# United States v. Board of Educ. of City of Chicago

> District Court, N.D. Illinois · July 17, 1984 · 588 F. Supp. 132

URL: https://www.frixlaw.com/law-library/cases/1679443

## Case

- **Full name:** UNITED STATES of America, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, Defendant
- **Court:** District Court, N.D. Illinois
- **Decided:** July 17, 1984
- **Citations:** 588 F. Supp. 132
- **Precedential status:** Published
- **Opinion:** Opinion by Shadur
- **Judges:** Shadur
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by United States v. Board of Education of the City of Chicago, 744 F.2d 1300 (1984).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1679443

## How later opinions describe it (automated extraction)

- finding that gap had been narrowed through remedial program
- Finding of Fact 104, based on 1984 Stipulation 104

## Opinion text

*138
SHADUR, District Judge.
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This case has tended to be sidetracked by a “false conflict”
1
created by the United States: By creating an artificial limitation on funds otherwise available or potentially available to satisfy the extensive Desegregation Plan needs of Chicago’s Board of Education (let alone the varying needs of other claimants of funds), the United States has sought to place the Board (and this Court) into a position as though the Board (and this Court) were choking off deserving educational programs.
2
That is simply not true. It is the United States itself that has created and is perpetuating that regrettable situation.
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This Court has held,
3
and our Court of Appeals has confirmed,
4
that the United States has broken its word by refusing to keep the promise it made on the day this lawsuit was filed, Consent Decree § 15.1, (“Section 15.1”):
5
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.
In a sense the United States is not like other litigants — because the concerns created by considerations such as separation of powers and sovereign immunity tend to prevent its promises from being fully enforced in precisely the same way as promises of (say) IBM or other private defendants. For that reason this Court has previously been compelled to impose a “freeze” order to avoid the risk its ability to order relief will arguably be frustrated. Because the United States has deliberately violated its original agreement to fund the Chicago Desegregation Plan, this Court has reluctantly found it necessary to prevent the distribution to other possible grantees of United States educational funds, in order to preserve access to all the dollars that would be potentially available to fund the honoring of the United States’ freely-undertaken (and then freely-broken) obligation to the Board.
But as this Court has said during the course of hearings on this issue, the United States “has the key to its cell in its own pocket.”
6
It could have, in the exercise of its “every good faith effort,” assured that all the needed funds would be potentially available to the Board by (1) shifting available dollars to the Board to the fullest extent possible without congressional approval or (2) going to Congress with a request to allow the shifting of dollars that were already available to the Department of Education, but that required reallocation because they were not in fact going to be used for the purposes that had been the subject of the original allocation.
7
It could have done both those things if necessary. Instead the United States has chosen to pit deserving applicants for funds one against the other, and to put the issue before Congress as though the Board and this Court— rather than the United States as the breaker of its own voluntary promise — were the malefactors.
One other related point should be emphasized at the outset. Section 15.1 is part of a consent decree. Like every consent decree, it has a twofold aspect.
8
It is of course a
contract
— and as a contract, it is enforceable to require the contracting parties to perform their voluntarily undertaken duties. Because unlike most contracts the parties have chosen to submit it for the stamp of court approval, it is also a
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court order
—and as such, it is enforceable like any other court order, by contempt if need be.
9
On the sorry record reflected by the matters detailed in this long opinion, a private litigant that did what the United States has done would unquestionably be held in contempt — with the potential for being subjected to a fine or imprisonment as well as to an order for civil compliance. But for the United States a contempt fine is meaningless — after all it is the public interest (and not the injured opposing party) that is vindicated by a fine, with the money going to the United States itself as surrogate for the public. Thus imposition of a fine against the United States would just transfer money from one federal pocket to the other. Similarly imprisonment of the United States as such is impossible, and any possible imprisonment of defiant ranking government officials would be unseemly at best. For those reasons voluntary adherence by the United States to its solemnly undertaken responsibilities becomes all the more important, and its deliberate flouting of those responsibilities becomes all the more unpardonable.
Now the legal rights of the litigants have to be evaluated. This opinion has not been drafted in response to the United States’ conduct just referred to, but that conduct may have made the issues more clouded than would otherwise have been the case.
This Court now has before it the evidence developed in extensive hearings on remand from the Court of Appeals’ decision (“Opinion III,” see n. 4) confirming the United States’ violation of Section 15.1. Although the Court of Appeals did that, it also vacated the part of this Court’s June 30, 1983 order (the “Order,” issued contemporaneously with “Opinion II,” see n. 3) that had directed the United States to undertake an affirmative program to preserve the availability of funds potentially available to fulfill its obligations under the Decree. As the Court of Appeals put it (717 F.2d at 384), this Court had “acted with excessive dispatch” in doing so. This Court of course had shared the respect for separation of powers that underlay the Court of Appeals’ opinion. This Court’s fault, if it was one, was in a skepticism (grounded in prior conduct by the United States, not in mere surmise) as to whether the United States would in fact “fashion its proposed remedy for past non-compliance, as well as ... show that it intends to comply in the future...” (717 F.2d at 385).
As the following findings of fact (“Findings”) and conclusions of law (“Conclusions”) will reflect, this Court’s anticipatory doubts were unfortunately all too justified. Now the Department of Education has been given the opportunity mandated by the Court of Appeals, and it has failed its charge dismally. In accordance with Fed.R.Civ.P. (“Rule”) 52(a), this Court sets forth the Findings and Conclusions that constitute the grounds of its action referred to in this lengthy opinion.
FINDINGS OF FACT (“Findings”)
Adoption and Approval of the Desegregation Plan (the “Plan”), and the Nature of the Plan
Consent Decree Negotiations
101. Chicago’s Board of Education (“Board”) operates the third largest public school system in the United States. In the 1980-81 school year Board operated 634 schools, including 495 elementary schools, 66 high schools and 73 special needs schools of various types. In October of that school year 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%
At the same time Board employed approximately 43,000 persons, including 29,000 members of the Chicago Teachers Union. Board is the largest employer in Chicago and the second largest in Illinois. (Stip. 101)
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102. After protracted and complex negotiations, the United States and Board entered into a Consent Decree, which was filed with and approved by this Court September 24,1980. (Stip. 102) Findings 103-04 give the background of the Consent Decree.
103. After desegregation negotiations in 1979 between the former Department of Health Education and Welfare and the former representatives of Board had proved 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 Board. (GX1-27 [Government Exhibit 1, June 1983 hearing, Document 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 that the Board would receive to implement such a plan. (GXl-21,22) Board counsel indicated that if the negotiations failed and litigation commenced, Board would present counterclaims against agencies of the federal government. (GX1-39) There was no significant progress in those negotiations. (GX1-21, GX1-22) (Stip. 103)
104. During those negotiations a new Board was appointed and took office. (GX1-22) That new Board formed a Desegregation Committee (GX1-21) and indicated to the United States it would bring fresh approaches to the negotiations
(Id.)
Thereafter Board was represented by' its new leadership and by new counsel. (GX116) 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) That progress resulted from an altogether different focus. Rather than seeking to negotiate the specific terms (or even somewhat more generalized terms) 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. Those 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 agencies 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 conveyed 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
*142
the part of both parties which would be interpreted and applied as appropriate in whatever future circumstances might arise.
Section 15.1 provides:
, 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.
Section 15.3 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.
(Stip. 104)
105. On September 24, 1980 four events occurred to make the Consent Decree fully operative:
(a) filing of a Complaint by the United States;
(b) 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, approval by the Court of the Consent Decree and its entry by the Court; and
(d) Board’s non-filing of any counterclaim against the United States.
(Stip. 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, considering 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 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:
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 security.
