Opinion

United States v. Bd. of Educ. of City of Chicago

621 F. Supp. 1296
29 Educ. L. Rep. 70
1985 U.S. Dist. LEXIS 14901

Court: District Court, N.D. Illinois
Filed: Oct 15, 1985
Status: Published
Author: Aspen
On the bench: Aspen
Cited by: 7 cases
Authority: More cited than 82.6%

Vacated on other grounds by United States of America, Cross-Appellee v. Board of Education of the City of Chicago, Cross-Appellant, 799 F.2d 281 (1986)

where the court notes in discussing a budget matter "that certain of the items funded in school year 1983-84 are one-time costs and will not recur in subsequent years"

How later courts described this case

where the court notes in discussing a budget matter "that certain of the items funded in school year 1983-84 are one-time costs and will not recur in subsequent years"
the district court order being reviewed in the present appeal

Written by the judges who cited it.

The opinion

PRELIMINARY MEMORANDUM OPINION

ASPEN, District Judge:

INTRODUCTION

The dispute over the Consent Decree in this unique desegregation case returns to the district court for the third time. The case is here, assigned to a new judge, following the Seventh Circuit’s second opinion in the case.

See United States v. Board of Education of Chicago,

744 F.2d 1300 (7th Cir.1984) (“Second Opinion”),

cert. denied,

— U.S. -, 105 S.Ct. 2358 , 86 L.Ed.2d 259 (1985). Although the United States won the appeal, the Court of Appeals concluded its opinion with an admonition to the United States that its conduct in connection with the case had been less than honorable:

In the circumstances of this case, we deem it important to note that the actions of the Executive Branch described above and reflected in the hearings below could be interpreted to contravene

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the spirit of the . Decree. Such actions, while perhaps within constitutional limits, cannot enhance the respect to which this Decree is entitled and do not befit a signatory of the stature of the United States Department of Justice. The Executive Branch initiated this critical litigation and bears a continuing shared and special responsibility for its eventual outcome, regardless of changes in personnel and ideology that will inevitably accompany the passage of time.

744 F.2d at 1308 . Such conduct continues. The United States continues its hard line approach to its obligations under 1115.1 of the Consent Decree, which provides:

Each party is obligated to make every good faith effort to find and provide every available form of financial resources adequate for implementation of the desegregation plan.

Rather than make this “good faith effort,” the government has made and continues to make every possible effort to minimize its obligations under If 15.1, even as narrowed by the Second Opinion. In this opinion, we hold that the United States has violated the letter, as well as the spirit, of the Decree.

A consent decree is both an enforceable contract and an order of the court.

It quickly became clear to this Court that the United States has had little respect for U 15.1, whether viewed as contractual promise or judicial command. As the Court of Appeals implicitly recognized, 744 F.2d at 1308 , changes in administration and philosophy since 1980, when the decree was signed, have been largely responsible for generating the conflict in this case. This change in philosophy apparently includes the belief that promises made by previous administrations need not be honored and that court orders need not be followed if they contradict prevailing ideology. If such a belief exists, it will not prevail, as this opinion will explain.

Since receiving the case, the Court has had to quickly learn the complex history of the case, and resolve pre-trial disputes,

see

610 F.Supp. 695 (1985); 610 F.Supp. 702 (1985), as the parties feverishly worked to prepare evidence and supporting material for this merits opinion. We appreciate the hard work of the parties and their briefs, which were very long — totalling about 450 pages, not counting the thousands of pages of appendices — but very helpful.

Remarkably, the parties devoted well over 150 pages of their briefs to arguments over what the Court of Appeals meant in the Second Opinion, which itself spanned just nine published pages. Obviously, much of this case hinges on our interpretation of the Second Opinion. Accordingly, before entering our Findings of Fact and Conclusions of Law concerning the evidence submitted by the parties, we set forth first an extensive preliminary opinion, which interprets the Second Opinion, thereby defining the context shaping the Findings and Conclusions which follow.

Technically, pending before the Court is the Board’s motion for declaratory and injunctive relief, which essentially alleges that the United States violated H 15.1 of the Consent Decree in many ways in 1984 and earlier years. For the reasons stated in the Preliminary Opinion and the Findings and Conclusions that follow, that motion is granted in large part.

PART I: ANALYZING THE SECOND COURT OF APPEALS OPINION

Background

The focus of this remand proceeding is the meaning of the United States’ obligation under If 15.1 of the Consent Decree,

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which is quoted above at 1. In this preliminary chapter of the opinion, we resolve the continuing dispute over which federal funds were “available” to the Board under 1115.1; in the concluding chapters we decide whether the United States has made “every good faith effort to find and provide” these funds, with particular scrutiny on fiscal year 1984.

The Consent Decree embodying the unique funding provision was entered and approved by the Court on September 24, 1980, the same day that the United States sued the Board for allegedly operating racially segregated schools in violation of the Fourteenth Amendment and Titles IV and VI of the Civil Rights Act of 1964. The history surrounding the Consent Decree is detailed at length in previous opinions and repeated in part in Chapter I of our extensive Findings of Fact below. For present purposes, we need only repeat the undisputed proposition that the desegregation plan envisioned by the Decree and the funding provisions of the Decree were unique and pioneering. The Plan ultimately developed by the Board, endorsed by the United States and approved by the District Court,

see United States v. Bd. of Education of Chicago,

554 F.Supp. 912

(N.D.

Ill.1983), created a broad range of costly educational programs designed to remedy the effects of past segregation on Chicago’s black and Hispanic students. The Plan eschewed forced desegregation methods, e.g. busing, in favor of voluntary desegregation made possible by the Plan’s educational programs. The Plan recognized that Chicago’s demographics made complete and lasting desegregation impossible. Thus, the Plan as approved by the Court created compensatory educational programs targeted to those schools which would remain segregated. These programs are intended to remedy the past and continuing effects of segregation.

See, e.g.,

Findings of Fact (“Findings”) 106-107.

Frustrated by what it considered the United States’ unwillingness to help fund the Plan, the Board petitioned the District Court on May 31, 1983, for an order enforcing the funding obligations of the United States under 1115.1. The United States contended that the Decree did not constrain its discretion in the funding process, and that to honor the decree it need only help the Board apply for funds. The Court rejected this argument, embracing the Board’s position, which was that 1115.1 unambiguously required the United States to provide available funds to the Board. 567 F.Supp. 272, 282 . The Court held that the United States violated 1115.1 by failing to take affirmative steps to find and provide available funds, as well as by working to make funds unavailable to the Board.

Id.

at 283-85 . The United States was obligated, said the Court, to provide presently available funds, to find other available funds, to support certain legislative initiatives and to seek appropriations which could be used to aid the Board’s Plan. The Court enjoined the United States from spending certain Department of Education funds until the Board’s entitlement to them could be finally determined.

Id.

at 289 .

On appeal, the United States continued to assert that it had no funding obligations under 1115.1. The Court rejected this assertion. Although disagreeing with the District Court’s conclusion that 1115.1 was unambiguous on that issue, it affirmed the District Court’s alternative holding that the extrinsic evidence supports the conclusion that ¶ 15.1 requires the United States to “go beyond assisting the Board in locating and applying for federal funds, and ... imposes a substantial obligation on the government to provide available funds to the Board.” 717 F.2d 378, 383 . However, the Court questioned whether the District Court was correct in concluding that the United States had violated 1115.1 by supporting broad legislative policy decisions which effectively reduced the pool of funds available to the Board.

Id.

It did not decide this question, though, but instead affirmed the District Court’s finding of lack of good faith “on the narrower and more discernible ground” that the lower court had also found that the United States actually had funds available for the Board but had failed to provide them. Specifical

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ly the Court referred to the District Court’s Findings of Fact 34-35 and 42-43, which had identified the Title IV fund and the “Discretionary Fund” as having available funds.

Id.

The Court also vacated the remedies ordered by the lower court, holding the “principles of comity” between the judicial and executive branches made it appropriate to let the United States have first crack at proposing how it would comply with its funding obligations, as well as remedy past non-compliance.

Id.

at 384 .

On remand, the United States filed its November 10, 1983 “Plan for Supporting the Desegregation Plan of the Board” (“November 10 Plan”). Ostensibly a plan for complying with the Court of Appeals opinion, the November 10 Plan was essentially a legal brief arguing for dismissal of the Board’s petition and accompanied a motion to dismiss. Among other things, the government argued that recent legislative activities rendered 1984 funds unavailable to the Board, except for $20 million dollars allocated as part of those activities.

However, the government finally and for the first time acknowledged that it was ready to give the Board some priority in dividing up desegregation funds. This promise was laden with conditions: The Plan stated that “in reviewing applications under any desegregation programs that provide operational support to local educational agencies, the Department [of Education] would give the Board a competitive priority under any criterion related to need, to the extent consistent with the statute and regulations.” The United States calls this a “commitment,” but this is difficult to understand, for it was made in the context of its concurrent arguments that no funds were then available to the Board, and that no desegregation programs provided operational support to local educational agencies. In fact, the Plan did not include Title IV or the Discretionary Funds in the priority, despite the Court of Appeals’ then-recent holding concerning those funds.

In March 1984, the District Court held an evidentiary hearing, and in June, issued a lengthy and comprehensive opinion.

See

588 F.Supp. 132 (N.D.Ill.1984). It is not necessary to discuss that opinion in detail. In a nutshell, the Court reviewed the history of the proceedings, including the parties’ understandings when they entered the Consent Decree. It found that most of the programs under the Board’s desegregation plan materially aid the successful implementation of the Plan, and that their costs were reasonable.

The Court also found that the funding requirements of the Plan for the 1984-85 school year had climbed to about $170 million; that the Board had exerted its best efforts to fund the Plan, but fell some $104 million short of doing so;. that the United States was bound under 1115.1 to make good faith efforts to find and provide this balance of $104 million. The Court held that various actions and inactions of the United States constituted bad faith, including submission of the November 10, 1983 Plan, failing to provide funds to the Board, failing to ask Congress for money for the Board, failing to reprogram funds for use by the Board, deciding to curtail direct desegregation grants to local educational agencies, lobbying Congress specifically to make funds ^available to the Board and redrafting regulations in the Discretionary Fund thereby rendering funds unavailable to the Board.

The Court ultimately entered a detailed remedial order, which was based on two independent grounds, first, as a matter of interpretation of 1115.1 itself, and second, as a remedy for the United States’ deliber

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ate bad faith. Both grounds required the United States, among other things, to lobby Congress for funds for the Board and to oppose contrary initiatives. In a later remedial order issued in August, 1984, the Court ruled that because of the government’s bad faith, it had an unconditional obligation to pay the Board the $104 million needed for the Plan. It ruled that if the United States failed to do so, it would, as a remedial matter, have to obligate to the Board the $17 million restrained in the 1984 Discretionary Fund, and the approximately $12 million in the 1984 Title IV account, despite the fact that most of these funds were obligated to other grantees and purposes.

The United States appealed, and the Seventh Circuit vacated the District Court’s 1984 opinion and its subsequent remedial order. At the outset we observe that the Court did not address most of the District Court’s Findings of Fact and specifically reversed only its finding that as a matter of construction ¶ 15.1 required the Executive Branch to lobby in Congress and findings of bad faith which depended on this finding. Instead of examining the lengthy District Court Opinion in fine detail, the Court in a brief but broadly worded opinion altered the framework for approaching this case and remanded for application of this approach. Before embarking on its legal analysis, the Court set out the principal issues before it. First, it said it had to decide whether 1115.1 required the Executive Branch “to engage in legislative activity, to make up the difference between the funds necessary for implementing the desegregation plan and the funds that the Board has budgeted for this purpose, and to award Title IV funds and Discretionary Funds to the Board without regard to other grantees.” 744 F.2d at 1304 . If it would have ruled for the Board on these issues, the Court said it would have had to decide whether the doctrine of separation of powers rendered the Decree unenforceable. The Court resolved the first set of questions in favor of the United States, so it never expressly addressed the constitutional issue. However, it is clear that the separation of powers doctrine lurked beneath the surface of the Court’s opinion.

In Part 11(A) of the opinion, the Court interpreted ¶ 15.1, as that section’s heading states. It reaffirmed its 1983 holding that ¶ 15.1 imposes “a substantial obligation on the government to provide available funds to the Board.”

Id.

at 1304 . The Court then noted that on remand, the government had stated in its November 10, 1983 Plan that it was prepared to give the Board “priority in the distribution of desegregation funds under existing federal programs.”

Id.

at 1305 . At oral argument, the Court had asked government counsel what the government’s priority meant. Counsel went beyond the literal terms of the Plan spelled above, and stated that under the system of priority, the Department of Education “will put the Board ‘at the top of the list’ for any program grants that can be applied to desegregation assistance and for which the Board is eligible.”

Id.

This “top of the list priority” applied to Title IV, guaranteeing that the Board will receive its “ ‘equitable fair share’ of funding under Title IV criteria,”

id.,

and that this funding will be earmarked for Chicago and set apart from the usual block grant funding. Counsel also conceded that the priority applies to the Discretionary Fund.

The Court “considered” these representations and held that

by guaranteeing the Board will be funded on a priority basis under existing school desegregation programs, the amount of which funding is determined by program criteria and is subject to the review of the district court, the government would comply with our interpretation of 1115.1 and would fulfill its substantial obligation to provide available funds.

Id.

at 1305-06 . The Court added that 1115.1 binds the Secretary of Education’s discretion “with respect to funds that may be used for school desegregation pursuant to Congressional appropriation.”

Id.

at 1306 n. 7. The Court also held that this ruling meant that, as a general rule, 1115.1

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does not force the government to try to make funds available through legislative activity.

Id.

at 1306 . By so doing, the Court did not expressly address the alternative separation of powers arguments raised by the United States.

The Court concluded this section with its remand instructions. It remanded the case for this Court to determine whether “the Board is receiving the maximum level of funding that is available under the criteria of programs through which funds for desegregation can be disbursed.”

Id.

at 1306 . The Court added that so long as the Board has unmet needs, the government also has a continuing “duty to search” for “unencumbered funds [in the Department of Education and other federal agencies] that may be used to advance the Board’s desegregation plan.”

Id.

at 1306-07 .

Thus, in Part 11(A) the Court answered the “lobbying” question in favor of the government. It also ruled that 1115.1 cannot guarantee the Board

all

funds made available by Congress. The Board deserves only an “equitable fair share” following “priority” consideration.

