case law guiding our decision is Rufo.*fn5

 2. Application of the Rufo Standard

  That being said, we do take to heart the parties' underlying point that their cooperative posture impacts our analysis. The prevailing theme of Rufo was an emphasis on the need for a district court to be flexible in considering proposed modifications to consent decrees, particularly in the institutional reform setting, where decrees typically have ramifications on groups and individuals other than the parties named in the litigation. See Rufo, 502 U.S. at 383, 112 S.Ct. at 759-60; Duran v. Elrod, 760 F.2d 756, 759 (7th Cir. 1985); see also Patterson v. Newspaper & Mail Deliverers' Union of New York, 13 F.3d 33, 38 (2nd Cir. 1993) (emphasizing the need for a court of equity to sensitively adjust the tensions between the competing objectives of promoting adherence to agreements and fostering a climate conducive to constructive settlements); Kindred v. Duckworth, 9 F.3d 638, 644 (7th Cir. 1993) (discussing the advantages of consent decrees in civil rights litigation). Rufo establishes a two — pronged test for assessing the merits of a motion to modify a consent Page 9 decree: 1) a party seeking modification bears the burden of establishing that a significant factual or legal change warrants revision of the decree and 2) the modification proposed by that party is suitably tailored to the established change.

  The parties' main concern about the application of Rufo seems to be the assumption that the case requires an evidentiary hearing on the changes in circumstances that are behind the modification. While it is clear that a hearing to gather information in a case such as this is necessary, this is where the atypical posture of the current case comes into play. As we have discussed, the parties agree on the changes that have occurred, and the amici do not contest their existence. There is simply no need for a full — blown evidentiary hearing to determine what are in essence uncontested facts. The parties have presented their position in support of allowing the modification, which the amici have supplemented with their point of view. In the circumstances of this case, the parties have had an opportunity to be heard, and we do not see any need for further development of or expostulation on the issues pertinent to the decision we have been asked to make. Naturally, this outcome is not always possible, even in the broader context of joint motions, but the cooperation and agreement of all groups involved in this case makes it possible here. Additionally, resources necessary to the preparation and conduct of hearings on the instant motion Page 10 are better committed to the welfare of Chicago's children in light of the agreement reached between parties who are not natural allies.

  We thus turn to an examination of the factual and legal circumstances that characterize the present situation. As we have said, much has changed in the past quarter century in our city and its school system, presenting a sometimes rapidly moving target for any desegregation effort. The percentage of African — American students enrolled has decreased by 10% since entry of the original decree. The percentage of white students within the system has dropped to half of what it was in 1980. It currently stands at 9% of the total student population By contrast, the percentage of Hispanic students has doubled. In the areas served by the school system, population growth has been steady but not evenly distributed. This is consistent with the protean nature of residential patterns and the ever — evolving racial and ethnic mix within the city. The parties also note that state and federal laws passed as recently as 2001 impact the operation of the public schools. The combined effect of these developments is to complicate the implementation of the original consent decree to the extent that its continued ability to achieve its goals is highly questionable. The old foundation is no longer suited to the house it was built to support; to save the house, it is necessary to restore a solid footing, at least for the present. Page 11

  As we are satisfied that the parties have shown that a modification is warranted, we turn to Rufo's "suitable tailoring" prong: is this modification designed to address the present realities? New aspects of the modified decree include a recognition of the need to review and report on schools desegregation performance and further potential by way of case-by-case review. This tack recognizes the unequal population growth patterns within the city as a whole and enables the Board to more directly deal with the unique challenges posed by shifts that occur in certain geographic areas. The new decree also provides increased emphasis on and support for voluntary desegregation techniques. Because the population composition is perpetually in flux in racial and ethnic compositions as well as overall numbers and percentages, voluntary techniques have the greatest potential to provide flexible long-term solutions through volitional participation. The techniques described within the modified decree set out to maximize the potential number of students who can take advantage of them, using such methods as magnet clusters. Unlike a traditional magnet school, in which all specialized programs are housed within a single building, magnet clusters are comprised of several schools that are relatively close to each other. Each school within the cluster then undertakes to provide specialized programs in a particular area of study. The overall effect is to allow students to take advantage of these educational opportunities without Page 12 incurring the cost and decisional problems attendant on trying to provide all specialized programs within a single school where one does not already exist.