7.7 Supportive relationships between such schools and groups and institutions in the community and in government.
(Stip. 106)
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
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to help pay for a plan that would include educational components in racially isolated schools (§ 2.2)
1
covering the subject matter outlined in § 7, in the development of which the Board would exercise discretion (§ 3.1). (Stipulations 101-06)
108. Circumstances surrounding entry of the Consent Decree indicate that a joint and mutual obligation was contemplated. The Consent 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. It 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 and expensive use of compensatory educational remedies to alleviate the effects of past segregation. In 1980 (as now) Board was faced with massive financial deficits, and the joint funding provision of the Consent Decree reflected recognition that Board’s finances were such that it could not voluntarily agree to develop, or successfully to implement, an effective desegregation plan of this type unless the federal government were sharing the financial burdens. (Stipulations 101-56; June 1983 Findings and Plan/ADR data on Board finances)
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. (Stipulations 101-56; June 1983 Findings and Plan/ADR data on Board finances) The United States’ financial commitment under Section 15.1 was the principal
quid pro quo
for Board’s willingness to forego litigation and develop the Plan. In return for that commitment, the United States secured the full result 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)
110. With respect to “what the parties reasonably expected at the time of signing,” the parties’ Joint Stipulation (Government’s Exhibit 2 in the June 1983 hearing) states:
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 which would be interpreted and applied as appropriate in whatever future circumstances might arise.
All 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 reflects 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.”
2
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 fund
*144
ing was theoretically available to Board. (Stipulations 101-06; Government Exhibits 1 and 2 in the June 1983 hearing) This does not of course mean the parties contemplated issuance of a blank check to Board by the United States. But given the circumstances of the negotiations, Board’s known financial difficulties, its inability to generate funds without the approval of other governmental agencies, the known major problems (and hence major costs) of implementing a desegregation plan in a school system as large as Chicago’s (and with its racial mix), and other relevant factors, the parties’ reasonable expectations should certainly have embraced the potential need for the United States regularly “to find and provide” sums of the magnitude represented by Board’s proof at the current hearing. Although this Court ruled in limine (prior to the current hearings) certain areas of proof by the United States would be excluded, this Court has nevertheless given full consideration to (a) the United States’ offer of proof suggested by this Court as the means to complete the record and (b) Board’s post-hearing response to that offer of proof. Even taking that offer of proof fully into account (rather than treating it as excluded) this Court finds nothing in the United States’ proof or proposed proof persuasively refutes the reasonableness of the expectations referred to in this Finding. Given the parties’ Joint Stipulation that Section 15.1’s “general obligation ... would be interpreted and applied as appropriate in whatever future circumstances might arise,” this Court finds the current circumstances make the interpretation of that obligation to embrace the Board’s current request (as modified by this opinion) to be wholly appropriate for funding by the United States.
111. The Consent Decree in this ease is the only instance in which the United States has entered into a desegregation settlement containing the same or substantially similar language to that in Section 15.1. (Stip. 107)
Development of Part I of the Plan, the Educational Components
112. To develop the Educational Components of the Plan, Board retained a team of independent, nationally recognized consultants. Dr. Robert L. Green was the Lead Consultant, with principal overall responsibility for the process. Dr. Green (now the President of the University of the District of Columbia) was then Dean of the College of Urban Development, Michigan State University. He was a leading national expert on desegregation plans, especially the aspect of desegregation that 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. (Stip. 108) In addition to Dr. Green, 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.” Professor Ronald Edmonds (who has since died) was the primary national consultant in the area of curriculum. While on the faculty of the Harvard Graduate School of Education, Dr. Edmonds had 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.
113. Board’s complete list of desegregation project consultants is as follows:
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(Stip. 109)
114. During the development of the Educational Components from November 1980 through March 1981, Board submitted monthly progress reports to the Department of Justice, as required by the Consent Decree. (Stip. 110)
115. Dr. Green submitted his Recommendations on Educational Components to Board April 3, 1981. Two weeks later the Recommendations were adopted by Board as Part I of the Desegregation Plan: Educational Components. Part I’s content is summarized by its Table of Contents:
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(Stip. Ill)
116. The following statements about Plan costs appeared at pages 17 and 19 of the “Financial Aspects” section in Part II of the Plan, adopted in April 1981:
1.
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 associat- . ed 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.
While the exact costs of the educational components are not yet known, the
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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).
(Stip. 112)
117. Before the Consent Decree, Board’s desegregation programs were administered by a staff of three persons. Shortly after the initial adoption of the Educational Components, Board created a special Office of Equal Educational Opportunity (“OEEO”) to coordinate the implementation of the Plan. OEEO is presently headed by Dr. Nelvia Brady, Associate Superintendent, who was a member of Dr. Green’s original desegregation planning staff. OEEO’s office staff has expanded continuously since 1981 and presently comprises 53 persons, of whom eight are clerical staff, eight 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 education professionals (72.5%) have their principal responsibilities in the area of implementing the Educational Components of the Plan.
(Stip. 113) ■
Statements of the United States and this 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 as to desegregation remedies, Mr. Smith stated (at 8-9):
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 henceforward propose remedies that have the best chance of both improving the quality of education in the schools and promoting desegregation.
(Stip. 114)
119. In the Response of the United States to the Desegregation Plan, filed in July 1981, the United States made the following comments about the Educational Components of the Plan:
(a) With respect to the provision of the Consent Decree concerning providing compensatory programs in schools remaining segregated, the United States said (at 5):
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.
(b) After a brief summary of the Educational Components, the United States stated (at 22) that “the Government endorses” them.
(c) Finally, in evaluating the Educational Components, the United States said (at 32-33):
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
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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.
(Stip. 115)
120. On August 28, 1981 the United States and Board submitted their Joint Statement to the Court as to the development of the Plan. With respect to the Educational Components, the Joint Statement (at 5) informed the Court that
The Board and the United States are in agreement in these general respects: ... (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.
(Stip. 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 classroom, 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, color 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
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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.”
(Stip. 117; Bd. Ex. 77)
122. In school year 1981-82 Board submitted quarterly progress reports to the United States and to the Court, detailing the process' of implementing the Plan, including the Educational Components. (Stip. 118)
123. In February and March 1982, following the adoption of Board’s Comprehensive Student Assignment Plan, the Court entertained briefs concerning the compliance of the total 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 significant extra funding for implementation of the Educational Components in racially isolated schools:
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 went on to express concern that Board had only committed itself to provide “Milliken II relief” to the extent that funds are available. NAACP’s July 1981 memorandum on the Plan stated “we have no specific objection to the content of these programs.” NAACP’s March 1982 brief did not comment further on the Educational Components. (Stipulations 119, 133)
124. On January 6, 1983 this Court issued its opinion (“Opinion I,” 554 F.Supp. 912 ) approving Board’s Plan as being clearly within the broad range of constitutionally acceptable plans. With respect to the Educational Components and funding, Opinion I stated
(id.
at 926):
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 constitutional 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.
(Stip. 120)
125. Board’s 1983 Annual Desegregation Review, Part I (filed April 15, 1983) contained a section on “Financial Aspects” at 402-23, which included the following statements:
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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, additional 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 interdistrict 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.
(Stip. 121)
126. Board’s statements as to 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 these purposes, including the, statements described in Findings 116 and 125, do not reflect any determination by Board either that the expenditure of $40 million would be “adequate” for that aspect of the Plan (in terms of Section 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. (Stipulations 101-21; Parts I, II and III of the Plan)
127. In August 1983 Board filed Part II of its 1983 Annual Desegregation Review, a 416 page document that reported in detail on the implementation of the Educational
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Components (“ADR II”). After the filing of ADR II this 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. (Stip. 122)
128. As the preceding review of the record reflects, the United States (a) strongly supported (indeed, insisted upon the inclusion of) Board’s Educational Components as the developmental process moved from the Consent Decree principles to the April 1981 Educational Components Plan to approval by this Court and (b) raised no subsequent objection as 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. (Stips. 101-22, 133)
Overview of the Student Assignment Plan
129. Under the Consent Decree Board agreed to adopt a system-wide desegregation plan with two basic objectives. Section 2.1 called for creating the greatest practicable number of stably desegregated schools, considering all the circumstances in Chicago. As already described, the second objective was to provide educational and related programs for schools that remained racially isolated. (Stip. 123)
130. In January 1982 Board adopted its Comprehensive Student Assignment Plan, which divides all schools in the school system into four broad categories. First of those categories is that of the residentially integrated school (defined as one whose enrollment includes at least 30% white children and 30% minority children, derived principally from residential or other natural attendance patterns). Two basic types of schools come within that category: (a) stably integrated and (b) integrated but with potential for change. There is a third type of school identified in the Plan: currently integrated, but with an enrollment of white children projected to decline below 30%.