The Court in Section 11(B), titled “Bad Faith,” turned to the District Court’s findings of bad faith, which had supported its remedial ruling that the United States had an unconditional obligation to pay $104 million to the Board for 1984-85. The Seventh Circuit vacated all the findings of bad faith but one. Working from its holding in Part 11(A) that ¶ 15.1 does not require the government to lobby for desegregation funds, the Court held that it was not bad faith for the government to fail to take certain legislative actions, such as (1) failing to request Congressional appropriations for the Board, (2) failing to “reprogram”

funds for the Board, (3) administratively deciding not to provide direct grants for school desegregation, and (4) redrafting administrative regulations limiting grants of Discretionary Funds. In support of points (3) and (4), the Court reasoned that the decisions were general and nationwide, and therefore did not indicate that the United States specifically intended to avoid 1115.1.

Id.

at 1307 & nn. 9, 10. The Court did not reverse the lower court’s “most significant finding of bad faith,” concerning the government’s lobbying activities which tried to make funds unavailable to the Board. The Court assumed that these activities constituted bad faith, but held that the District Court abused its discretion by ordering a $100 million remedy for this violation. This remedy would have rendered funding unavailable to other grantees and was thus held to be unreasonable. A civil contempt citation would have been the appropriate remedy, but the time for such action had passed.

Id.

at 1307-08 . The Court concluded by scolding the Executive Branch for its activities, as noted above in our introduction. It remanded for proceedings under Section 11(A) of the opinion and directed under Circuit Rule 18 that a new district judge take over the case. The case was reassigned by lot to this Court.

Issues Raised by the Opinion

The second Court of Appeals opinion (“Second Opinion”) is clear about several things, which the Board does not dispute. As a general rule, ¶ 15.1 no longer affirmatively requires the Executive Branch to engage in legislative activity supporting the Board.

It does not require that the Board receive funds without any regard for other grantees. It also precludes the Court from finding that failure to lobby or reprogram amounts to bad faith

per se,

or that the mere act of creating a general policy which effectively limits the funds available to the Board amounts to bad faith (absent evi

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dence of intent to hurt the Board). The Board also concedes that, to a large extent, the Secretary is free to obligate portions of otherwise theoretically “available” funds to other purposes and grantees.

However, the parties bitterly disagree about much of the rest of the opinion. To paraphrase the Circuit Court, the process of dispute resolution continues to fail remarkably in this case.

See

744 F.2d at 1304 . The parties have raised several broad, but crucial, issues of interpretation of the Second Opinion. We must decide the dispute over what the Second Opinion means in order to know how to carry out its remand instructions. The nature of the Second Opinion explains why so many questions remain unanswered. The Court’s purpose was to change the approach to the case, not to resolve the case. The unresolved dispute divides into three general, overlapping issues, which the Board has appropriately dubbed the “scope,” the “pipeline” and the “share” issues. Resolution of these issues will give meaning to 1115.1’s words, “every

available

form of financial resources.”

The “scope” question asks how broadly the 1115.1 funding priority sweeps. In

which

Congressional programs are funds “available” for the Board’s Plan and subject to priority treatment? The United States contends that the Second Opinion limits the “top of the list” priority (which it repeatedly demotes to a “competitive priority,” a point we shall return to) only to programs specifically designated by Congress in whole or in part as a “desegregation” program. The Board argues that neither 1115.1 nor the Second Opinion limits the government’s duty to programs which carry an explicit “desegregation” label. Rather, the “scope" of the priority covers any program which can materially aid the Board’s desegregation plan and for which the Board’s own programs qualify under statutory criteria. In other words, according to the Board, a “desegregation” program is that which is contained in the Board’s “desegregation plan.”

While the scope issue cuts horizontally

across

various Congressional programs, the “pipeline” issue has both vertical and horizontal components

within

a given Congressional program. The “pipeline” question asks

when

the Secretary’s discretion is bound and

how

it is bound. The “when” question is one of vertical priority: when during the administrative funding process — from the point where money enters the “pipeline,” i.e., when Congress allocates funds, to where it exits the pipeline, i.e., when the Secretary writes checks to grantees — does the Consent Decree affect the Secretary’s discretion? The United States argues that, until the last phase of the granting process, it is free to exercise its discretion with nary a glance at the Consent Decree; only

after

it passes regulations, sets priorities and refines program criteria must it take the Consent Decree into account. That is, only when the Board applies for funds in competition with other applicants does it get a priority, says the United States. The Board, of course, argues that the Secretary must consider the Consent Decree much earlier in the funding process. Although not specific about what particular steps the Secretary

must

take (it does detail steps the Secretary

could

take,

see

Board’s Merits Memorandum at 46-72), the Board says that 1115.1 binds executive discretion at the entrance of the pipeline, ensuring that the Board’s needs are considered from that point on as a priority along with the myriad other priorities. In that sense, the pipeline issue is “horizontal,” since the United States would have to balance the Board’s priority against other priorities within the pipeline.

The “share” issue depends heavily on the outcome of the scope and pipeline issues. It asks what “share” of available funds, that is, the dollar or percentage amount, the Board should get because of the priority. This question is horizontal as between

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the Board and other grantees. Out of a pool of given funds, what does the Board get and what do the others get, after applying the priorities as defined by the “scope” and “pipeline” issues?

The scope and pipeline issues depend mostly upon the teachings of the Second Opinion and the meaning of II 15.1. Therefore we address those questions next. The share issue essentially is the issue specified in the Court of Appeals remand instructions. We decide that in Chapter IX of this opinion, after entering our Findings of Fact and Conclusions of Law.

The Scope Issue

Unfortunately, the Second Opinion is not clear on its face as to the scope issue. The length of the parties’ submissions on this issue alone underscores that point. Nevertheless, after carefully considering the Second Opinion in the context of the Consent Decree and its history and of the First Opinion, we hold that the Board’s position on this issue is correct: The ¶ 15.1 priority extends to any statutory program which could materially further the Board’s desegregation plan, so long as a project in that Plan may qualify for funding under relevant statutory criteria.

In reaching this result, we begin by considering the Second Opinion. Because of its broad, vision-shifting approach, the Court never explicitly addressed the scope issue now before us. Probably this explains the opinion’s ambiguity on this point. As noted earlier, the Court said it was answering a different question, that is, whether ¶ 15.1 requires the Executive Branch to lobby Congress to make up the difference between what the Board has spent on its Plan and what the Plan needs. 744 F.2d at 1304 . In answering “no” to this question, the Court several times used language which is relevant to the current scope question. Both sides argue that this language supports their positions. First, in summarizing the government’s representations at oral argument, the Court said that the proposed priority system would put the Board “ ‘at the top of the list’ for

any program grants that can be applied to desegregation assistance

and for which the Board is eligible.” 744 F.2d 1305 (emphasis added). It then discussed Title IV and the Discretionary Fund, both of which list desegregation as a statutory purpose. In its holding, the Court said that the Board must be “funded on a priority basis

under existing school desegregation programs,

the amount of which funding is determined by program criteria____”

Id.

(emphasis added). The Court added that H 15.1 binds the Secretary’s discretion “with respect to the funds that may be used for school desegregation pursuant to congressional appropriation.”

Id.

at 1306 n. 7. In explicitly rejecting the District Court’s findings that 1115.1 required lobbying, the Court held that no evidence showed “that the parties had any federal funding sources in mind other than programs that could be used, consistent with the intent of Congress, to fund school desegregation efforts.”

Id.

at 1306 . Finally, in its remand instruction the Court ruled that this Court should determine whether the Board is receiving “the maximum level of funding that is available under the criteria of programs through which funds for desegregation can be disbursed.”

Id.

Each party vigorously contends that this language unambiguously supports its position. But because this language is facially ambiguous, we must disagree with both sides that the opinion’s language is itself determinative. On the one hand, the Board argues quite reasonably that the language of the opinion supports a broad reading of the scope issue. Nowhere does the opinion explicitly limit 1115.1 to desegregation-label programs. Rather, it speaks about

“any

program grants that

can be

applied to desegregation assistance”; about “funds that

may be

used for school desegregation pursuant to congressional appropriation”; about “programs through which funds for desegregation

can be

disbursed.” (Emphasis added.) All of this language can be read to mean that the Board may receive funds to aid its desegregation plan (hence, receive “desegregation assistance”) so long

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as programs in its Plan qualify under statutory criteria.

On the other hand, the United States’ position is plausible from the face of the opinion. The Court held that the priority applies to “existing school desegregation programs,”

id.

at 1305 , that is, “programs that could be used, consistent with the intent of Congress, to fund school desegregation efforts.”

Id.

at 1306 . As the government argues, this language could be read to mean that Congress must specifically intend that the money be spent for desegregation. The Court’s specification of

only

Title IV and the Discretionary Fund — two desegregation-label programs — bolsters this reading. Yet this reading is not inevitable. The other language quoted earlier very much supports the Board’s position. The word “existing” probably is there to underscore the Court’s paramount concerns with lobbying rather than to impose a desegregation-label requirement. And the language, “consistent with the intent of Congress,” could support the Board’s reading. The Court used that language in the context of ruling that ¶ 15.1 does not, as a matter of construction, require lobbying. In the context of all the other quotations, it could plausibly be read to mean ¶ 15.1 does not require lobbying, but only covers “programs that could be used,

not inconsistent

with the intent of Congress, to fund the

Board’s

desegregation efforts.” This reading becomes much more plausible when one realizes that everyone, including the Court of Appeals, knew that the Board’s unique Plan contained many “non-desegregation” programs in it.

In sum, the Court simply did not unequivocally answer the current scope question: in the unique context of this case, is a “school desegregation program” one that is labelled as such, or one that could aid the Board’s desegregation plan? We conclude that the Board’s position is correct, not because the language of the opinion inevitably reads that way, but because that language, considered in the context of 1115.1 and the extrinsic evidence, makes the Board’s position the more logical and reasonable one.

The language of 1115.1 itself plainly implies no limitation to programs which Congress has labelled “desegregation.” Such an implication would actually run contrary to the thrust of the Consent Decree, which the parties agree was and is unique and pioneering.

Provisions of a Consent Decree must be read in the context of the whole agreement,

see, e.g. Alliance to End Repression v. City of Chicago,

742 F.2d 1007, 1011 (7th Cir.1984) (en banc). The Decree contemplated a broad, system-wide plan. It anticipated the use of many educational programs, both to encourage voluntary desegregation and to compensate children in segregated schools for inevitable continued desegregation.

The vital funding provision for this Plan, 1115.1, expressly incorporates no artificial limitation. It binds both parties “to make

every

good faith effort to find and provide

every available form

of financial resources adequate for implementation of the desegregation plan.” This language does not reasonably suggest that the funding duty is limited to desegregation-label programs. Instead it is obviously broad and inclusive, suggesting no limitation of the kind offered by the United States. Indeed, the United States’ reading flies in the face of this language. The comprehensive nature of the Board’s Plan and the Consent Decree,

see

Findings 101-110, shows that the parties took an approach that cut away traditional labels and old ways of dealing with desegregation cases. The case involved a novel approach to desegregation, using many costly “non-desegregation” educational programs. It simply does not make any sense that 1f 15.1, the lifeblood of this Plan, would silently

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draw a line between programs with and without desegregation labels when the rest of the Consent Decree draws no such line.

The extrinsic evidence surrounding the Consent Decree buttresses the Board’s position on the scope issue. While the United States is correct that during the negotiations the Board was concerned about its previous difficulties in getting funding under desegregation-label programs,

these negotiations were unfruitful. After a new Board was appointed and new counsel retained, the parties’ focus shifted to general principles rather than specific dollar values. As the United States has stipulated (“1984 Stipulation 104”), it 15.1 was not designed to incorporate any specific discussions, but to establish a general and flexible obligation “which would be interpreted and applied as appropriate in whatever future circumstances might arise.” Thus, Judge Shadur found in 1984 (a finding which we adopt below in Chapter I) that the extrinsic evidence does not support a reading that 1115.1 was limited to the ESAA program or the historical amounts of that program.

See

Findings 101-110.

One piece of evidence, relied upon by the Seventh Circuit in the First Opinion, also supports the broader reading of the scope issue. Shortly after signing the Decree, the General Counsel of the Department of Education wrote in a memorandum that the Decree compelled the Department to “ensure that the Chicago School Board ... receives the maximum amount of financial and technical assistance that this Department can provide.” 717 F.2d at 382 n. 7. This memorandum supported the Appeals Court’s holding that 1115.1 binds the Secretary to

provide

available resources. ' We also think it strengthens the conclusion that this “duty to provide” contains no implicit limits concerning desegregation-label programs.

See also

Findings 118-121 below. More significant, the Board’s Plan is subject to the continuing review of this Court. We will not let the Board pack its Plan with irrelevant programs which turn the Plan into a black hole sucking up all unencumbered funds. Also, Congressional criteria limit the Board’s entitlement. The Board cannot receive funds for any of its programs unless it qualifies under all relevant Congressional criteria. And our resolution of the “pipeline” issues and “share” below indicates that the Board cannot receive anything remotely approaching “all” funds in any program within the broad “scope” of 1115.1. In sum, our resolution of the scope issue does not open up limitless funds to the Board. It simply interprets “available” to include a broad range of programs, not a large share of funds within those programs.

The Pipeline Issue

The issue here is at which point in the funding process, from Congressional appropriation to check-writing, are funds in a Congressional program which can aid the Board’s Plan “available” such that 1115.1 affects administrative discretion? We hold below that the Board’s answer is correct. The language of 1115.1, the representations made at oral argument, the Second Opinion itself and logic support the construction that ¶ 15.1 must affect administrative discretion at the beginning of the pipeline when Congress defines and passes “available” money into administrative hands.

As with the scope question, the Court of Appeals never squarely addressed the exact pipeline issue now before us. It instead ruled in Part 11(A) in favor of the government’s arguments that ¶ 15.1 does not require the Executive Branch to engage in legislative activity (a pre-pipeline question) or to give to the Board

all

funds appropriated to Title IV and the Discretionary Fund without regard to other grantees (a “share” question). Given this context, it is not surprising that at oral argument the government (which was appealing a contrary decision) emphasized several times that funds “available” under ¶ 15.1 are limited to those appropriated

by Congress,

but

not

those which the Executive could

ask

Congress to appropriate. In drawing this line at the appropriation stage, the government repeated that the Consent Decree binds the Secretary’s discretion with respect to funds made “available” by

Congress,

but not his discretion concerning legislative activity. Thus, counsel said the following things, among others, to the Court (emphasis added):

a. [¶ 15.1] requires us to give the City of Chicago priority consideration with respect to the available funding under different Congressional appropriations and in the context of that priority consideration

to provide funds to Chicago that Congress has said are available for

desegregation purposes. (Transcript p. 3).

b. What Chicago gets, and I think what the Decree contemplates — is going to get its full equitable share of whatever funds are available to the grantees, based on the eligibility criteria that the Secretary has to work with____” (Transcript pp. 8-9).