  In many ways, the modified consent decree resembles the original consent decree; certainly, it is not such a drastic departure that we are given immediate pause. Several changes in the modified consent decree serve to clarify how the Board intends to ameliorate past noncompliance. Clearly, these revisions are not tied to the new circumstances; instead, they reiterate preexisting obligations. Each of the changes found in the modified decree is connected to a shift in the underlying situation in the city. This combination of both old and new indicates that the modification is tailored to the current situation. See Reed v. Rhodes, 179 F.3d 453, 465 (6th Cir. 1999).

  The amici, after their careful review of the proposed modification, do not object to it in principle. Many of their objections go more toward whether the parties' chosen path is optimal, rather than whether it is constitutionally and equitably acceptable. While we are certain that amici act admirably, and that there is a place for their opinions as to the best way to address the issues facing the CPS, we are just as certain that it is not in these proceedings. As Judge Shadur noted more than 20 years ago, the court was not and is not "the intended designer nor the intended czar of the Chicago school system and its plan of desegregation." United States v. Bd. of Educ. of City of Chicago, 554 F. Supp. 912, 914 (N.D. Ill. 1983). Page 13 Rufo does not require that the new solution be a perfect fit, only that it be "suitably tailored." 502 U.S. at 391, 112 S.Ct. at 763. The changes noted by the parties are demonstrably addressed within the modified decree. Given the need for flexibility in these cases, the predominant lack of fundamental opposition from the amici, and the short life expectancy of these modifications (discussed below), we find that the proposed modification is suitably tailored to the changed circumstances in this case.

  Despite the amici's basic agreement with the proceedings, they raise some points that warrant further discussion. First, they express some discomfort at the level of public participation contemplated by the modified decree. The decree provides that the CEO of the school system is required to make biannual presentations on the state of the CPS's compliance at Board meetings at least twice a year. Modified Consent Decree, ¶ IX. A. 3. The terms of the decree mandate that the United States be given notice of the dates of these presentations as well as provided with copies thereof. Id. The meetings at which presentations will be given are open to the public, and reports will be published or furnished to the public. There is no indication that the decree is designed to allow secretive activities. However, there is a significant gap between merely notifying the public and fostering meaningful participation. To ensure that amici receive the benefit of these presentations and that the Board continue to receive the Page 14 valuable perspective that amici have to date provided, we require the Board, within a reasonable time before the meeting in question, to notify amici of these presentations and supply them with copies of the same. Similarly, the Board shall provide copies of the report card discussed in ¶ IX.B.1 and ¶ IX.B.3 to the amici simultaneously with their publication and provision to the United States.

  That brings us to the final aspect of the parties' submission: the schedule proposed by the parties for bringing this case to a close. The goal of the original decree in this case, and indeed any desegregation decree, is to achieve desegregation as quickly and economically as possible so that schools can devote the maximum amount of their time and effort to their mission: education of the children within their charge. As the Seventh Circuit noted in considering a decree in Indianapolis, after many years of litigation, "it is time to put this suit on the path to a conclusion by taking a careful look to see whether the litigation and the decree have accomplished their purpose . . . [t]he administration of public schools is a state executive function rather than a federal judicial function, and so ought not to be subjected to the perpetual tutelage of the federal courts." United States v. Bd. of Sch. Comm'rs, 128 F.3d 507, 510 (7th Cir. 1997). To that end, we do not accept the parties' suggestion that the time to assess termination of the decree should wait for the close of the 2006-2007 school year. Page 15 Moreover, we agree with the amici that the decree cannot have a built-in self-destruct mechanism.

  Accordingly, at the end of the 2005-2006 school year, we will institute hearings and any other proceedings necessary to address termination of the modified decree as well as the underlying litigation. The Board has until then to implement the modified consent decree in such a way as to be prepared for our scrutiny. The time has come to address and accomplish whatever has not been done in the last 24 years to ensure that CPS has taken all practicable measures in its desegregative efforts. We are confident it is capable of the performance that we expect and that justice to the children and citizens of Chicago demands.


  The joint motion of the parties to modify the 1980 consent decree is granted as discussed.

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