3
As of October 1981 those three types of schools encompassed 67 schools with an enrollment of 52,067 students.
4
(Stip. 124)
131. Next the Plan considers the category of the desegregated school: one whose enrollment includes at least 30% white children and 30% minority children, and which has been established primarily by student assignment techniques under the Plan. That category includes both (a) schools that 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 that 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). Such techniques include voluntary transfer programs and magnet and magnet-type programs within schools. (Stip. 125)
132. In addition the Plan describes various magnet-type schools, which are established primarily in minority communities and are designed to promote desegregation by special educational offerings and programs. Each such school has a target enrollment composition, generally 15-35% white, 65-85% minority. In 1981 such schools included 41 magnet schools, scholastic academies and metropolitan high schools, enrolling 28,824 students. (Stip. 126)
133. Finally the Plan also considers 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. After describing why those schools cannot practicably be desegregated, the Plan describes the compensatory educational arrangements that will be provided for at those
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schools and the various voluntary transfer arrangements in which students enrolled at those schools may participate. (Stip. 127)
134. This table summarizes the school types identified in the Plan, and the number and enrollment of the schools:
[[Image here]]
(Stip. 128)
135. Two mandatory requirements were established by the Plan. One was that every school achieve by October 1983 a minority enrollment of at least 30%. Under the other, by October 1983 the school system as a whole had to achieve a minimum total enrollment in all integrated and desegregated schools (including magnet schools). This latter requirement is generally referred to as the “desegregation index” requirement. (Stip. 129)
136. Additionally 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 such provisions are those concerning school closings, boundary adjustments and within-school segregation. (Stip. 130)
137. In a separate volume, the Student Assignment Plan contains school-by-school analyses for each school in the system. Those 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. (Stip. 131)
138. Detailed evaluation of the student assignment component of the Plan, including analysis of enrollment composition and prescription of specific actions for over 200 individual schools, is undertaken every year. Each such evaluation is reported on in an Annual Desegregation Review (“ADR”). (Stip. 132)
139. After the adoption of the Comprehensive Student Assignment Plan in January 1982, the United States filed its 33-page Assessment of the Plan. It explained the United States’ belief that the Plan is constitutional and consistent with the Consent Decree. In 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.
(Stip. 133)
140. In Opinion I ( 554 F.Supp. 914 -15) this 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 the Desegregation Plan. This Court further noted it had deferred ruling on the Plan for several months, so that the prom
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ises of the Plan could be “test[ed] in the crucible of reality.” In light of the fall 1982 implementation results, this Court found “nothing in the execution of the Plan has been shown to disprove the premises on which it was designed”
(id.
at 915). Finally, having reviewed the Plan in detail, this Court approved it as being “clearly within the broad range of constitutionally acceptable plans”
(id.
at 928). (Stip. 134)
141. In April 1983 the Board’s Annual Desegregation Review (Part I, Student Assignment) (“ADR I”) showed that (a) implementation of the Plan during school year 1982-83 was a considerable success and (b) 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. (Stip. 135)
142. In its May 1983 response to ADR I, the United States favorably evaluated the Board’s substantive implementation process (at 1-2, 4-5):
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.
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.
(Stip. 135)
143. As Finding 135 reflects, the mandatory requirements of the Student Assignment Plan became applicable as of October 1983. While the formal evaluation of the results of the Plan in the 1983-84 school year is not yet due to be filed, Board filed a Report Concerning Preliminary Fall 1983 Enrollment Data on November 2, 1983, informing this Court that the requirement of 30% minimum minority enrollment in all schools had been met. (Stip. 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. Those 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 past two years. As in Finding 134, the figures exclude kindergarten students; therefore the total enrollment shown is for grades 1-12, 41,260 students less than systemwide enrollment.
[[Image here]]
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[[Image here]]
(Stip. 138)
Demographics of the City of Chicago and the Chicago Public Schools
145. Extensive demographic information is presented in both the Comprehensive Student Assignment Plan (at 8-39) and in 1983 ADR I (at 20-23). (Stip. 139)
146. Racial composition of the total population of the City of Chicago from 1940 to 1980 is summarized in the following table:
[[Image here]]
(Stip. 140)
147. Racial/ethnic composition of the Chicago public schools from 1970 through 1983 is presented in the following table:
Chicago Public Schools
Racial/Ethnic Composition 1970-1983
[[Image here]]
(Stip. 141)
148. One principal reason the proportion of minorities is higher among public school students than among the overall city population is that a large number of children (more than half of whom are white) attend nonpublic schools in Chicago, especially the Catholic parochial schools. Their 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. (Stip. 142)
149. Total membership in the Chicago public schools has leveled off this year after 15 years of decline that were often characterized by very substantial drops. This year’s decline in total membership is only about 1800 (0.4%), compared with almost 19,000 (3.9%) in 1980. As a historic matter, enrollment was 372,278 in 1952. Student membership increased quite dramatically in the 1950s and the 1960s, reaching a peak of 580,292 in 1969. Since then enrollment has declined, generally at the rate of 2-4% per year, with the greatest
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declines between 1977-81 (over 15,000 students, or 3-4%, per year). In 1982 the decline was 1.6% (7046 students), as contrasted with the slight drop in 1983. (Stip. 143)
150. Enrollment of white students (now 67,829 or 15.6% systemwide) has declined at a significantly slower rate since adoption of the Plan. From 1977-81 white enrollment declined at 9-11% per year (or 10,COO-12,000 students). In 1982 white enrollment declined 6% (4,941 students) and in 1983, 5% (3,342 students). (Stip. 144)
151. Black students now number 263,-163 (60.6% systemwide). As with total enrollment and with white students, 1983 decline in black enrollment of 1,367 students (0.5%) is significantly lower than declines of 2-4% in the preceding five years. (Stip. 145)
152. In contrast to white and black enrollment, Hispanic enrollment in the school system has been increasing steadily since 1970, at the rate of 3-6% annually. Hispanic students now number 91,763 (21.2% systemwide). (Stip. 146)
153. Board’s demographers believe the enrollment changes summarized in Findings 149-52 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 opportunities 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 pick-up and Adopt-A-School.
(Stip. 147)
154. During the past two years of relatively stable enrollments, an important factor contributing to changes is the transfer rate between public and nonpublic schools. As the following table reflects, the Chicago public schools have been gaining more students and losing fewer since 1980:
[[Image here]]
(Stip. 148)
155. It appears the recent trend of enrollment decline in the Chicago public schools has ended this year. Gradual increases can be expected to begin next year, if the general demographic trends (particularly migration and transfer rates) experienced in the recent past continue in the years to come. Such a development would point to increased demand for teachers and school facilities. 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. (Stip. 149)
156. Racial/ethnic composition of the elementary and secondary levels of the school system as of October 1983 is detailed in the first table following Finding 157. These data are briefly summarized as follows:
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[[Image here]]
(Stip. 150)
157. 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. (Stip. 151)
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[[Image here]]
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[[Image here]]
158. There are presently 407 schools with enrollments more than 70% black and/or Hispanic (excluding magnet schools):
[[Image here]]
Those students are 69.8% of the system-wide enrollment. There are 275,091 students (69.4% of systemwide enrollment) attending schools more than 90% minority. (Stip. 152)
159. Schools with more than 70% black and/or Hispanic enrollment will increase in number in coming years, as a result of the demographic and transfer trends described in Findings 145-57. (Stip. 153)
160. In schools with enrollments more than 90% black and/or Hispanic, 1983-84 total kindergarten and pre-school enrollment is as follows:
[[Image here]]
Such enrollment is projected to be at least as great in school year 1984-85, and will probably increase. Kindergarten students represent approximately two thirds of this total, or 20,000 students. (Stip. 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 is approximately as follows:
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[[Image here]]
Those numbers are projected to be at least as great in school year 1984-85, and will probably increase. (Stip. 155)
Propriety and Cost of Programs Proposed for Adequate Implementation of the Plan
201. Dr. Nelvia Brady is a qualified expert as to the effects of racial segregation on minority children; the nature and types of desegregation programs that are capable of eliminating or alleviating those effects; the design, development and implementation of the Plan; and the ability of federal Chapter 1 and State Title I eligible programs to alleviate the effects of past segregation. She is presently Associate Superintendent, OEEO, and has primary responsibility for implementation of the Plan. (Brady testimony)
202. Dr. Brady was one of the experts with principal responsibility for drafting the Educational Components of the Plan. (Brady testimony)
203. In April 1981 Board adopted the Recommendations on Educational Components (prepared by its nationally known expert, Dr. Green). Those Recommenda-' tions accurately explain the justifications for educational components:
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.