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c. The reason ... a small amount of money [is available in the Discretionary Fund], just like the reason ... a small amount of Title IV money [exists],

has nothing to do with the Secretary’s activity,

it is the appropriation activity of Congress, and

Congress is the one that has the power

to make this kind of appropriation and

to say it is either going to be subject to discretion or

not____ (Transcript p. 13).

d. The Consent Decree speaks to

available

funds, and as we all have agreed, that word pertains to what

Congress

has appropriated. (Transcript p. 10).

e. What this decree does is it, I think quite clearly,

binds the Secretary’s discretion with respect to those funds that Congress has appropriated

and has said should be allocated pursuant to that discretion____ [W]hat Chicago has gotten by this consent decree is the ability to come back into Court ... to point to that Consent Decree, paragraph 15.1 and enforce the obligation that is there, that indeed, that

Chicago get its full equitable share of that particular amount of appropriation that is subject to the discretion of the Sec

retary____ (Transcript p. 44).

The quotations clearly indicate that the Assistant Attorney General was most concerned about drawing a line about which funds are available at the appropriation stage. But once the Secretary gets the money that

Congress

makes “available,” his discretion is bound after appropriation. The government did not specify

at which point

after it receives the money the discretion is bound, probably because that was not the focus on appeal. But it clearly admitted in broad terms that its discretion was bound. And it concedes in its brief that as an initial matter

Congress

determines the availability of funds to which the priority applies. United States’ Merit Brief at 70.

The Court relied upon these concessions. As with the scope issue, it did not precisely address the pipeline issue now before us, but it did make some remarks which relate to the issue. First, it confirmed that ¶ 15.1 binds the Secretary’s discretion subject to court review. 744 F.2d at 1306 n. 7. The Court also drew a bright line at the appropriation stage. But when it came to which post-appropriation events are subject to review, the Court was less specific, using the general phrase like “top of the list,” “equitable fair share,” “get what the project called for,” and “maximum level of available funding,” none of which specify exactly how or when after appropriation the Secretary’s discretion is affected. The Court did refer to “Title IV criteria” or “program criteria,” as controlling, but did not specify whether such criteria are merely Congressional criteria or include administrative criteria created without regard to If 15.1. However, the heavy emphasis laid on

Congressional

intent by government counsel and the Court,

suggest that

Congress

is free to determine the criteria of “availability,” but that'the Secretary cannot freely do so.

This conclusion rests on our assumption that the Court of Appeals must have meant for ¶ 15.1 to bind the Executive's discretion in some

meaningful

way. As a corollary to this uncontroversial proposition, we must assume that the Court would not allow the Executive to exercise unfettered discretion such that it could effectively reduce the Board’s share of funds to close to zero. However, the government’s position would let the Executive do precisely that. It would gut any sensible meaning from footnote 7, as well as from its concessions at oral argument. It claims that all meaningful administrative decisions in programs covered by ¶ 15.1 can be made without considering 1115.1 and without judicial review. Only

after

it makes all these decisions does its priority spring up. When the Board

*1319

applies for funds along with everyone else, it goes to the “top of the list” of applicants. This position rests on a second bifurcation theory.

Even though it concedes that Congress determines “available” funds subject to the priority and that it is

able

to apply the priority early in the pipeline, the government claims it is not

obligated

to apply a priority until the very end of the pipeline. The government thereby divides

concededly

“available” funds into two categories, funds that Congress has made “available” and funds that the government alone decides to keep “available.” This is Orwellian doublespeak. In one breath the government concedes that its discretion is bound as to “available” funds, and that

Congress

determines “availability,” but in the next breath, it claims it has unbound discretion to redefine what is “available.”

This strips all meaning from the expansive language of ¶ 15.1 and from the two Court of Appeals holdings that the government owes a “substantial obligation” to

provide

(not unreviewably

define)

available funds.

Besides being grounded in common sense, our rejection of the government’s position rests on traditional principles of contract construction. Consent decrees are to be construed like contracts.

See, e.g.,

First Opinion, 717 F.2d at 382 . Contracts should not be read in a way that places one party at the will or mercy of another.

See, e.g., Padbloc Co. v. United States,

161 Ct.Cl. 369, 376-77 (1963). In this regard, the Seventh Circuit recently emphasized that a certain reading of a contract becomes implausible if it creates a situation that “one of the parties assumed enormous risks and got nothing in return.”

Alliance to End Repression v. City of Chicago,

742 F.2d 1007, 1013 (7th Cir.1984) (en banc).

The government’s reading works just the sort of mischief that these construction principles argue against. Under the United States’ reading, by signing the Decree the Board assumed enormous risks — it has been pouring tens of millions of dollars into its Desegregation Plan. And the United States persists in arguing that the Board must pour

of its money each year into the Plan. Yet despite the plain reciprocity of ¶ 15.1, the government claims it can exercise its discretion such that it can unilaterally define its risk nearly out of existence. Likewise, under the government’s theory the Board is placed at the government’s mercy. It can freely ignore the 1115.1 priority in setting other ones and thereby freeze the Board out of previously and concededly “available” funds.

In short, we must reject the government’s position on the pipeline issue and adopt the Board’s. To have sense and meaning, words and concepts like “available,” “reviewable discretion” and “substantial obligation” require that the Executive’s discretion be bound and reviewable from the time it actually

receives

funds which are “available” by Congressional cri

*1320

teria.

In no way does this mean that the Board must or will receive

all

such funds. The Second Opinion clearly forbids such a resolution of the “share” question. There is a reasonable middle position. All we are holding is that priority consideration

begins

when the Executive receives available funds from Congress. In making its various policy decisions down the pipeline, the 1115.1 priority must be balanced along with competing priorities. The government clearly retains great discretion to meet other priorities and needs. But 1115.1 must make the Board

one

of those priorities if it and the Second Opinion are to have any meaning at all. Ultimately, the “share” issue determines how that balancing translates into dollars. Thus, the Board does not get a “whole of the list” priority, as the government claims. It gets priority consideration as to

all

funds, but it actually

receives

nothing close to all funds.

Our holding does not suggest that “the government bartered away important public interests merely to avoid the expense of a trial.”

Alliance to End Repression,

742 F.2d at 1013 . The government clearly retains substantial discretion to adjust national priorities and meet other needs. By saying its discretion is bound, we by no means say that its discretion is tiny or that it has simply bargained most of it away. Moreover, in agreeing to consider the Board as a competing priority, the Executive achieved much more than “merely avoiding the expense of trial.” It secured a pioneering, voluntary

school desegregation plan, one which might not have been achieved through litigation. It created a national, experimental alternative to the traditional and controversial busing remedy. It did so relatively quickly, bringing remedies to Chicago’s children much sooner than could have been achieved through litigation. And it helped work toward vindicating the federal Constitution and the public interest by desegregating Chicago’s massive school system.

Given the Board’s massive financial deficits, these gains could not have been achieved unless the federal government agreed to share the financial burdens. The United States’ financial commitment under ¶ 15.1 was the principal

quid pro quo

for the Board’s willingness to forego litigation and develop its Plan.

See

Findings 108-110. In return, the United States achieved the above gains.

*1321

Contrary to the claims of the government, this holding on the pipeline question is in full harmony with Part 11(B) of the Second Opinion. As noted earlier, this case was remanded for “proceedings consistent with Part 11(A)” of the Second Opinion. As its heading says, that section “interpreted” ¶ 15.1 defining in general terms the priority system and reading legislative activities outside of If 15.1. Part 11(B) addressed a separate question, the District Court’s findings of bad faith which had supported its remedial order. It vacated the extraordinary remedy of $104 million because it found that the challenged government activities were not subjective bad faith attempts to flout ¶ 15.1. Some of these findings flowed from Part 11(A). Its holding concerning legislative activities meant it was not bad faith to fail to ask Congress for appropriations or reprogramming of funds. The Court then made two findings that bear on the pipeline issue: neither the Secretary’s decision not to provide direct grants for school desegregation nor his decision to redraft regulations limiting grants of Discretionary Funds constituted bad faith

per se.

744 F.2d at 1307 & n. 10. The Court reasoned that such general policy decisions of national scope did not by themselves indicate governmental intent to evade II 15.1.

A first impression of this holding, especially footnote 10, could lead one to think that the Seventh Circuit endorsed the government’s position on the pipeline issue.

However, careful consideration of the opinion, the First Opinion and the general context of the case show that this first impression is wrong.

It is one thing to say that it is not bad faith to make a

specific

policy decision of national scope which has the effect of reducing the pool of funds available to the Board. Such a decision does not

by itself

indicate subjective intent to harm the Board. Thus, such a decision does not support the extraordinary remedial order the government appealed from. But it is quite another thing to say that the Executive may therefore completely ignore ¶ 15.1 in making

all

policy decisions such that it reduces the pool of available funds to near zero.

A certain particular action may not be

prohibited per se

by ¶ 15.1, but ¶

15.1

*1322

may

require

some affirmative conduct out of a whole range of possible actions such that the Board receives substantial funding.

This analysis leads exactly to the position we adopted earlier. Part 11(B) teaches that the Executive is free to make many general policy decisions which have the effect of harming the Board, so long as it does not do so

intending

to harm the Board. This we stated before. But as also noted earlier, for Part 11(A) to be meaningful, the Executive’s discretion

as a whole

must be bound just after Congress defines the pool of available funds. The requirement of “priority” treatment does not preclude the government from weighing and setting other priorities, so long as it does not totally ignore the Board in setting those priorities.

In this way, Part 11(B) harmonizes with Part 11(A).

The United States would have Part 11(B) vaporize Part 11(A). Its position would have Part 11(B) create an immunity for

all

general policy decisions such that footnote 7 of Part 11(A) would be meaningless. It would have Part 11(B) give the Executive unfettered discretion even though footnote 7 says this discretion is bound. It would render the “substantial obligation” of Part 11(A) meaningless through a totality of unreviewable policy decisions. We will not construe Part 11(B) to so contradict Part 11(A). The Court of Appeals meant it when it said in Part 11(A) that the government owes a “substantial obligation” to give the Board “priority consideration.” Our reading of Part 11(B) preserves that meaning, yet leaves the Secretary much flexibility so that Part 11(B) is meaningful as well. Our analysis in Chapters V, VI, VIII and IX of our Findings and Conclusions will show how Parts 11(A) and (B) harmonize in practice.

Summary

1115.1 requires the United States “to find and provide every available form of financial resources.” According to the Seventh Circuit, this duty means that the Board must receive the maximum level of funding “on a priority basis under existing school desegregation programs, the amount of which funding is determined by program criteria and is subject to the review of the district court.” 744 F.2d at 1305-06 . Our resolution of the scope issue interprets "existing school desegregation programs” to mean any existing statutory program which can, under statutory “program criteria,” fund projects in the Board’s Desegregation Plan. Our resolution of the pipeline issue holds that Congress determines the pool of “available” funds, and that the Executive’s discretion “is subject to the review of the district court” from the moment it receives such available funds.

Having so interpreted the Second Opinion and laid to rest disputes over its

*1323

meaning, we are ready to fulfill our remand instructions and determine whether the United States has been giving the Board “the maximum level of funding available” under program criteria.

PAET II: FINDINGS OF FACT AND CONCLUSIONS OF LAW

Before setting forth our extensive Findings of Fact (“Findings”) and Conclusions of Law (“Conclusions”), we must clear up a few preliminary matters.

The Applicability of Judge Shadur’s 1984 Findings and Conclusions

The Findings fall into several “chapters” corresponding to various major areas of dispute. The first three chapters detail the history of this litigation. In large part, these sections restate the history as found by Judge Shadur in 1984.

See

588 F.Supp. at 140-200 . Although not everything in this history relates directly to the issues on remand, two reasons moved us to adopt these Findings. First, the Court of Appeals vacated Judge Shadur’s whole opinion, although it did not discuss the great majority of his Findings. Thus, the status of these Findings was unsettled. Second, in its brief the United States seeks to relitigate some of these Findings, especially those in Chapter 1 concerning the history of the consent decree negotiations, and those in Chapter 3 concerning the Board’s good faith. This factual history needs to be resolved once and for all.

Judicial economy and public policy dictate that litigation should come to an end.

See, e.g., Devines v. Maier,

728 F.2d 876, 880 (7th Cir.1984),

cert. denied,

— U.S. -, 105 S.Ct. 130 , 83 L.Ed.2d 71 (1984). Thus, district courts generally refuse to reconsider portions of an original district court judgment unaddressed on appeal except “for convincing reasons.” IB, J. Moore, J. Lucas & T. Currier,

Moore’s Federal Practice,

¶ 0.404[4.-1], [4.-3]. Of course, we must follow actual decisions of the appellate court.

See, e.g., Gertz v. Robt. Welch, Inc.,

680 F.2d 527, 532-33 (7th Cir.1982),

cert. denied,

459 U.S. 1226 , 103 S.Ct. 1233 , 75 L.Ed.2d 467 (1983). However, we need not re-examine district court findings and conclusions which were not explicitly or by necessary inference addressed on appeal, if there is no compelling new evidence or reason to do so.

Id.; see also 1984 District Court Opinion,

588 F.Supp. at 212-214 . It is clear in this case that the government has presented no new, let alone compelling, evidence or reason warranting reconsideration of Judge Shadur’s unreversed comprehensive Findings and Conclusions. We perceive no injustice in adopting several of those Findings, to the extent relevant and uncontradicted by the Second Opinion. Indeed, policies of finality and economy compel such approach.

We therefore reject the United States’ various attempts to revise the history of this case. In particular, we decline to reconsider his findings concerning the Board’s good faith efforts to date,

and the meaning of the extrinsic evidence surrounding the Consent Decree. In any event, Judge Shadur’s findings on these and other issues appear correct to us, on the basis of our review of both resubmitted evidence and new evidence. Thus, whether grounded in “the law of the case” or in a fresh assessment of the evidence, Judge Shadur’s relevant, unreversed findings in Chapters 1-3 stand. Of course, in adopting these historical findings, a few changes had to be made to reflect the passage of time. Also, a few marginally relevant find

*1324

ings have been deleted, and some new ones inserted.