(Brady testimony)
204. Dr. Brady described elements of the Plan that have been implemented to date and provided an evaluation of Board’s efforts in this area. In general that portion of her testimony addressed both the student assignment aspects of the Plan and the elements of the educational components of the Plan as to which implementation has already been initiated. She also discussed the elements Board intends to implement in school year 1984-85 if there is sufficient available funding. More specific testimony as to the implementation status of the Curriculum, Bilingual and Vocational/Technical Education components was provided by Drs. Gerald Heing, Josué Gonzales, and Philip Viso, respectively (Testimony of Brady, Heing, Gonzales and Viso)
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205. Dr. Brady showed Board has experienced significant successes in its implementation efforts to date. Her testimony was supported by evaluations performed during the last two years at the 45 racially isolated targeted elementary schools that were first included in the Chicago Effective Schools Project. (Brady testimony)
206. Dr. Brady’s testimony described the process by which the 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 each component of the Plan is (a) carefully designed to alleviate the effects of past segregation and (b) will substantially further implementation of a successful desegregation plan. She further explained that, given the historic backdrop and the demographics of Chicago, full and successful implementation of the Educational Components is crucial to the success of the Plan. (Brady testimony)
207. In substantial part the Educational Components are intended 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 systematic and institutional changes in the manner in which the school system provides educational services. (Brady testimony)
208. Minority children now attending Chicago public schools suffer, or have been affected by, one or more of the following effects of racial segregation:
(a) reading, math and communication, skills one grade or more below the students’ 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 that 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.
(Stip. 155, Brady testimony.)
209. This broad spectrum of inequalities and injuries resulting from racial isolation cannot 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. (Brady testimony)
210. OEEO, in conjunction with other Board departments and units,' developed the programs described in Board Ex. 28. OEEO was primarily responsible for developing the following program elements:
a. Effective Schools 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
Board’s Department of Pupil Personnel Services and Special Education was primarily responsible for developing the Special Education and Discipline program ele
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ments. Its Department of Vocational and Technical Education was primarily responsible for developing the Vocational and Technical Education programs elements. Its Department of Curriculum and Instruction was primarily responsible for developing the curriculum program elements. Its Department of International and Multicultural Education was primarily responsible for developing the bilingual program. Its Department of Research and Evaluation was primarily responsible for developing the program to evaluate the results of Plan implementation. (Brady, Viso, Heing and Gonzales testimony)
211. Board’s original version of proposed Board Trial Ex. 28 was provided to the United States on or about September 16, 1983. (Response to Board’s Second Set of Requests to Admit, No. 28)
212. Dr. Brady reviewed each program in Board Ex. 28 and testified 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. She 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. She testified each of those 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. This Court has considered in detail (a) Board’s proof on an item-by-item basis (including all submitted Exhibits and this Court’s own notes on all the testimony made during the course of the hearing, supplemented where necessary by review of the transcript), (b) the United States’ specific objections (as articulated at the hearing and as filed in a post-hearing memorandum April 20, 1984) and (c) Board’s detailed post-hearing response filed April 30. In so doing this Court has applied the standards taught by the
Liddell
and
Arthur
cases discussed in the Conclusions. It has paid close attention to drawing the line between programs that will materially aid successful implementation of the Plan and those that have a more generalized primary focus of improving the quality of general education in the school system. Except to the extent reflected by these Findings and Conclusions, Board’s last response to the United States’ argument as to “specific failures of proof contained in the Board’s presentation” is wholly persuasive, and the objections of the United States are therefore rejected.
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. The 45 specially targeted schools are:
[[Image here]]
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[[Image here]]
(ADR II; Brady testimony; Board Ex. 112)
214. Those target schools were selected from among all racially identifiable schools in the system on the basis of a comparative need evaluation. 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. That process produced a ranked list of the lowest-achieving most racially identifiable schools in the system, and the 45 lowest on the list were chosen as target schools. (Brady testimony)
215. For school year 1983-84 the complete ESP program was continued at the 45 target schools and implemented for the first time at the 62 additional racially identifiable schools (including 7 educational vocational guidance centers) listed below:
[[Image here]]
[[Image here]]
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(Board Exs. 30 and 112; Brady testimony)
216. Those 62 additional schools chosen to participate in the full ESP program in school year 1983-84 were selected through the same means initially used to select the 45 target schools. Using the formula stated in Finding 214, all racially identifiable schools in the system were again listed in order in the fall of 1983, with the lowest-achieving most racially identifiable school ranked first. After the 45 targeted schools already participated in the ESP programs were deleted from the list (as automatic continuing participants), the 62 lowest ranking schools remaining on the list were selected for implementation of the full ESP program in school year 1983-84. (Brady testimony)
217. Implementation of the full ESP program at those 62 schools is possible only because of the $20 million appropriation to Board pursuant to the Yates Bill (discussed in later Findings), which provided only a one-year appropriation of funds. Board currently lacks the financial resources to continue the ESP programs at those 62 schools in school year 1984-85. (Brady and Glasper testimony)
218. Board Exs. 28, 31, 32, 110 and 117 accurately describe the full ESP programs implemented at 107 racially identifiable Chicago public schools. Those ESP programs were implemented in school year 1983-84 in accordance with the Plan set forth in Board Ex. 30. (Brady testimony)
219. Implementation of the full ESP program at the 107 schools in school year 1983-84 has not involved duplication of other desegregation programs previously placed in those schools, which Board is continuing to implement. Implementation of the full ESP program at those 107 schools and at an additional 100 racially identifiable Chicago public schools in school year 1984-85 will involve only minor duplication of already existing desegregation programs in those schools. (Brady testimony)
220. Board’s essential purpose for its ESP program is to improve instructional effectiveness in racially identifiable schools in order to improve educational outcomes for black and Hispanic children. That 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 designed to increase a student’s time on task are extended-day and extended-year instruction, and full-day kindergarten instruction. (Brady testimony)
221. One of the major goals of the ESP program, as described in Board Exs. 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. (Brady testimony)
222. “Effective schools” as a concept is based on educational research that suggests if the proper learning conditions are created, all children, regardless of their race and the racial composition of the school they attend, can learn. “Effective schools” as a 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. Board’s “Effective Schools Project” is derived from and supported by the leading research in “effective schools” learning. (Brady testimony)
223. Board’s inservice training component at each ESP school is a local, school-specific program that provides staff with the specialized skills necessary effectively to implement the Plan’s educational remedies. Each school’s teaching staff is or will be receiving training intended to eliminate unequal treatment of minority pupils by
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raising each staffs awareness of its possible racial biases and by modifying any biased attitudes, expectations and behaviors toward the teaching of minority pupils. Each school’s teaching staff also is or will be receiving training designed to develop the specialized skills, instructional methods and educational techniques necessary effectively to teach and to increase the academic achievement of minority pupils who must remain in racially identifiable schools. Each ESP school’s inservice component is directed toward instructing staff in meeting the particular educational needs of minority pupils and in adapting existing instructional approaches to meet those needs successfully. (Brady testimony)
224. Board’s ESP program described in Board Exs. 28, 30, 31, 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 Plan. That ESP program eliminates or alleviates the effects of racial segregation 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. (Brady testimony)
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 Board Exs. 36, 37 and 38 (as substituted and modified by Board Ex. 91). (Brady testimony)
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. (Brady testimony)
227. With adequate funding, Board would continue to implement the full ESP program in those 107 schools in school year 1984-85. In addition, it would implement the full ESP program in the next 100 lowest ranking schools as determined by the same formula (“Level II schools”). (Brady testimony)
228. Board Ex. 28, as modified by Board Ex. 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. Those cost figures are reasonable under the circumstances shown at trial. (Brady testimony; Glasper testimony)
229. Board Ex. 28, as modified by Board Ex. 117 and Dr. Brady’s testimony, sets forth the estimated cost in school year 1984-85 of implementing certain components of the ESP program at racially identifiable schools (“Level III schools”) not participating in the full ESP program. Those projected cost figures are a reasonable estimate under the circumstances shown at trial. If the estimate of $10 million were to prove inaccurate, the figures could be adjusted by reducing the United States’ payment to Board in a subsequent year. (Brady testimony; Glasper testimony)
230. Board Ex. 31 sets forth the amount Board expects to spend in school year 1983-84 for implementing certain components of the ESP program at the 100 Level II racially identifiable schools not currently participating in the full ESP program. Those projected cost figures are reasonable under the circumstances shown at trial. (Brady testimony; Glasper testimony)
231. To implement the Educational Components of the Plan, Board must at a minimum implement certain components of the ESP program at both the 100 Level II schools and the Level III schools. Such components to be implemented at the nonparticipant racially identifiable schools are those that require full-day kindergarten at each of those schools, the use of extended-day and extended-year instruction, and the inservice training of staff at those schools.
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For the reasons stated in Finding 224, implementation of those 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 Plan. (Brady testimony; Glasper testimony; Board Ex. 117)
232. With adequate funding, Board would implement a full ESP program at the 100 Level II schools. Such full implementation would materially aid successful implementation of the Educational Components of the Plan for the reasons stated in Finding 224. Board’s cost of such implementation in school year 1984-85 would be as shown on Board Ex. 117 and would be reasonable under the circumstances. Full implementation at those schools would reduce the cost of implementing certain ESP components at racially identifiable schools not participating in the full ESP program to approximately $10 million. (Brady testimony; Board Ex. 117)
233. Board Ex. 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) designed materially to aid the implementation of the Plan (Brady testimony). Board Ex. 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 this Court during the course of this hearing. Board Ex. 117 reflects 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 (Brady testimony). It also reflects:
(a) corrections of errors and duplications in Board Ex. 28;
(b) 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 Board Ex. 28;
(c) consideration of the fact certain of the program elements set forth in Board Ex. 28 were funded in part in school year 1983-84 by Board incremental desegregation expenditures and the fact Board is expected to provide $67.7 million for incremental desegregation expenditures in school year 1984-85, thereby enabling Board to provide continued funding for certain of the program elements included in Board Ex. 28;
(d) consideration of the fact certain of the items funded in school year 1983-84 are one-time costs and will not recur in subsequent years.
(Brady testimony) With respect to program components funded in school year 1983- 84 with moneys appropriated by the Yates Bill, Board Ex. 117 contains three columns of numbers:
the first
representing the line-by-line budget breakdown of costs as set forth in Board Ex. 28;
the second
representing those portions of program elements actually funded in 1983-84; and
the third
representing the amount required to implement those programs in school year 1984- 85. (Brady testimony) With respect to program components funded in school year 1983-84 with incremental Board funds, Board Ex. 117 contains four columns of numbers:
the first
representing the line-by-line breakdown of costs as set forth in Board Ex. 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 non-recurring costs; and
the fourth
representing the amount Board will not be able to fund from its own resources in school year 1984-85, despite its good faith efforts.) (Brady testimony)
234. Board’s Trainers Institute program is intended to build within the Chicago public school system the internal capacity to provide inservice training to teachers and staff for implementation of the Student Assignment Plan and the Educational Components, and generally for the education of minority children in racially identifiable schools. That Institute will materially aid
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successful implementation of the 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. (Brady testimony)
235. With adequate funding, Board would fully implement the Trainers Institute in school year 1984-85. Board Ex. 117 sets forth the projected cost of implementing the Trainers Institute in 1984-85. That cost is reasonable under the circumstances. (Brady testimony; Glasper testimony)
236. Board’s Management Information System is intended 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. That System materially aids successful implementation of the Plan by tracing and measuring progress in achieving the goals of the Plan. Board Ex. 117 sets forth the projected cost of the System. That cost is reasonable under the circumstances. (Brady testimony; Glasper testimony)
237. Board’s Equity Compliance program described in Board Ex. 28 is intended 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. Each component of that program will materially aid successful implementation of the Educational Components of the Plan. Certain aspects of the program were implemented in school year 1983-84, as detailed in Board Ex. 31 and 117. Its cost of implementation in school year 1984-85, as set forth in Board Ex. 117, is reasonable under the circumstances. (Brady testimony; Glasper testimony)
238. Board’s systemwide Staff Development program for racially identifiable schools, described in Board Ex. 28, is intended 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 Plan, and methods of ensuring equal educational opportunity in a racially identifiable school. Specific topics encompassed in those conferences will address multi-cultural awareness and teaching approaches, effective discipline techniques, classroom management and instructional strategies to raise minority pupils’ academic achievement. General staff development provided through the program is intended to introduce staff to problems in implementing the Plan, and to increase staff’s effectiveness in dealing with the problems addressed. (Brady testimony)
239. Board’s Staff Development program for the racially identifiable schools will materially aid successful implementation of the 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 by teachers and staff. Its consultant component is required to hire specialists to conduct inservice training conferences. Those consultants are necessary to implement the Staff Development program. Board Ex. 117 sets forth the projected cost of the program for school year 1984-85. That cost is reasonable under the circumstances. (Brady testimony; Glasper testimony)
240. Board’s systemwide Staff Development program for Desegregated Schools, described in Board Ex. 28, is intended to provide staff with general information and an overview of skills necessary to effectively implement the Plan’s student assignment and educational components. Staff from desegregated schools will receive training in many areas, including the requirements of the Plan, multi-cultural awareness and teaching approaches, effective discipline techniques and classroom management in a desegregated setting.
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That program will materially aid the successful implementation of the Plan. It will eliminate or alleviate the past effect of racial segregation on minority children now attending desegregated schools by assisting teachers in raising their achievement levels. It will also assist in the effective implementation of the Plan by raising staff awareness of and eliminating its unequal treatment of minority pupils in desegregated schools. As set forth in Board Exs. 28 and 117, the cost of that program is reasonable under the circumstances. (Brady testimony; Glasper testimony)
241. Board’s Within-School Segregation Program is intended to gather information about the racial composition of classrooms and to monitor the assignment of students to classrooms within particular schools. That program will materially aid successful implementation of the Plan. It will eliminate or alleviate the racial segregation of students in classrooms through, for example, forms of “tracking” or “ability grouping.” It will accordingly ensure that students are actually taught, insofar as is practicable, in a physically desegregated environment. Board Ex. 117 sets forth the cost of the program for school year 1984-85. That cost is reasonable under the circumstances. (Brady testimony; Glasper testimony)
242. Board’s Magnet Schools programs, described in Board Ex. 28, are intended to construct new magnet schools, develop and expand special curriculum offerings at certain racially identifiable schools, and provide inservice training and staff development at 150 magnet schools and magnet programs. Specialized curriculum offerings or magnet programs will be introduced or expanded at racially identifiable “community academies” as part of the special educational improvements and remedies required by the Plan. Staff training and advisory services are necessary and will materially assist staff in planning and developing the expanded curriculum offerings and in successfully introducing them in racially identifiable schools. Except as stated in Finding 243, the Magnet School programs described in Board Ex. 28 will materially aid successful implementation of the Plan. Board Ex. 117 sets forth the cost of those programs for school year 1984-85. That cost is reasonable under the circumstances. (Brady, Glasper, Viso testimony)
243. Board did not demonstrate the proposed Residential Magnet High School would have sufficient marginal utility (on the testimony it would serve only about 200 students), in relation to its more than $9 million cost, so as to justify a finding the school will materially aid successful implementation of the Plan. By way of contrast, although the proposed Agricultural Magnet High School is also challenged by the United States as insufficiently related to the purposes of the Plan, the testimony establishes that school would meet a demonstrated need and serve minority students in a manner that meets the standard stated in Finding 242. That is also true of all the other Magnet School programs.