The remaining Findings, Chapters 4 through 9, are generally new

, and fulfill our initial mission on remand, determining whether the Board received “the maximum level of available funding” in fiscal year 1984. Each Chapter addresses a particular category of available funding. Chapter 4 focusses on the “Excess Funds,” which are administrative funds left over at the end of the fiscal year, which would have lapsed into the Treasury if not for our restraining order. Chapters 5 and 6 address the two principal desegregation-label programs, the Discretionary Fund and Title IV. Chapter 7 deals with the United States’ efforts to date in searching for other available funds. Chapter 8 addresses two other programs, the Chapter 2 block grant program and the Follow Through program. Each chapter contains its own Conclusions, which apply the Second Opinion (as explained above in the Preliminary Opinion) to that Chapter’s facts. Following these chapters, we discuss the share issue and remedial issues.

Satellite Motions of the Parties

The Board has moved to strike some affidavits which the United States filed with its Merits Brief. The thrust of the motion is that the affidavits were submitted after the close of discovery, mostly by witnesses who were already deposed, so that the Board has not had a chance to cross-examine the witnesses as to new facts alleged in the affidavits. The Board also attacks the evidentiary basis of several specific allegations in these affidavits. The parties agree that Fed.R.Civ.P. 43(e) grants this Court broad discretion to strike these affidavits. After considering the contentions of both sides, we deny the Board’s motion in general and consider the affidavits for what they are worth.

However, where the affidavits overlap and contradict deposition testimony, we agree that the deposition testimony deserves greater weight. Also, the material in the affidavits is, for the most part, peripheral to the main issues. For example, the affidavits are irrelevant to the Government’s fundamentally incorrect positions on the scope and pipeline issues. Nevertheless, where they do become relevant, we address specific allegations as necessary from time to time in making the various Findings below.

The United States’ motion to strike various Board exhibits is likewise denied. These exhibits were submitted as a response to the United States’ efforts to revise the history of the Consent Decree negotiations and the parties’ early expectations concerning the Decree. In adopting Judge Shadur’s findings above, we necessarily have rendered these Board exhibits unnecessary and the United States’ motion to strike them moot. The rest of the Board’s new exhibits bolster Judge Shadur’s findings.

Without further ado, then, this Court under Fed.R.Civ.P. 52 enters the following Findings and Conclusions. Given the complex nature of the case, many of these Findings and Conclusions are hybrid, containing both factual and legal elements. To the extent a “Finding,” or portion thereof, has been improperly labelled a “Conclusion,” and vice versa, it should be considered as if it were properly labelled.

Background

Consent Decree Negotiations

101. The Chicago Board of Education operates the third largest public school system in the United States. In the 1980-81 school year, the Board operated 634 schools, including 495 elementary schools, 66 high schools, and 73 special needs

*1325

schools of various types. In October of that school year, the Board had 458,497 students, whose racial/ethnic makeup was as follows:

White Non-Hispanic 85,292 18.6%

Black Non-Hispanic 278,726 60.8%

Hispanic 84,226 18.4%

Asian/Indian 10,253 2.2%

458,497

At the same time, the Board employed approximately 43,000 persons, including 29,000 members of the Chicago Teachers Union. The Board is the largest employer in Chicago and the second largest in Illinois. (March, 1984 Stipulation No. 101).

102. After protracted and complex negotiations, the United States and the Board of Education of the City of Chicago entered into a Consent Decree which was filed with and approved by this Court on September 24, 1980. (March, 1984 Stipulation No. 102).

103. After desegregation negotiations in 1979 between the former Department of Health Education and Welfare and the former representatives of the Board had proven unsuccessful, the United States Department of Justice notified former Interim Superintendent of Schools Caruso on April 21, 1980, that if further negotiations were not successful, the United States would initiate a desegregation lawsuit against the Board. (Government Exhibit 1, June 1983 hearing, Document 27 hereinafter “GX1-27”). Ensuing negotiating sessions between the Department of Justice and former Board representatives primarily addressed whether the parties could agree on specific racial percentages for a student assignment plan and on the specific amount and timing of the Emergency School Aid Act (ESAA) funds which the Board would receive to implement such a plan. (GXl-21,22). Board counsel indicated that if the negotiations failed and litigation commenced, the Board would present counterclaims against agencies of the federal government. (GX1-39). There was no significant progress in these negotiations. (GX1-21, GX1-22). (March, 1984 Stipulation No. 103).

104. During the above negotiations, a new Board of Education was appointed and took office. (GX1-22). The new Board formed a Desegregation Committee (GX121) and indicated to the United States that it would bring fresh approaches to the negotiations

{Id.).

Thereafter the Board was represented by its new leadership and by new counsel. (GX1-16). Negotiations then progressed rapidly, leading to a draft agreement within a few weeks (GX1-16), and to consummation of the Consent Decree within another six weeks. (GX1-14,15).

This progress resulted from an altogether different focus. Rather than seeking to negotiate the specific parameters of a student assignment plan, the parties instead agreed to general principles that would guide subsequent development of a plan. (Consent Decree, Part I). Correspondingly, with respect to funding, the parties negotiated a general principle applicable to both parties. These negotiations concerning the general funding provision have been described in a Joint Stipulation of the parties as follows:

At a relatively early stage in the negotiations leading to the Consent Decree, the parties discussed the question of financial support from the United States for the Board’s desegregation activities. It was the Government’s position that no funding commitment specific as to form and amount could be made in the context of the Consent Decree, because there was no way to anticipate the nature and costs of the Board’s Plan, the amount and sources of Government funding, or a variety of other matters. The parties briefly discussed funding possibilities relating not only to the Department of Education (including ESAA and other programs), but also other federal agen

*1326

des such as the Department of Justice, the Department of Transportation, and the Department of Housing and Urban Development. Thereafter Mr. Ross conveyed to Mr. Howard by telephone brief descriptions (obtained by Mr. Ross from the Department of Education) of some of the types of planning and implementation activities funded in other instances. Mr. Ross also conveyéd to Mr. Howard very sketchy information about grant amounts to other cities, but in general it was the position of the Department of Education that it would not disclose such information. These discussions took place approximately two months before the completion and execution of the Consent Decree. It was concluded that the matter of federal financial support would be handled by including general provisions in the Consent Decree, and Section 15.1 was drafted and incorporated into the Decree. Section 15.1 was not designed to incorporate any specific discussions between the parties on this issue, but to establish a general obligation on the part of both parties which would be interpreted and applied as appropriate in whatever future circumstances might arise.

Section 15.1 provides as follows:

15.1 Each party is obligated to make every good faith effort to find and provide every available form of financial resources adequate for the implementation of the desegregation plan.

The Consent Decree also includes Section 15.3, which provides:

15.3 The parties recognize that financial cost of implementation does not excuse the failure to develop a desegregation plan consistent with the principles set forth in §§ 2-14, and is not a basis for postponement, cancellation or curtailment of implementation of the plan after it has been finally adopted, but is one legitimate consideration of practicability in meeting the objective stated in § 2.1.

(March, 1984 Stipulation No. 104).

105. The Consent Decree was consummated by four events, all of which occurred on September 24, 1980:

a. The filing of a Complaint by the United States;

b. The execution and filing of the Consent Decree;

c. After a hearing and after consideration of the Complaint, the Consent Decree and the United States’ Memorandum of Law, the approval by the Court of the Consent Decree and its entry by the Court; and

d. No counterclaim was filed against the United States by the Board. (March, 1984 Stipulation No. 105)

106. Among the general principles set forth in the Consent Decree to guide subsequent development of a desegregation plan were the following:

§ 2. Basic Objectives

2.1

Desegregated Schools.

The plan will provide for the establishment of the greatest practicable number of stably desegregated schools, considéring all the circumstances in Chicago.

2.2

Compensatory Programs in Schools Remaining Segregated.

In order to assure participation by all students in a system wide remedy and to alleviate the effects of both past and ongoing segregation, the plan shall provide educational and related programs for any black or Hispanic schools remaining segregated.

2.3

Participation.

To the greatest extent practicable, the plan will provide for desegregation of all racial and ethnic groups, and in all age and grade levels above kindergarten.

2.4

Fair Allocation of ■ Burdens.

The plan shall ensure that the burdens of desegregation are not imposed arbitrarily on any racial or ethnic group.

§ 7

Compensatory Programs in Schools Remaining Segregated.

To accomplish the objective stated in § 2.2, the plan will include specific programs for black or Hispanic schools remaining segregated, in the following areas among others:

*1327

7.1 Remedial and compensatory educational programs.

7.2 Improved curricula and instructional and evaluative techniques (including the utilization of tests that validly measure student achievement) for academic, vocational and alternative educational studies.

7.3 Pre-service and in-service instruction for administrators, principals, teachers and other school personnel.

7.4 Selection, and evaluation of the performance of, principals and supporting leadership staff.

7.5 • Testing, counseling, guidance and student welfare.

7.6 Physical facilities, safety and se: curity.

7.7 Supportive relationships between such schools and groups and institutions in 'the community and in government.

107. Thus, in agreeing in Section 15.1 to find and provide financial resources “adequate for implementation of the Desegregation Plan,” the United States was agreeing to help pay for a plan that would include educational components in racially isolated schools (§ 2.2).

covering the subject matter outlined in § 7, in the development of which the Board would exercise discretion. (§ 3.1). (March, 1984 Stipulation Nós'. 101-106).

108. Circumstances surrounding entry of the Decree indicate that a joint and mutual obligation was contemplated. The Decree represents the only instance in which a major urban school system , has agreed, without any litigation or determination of liability issues, .to develop and implement a system-wide Desegregation Plan under court supervision. The Decree contemplated that because of the demographics of the Chicago school system, a substantial number of minority children would inevitably remain in racially isolated schools, requiring the extensive use of expensive compensatory educational remedies to alleviate the effects of past segregation. In 1980, as now, the Board was faced with significant financial deficits, and the joint funding provision of the Consent Decree reflected recognition that the Board’s finances were such that it could not voluntarily agree to develop, or successfully implement, an effective desegregation plan of this type unless the federal government were sharing the financial burdens, (March, 1984 Stipulation Nos. 101-156; June 1983 Findings and Plan/ADR data on Board finances).

108A. The United States’ financial commitment under Section 15.1 was the principal

quid pro quo

for the Board’s willingness to forego litigation and develop the Plan. In return for this commitment, the United States secured the full result that it sought (and' may not otherwise have achieved) without the expense and delay of complex litigation. The United States also avoided potential liability for a number of counterclaims that would have been brought against it. (Findings 103, 105).

109. Stated simply, the parties had a common and overriding goal of assuring that an effective desegregation plan was developed and implemented in Chicago. This joint purpose, with respect to financing, included a requirement that the parties provide the total amount of funds adequate for implementation of the Plan. In Section 15.1, each party- agreed to do everything possible to supply the necessary funding. (March, 1984 Stipulation Nos. 101-156; June 1983 Findings and Plan/ADR data on Board finances).

110. With respect to “What the parties reasonably expected at the time of signing,” the parties’ Joint Stipulation (Government’s Exhibit 2, June, 1983 hearing, hereinafter “GX”)

states that:

Section 15.1 was not designed to incorporate any specific discussions between the parties [on the issue of federal financial support], but to establish a general obligation on the part of both parties

*1328

which would be interpreted and applied as appropriate in whatever future circumstances might arise.

(March, 1984 Stipulation No. 107). The extrinsic evidence concerning this issue does not support any notion that there was a recognized specific dollar

limitation

incorporated in Section 15.1, based on the amount of previous ESAA grants or otherwise. Indeed, the Joint Stipulation indicates that the parties had been discussing “funding possibilities relating not only to the Department of Education (including ESAA and other programs), but also other federal agencies such as the Department of Justice, the Department of Transportation, and the Department of Housing and Urban Development.”

As this Court has determined previously, the extrinsic evidence points to an obligation to conduct a “universal search” ( 567 F.Supp. at 282 & n. 6), not a limited examination of what ESAA funding was theoretically available to the Board. (March, 1984 Stipulations 101-106; Government Exhibits 1 and 2 in the June 1983 hearing).

111. The Consent Decree in this case is the only instance in which the United States has entered into a desegregation settlement or decree containing the language of § 15.1. (March, 1984 Stipulation No. 107).

Development Of Part I Of The Plan, The Educational Components

112. To develop the educational components of the Desegregation Plan, the Board retained a team of independent, nationally recognized consultants. The lead consultant, with principal overall responsibility for this process, was Dr. Robert L. Green. He is now the President of the University of the District of Columbia. Dr. Green was then Dean of the College of Urban Development, Michigan State University. Dr. Green was a leading national expert on desegregation plans, especially the aspect of desegregation which emphasizes educational programs to provide equal and effective education for urban and minority children. Dr. Green had participated in many desegregation cases and desegregation plans, traditionally as an expert for the plaintiffs in such litigation, and frequently on behalf of the NAACP. (March, 1984 Stipulation No. 108).

113. Five other education experts from outside the school system were retained on a full-time basis to work on the Educational Components, along with 24 part-time “national consultants.” The primary national consultant in the area of curriculum was Professor Ronald Edmonds. While on the faculty of the Harvard Graduate School of Education, Dr. Edmonds directed the well-known major research project,

Search for Effective Schools: The Identification and Analysis of City Schools That Are Instructionally Effective for Poor Children.

Professor Edmonds had also implemented his “effective schools” design as the principal instructional officer for the New York City schools, with the title of Senior Assistant for Instruction. (Dr. Edmonds is now deceased.) The complete list of desegregation project consultants is as follows:

Robert L. Green, Ph.D., Lead Consultant Dean, College of Urban Development Michigan State University East Lansing, Michigan

Staff

Nelvia M. Brady, Ph.D., Staff Director Professional Associate

*1329

Educational Testing Service

Evanston, Illinois

Elizabeth Jill Hirt, Ph.D., Staff Associate

Research Associate

College of Urban Development

Michigan State University

East Lansing, Michigan

Judson Hixson, M.A., Staff Associate

Education Director on Leave

Chicago Urban League

Chicago, Illinois

Jodi Martinez-Martin, Ed.D., Consultant

Teacher Education Specialist

Illinois State Office of Education

Springfield, Illinois

Frances S. Thomas, Ph.D., Consultant

Assistant Professor

College of Urban Development

Michigan State University

East Lansing, Michigan

Primary National Consultants

Curriculum: Professor Ronald Edmonds

Senior Assistant to the Chancellor for Instruction, NYC Public Schools Staff

Development: Dr. Cassandra Simmons

Assistant Professor and Director, Office of Student Affairs

Michigan State University

East Lansing, Michigan

Additional Consultants and Resource Persons

Dr. Beatriz Arias

Stanford University

Stanford, CA

Ms. Norma Barnes

Norma Barnes Associates

Chicago, IL

Dr. Samuel Betances

Northeastern Illinois Univ.

Chicago, IL

Dr. Duane Brown

University of North Carolina

Chapel Hill, NC

Dr. Robert Crain

Johns Hopkins University

Riverside, CA

Ms. Jane Creeden Dore

Freelance Editor/Writer

Chicago, IL

Dr. Joseph Darden

Michigan State University

East Lansing, MI

Dr. Harold Dent

Westside Community Mental Health Center

San Francisco, CA

Dr. Edgar Epps

University of Chicago

Chicago, IL

Dr. Josué Gonzalez

Office of Education

Washington, D.C.

Dr. Robert J. Griffore

Michigan State University

East Lansing, Michigan

Dr. James Hawkins, Supt.

Benton Harbor Public Schools

Benton Harbor, MI

Ms. Maureen Larkin

Milwaukee Public Schools

Milwaukee, WI

Dr. Jane Mercer

University of California

Baltimore, MD

Dr. Margaret Parsons

Michigan State University

East Lansing, MI

Ms. Rachel Patrick, J.D.

American Bar Association

Chicago, IL

Dr. Diana Pearce

Center for National Policy Review

Washington, D.C.

Mr. Joseph Rosen

Educational Consultant

Chicago, IL

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Dr. Reynolds Parley

University of Michigan

Ann Arbor, MI

Dr. Walter Farrell

University of Wisconsin

Milwaukee, WI

Dr. Charles Thomas, Supt.

School District #64

North Chicago, IL

Ms. Rebecca Yarlott

Minneapolis Public Schools

Minneapolis, MN

(March, 1984 Stipulation No. 109).

114. During the development of the Educational Components from November 1980 through March 1981, the Board submitted monthly progress reports to the Department of Justice, as required by the Consent Decree. (March, 1984 Stipulation No. 110).

115. Dr. Green submitted his Recommendations on Educational Components to the Board of Education on April 3, 1981. Two weeks later, the Recommendations were adopted by the Board as Part I of the Desegregation Plan: Educational Components. The content of Part I of the Plan is summarized by its Table of Contents:

A. Introduction

B. Educational Components

1. Curriculum and Instruction — Elementary Schools

2. Curriculum and Instruction — High Schools

3. Magnet Schools

4. Vocational and Technical High Schools

5. Special Education and Testing

6. Bilingual Education

7. Within-School Segregation

8. Student Discipline

C. Staff Development

D. Other Components

1. Public Participation

2. Metropolitan Initiatives

3. Faculty Desegregation and Affirmative Action

4. Evaluation

5. Monitoring

E. Appendix

(March, 1984 Stipulation No. 111).

116. The following statements about Plan costs appeared in the “Financial Aspects” section in Part II of the Plan, adopted in April 1981:

Cost and Funding of the Plan.

Due to the relatively short time available under the Consent Decree for development of the desegregation plan, the planning process has been addressed to the formulation of programs that would be desirable to effectuate the purposes of the Decree.

2. It has not yet been possible to determine the financial feasibility of the programs — i.e., the administrative details of the programs, the exact costs associated with the various elements of the plan, the extent to which these costs can be met from existing resources or require new funding, and the availability of such new funding, (p. 17).

While the exact costs of the educational components are not yet known, the Board believes that the core level of funding required to make reasonably effective those educational components directed to Black and Hispanic schools remaining racially isolated is $40 million annually in fiscal years 1982 and 1983, and $20 million annually thereafter (although additional funding would be strongly desirable), (p. 19).

(March, 1984 Stipulation No. 112).

117. Prior to the Consent Decree the Board’s desegregation programs were administered by a staff of 3 persons. Shortly after the initial adoption of the Educational Components, the Board created a special Office of Equal Educational Opportunity to coordinate the implementation of the Plan. Up to March, 1985, that office was headed by Dr. Nelvia Brady, Associate Superintendent, who was a member of Dr. Green’s original desegregation planning staff. The staff of that office has expanded continuously since 1981, and in March, 1984 was comprised of 53 persons, of whom 8 are clerical staff, 8 are teachers, who are district-assigned, 13 are school-committee representatives, and 24 are teachers (7) and administrators (17) assigned to the central office. Twenty-nine of the 40 educational

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professionals (72.5%) have their principal responsibilities in the area of implementing the Educational Components of the Desegregation Plan. (March, 1984 Stipulation No. 113).

Statements Of The United States And The Court Relating To The Educational Components

118. On June 3, 1981, Attorney General William French Smith delivered an address before the American Law Institute. In discussing the policy of the United States concerning desegregation remedies, Mr. Smith Stated:

All of these considerations [concerning mandatory Reassignment] point to the need for more innovative' and practical approaches to achieve equal educational opportunity. Mandatory busing is not an effective educational remedy, and in many cases it has also proven counterproductive. But this does not mean that desegregation should not continue or that improving the quality of public education for all our children cannot be achieved. To do so, however, we must tailor the remedy to the facts of each case in which a constitutional violation has occurred.

Rather than focusing solely on the means by which discrimination has been practiced in the past, it is time we devoted more attention to remedying the resulting harms actually being suffered today. We should emphasize those remedies that actually improve the quality of education. Rather than continuing to insist in court that the only and best remedy for unconstitutional segregation is pupil reassignment through busing, the Department of Justice will hence forward propose remedies that have the best chance of both improving the quality of education in the schools and promoting desegregation. (Pages 8-9).

(March, 1984 Stipulation No. 114).

119. In the response of the United States to the Desegregation Plan, filed in July 1981, the United States made the following comments concerning the Educational Components of the Plan:

a. With respect to the provision of the Consent Decree concerning providing compensatory programs in schools remaining segregated: “This principle is based squarely on common sense and Supreme Court holdings. The method of compliance with this objective is largely within the discretion of the Board, which has the expertise in educational methods.” (Page 5).

b. In the same Response, the United States briefly summarized the Educational Components and stated that “the Government endorses” them. (Page 22).

c. Finally, the United States’ Response further evaluated the Educational Components as follows:

The Educational Components have been more .fully developed than the student assignment principles. The Board hired an impressive team of nationally known experts and the Plan reflects the substantial time and effort that has gone into the preparation of the Educational Components. The Board and its planners deserve a great deal of credit for the accomplishment of this task. We expect that when these new educational programs are developed in detail and implemented, they will complement the student assignment principles by enhancing the workability of voluntary desegregation techniques and that they will contribute to bringing about equality of educational opportunity in the one-race schools which remain under the final plan. (Pages 32-33).

(March, 1984 Stipulation No. 115).

120. On August 28, 1981, the United States and the Board submitted their Joint Statement to the Court concerning the development of the Desegregation Plan. With respect to the Educational Components, the Joint Statement informed the Court that:

the Board and the United States are in agreement in these general respects: ...

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(2) the Educational Components are an integral and necessary aspect of the Board’s Plan. They are consistent with the Consent Decree and the Constitution. The United States fully endorses the Educational Components from a legal perspective, although it views the particular educational policy choices as within the Board’s discretion. (Page 5).

(March, 1984 Stipulation No. 116).

121. On September 27, 1981, Assistant Attorney General William Bradford Reynolds delivered a speech to the Education Commission of the States, meeting in Chicago. In discussing the policy of the Department of Justice concerning desegregation remedies, Mr. Reynolds stated:

Experience teaches us that blacks in a segregated school environment more often than not receive inferior educational attention. To the extent necessary, their facilities and curriculum must be enhanced to bring them into educational parity with the other public schools in the system. In sum, we must ensure, whatever the ultimate racial composition in the class-room, that all students attending public schools, regardless of race, color, or ethnic background, have an equal opportunity to receive an education. We are concerned, quite frankly, much less with student relocation than we are with student education and our school desegregation plans will be drawn to reflect that predominant concern.

Pursuant to the Department’s civil rights policies, we are overseeing the development of a desegregation plan here in Chicago that will be designed to enhance educational opportunities for all students. The public school enrollment in Chicago is approximately 61% black, 18% white, and 21% non-black minorities, mostly Hispanic. The Chicago School Board and the Justice Department recognize that there are schools in the system that will remain racially identifiable under the desegregation plan, and the Board has thus undertaken compensatory programs to enhance the quality of education provided in those schools in order to guarantee equal educational opportunity to all students in the system. To this end, the Board has developed and submitted to the Court, with our enthusiastic approval, detailed plans to enhance educational quality in the schools, and implementation of those plans began this fall.

By concentrating our attention and resources on teachers and administrators, course offerings, incentives for learning, and other components of education quality, this Administration — with the help and cooperation of civil rights groups, state and local school authorities, and most importantly, professional educators — can formulate desegregation plans that not only will ensure all public school students, irrespective of race, col- or or ethnic background, equal educational opportunity, but will do so within an educational environment free from state-enforced attendance barriers. If such a cooperative and united effort can be mounted to rid our Nation’s public schools of the tragic legacy of racial discrimination, I am confident that, in time, we will be able to review that effort against the test of experience, and say with pride “it worked.”

(March, 1984 Stipulation No. 117).

122. In school year 1981-82, the Board submitted quarterly progress reports to the United States and to the Court, detailing the process of implementating the Desegregation Plan, including the Educational Components. (March, 1984 Stipulation No. 118).

123. In February and March of 1982, following the adoption of the Board’s Comprehensive Student Assignment Plan, the Court entertained briefs concerning the compliance of the total Desegregation Plan with both constitutional requirements and the Consent Decree. The United States Assessment of the Plan commented on the Educational Components as described in Finding 139. The Chicago Urban League’s Assessment of the Plan expressed strong concern about the need to provide signifi

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cant extra funding for implementation of the Educational Components in racially isolated schools. The Urban League stated:

The provision of extra funds — and therefore resources — to schools which are to remain racially isolated is a form of compensation intended to make up in part for the system’s failure to remedy all manifestations of segregation. This component of the Plan is extraordinarily important because the majority of the system’s schools are to remain segregated under the Board’s proposal...

The Chicago Urban League believes the notion of compensatory funding requires that racially isolated schools receive extra funding above and beyond what other schools may be receiving...

The Urban League .expressed concern that the Board had only committed itself to provide “Milliken II relief” to the extent that funds are available.

The NAACP, in its July 1981 memorandum of the Plan, stated that “we have no specific objection to the content of these programs.” In its March 1982 brief, NAACP did not comment further on the Educational Components. (March, 1984 Stipulation Nos. 119, 138).

124. In January 1983 the Court issued its opinion approving the Board’s Plan as being clearly within the broad range of constitutionally acceptable plans. With respect to the Educational Components and funding, the Court’s opinion stated:

Educational Components.

As already indicated, the Educational Components of the Plan were in definitive form well before the assignment provisions that have occupied the discussion in this opinion, and those Educational Components have not drawn the same heated attention. They were approved early by the United States and found favor with the NAACP as well. To the extent they have been criticized (chiefly by the Hispanic organizations and by Designs for Change), the criticisms did not go to claimed constitutional insufficiency and are therefore not within the province of this Court’s overview. Though they of course continue to form a vital part of the purposes and hoped-for impact of the Plan — the constitution guaranty is after all one of equality of education — no more need be said at this time.

Funding.

Desegregation, like all other aspects of affording quality education to all students in a school system, costs money. In that respect the Board is not master of its own fate. If and to the extent other governmental bodies and agencies that control the pursestrings were to thwart the Board’s ability to perform in the way its Plan contemplates and the Constitution requires, this Court would have to examine all appropriate and available remedies. There is no reason to presume at this time that any such delinquency in meeting the mandates of the Constitution, or any such resulting power confrontation, will occur.

(March, 1984 Stipulation No. 120).

125. The Board’s 1983 Annual Desegregation Review, Part I, filed April 15, 1983, contained a section on “Financial Aspects” at pp. 402-23, which included the following statements:

With regard to expenditures for racially identifiable schools, a brief explanation is in order. The Board’s initial commitment (as outlined in the April, 1981 Principles) was to spend $40 million a year in 1981-82 and 1982-83 and $20 million a year thereafter. As described above, spending specifically budgeted for this component of the Desegregation Plan has fallen somewhat short of this originally projected level in the first two years of implementation. As a result, the Board believes it to be appropriate to attempt to make up the difference in subsequent years. Hence, the Board believes to be desirable to spend at least $40 million in 1983-84, as opposed to the $20 million initially prescribed by the Principles. However, the funds needed to provide for this level of expenditure simply are not available from within the Board at this time.

Over and above the level of expenditures for 1983-84 described above, addi

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tional resources would also be highly desirable to maximize the effectiveness of the Desegregation Plan. Such additional funding would help to strengthen and enrich the implementation of desegregation in Chicago in a variety of ways: intensified implementation and evaluation of educational components, expansion of magnet schools and programs (including metropolitan schools and scholastic academies), intensified recruitment efforts, improvement in vocational, technical and special educational programs, initiation of inter-district transfer programs, to name only a few.

Resources.

The resources necessary to fund desegregation implementation at the levels set forth above unfortunately are not available at this time from within the Board. The Board, for its part, is committed to appropriations for 1983-84 of at least $57 million — a continuation of the amounts it budgeted for the current school year. To the extent additional moneys are made available, the Board will spend them to bring the aggregate levels of expenditures for racially identifiable schools up to $40 million and to further maximize optimum implementation of this and other aspects of student desegregation.

Thus, at this time precise estimates of the Board’s financial condition for future years are slightly premature. However, it may be fairly stated that for 1983-84 the Board faces budget problems of an extremely serious magnitude. Preliminary projections suggest it is facing a budget deficit in the range of $200 million. .. In any event the Board believes that, in the first instance, the obligation to provide these additional resources for the substantial expenditures which full and complete implementation of the Plan entails lies with the federal and state governments.

On April 13, 1983, the Board adopted a resolution directing its counsel to initiate litigation against the State of Illinois and the United States seeking contribution for the cost of implementing the Desegregation Plan. The Board expects that the initiation of these actions will be forthcoming.

(March, 1984 Stipulation No. 121).