244. Board’s Staff Development Program at the 150 magnet schools and magnet programs, as referred to in Finding 242, is intended to meet school specific needs related to the particular school’s curriculum, including maintaining the consistency of the magnet program with system-wide standards, training teachers in instructing students in the special magnet program offering, and planning, developing and refining the magnet program to maintain its quality. That program also will train staff in multicultural awareness, teaching approaches and classroom management in a desegregated school. Its purpose is to enhance the likelihood that magnet schools and magnet programs will develop and maintain the quality curriculum and school climate necessary to attract a desegregated student body. (Brady testimony)
245. Each component of the Staff Development Program referred to in Findings 242 and 244 is directly related to the Plan and will materially aid its successful implementation by raising minority pupil achievement, eliminating unequal treatment of minority pupils, and achieving and
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maintaining physical desegregation in school populations. With adequate funding the Board would implement those components of its magnet school program in school year 1984-85. Board Ex. 117 sets forth the cost of implementing those components in school year 1984-85. That cost is reasonable under the circumstances. (Brady testimony; Glasper testimony)
246. Board’s Special Education/Testing program described in Board Ex. 28 is intended to implement and, as required by the Plan, to validate procedures designed to ensure non-discriminatory assessment and placement of students in educable mentally handicapped classes. Consultants and inservice programs are necessary to provide Board staff with the skills to evaluate whether its current assessment procedures are accurate and race neutral. In addition the Special Education/Testing program is intended to provide transition services and special educational support for students who were previously placed in mentally handicapped classes, based upon potentially biased assessment instruments, and who are now being returned to the regular classroom. Inservice training is required to provide teachers and other staff with awareness of and the skills to deal with such students’ special educational needs during the period of their transition to the regular classroom. (Brady testimony)
247. All components of the program described in Finding 246 will materially aid Board’s implementation of the Plan. It will eliminate or alleviate the effects of racial segregation on minority pupils by assisting their return to regular classrooms and thus raising their achievement levels, and it will help end the unequal assessment and placement of minority pupils in special education classes. Its cost for school year 1984-85, as set forth in Board Ex. 117, is reasonable under the circumstances. (Brady testimony; Glasper testimony)
248. Board’s Vocational and Technical Education Program, as described in Board Exs. 28 and 116, is intended to provide vocational educational information to staff and students, to recruit minority students for vocational education classes, to provide vocational educational support services for minority students, and to expand and adapt vocational education program offerings to increase the opportunity for minority students to participate in vocational education programs. Inservice training and consultant services are required to acquaint teachers with vocational education opportunities open to minority pupils, to improve the staff’s skills and capabilities effectively to provide vocational education services to minority students, and to assist staff in planning, developing and effectively providing additional vocational program offerings to students. These inservice and consulting components are directly related to the Plan and will materially assist in implementing its Vocational and Technical Education program. (Brady testimony; Viso testimony)
249. Except as stated in Finding 250, the components of the Vocational and Technical Education program will materially assist the Board in implementing the Plan. They will alleviate or eliminate the effects of past segregation in vocational and technical education programs by various activities intended to end the unequal participation of minority students in these programs. Their respective costs for school year 1984-85, as set forth in Board Ex. 117, are reasonable under the circumstances. (Brady testimony; Viso testimony; Glasper testimony)
250. One component of the Vocational and Technical Education program testified to by Dr. Viso (the Handicapped component) cannot fairly be included in the cost of the Plan for current purposes. On the present record it lacks a sufficient nexus to the purposes of the Plan — as compared with the general goal of improving the overall quality of education. Though in its post-hearing submission Board stated that blacks represent a higher percentage of EMH students in the system (about 81%) than their percentage of total school enrollment (about 61%), no testimony established what percentage EMH students were of the total “Handicapped” group that could be assisted by the program. Thus the test
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of materiality is not satisfied. This is simply a matter of inadequacy of proof, and to the extent such proof may be sharpened in subsequent years the item may perhaps be allowable. This Court of course recognizes that most of the other Vocational and Technical Education components also involve estimates, but each of those estimates is sufficiently reasonable (and not effectively challenged by the United States) to satisfy Board’s burden of proof. In any case Board will be fully accountable for its use of funds, and to the extent there may prove to be any over-allocation as to any item based on actual experience, adjustments in the United States’ payments to Board can be made in future years.
251. Board’s Department of Curriculum activities related to its Plan needs, as described in Board Exs. 28 and 114, are intended to ensure that curriculum offerings are consistent with the goals of the educational components and modified and refined to meet those goals. Desegregation-related activities in the Department of Curriculum will include planning, developing and implementing the special curriculum improvements required by the Plan’s Educational Components, coordinating those improvements and monitoring their consistency with systemwide educational goals, maintaining the curriculum and course quality of the special educational programs required by the Educational Components. All inservice and advisory components of those programs are necessary to provide Board staff with the information and skills to plan and provide effectively the various curriculum development and implementation activities necessary to achieve the overall goals of the educational components. (Brady testimony; Heing Testimony)
252. Except as stated in Finding 253, the components of the Curriculum and Instruction program will materially assist the Board in implementing the Plan by raising the achievement levels of minority students and maintaining or enhancing the quality of curriculum designed to raise the achievement of minority students. Board Ex. 117 sets forth the cost of implementing these curriculum and instruction activities in school year 1984-85. That cost is reasonable under the circumstances. (Brady testimony; Heing testimony; Glasper testimony)
253. “High School Renaissance,” as described in Dr. Heing’s testimony, was not sufficiently distinguished from Board’s ordinary goals of system-upgrading to justify inclusion of that program in Plan costs. Dr. Heing referred to providing a “strengthened diploma” — of course a commendable goal, but one that appears clearly on the other side of what is admittedly not always a bright line distinction between (a) Plan implementation and (b) general benefits to educational goals of the school system as a whole.