126. The Board’s statements concerning the desired expenditure of at least $40 million on the Educational Components in racially isolated schools and on the desired expenditure of additional amounts for those purposes, including the statements described in Findings 116 and 125, do not reflect any determination by the Board that the expenditure of $40 million would be “adequate” for that aspect of the Plan (in terms of § 15.1), or that the expenditure of additional amounts for that aspect of the Plan would not materially aid its success or would not be necessary for its full implementation. (March, 1984 Stipulation Nos. 101-121; Parts I, II and III of the Plan).

127. In August 1983, the Board filed Part II of its 1983 Annual Desegregation Review, a 416-page document which reported in detail on the implementation of the Educational Components (“ADR II”). After the filing of ADR II, the Court provided the United States and the

amici curiae

the opportunity to file comments. Neither the United States nor any of the

amici

filed comments with the Court. (March, 1984 Stipulation No. 122).

128. The United States strongly supported (indeed, insisted upon the inclusion of) the Board’s Educational Components as the developmental process moved from the Consent Decree principles to the April 1981 Educational Components Plan to approval by the Court, and raised no subsequent objection as the Board proceeded to add programmatic details to those- initial documents. Only when called upon to fulfill its financial responsibility did the United States begin to renege on its approval. (March, 1984 Stipulation Nos. 101-122, 133).

Overview Of The Student Assignment Plan

129. By the Consent Decree, the Board agreed to adopt a system-wide desegrega

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tion plan with two basic objectives. The first (§ 2.1) was to create the greatest practicable number of stably desegregated schools, considering all the circumstances in Chicago. The second objective, as described above, was to provide educational and related programs for schools which remained racially isolated. (March, 1984 Stipulation No. 123).

130. In January, 1982, the Board adopted its Comprehensive Student Assignment Plan. The Student Assignment Plan divides all schools in the school system into four broad categories. The first category is that of residentially integrated schools. (An integrated school is defined as one whose enrollment includes at least 30% white children and 30% minority children, derived principally from residential or other natural attendance patterns.) The Plan identifies two basic types of schools within this category — stably integrated and integrated but with potential for change. A third type — schools which are currently integrated but whose enrollment of white children is projected to decline below 30% — is also identified.

As of October 1981 these three types of schools encompassed 67 schools with an enrollment of 52,067 students. (The enrollment data in Findings 130 through 134 excludes preschool and kindergarten children.) (March, 1984 Stipulation No. 124).

131. The Plan next considers the category of the desegregated school — one whose enrollment includes at least 30% white children and 30% minority children, which has been established primarily by student assignment techniques under the Plan. This category consists both of (a) schools which have previously achieved stably desegregated status through the implementation of various student assignment measures (as of 1981, 42 schools with 20,-329 students) and (b) schools which in 1981 were yet to achieve desegregated status, through previously existing and newly adopted student assignment techniques (in 1981, 33 schools with 17,541 students). These techniques include voluntary transfer programs and magnet and magnet-type programs within schools. (March, 1984 Stipulation No. 125).

132. The Plan also describes various magnet-type schools which are established primarily in minority communities and are designed to promote desegregation by special educational offerings and programs. A target enrollment composition, generally 15-35% white, 65-85% minority, is established for each school in this category. These schools included, in 1981, 41 magnet schools, scholastic academies and metropolitan high schools, enrolling 28,824 students. (March, 1984 Stipulation No. 126).

133. The Student Assignment Plan also considers those schools projected to remain racially identifiable (with an enrollment of greater than 70% minority children, less than 30% white children). In 1981, there were 354 such schools, enrolling 275,794 students. The Plan describes why these schools cannot practicably be desegregated. The Plan also describes the compensatory educational arrangements which will be provided for at these schools and the various voluntary transfer arrangements in which students enrolled at these schools may participate. (March, 1984 Stipulation No. 127).

134. The school types identified in the Plan, and the number and enrollment of these schools, is summarized in the following table:

1981

Integrated Schools: Number Enr.

Stably integrated 42 31,791

Integrated schools stable but projected to become mixed 11 7,697

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1981

Enr.

Integrated Schools: Number

12,579 Integrated schools with potential for change 14

52,067 Subtotal 67

Schools Desegregated and to be Desegregated:

Schools presently desegregated 42 20,269

Schools to be desegregated 33 17,541

Magnet schools 29 16,765

Scholastic Academies— 1982 6 2,406

Metropolitan High Schools — 1982 _6 9,653

Subtotal 116 66,634

Predominantly Minority Schools:

Stable mixed (15-29% white) 14 11,481

Mixed with potential for racial change 20 14,695

Schools more than 85% minority 320 236,248

Subtotal 354 262,424

Special Needs/Speeial Admissions:

Physicially handicapped, apprentice, adult education, bilingual centers, juvenile detention and pregnant students _43 9,173

Total 580 403,668

(March, 1984 Stipulation No. 128).

135. Two mandatory requirements were established by the Desegregation Plan. The first of these requirements is that every school achieve by October 1983 a minority' enrollment of at least 30%. The second is that, by October, 1983, the school system as a whole achieve a minimum total enrollment in all integrated and desegregated schools (including magnet schools). (This requirement is generally referred to as the “desegregation index” requirement.) (March, 1984 Stipulation No. 129).

136. The Plan sets forth other. student assignment provisions to be applied throughout the school system to provide and maintain the maximum practicable desegregation and to ensure that the Plan will not initiate or authorize any segregative actions. Among these provisions are ones concerning school closings, boundary adjustments and within-school segregation. (March, 1984 Stipulation No. 130).

137. The Student Assignment Plan also contains, in a separate volume, school-by-school analyses for each school in the system. These analyses describe in summary terms the work and consideration that went into developing a desegregation strategy for each school. They also provide a detailed statement as to why it is not practicable to desegregate a large number of schools remaining racially identifiable. (March, 1984 Stipulation No. 131).

138. Detailed evaluation of the student assignment component of the Desegregation Plan, including analysis of enrollment composition and prescription of specific actions for over 200 individual schools, is undertaken every year. This evaluation is reported on in an Annual Desegregation Review (“ADR”). (March, 1984 Stipulation No. 132).

139. After the adoption of the Comprehensive Student Assignment Plan in January 1982, the United States filed its Assessment of the Plan. That 33-page document explained the United States’ belief that the Plan is constitutional and consistent with the Consent Decree. In the conclusion, the United States stated:

We believe that, for the reasons stated in these comments, once the plan has been thoroughly implemented and the Educational Components completed, the Board will have: (a) provided a system-wide remedy with compensatory programs at remaining segregated schools, (b) established the greatest practicable number of stably desegregated schools, (c) insured that all racial and ethnic groups participate and (d) distributed the benefits and burdens of the plan on a fair basis.

(March, 1984 Stipulation No. 133).

140. On January 6, 1983, the Court issued its opinion concerning the Plan. ( 554 F.Supp. 912 (N.D.Ill.1983)). In its opinion, the Court incorporated the Board’s summary of its extensive and effective activities in the 18 months from the entry of the Consent Decree to the adoption of Part III of

*1337

the Desegregation Plan. ( 554 F.Supp. at 914-15 ). The Court further noted that it had deferred ruling on the Plan for several months, so that the promises of the Plan could be “test[ed] in the crucible of reality.” In light of the fall 1982 implementation results, the Court found that “nothing in the execution of the Plan has been shown to disprove the premises on which it was designed.” ( 554 F.Supp. at 915 ). Finally, having reviewed the Plan in detail, the Court approved it as being “clearly within the broad range of constitutionally acceptable plans.” ( 554 F.Supp. at 928 ). (March, 1984 Stipulation No. 134).

141. In April 1983 the Board’s Annual Desegregation Review (Part I, Student Assignment) (“ADR I”) showed that the implementation of the Plan during school year 1982-83 was a considerable success, and that to a very significant degree its projections of student assignment outcomes had been realized. ADR I was also candid in its assessment of shortcomings, and in adopting measures to address them. (March, 1984 Stipulation No. 135).

142. In its May 1983 response to ADR I, the United States favorably evaluated the Board’s substantive implementation process:

The Chicago School Board’s April 19, 1983, filing on its first Annual Desegregation Review is an extremely well-conceived document and will be a valuable guide for assessing the Board’s compliance with the underlying principles established by the Consent Decree and the Court in this case. Like the desegregation plan itself, this document reflects extensive thought, preparation and effort at implementation in a context that is so complex that it often seems incapable of clear description. The review document makes a significant contribution to the clarification, for all involved, of what this plan has meant for the Chicago public schools.

Our first comment is on the review process itself. We know of no other school board, large or small, that has made as comprehensive, detailed and careful examination of what it is doing to implement a desegregation plan. (Pages 1-2).

We think that the overall plan implementation process has been excellent and that the Board has applied it in good faith at each school... Should the Board fail to take the remedial steps recommended in the review or otherwise fail to take the steps necessary to fulfill the plan’s promise, the plan’s present constitutional sufficiency would suffer. At this point, we have no reason even to suspect that this is a possibility. (Pages 4-5).

(March, 1984 Stipulation No. 135).

143. The mandatory requirements of the Student Assignment Plan (Finding 135) are applicable as of October 1983. On November 2, 1983, the Board informed the Court that the requirement of 30% minimum minority enrollment in all schools had been met. (March, 1984 Stipulation No. 137).

144. For comparison with Finding 134, the following table shows fall 1983 data as to the number and total enrollment of the various school types identified in the Plan. These data are comparable with Finding 134, but it should be noted that there has been some recategorization of schools to reflect the experience of the ensuing two years. As in Finding 134, these data exclude kindergarten students; therefore the total enrollment shown is grades 1-12, which is 41,260 students less than system-wide enrollment.

1983

Integrated Schools: Number Enr.

Stably integrated 47 36,569

Integrated schools stable but projected to become mixed 4 2,009

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1983

Integrated Schools: Number Enr.

Integrated schools with potential for change _4 5,033

Subtotal 55 43,611

Schools Desegregated and to be Desegregated:

Schools presently desegregated 77 42,382

Schools to be desegregated 0

Magnet schools 33 19,155

Scholastic Academies— 1982 5 3,092

Metropolitan High Schools — 1982 _6 10,302

Subtotal 121 74,931

Predominantly Minority Schools:

Stable mixed (15-29% white) 17 12,683

Mixed with potential for racial change 10 8,065

Schools more than 85% minority 334 248,161

Subtotal 361 268,909

Special Needs/Special Admissions:

Physicially handicapped, apprentice, adult education, bilingual centers, juvenile

Special Needs/Special

1983

Admissions: Number Enr.

detention and pregnant students _43 5,331

Total 580 392,782

(March, 1984 Stipulation No. 128).

Demographics Of The City Of Chicago And Of The Chicago Public Schools

145. Extensive demographic information is presented in both the Comprehensive Student Assignment Plan (pages 8-39) and in 1983 ADR I (pages 20-23). (March, 1984 Stipulation No. 139).

146. The racial composition of the total population of the City of Chicago from 1940 to 1980 is summarized in the following table:

White Non-White Total

Year Noi % No.

No.

1940 3,115,000 91.7 282,000 8.3 3,397,000

1970 2,208,000 65.6 1,159,000 34.4 3,368,000

1980 1,311,000 43.7 1,694,000 56.3 3,005,000

(March, 1984 Stipulation No. 140).

147. The racial/ethnic composition of the Chicago public schools from 1970 through 1983 is presented in the following table:

(March, 1984 Stipulation 141)

148. One principal reason that the proportion of minorities is higher among pub-lie school students than among the overall city population is that a large number of children (more than half of whom are white) attend non-public schools in Chicago, especially the Catholic parochial schools.

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The metropolitan-area enrollment of nearly 190,000 students makes the Catholic schools the fifth largest school system of any kind in the United States. Within Chicago, the Catholic schools as of 1982 had 226 schools enrolling 114,299 students, of whom 56% were white, 25% black, 16% Hispanic and 3% Asian. (March, 1984 Stipulation No. 142).

149. Total membership in the Chicago public schools leveled off in 1984 after 15 years of decline that were often characterized by very substantial drops. The decline in total membership this year is only about 1,800 (0.4%) compared to almost 19,000 (3.9%) in 1980. [Enrollment was 372,278 in 1952. Student membership increased quite dramatically in the 1950’s and the 1960’s, reaching a peak in 1969 at 580,292. Since then enrollment has declined, generally at the rate of 2-4% per year, with the greatest declines between 1977-1981 (over 15,000 students, or 3-4%, per year). The decline was 1.6% (7,046 students) in 1982 and only 0.4% (1,800 students) in 1983.] (March, 1984 Stipulation No. 143).

150. Enrollment of white students (67,-829 or 15.6% systemwide in October, 1983) has declined at a significantly slower rate since adoption of the Desegregation Plan. Prom 1977-1981 white enrollment declined at 9-11% per year (or 10,000-12,000 students). In 1982 white enrollment declined 6% (4,941 students), and in 1983 5% (3,342 students). (March, 1984 Stipulation No. 144).

151. In October 1983, Black students numbered 263,163 (60.6% systemwide). The 1983 decline in black enrollment of 1,367 students (0.5%) is significantly lower than declines of 2-4% in the preceding five years. (March, 1984 Stipulation No. 145).

153. The Board’s demographers believe that the enrollment changes summarized in Findings 149-152 can be attributed to the following factors:

Demographics:

continued effects of changes in the number of births, in- and out-migration, and the patterns of student distribution among grades.

Economics:

recent high unemployment rates which have curtailed ability to pay tuition for private schools and reduced job opportunitites for potential high school dropouts; high mortgage rates which have slowed down the housing market and, in turn, the rate of suburbanization.

Educational Initiatives:

smooth implementation of the desegregation plan without busing; development of a variety of program options and specialty schools designed to attract students; an active recruitment program; increases in achievement scores, and greater parental and community involvement through programs such as report card pickup and Adopt-A-School.

(March, 1984 Stipulation No. 147).

154. During the past two years of relatively stable enrollments, an important factor contributing to changes is the transfer rate between public and non-public schools. The following table reflects that the Chicago public schools have been gaining more students and losing fewer since 1980:

STUDENT TRANSFERS TO/FROM NONPUBLIC SCHOOLS IN CHICAGO

1980 1981 1982

Transfers from Non-public Schools in Chicago 6,084 7,041 7,934

Transfers to Non-public Schools in Chicago 12,919 11,648 10,177

Net Loss 6,935 4,607 2,243

Total Membership 458,497 442,889 435,843

Percentage Net Loss 1.5% 1.0% 0.5%

(March, 1984 Stipulation No. 148).