254. Board’s Student Discipline program, described in Board Ex. 28, is intended to provide discipline managers in schools who will enforce the Uniform Discipline Code, provide training to staff in the provisions of the Code and behavior modification techniques, develop and operate in-school suspension and behavior improvement programs as an alternative to suspension, and monitor and report on disciplinary infractions. That program will materially assist the Board in implementing the Plan by eliminating or alleviating unequal disciplinary treatment of minority pupils. Its cost for school year 1984-85, as set forth in Board Ex. 117, is reasonable under the circumstances. (Brady testimony; Glasper testimony)
255. Board's Bilingual Education programs, as described in Board Ex. 28, are intended to assist in achieving the national origin desegregation required by the Plan. Activities that would be undertaken include establishing special “immersion” educational programs to instruct pupils in their native languages until they can make the transition to regular classrooms, developing a special curriculum responsive to the needs of bilingual students, performing research on the educational needs of bilingual and limited English proficient students, and recruiting qualified bilingual
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teachers. Inservice training and consulting activities are necessary to provide staff with the skills to conduct research, plan and develop bilingual and limited English proficient education programs, and effectively to instruct bilingual and limited English proficient students. (Brady testimony; Gonzales testimony)
256. Except for Statewide Network (which was withdrawn by Board), each component of the Bilingual Education program will materially assist Board in implementing the Plan. Each will alleviate or eliminate the effects of segregation on bilingual or limited English proficient students in that it will assist the raising of their academic achievement and help end the unequal treatment of and unequal educational opportunities available to those children. Each component’s cost for school year 1984-85, as set forth in Board Ex. 117, is reasonable under the circumstances. (Brady testimony; Gonzales testimony; Glasper testimony)
257. Board’s Evaluation program described in Board Ex. 28 is intended to permit OEEO to collect, analyze and evaluate information to determine the overall effects of the Plan, as implemented, and to indicate areas where programs must be refined or modified to achieve the Plan’s goals. Consultant and inservice programs are necessary to provide staff with the skills to conduct this research and evaluate the effects of the Plan. This Program will materially aid the successful implementation of the Plan by providing information necessary to continue and correct implementation of the plan and to reach the Plan’s goals. Board Ex. 117 sets forth the costs of the Evaluation Program for school year 1984-85. That cost is reasonable under the circumstances. (Brady testimony; Glasper testimony)
258. Inservice training and staff development programs described in various of Findings 223-57 do not duplicate each other and do not duplicate other inservice training provided by Board. Each program-related training or staff development activity will address specific needs and topics related to the program it will assist in implementing. Those program-specific needs will not be addressed to the extent required effectively to implement the programs in the Educational Components in the general, systemwide desegregation related staff development programs operated by OEEO, nor in any other of Board’s ongoing staff development activities. (Brady testimony)
259. All costs (with reference both to the total amount and to the amount Board is unable to fund despite its every good faith effort) of the program elements set forth in Board Ex. 117 are reasonable estimates of the amounts needed to implement such programs. (Testimony of Brady, Viso, Heing, Gonzalez and Glasper) Those costs represent appropriate modifications, where required, of costs originally reflected in Board Ex. 28. In turn, the cost attributable to each program element of Board Ex. 28 was included therein after consultation between the Budget Office, OEEO and central office administrative personal responsible for the preparation thereof. (Brady and Glasper testimony) Those projected costs were reviewed and verified by Board’s Office of Budget and Financial Planning. (Glasper testimony)
260. Of the $108 million in program components identified by Board Ex. 28, approximately $6 million is being funded by Board resources in school year 1983-84. (Glasper testimony)
261. Another $20 million, appropriated by the Yates Bill, is being devoted to Board Ex. 28 program components during the second half of the 1983-84 school year. (Brady testimony) Board Ex. 31 sets forth those elements of the Educational Components of the Plan that are being funded by the $20 million appropriated by the Yates Bill. (Brady testimony)
262. Board Exs. 31, 35, 41 and 113 accurately describe the desegregation programs and anticipated expenditures of Board during school year 1983-84. Those include the approximately $57 million in expenditures for programs continued from school year 1982-83, the planned approximately $10
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million increase in desegregation expenditures for school year 1983-84 (further described in Board Exs. 35 and 113), and the $20 million in anticipated expenditures resulting from by the Yates Bill (further described in Board Ex. 31). Each of the programs described in those Exhibits is necessary for adequate implementation of the Plan and materially aids in the implementation of the Plan. (Glasper testimony; Brady testimony)
263. Neither Board Ex. 28 nor Board Ex. 117 makes any provision for increases in employee compensation over and above the levels in effect for the 1982-83 school year. They do not, for example, take account of the
5%
salary increase agreed to by Board and the Chicago Teachers’ Union for the 1983-84 school year or of any such future salary increases that may be negotiated between Board and its employees. (Glasper testimony)
264. Set forth after Finding 265 is a chart that reflects the adjustments to Board Ex. 28 made by Board Ex. 117 (as described in Finding 233) and that reflects the 5% salary increase
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implemented in school year 1983-84 referred to in Finding 263. Set forth on the following seven pages are individual charts that reflect such adjustments made for each of the program components for which there is more than one program element: Staff Development, Magnet Schools, Special Edueation/Testing, Vocational/Technical Education, Curriculum, Bilingual Educational and Evaluation (Brady and Glasper testimony).
265. As reflected by the attached charts, the level of funding adequate for full implementation of the Plan in school year 1984-85 (as modified to reflect Findings 243, 250 and 253) is approximately $171,631 million. Of that amount, Board has been able to budget approximately $67,773 million, leaving an increment of approximately $103,858 million that Board, despite its best efforts, will not be able to fund. For planning purposes, it can reasonably be assumed that approximately $171,631 million will be necessary for adequate implementation of the Plan in subsequent school years. (Brady testimony)
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266. Each of the various programmatic elements that, in their entirety, make up the Student Assignment and Educational Components of the Plan materially aids in
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the desegregation of the Chicago public schools. (Testimony of Brady, Yiso, Heing and Gonzales) Those programs work together with ongoing programs first implemented in earlier school years to achieve the goals of the Plan’s Educational Components. (Brady testimony)
267. Prior to school year 1983-84, only certain elements of the Educational Components had been implemented at the vast majority of racially identifiable schools and, as a result, achievement of the Plan’s overall objectives has been limited. Even with the implementation of additional elements this school year because of the increased Board budget for desegregation and the appropriation in the Yates Bill, many other elements have yet to be implemented. (Brady testimony)
268. At this point, school year 1984-85 is the first in which full implementation of the Plan could occur. In the months that followed the June 1983 hearing, Board had anticipated that the resources necessary to implement fully the various components of the Plan would be made available by the United States for the 1983-84 school year, so as to make it the first year of full implementation. As a result, Board Ex. 28 was prepared under the assumption that each of the various program elements would be initially implemented in 1983-84. However, only $26 million in new financial resources became available, allowing for only limited implementation of these program elements. (Brady and Glasper testimony)
269. Because of the passage of time, full implementation became impossible in school year 1983-84. Given both the schedule of these proceedings (including the possibility of an appeal by the United States) and the nature of the school year calendar, additional resources could not be received and properly devoted to implementation of the programs before the beginning of school year 1984-85. It is accordingly necessary to treat school year 1984-85 as the first year of full implementation. (Brady testimony)
270. Educational Components of the Plan were intended to supplement Chapter I programs in racially identifiable schools where such programs are in effect. If Chapter I funds were used for desegregation programs, the aggregate effects of low income status and racial segregation would not be addressed, and low income minority students would receive less compensatory programming than contemplated by Chapter I and the Plan. (Brady testimony; Fagan cross-examination testimony)
271. There are a substantial number of racially identifiable schools not eligible for Chapter I programs, and even in those schools eligible for Chapter I programs a significant number of minority students are not qualified to participate because their achievement levels, while below grade level, are not low enough. In short, the latter group of minority children, and those now attending or who will attend racially identifiable schools ineligible for Chapter I programs, would be foreclosed from critical remedial programs designed to alleviate the educational impact of past segregation that affects each of them, even if Chapter I funds were used for funding for the Plan. (Fagan cross-examination testimony)
272. Diverting Chapter 1 funds to Desegregation Plan costs would divest low income, educationally deprived students of the benefits of Chapter 1 ECIA programs in order to provide minority students the benefit of the Plan’s Educational Components. That would offset or neutralize the benefit of the desegregation remedy and would diminish the aggregate impact of the compensatory and desegregation programs provided by Chapter 1 and the Consent Decree. (Brady testimony; Fagan cross-examination testimony)
Board’s Financial Affairs and Condition, and the Financial Aspects of School Desegregation
1983-84 Incremental Desegregation Expenditures
301. As of September 1983 the Chicago public school system comprised 70 high schools, 442 elementary schools and 25
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branches, 25 child-parent centers and a small number of schools of other types (such as special education facilities, apprentice and trade schools, adult schools and bilingual-bicultural schools). Enrollment for the 1983-84 academic year is approximately 434,000 students. As of June 1983 Board employed nearly 40,000 persons, of whom approximately 27,400 were represented by the Chicago Teachers’ Union and approximately 9,500 were members of other unions and employee groups that negotiate with Board. (Stip. 201)
302. Board’s budget for school year 1983-84 provides for appropriations of approximately $1,455 billion for operating expenditures. (Stip. 202)
303. As part of the $1,455 billion budgeted for operating expenditures in school year 1983-84, Board budgeted approximately $67.7 million for incremental desegregation expenditures. After receiving the $20 million appropriated by the Yates Bill, Board increased that amount to approximately $87.7 million. (Stip. 203)
304. Incremental desegregation expenditures refers to those desegregation expenditures which are budgeted and accounted for by Board by specific three-digit codes. Those three-digit project codes identify appropriations and expenditures by their source or purpose. (Stip. 204)
305. In 1980-81, the year in which the Consent Decree was entered, incremental desegregation expenditures consisted of certain student assignment programs accounted for under Project Code 512 (as described in Finding 306). As Board expanded implementation of the Plan in each subsequent school year, additional project codes were established to account for the various programs that constituted the components of such expansion. (Stip. 205)
306. Incremental desegregation expenditures are budgeted and accounted for by reference to the following three-digit project codes:
(a) Project Code 512 appropriations and expenditures refer to components of the Plan consisting of those initial elements of the Options for Knowledge student assignment programs that were initiated before the Consent Decree and are sometimes referred to as the continued “Access to Excellence” programs. Generally those are magnet schools and programs and voluntary transfer programs.