155. The recent trend of enrollment decline in the Chicago public schools appears to have ended in school year 1983-84. As to racial/ethnic composition, the school system is expected to increase in minority enrollment. This is partly because of the greater proportion of whites in the upper grades, combined with continued outflow, and the higher birth rates for minority groups (particularly Hispanics) coupled with continued immigration of Hispanics. (March, 1984 Stipulation No. 149).

156. The racial/ethnic composition of the elementary and secondary levels of the

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school system as of October 1983 is detailed in the first table following Finding 157. This data is briefly summarized as follows:

(March, 1984 Stipulation No. 150).

156A. As of October 31, 1984, the Board was operating 495 elementary level, 64 secondary level and 26 special schools. (U.S. no contest).

156B. As of October 31, 1984, there were 312,365 children attending elementary level Chicago public schools. Of this total, 42,303 (13.5%) were white; 188,979 (60.5%) were black; 72,941 (23.4%) were Hispanic and the remainder (2.6%) were American Indian, Alaskan Native, Asian or Pacific Islander. (U.S. no contest).

156C. As of October 31, 1984, there were 111,097 children attending secondary level Chicago public schools. Of this total, 19,154 (17.2%) were white; 68,206 (61.4%) were black; 19,921 (17.9%) were Hispanic; and the remainder (3.5%) were American Indian, Alaskan Native, Asian or Pacific Islander. (U.S. no contest).

156D. As of October 31, 1984, 7,764 children were attending Special Schools operated by the Board. (U.S. no contest).

157. The racial/ethnic composition of the Chicago public schools by grades is detailed in the second table following this Finding. In brief summary the data reflect higher proportions of minority students in the lower grades. For example, minority enrollment is 75-80% in grades 11 and 12, and 85-86% in first grade and kindergarten. (March, 1984 Stipulation No. 151).

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158. There are presently 407 schools with enrollments more than 70% black and/or Hispanic (excluding magnet schools):

% Minority No. of Schools Total Enrollment

70-80% 14 7,616

80-90% 37 20,452

90-95% 33 31,189

95-99% 31 28,348

99%+ 292 215,554

407 303,159

These students comprise 69.8% of the systemwide enrollment. The number of students attending schools more than 90% minority is 275,091 (69.4% of systemwide enrollment). (March, 1984 Stipulation No. 152).

159. The number of schools with more than 70% black and/or Hispanic enrollment will increase in coming years, as a result of the demographic and transfer trends described in Findings 145-161. (March, 1984 Stipulation No. 153).

160. In schools with enrollments more than 90% black and/or Hispanic, 1983-84 total kindergarten and pre-school enrollment was as follows:

% Minority K & Pre-school Enrollment

90-95% 3,130

95-99% 3,978

99%+ 22,733

29,841

The number of such students was at least as great in school year 1984-85. (Kindergarten students represent approximately two thirds of this total, or 20,000 students.) (March, 1984 Stipulation No. 154).

161. In schools with more than 90% black and/or Hispanic enrollment, the number of black and Hispanic children in grades 1-3 in school year 1983-84 was approximately as follows:

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Grade Black

1 16,913

Pre-2 2,369

2 16,497

3 15,733

Total 51,512

Hispanic Total

4,361 21,274

710 3,079

4,310 20,807

4,002 19,735

13,383 64,895

The numbers of black and Hispanic primary grade children in these schools were at least as great in school year 1984-85. (March, 1984 Stipulation No. 155).

162. As of June 1983, the Board employed nearly 40,000 persons of which approximately 27,400 were teachers. Since then, that number has been reduced somewhat by budget cuts caused by, among other things, loss of the Yates Bill funding. (U.S. no contest).

Funds Presently Under Restraint

163. The following table reflects the amounts restrained in the Secretary’s “Special Programs” Account as of May 24, 1985.

Account (In thousands) Contingent Obligations

FY 1983 FY 1984

15. Special Programs 1,174 42,915

a. ' Women’s Educational Equity Act 1

b. Training and Advisory Services (Title IV) 647 20,948

c. Follow Through 482 7,919

d. Alcohol and Drug Abuse 1 48

e. Law Related Education 8 1,000

f. Arts in Education 100

g. Inexpensive Book Distribution 650

h. National Diffusion Network 20 6,462

i. Other Secretary’s Discretionary Fund 15 5,788

164. Except for the fiscal 1984 lapsed or “excess” funds, all remaining fiscal 1984 funds under restraint in this case have been contingently obligated for use by potential grantees. The identity of the potential grantees and the amount of funds contingently obligated to each of them is reflected by Board group exhibit 119, which are advices of miscellaneous encumbrances, produced to the Board by the United States on or about April 28, 1985. (1985 Stipulation No. 2).

II.

Propriety And Cost Of Programs Proposed For Adequate Implementation Of The Plan

201. Dr. Nelvia Brady is a qualified expert with respect to effects of racial segregation on minority children; the nature and types of desegregation programs which are capable of eliminating or alleviating those effects; the design, development and implementation of the Board’s Desegregation Plan. (1984 Brady Testimony, pp. 53-74).

202. Dr. Brady was one of the experts with principal responsibility for drafting

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the Educational Components of the Plan. (1984 Brady Testimony, p. 57).

203. In April of 1981, the Board adopted the Recommendations on Educational Components (prepared by its nationally known expert, Robert Green). These Recommendations accurately explain the justifications for educational components, as follows:

The rationale for this approach lies in the notion that the desegregation of a school system involves much more than the reassignment of students. Too often, desegregation planners have seemed to be concerned only with the movement of students in order to achieve some specified distribution by race and ethnic background. This preoccupation has been matched by a public concern with ‘busing,’ as though the question of how a student reached school was more important than what the student received from the school.

Research covering the last thirty years indicates that the physical separation of students by race and ethnic background is almost always accompanied by disparities in the educational services provided to minority and nonminority students, and by significant gaps in the achievement of minority students particularly those from low-income backgrounds. Stated simply, segregation creates educational deprivation for minority children —black, Hispanic, Asian, and Native American — and also results in attitudinal deprivation for all students.

A desegregation plan must, therefore, address not only the physical desegregation of schools but also the educational desegregation of individual students. The educational disadvantages resulting from past racial/ethnic isolation — or any such isolation that may have to continue — must be remedied. The overriding goal of this plan is to address minority students’ educational needs arising from the segregation of the public schools. The method being proposed is through improving achievement in all schools, with particular emphasis on those schools with the greatest needs and attended by children who have been the most disadvantaged.

(1984 Brady Testimony, pp. 75-76).

204. Dr. Brady described those elements of the Desegregation Plan which have been implemented to date and provided an evaluation of the Board’s efforts in this area. In general, this portion of Dr. Brady’s testimony addressed both the student assignment aspects of the Plan and those elements of the educational components of the Plan as to which implementation has already been initiated. She also discussed those elements which the Board had intended to implement in school year 1984-85 if there had been sufficient available funding. More specific testimony with respect to the implementation status of the Curriculum, Bilingual and Vocational/Technical Education components was provided by Dr. Gerald Heing, Dr. Josué Gonzalez, and Dr. Philip Viso, respectively. (1984 Testimony of Brady, Heing, and Viso, pp. 75-76, 94-96, 539-40, 586-88, 592-94, 642-82, respectively).

205. Dr. Brady showed that the Board had experienced significant successes in its implementation efforts to date. This testimony was supported by evaluations performed during the last two years at those 45 racially isolated targeted elementary schools which were first included in the Chicago Effective Schools Project. (1984 Brady Testimony, pp. 125-30).

206. Dr. Brady’s testimony described the process by which the Board’s Plan was designed and developed. She related how past segregation in the Chicago public schools has affected the basic learning skills achievement levels of children, particularly minority children now attending, or who in the future will attend, racially identifiable minority schools. She explained that each component of the Plan is carefully designed to alleviate the effects of past segregation, and will substantially further implementation of a successful desegregation plan. Dr. Brady explained that, given the historic backdrop and the demographics of Chicago, full and successful implementation of the Educational Components is cru

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eial to the success of the Desegregation Plan. (1984 Brady Testimony, pp. 140-43, 147-53).

207. A primary goal of the Educational Components is to eliminate or alleviate the effects of past racial segregation on minority children who will remain in racially identifiable schools under the Student Assignment Plan and who will attend such racially identifiable schools in the future. In pursuit of this goal, the Plan also addresses the need for systemic and institutional changes in the manner in which the school system provides educational services. (1984 Brady Testimony; U.S. Resp. to Bd. Request to Admit 207).

208. Minority children attending Chicago public schools in March, 1984 suffered from, or had been affected by, one or more of the following effects of racial segregation:

a. reading, math, and communication skills which are one grade or more below their current grade levels;

b. tests and testing procedures with racial, ethnic, or cultural bias;

c. unequal treatment of minority children in racially identifiable schools by teachers and administrative staff;

d. less access for minority children to vocational and technical educational programs;

e. curricula colored by racial, ethnic or cultural bias;

f. the psychological pressures of attending racially identifiable schools and the resulting loss of self-esteem;

g. codes governing student conduct which are affected by racial, ethnic or cultural bias;.

h. speech habits that vary from those used in an environment in which they must ultimately compete;

i. lack of interpersonal learning experiences derived from open association with other students of varying races, cultures and religions;

j. lack of access to majority culture which is reflected in the standards that determine success in society.

(March, 1984 Stipulation No. 155; 1984 Brady Testimony, pp. 67-73, 140-50).

209. This broad spectrum of inequalities and injuries resulting from racial isolation could not then and cannot now be remedied only by student assignment, even where student assignment is available; it requires other remedies, particularly compensatory educational remedies, where student assignment is unavailable. (1984 Brady Testimony, pp. 90-93).

210. OEEO, in conjunction with other Board departments and units, developed the programs described in petitioner’s trial exhibit 28. OEEO was primarily responsible for developing the following program elements:

a. Effective School Project

b. Racially Isolated Schools

c. Magnet Schools

d. Trainers Institute

e. Management Information

f. Affirmative Action

g. Equity Compliance

h. Staff Development

i. Within School Segregation

The Department of Pupil Personnel Services and Special Education was primarily responsible for developing the Special Education and Discipline program elements.

The Department of Vocational and Technical Education was primarily responsible for developing the Vocational and Technical Education program elements.

The Department of Curriculum and Instruction was primarily responsible for developing the curriculum program elements.

The Department of International and Multicultural Education was primarily responsible for developing the bilingual program.

The Department of Research and Evaluation was primarily responsible for developing the program to evaluate the results of Plan implementation. (1984 Brady, Heing, and Viso Testimony, pp. 88-89, 154-55, 539-43 and 636-37, respectively).

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211. The original version of Board Trial Exhibit 28 was provided to the United States on or about September 16, 1983. (1985 Stipulation No. 3).

211 A. The nature and detail of the programs and program components set forth in Board trial exhibits 28 and 117 are accurately described in the March, 1984 hearing testimony of Dr. Nelvia Brady, Dr. Gerald Heing, Dr. Josué Gonzalez and Dr. Philip Viso. (U.S. no contest).

212. Dr. Brady reviewed each program in petitioner’s trial exhibit 28 and testified that each program was designed to implement the Educational Components of the Plan, would significantly alleviate the effects of past segregation and was necessary for a successful desegregation effort in Chicago. Dr. Brady described how each program element was developed, how each works or is expected to work and how each relates to one or more of the Plan’s Educational Components. Dr. Brady testified that each of these program elements materially aids successful implementation of the Plan by alleviating the effects of past segregation. Her testimony also explained how the cost of each element was calculated. (1984 Brady Testimony, pp. 93-300).

213. In school years 1981-82 and 1982-83, implementation of the Plan’s Educational Components included the introduction and implementation of Effective Schools Project (“ESP”) programs at 45 specially targeted racially identifiable schools and the implementation of certain elements of the ESP program at other racially identifiable schools. (1984 Brady Testimony, pp. 94-96).

214. The 45 specially targeted schools are as follows:

District School

3 Schiller

4 Hay Branch

5 Lowell

Morton

Stowe

6 Anderson

Diego

LaFayette

Moos Von Humboldt

Yates

District School

7 Beidler

Douglass

Middle

Goldblatt

Melody

Tilton

8 Chalmers

Komensky

9 Dett

Dodge

Herbert

Medill Primary

Smyth

Suder

10 Frazier Henson Lawndale

11 Donoghue

Douglas

Einstein

Williams

12 Fulton Branch

Sherman

13 Beethoven

Burke

Colman

Farren

Hartigan

McCorkle

Parkman

14 Oakenwald South

Robinson Branch

Wadsworth

15 Raster

Raster Branch

(ADR II; 1984 Brady Testimony, p. 96).

215. The 45 ESP target schools were selected from among all racially identifiable schools in the system. First, all racially identifiable schools were ranked lowest to highest based on achievement test scores in reading and math, with a double weighting for reading, over a two year period. In addition, attendance and student mobility statistics and the extent of racial isolation were taken into consideration in the ranking process. This process produced a ranked list of the lowest achieving most racially identifiable schools in the system. The 45 lowest achieving most racially identifiable schools were chosen as target schools. (1984 Brady Testimony, pp. 96-97).

216. For school year 1983-84, the complete ESP program was continued at the 45

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target schools and implemented for the first time at 62 additional racially identifiable schools. The 62 additional schools are listed below. Of these schools, 7 are educational vocational guidance centers which are also listed below:

District School

2 Gale Academy

Marti Bilingual Education Center

3 Byrd Academy

Jenner Elementary

Mulligan Elementary

4 Howe Elementary

5 Avondale Elementary

Morton E.V.G.C.

Nobel Elementary

Piccolo Middle School

Ryerson Elementary

L. Ward Elementary

Wright Elementary

6 Anderson E.V.G.C.

Chopin Elementary

Koscuiszko Elementary

Otis Elementary

7 M. Clark Middle School

DePriest Elementary

Erieson Elementary

Roetgen E.V.G.C.

Spencer Elementary

8 Bethune Elementary

Hammond Elementary

Howland Elementary

Lathrop Elementary

Pope Elementary

Spry Elementary

9 Brown Elementary

Grant Elementary

Irving Elementary

McKinley E.V.G.C.

Medill Intermediate & Upper Grades

10 Gregory Elementary

C. Hughes Elementary

McCormick Elementary

Webster Elementary

11 Abbott Elementary

Drake E.V.G.C.

Mayo Elementary

12 Copernicus Elementary

Fulton Elementary

13 Dyett Middle

Hope Community Academy

Ross Elementary

Terrell Elementary

District School

14 Dulles Elementary

Mollison Elementary

Price Elementary

Woodson North Elementary

15 O’Toole Elementary

16 Bass Elementary

Goethals E.V.G.C.

Kershaw Elementary

Low Upper Cycle

17 Bryn Mawr Elementary

Revere Elementary

19 J.N. Thorp Elementary

J.N. Thorp E.V.G.C.

20 Aldridge Elementary

Carver Middle School

Kohn Elementary

(Board Exs. 30 and 112; 1984 Brady Testimony, pp. 98-112).

217. The additional 62 racially identifiable schools chosen to participate in the full ESP program in school year 1983-84 were selected through the same formula used to select the 45 target schools. Using the formula stated in Finding 215, all racially identifiable schools in the system were again listed in rank order in the fall of 1983, with the lowest achieving most racially identifiable school ranked first. After excluding the 45 targeted schools already participating in the ESP programs, the 62 next lowest achieving most racially identifiable schools were selected for implementation of the full ESP program in school year 1983- 84. (1984 the Brady Testimony, p. 117).

218. The full ESP program was being implemented at these 62 racially identifiable schools in 1983-1984 only because of the $20 million appropriation to the Board pursuant to the Yates Bill. The Yates Bill provided a one year appropriation of funds. The Board lacked the financial resources to continue full ESP programs at these 62 racially identifiable schools in school year 1984- 85. (1984 Brady Testimony, pp. 98-99).

219. The full ESP programs implemented at 107 racially identifiable Chicago public schools are accurately described in peti

*1348

tioner’s trial exhibits 28, 31, 32, 110 and 117. These ESP programs were implemented in school year 1983-84 in accordance with the Plan set forth in the Board’s trial exhibit 30. (1984 Brady Testimony, pp. 185, 350).

219A. Implementation of the full ESP program at the 107 racially identifiable Chicago public schools in school year 1983-84 would not have involved duplication of other desegregation programs previously placed in those schools which the Board is continuing to implement. Implementation of the full ESP program at these 107 schools and at an additional 100 racially identifiable Chicago public schools in school year 1984-85 would have involved only minor duplication of already existing desegregation programs in those schools. (1984 Brady Testimony, pp. 1244-53).

220. The essential purpose of the Board’s ESP program is to improve instructional effectiveness in schools that are racially identifiable in order to improve educational outcomes for black and Hispanic children. Educational outcomes means improving achievement levels, attendance, discipline and the likelihood of a student’s successfully moving to the next school level or into society in general. This is accomplished by programmatic interventions addressing six major areas: instructional emphasis, including increased time on task; leadership; use of assessment data; parental support and involvement; general school climate; and staff development and training. Among the elements of the ESP program which are designed to increase a student’s time on task are extended day and extended year instruction, and full-day kindergarten instruction. (1984 Brady Testimony, pp. 91-92).

221. One of the major goals of the ESP program, as described in Board’s trial exhibits 28, 31, 32, 110 and 117, is to reduce the gap in achievement levels between national grade level norms and the achievement levels of minority children now attending, or who will attend, racially identifiable schools in the system. (1984 Brady Testimony, pp. 91-93).

222. The effective schools concept is based on educational research which suggests that if the proper learning conditions are created, all children, regardless of their race and the racial composition of the school they attend, can learn. The effective schools model is an important structure for ensuring implementation of effective educational remedies at racially identifiable schools. It serves as a primary focus for implementation of the Plan’s Educational Components, particularly those in curriculum-related areas. The Board’s “Effective Schools Project” is derived from and supported by the leading research in “effective schools” learning. (1984 Brady Testimony, pp. 91-92).

223. The inservice training component at each ESP school is a local, school specific program which provides staff with the specialized skills necessary to implement effectively the Plan’s educational remedies. The teaching staff at each school are or will be receiving training intended to eliminate unequal treatment of minority pupils by raising the staff’s awareness of its possible racial biases and by modifying any biased attitudes, expectations and behaviors toward the teaching of minority pupils. The teaching staff at each school also are or will be receiving training designed to develop the specialized skills, instructional methods and educational techniques necessary to effectively teach and to increase the academic achievement of minority pupils who must remain in racially identifiable schools. The inservice component at each ESP school is directed toward instructing staff in meeting the particular educational needs of minority pupils and in adapting existing instructional approaches to successfully meet those needs. (1984 Brady Testimony, pp. 286-89).

224. The ESP program described in petitioner’s exhibits 28, 30, 81, 110 and 117, as implemented in 107 racially identifiable schools in school year 1983-84, materially aids the successful implementation of the Educational Components of the Board’s Desegregation Plan. The ESP program eliminates or alleviates the effects of racial seg

*1349

regation on minority children in that it raises the achievement levels of minority children, ends the unequal treatment of minority children in racially identifiable schools by teachers and administrative staff, and reduces the psychological pressures of attending racially identifiable schools and the resulting loss of self-esteem. (1984 Brady Testimony, pp. 192-95).

225. Implementation of the ESP program in the 45 racially identifiable target schools in school years 1981-82 and 1982-83 has raised the median level achievement scores of minority children as described in petitioner’s trial exhibits 36, 37 and 38 (as substituted and modified by Petitioner’s Exhibit 91). (1984 Brady Testimony, pp. 124-26).

226. To close the existing gap in grade level norms and achievement levels between students in integrated schools and minority students attending racially identifiable schools, it will be necessary to implement the full ESP program in the 45 original target schools for another 3 to 5 years and in the 62 additional racially identifiable schools for another 4 to 6 years. (1984 Brady Testimony, pp. 356-61; Board Ex. 30).

227. With adequate funding, the Board would have continued to implement the full ESP program in the 107 racially identifiable schools previously identified in these Findings in school year 1984-85. In addition, it would have implemented the full ESP program in the next 100 lowest achieving racially identifiable Chicago public schools (the Level II schools). (1984 Brady Testimony, pp. 311-13; 1985 Brady Dep., at 70-75, 106-11).

228. Petitioner’s trial exhibit 28, as modified by Petitioner’s exhibit 117 and Dr. Brady’s testimony, sets forth the projected cost of implementing a full ESP program in 207 racially identifiable schools for school year 1984-85. (1984 Brady and Glasper Testimony, pp. 153-54, 309-11, 806, respectively). Those cost figures are reasonable under the circumstances shown at trial. (1984 Brady and Glasper Testimony, pp. 153-54 and 806 respectively).

229. Petitioner’s trial exhibit 28 as modified by Petitioner’s trial exhibit 117 and Dr. Brady’s testimony, set forth the projected cost in school year 1984-85 of implementing certain components of the ESP program at racially identifiable schools (the level III schools) not participating in the full ESP program. (1984 Brady and Glasper Testimony, pp. 153-54, 309-11, 806, respectively). Those projected cost figures are reasonable under the circumstances shown at trial. (1984 Glasper Testimony, p. 806).

230. Petitioner’s trial exhibit 31 sets forth the amount which the Board expected to spend in school year 1983-84 for implementing certain components of the ESP program at 100 racially identifiable schools not then participating in the full ESP program. (1984 Brady Testimony, pp. 114-17). Those projected cost figures are reasonable under the circumstances shown at trial. (1984 Glasper Testimony, p. 806).

231. To implement the Educational Components of the Plan, the Board must, at a minimum, implement those components of the ESP program used in school year 1983-84 at the 100 racially identifiable schools not currently participating in the full ESP program (the Level II schools), and, to some extent, at all other racially identifiable schools not participating in the full ESP program (the Level III schools). The components to be implemented at these nonparticipant racially identifiable schools are those which require full day kindergarten at each of these schools, the use of extended day and extended year instruction, and the inservice training of staff at these schools. (1984 Brady Testimony, pp. 160-71, 197-200). For the reasons stated in Finding 224, implementation of these components of the ESP program at racially identifiable schools not participating in the full ESP program will materially aid the successful implementation of the Educational Components of the Board’s Desegregation Plan. The cost of implementing these components of the ESP program at all racially identifiable schools not participating in the full ESP program would have

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been at least $10 million in school year 1984-85. That cost is reasonable under the circumstances. (1984 Brady and Glasper Testimony, pp. 200 and 806, respectively; Board Ex. 117).

233. With adequate funding, the Board would implement a full ESP program at the 100 racially identifiable schools which are the lowest achieving most racially identifiable next in order after the 45 racially identifiable schools listed in Finding 214. Implementation of a full ESP program at each of these 100 racially identifiable schools would materially aid successful implementation of the Educational Components of the Plan for the reasons stated in Finding 224. The cost of implementing a full ESP program at 100 additional racially identifiable schools in school year 1984-85 would have been as shown on Exhibit 117 and would have been reasonable under the circumstances. Full implementation at these schools would reduce the cost of implementating certain ESP components at racially identifiable schools not participating in the full ESP program to approximately $10 million. (1984 Brady Testimony, pp. 153-54, 190-94; Board Ex. 117).

233A. Board trial exhibit 28 represents an initial estimate, prepared in August and September of 1983, of the cost and budget breakdown of the program components (and the program elements thereof) designed to materially aid the implementation of the Desegregation Plan. (1984 Brady Testimony, pp. 153-54).

233B. Board exhibit 117 was prepared by the OEEO staff under the direction and supervision of Dr. Brady, in response to requests made by the United States and the Court during the course of the 1984 hearing. Board Exhibit 117 reflected the cost in school year 1984-85 of implementation of the full ESP program at 207 schools and the partial implementation of the ESP program at all other racially identifiable schools. (1984 Brady Testimony, pp. 1239-40).

233C. Exhibit 117 also reflects:

(1) Corrections of errors and duplications which appear in Exhibit 28;

(2) Consideration of the fact that the detailed line-by-line budget breakdown by cost category for certain of the program elements differs slightly from that initially set forth in Exhibit 28;

(3) Consideration of the fact that certain of the program elements set forth in Exhibit 28 were funded in part in school year 1983-84 by Board incremental desegregation expenditures and the fact that the Board is expected to provide $67.7 million for incremental desegregation expenditures in school year 1984-85, thereby enabling the Board to provide continued funding for certain of the program elements included in Exhibit 28;

(4) Consideration of the fact that certain of the items funded in school year 1983-84 are one-time costs and will not recur in subsequent years.

(1984 Brady Testimony, pp. 1239-44).

233D. With respect to program components funded in school year 1983-84 with moneys appropriated by the Yates Bill, Exhibit 117 contains three columns of numbers:

the first

representing the line-by-line budget breakdown of costs as set forth in Exhibit 28;

the second

representing those portions of program elements actually funded in 1983-84; and

the third

representing the amount required to implement these programs in school year 1984-85. (1984 Brady Testimony, p. 1240).

233E. With respect to program components funded in school year 1983-84 with incremental Board funds, Exhibit 117 contains four columns of numbers: the first representing the line-by-line breakdown of costs as set forth in Exhibit 28; the second representing those portions of program elements actually funded in school year 1983-84; the third representing the amount required to implement those programs in school year 1984-85 after consideration of nonrecurring costs (as reflected by Finding 233C(4)); and the fourth representing the amount which the Board was not able to fund from its own resources in school year 1984-85, despite its good faith efforts (and reflecting the considerations set forth in

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Finding 233C(3)). (1984 Brady Testimony, p. 1240).

234. The purpose of the Trainers Institute program is to build within the Chicago public school system the internal capacity to provide inservice training to teachers and staff with respect to implementation of the Student Assignment Plan and the Educational Components, and generally with respect to the education of minority children in racially identifiable schools. This Institute will materially aid successful implementation of the Board’s Desegregation Plan. It will eliminate or alleviate the effects of racial segregation on minority children in that it will assist the raising of their achievement levels and help end the unequal treatment of minority children in racially identifiable schools by teachers and administrative staff."' '(1984 Brady Testimony, pp. 289-93).

235. With adequate funding, the Board would have fully implemented the Trainers Institute in school year 1984-85. Petitioner’s trial exhibit 117 sets forth the projected annual cost of implementing the Trainers Institute in 1984-85. That cost is reasonable under the circumstances. (1984 Brady and Glasper Testimony, pp. 292-93 and 806, respectively).

236. The purpose of the Management Information System is to establish and maintain a comprehensive information system to collect, analyze, review and disseminate data related to all desegregation activities under the Educational Components and the Student Assignment Plan. The Management Information System materially aids the successful implementation of the Board’s Desegregation Plan by tracing and measuring progress in achieving the goals of the Plan. The Board’s trial exhibit 117 sets forth the projected cost of this system. That projected cost is reasonable under the circumstances. (1984 Brady and Glasper Testimony, pp. 203-09 and 806, respectively).

237. The purpose of the Equity Compliance program described in petitioner’s trial exhibit 28 is to manage program expenditures, gather OEEO statistical data, carry out desegregation reporting functions, monitor and audit desegregation activities and establish means to measure and assess compliance with the Plan. Certain aspects of this program were implemented in school year 1983-84, as detailed in the Board’s exhibits 31 and 117. Each component of the Equity Compliance Program will materially aid successful implementation of the Educational Components of the Plan. The projected cost of implementing this program, as set forth in petitioner’s trial exhibit 117, is reasonable under the circumstances. (1984 Brady and Glasper Testimony, pp. 79-81 and 806, respectively).

238. The purpose of the system-wide Staff Development program for racially identifiable schools, described in exhibit 28, is to provide staff with the information and skills necessary to implement effectively the Plan’s educational components. Through twelve major conferences, staff from all racially identifiable schools will receive a general overview in many desegregation related areas, including the requirements of the desegregation plan, and methods of ensuring equal educational opportunity in a racially identifiable school. Specific topics encompassed in these conferences will address multi-cultural awareness and teaching approaches, effective discipline techniques, classroom management and instructional strategies to raise minority pupils’ academic achievement. The general staff development provided through this program is intended to introduce staff to problems in implementing the desegregation plan, and to increase staff’s effectiveness in dealing with the problems addressed. (1984 Brady Testimony, pp. 295-99).

239. The Staff Development program for the racially identifiable schools will materially aid successful implementation of the Board’s Desegregation Plan. It will eliminate or alleviate the effects of racial segregation on minority children in that it will assist teachers in raising the achievement levels of the children and it will help in ending the unequal treatment of minority children in racially identifiable schools

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by teachers and staff. The consultant component of the staff development pr

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