(b) Project Code 163 appropriations and expenditures refer to components of the Plan initially established in school year 1981-82, primarily relating to implementation of the Plan’s Educational Components at racially isolated schools (and in part in 1981-82 to certain student assignment programs established in that year).
(c) Project Code 946 appropriations and expenditures refer to components of the Plan that relate to implementation of the Educational Components at racially isolated schools, also initially established in school year 1981-82 and funded by a supplementary allocation of State Title I funds.
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(d) Project Code 536 appropriations and expenditures refer to components of the Plan funded under Title VII of the Elementary and Secondary Education Act of 1965 (“ESEA”) to implement certain elements of the bilingual education aspects of the Plan, beginning in school year 1981-82.
(e) Project Code 576 appropriations and expenditures refer to components of the Plan funded under ECIA Chapter 2 and relate to the salaries of central office and support staff engaged in inservice training, recruitment, evaluation and management of the Plan. Those federal funds were first received in school year 1981-82 as a grant under ESAA.
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(f) Project Code 065 appropriations and expenditures refer to components of the Plan initially established in school year 1982-83 to implement new and expanded elements of the Options for Knowledge student assignment programs and related transportation costs.
(g) Project Code 496 appropriations and expenditures refer to components of the Plan funded by the $10 million increase in Board resources for desegregation implementation in school year 1983-84.
(h) Project Code 400 appropriations and expenditures refer to components of the Plan funded by the $20 million appropriated by the Yates Bill and relating to expansion of the implementation of Educational Components at racially isolated schools. (Stip. 206)
307. Set forth on the following pages are incremental desegregation appropriations and expenditures, identified by project codes, for school years 1980-81 through 1982-83 and incremental desegregation expenditures of $87.7 million, also identified by project codes, Board has budgeted for school year 1983-84. (Stip. 207; Glasper testimony; Board Ex. 41)
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308. Board budgeted and spent approximately $57 million for “incremental desegregation expenditures” in school year 1982-83. Of that amount approximately
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$2.3 million was derived from federal resources: approximately $.5 million in funds under Title VII of ESEA to implement certain aspects of the Plan’s bilingual education components, and approximately $1.8 million in funds received by Board under Chapter 2 of ECIA. This latter $1.8 million was equal to the amount of ESAA funds Board had received before the repeal of ESAA and the enactment of ECIA and thus constituted that portion of the ECIA Chapter 2 block grant Board determined to allocate to implementation of the Plan. All the remaining approximately $54.5 million was derived from Board resources. (Glasper testimony)
309. Resources for the $87.7 million in incremental desegregation expenditures budgeted for school year 1983-84 are being provided as follows: approximately $65.4 million from local resources and approximately $22.3 million from federal resources. (Stip. 208)
310. Of the $22.3 million in federal resources provided to fund Board desegregation expenditures, $20 million derives from the Yates Bill, $1.8 million derives from ECIA Chapter 2 funds and approximately $.5 million derives from ESEA Title VII. (Stip. 209)
311. With respect to incremental desegregation expenditures, Board resources budgeted for desegregation implementation increased by $10 million (or approximately 18%) from the level budgeted for the 1982-83 school year. Desegregation implementation was the most significant area of programmatic expansion undertaken by Board for school year 1983-84. (Stip. 211; Glasper testimony; Bacchus testimony)
312. All the increase in federal resources received by Board in school year 1983-84 for desegregation implementation is attributable solely to the $20 million appropriated by the Yates Bill. (Stip. 212)
1983-84 Ancillary Desegregation Expenditures
313. Incremental desegregation expenditures do not include expenditures, referred to as ancillary desegregation expenditures, that are made by Board to implement the desegregation plan but are not identified by specific project codes and not included in the $87.7 million amount set forth in Finding 307. Included within ancillary desegregation expenditures are the costs of all “quota” or “formula" teachers at magnet and magnet-type schools. For school year 1983-84 the cost of such teachers is approximately $20 million. Also included in ancillary desegregation expenditures are the costs of providing the basic systemwide (or “formula”) level of supplies and instructional equipment at magnet schools, scholastic academies and metropolitan high schools. (Glasper testimony)
314. Also included in ancillary desegregation expenditures are the costs related to student transportation for the Disney Magnet School. This cost is approximately $1.6 million for school year 1983-84.
315. Also included in ancillary desegregation expenditures are various central office and field administrative expenditures relating to the implementation of the Plan. (Brady testimony; Glasper testimony)
316. Ancillary desegregation expenditures are expected to continue at approximately the 1983-84 level in future school years. (Brady testimony; Glasper testimony)
317. Board does not contend that (a) these ancillary costs should be included in the calculation of the amount required for full implementation of the Plan or (b) the United States should be responsible for funding all or a portion of such costs. However, these costs further emphasize that Board has devoted a substantial amount of its total resources to the implementation of the Plan.
1983-84 School Budget
— Board
Resources and Expenditures
318. Evidence as to Board’s present and projected financial condition was presented through the testimony of Board’s chief financial and business officers (J. Maxey Bacchus, Board’s Business Manager, and Rufus Glasper, its Director of Budgeting and Financial Planning) as well as through various Board budget documents.
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319. Board Ex. 43 is the Board’s annual school budget for 1983-84, which contains summary tables of Board revenue and expenditures for the 1983-84 school year budget. (Stip. 216)
320. Board’s four primary sources of operating revenue are local property taxes (34.6%), state school aid (45.6%), federal educational assistance (13.8%), personal property replacement taxes (3.8%) and miscellaneous (2.2%). (Stip. 217)
321. Rates at which Board can levy taxes for its four general operating funds (education, building, textbook and playground) are prescribed by the Illinois School Code (Ill.Rev.Stat. ch. 122, till 34-1 et seq.) and determined by the Illinois General Assembly and not Board. Board is presently levying taxes for those funds at the maximum rates authorized by the General Assembly. (Stip. 218)
322. State school aid received by Board is determined by various formulae prescribed by the School Code, as determined by the Illinois General Assembly and not Board. (Stip. 219)
323. Federal educational assistance received by Board is determined by (a) the amounts appropriated by Congress for various educational programs and (b) the manner in which the Department of Education and, in certain instances, the Illinois State Board of Education determine to allocate these resources. Board does not have control over these determinations; its role is limited to making applications and seeking to meet applicable eligibility and competition requirements. (Stip. 220)
324. Personal property replacement tax revenues are generated through an income tax on corporations, an income tax on partnerships and a tax on the invested capital on certain public utilities. Those tax revenues are collected by the State of Illinois and distributed to local taxing districts, including Board. (Stip. 221)
325. Personal property replacement tax revenue collections are a function of the rates in effect for such taxes, as prescribed by the Illinois General Assembly. Personal property replacement tax revenues distributed to Board are determined pursuant to a formula prescribed by the General Assembly. Board does not have control over those decisions. (Stip. 222)
326. In sum, as this Court said in Opinion I, Board “is not the master of its own fate”. 554 F.Supp. 912, 926 . Except for its own tax levy, which has no available increment, Board’s revenues are wholly determined by other governmental bodies and agencies, particularly the State of Illinois and the United States. To the extent Board has limited discretion over the amount of its revenues, such as the discretion to levy taxes up to a maximum amount permitted by state statute, Board has exercised such discretion to maximize its revenues. (Stip. 216-22; Bacchus testimony; Board Ex. 155))
327. While Board has a limited ability to generate new resources, the United States, by sharp contrast, has the full capability of generating new resources or increasing existing resources. However the United States has not done so (and has in fact taken extensive steps to limit the availability of funds for desegregation implementation). (Board Ex. 57; Findings 401-67)
328. Of $1,455 billion in total Board operating expenditures budgeted for school year 1983-84, approximately $1,162 billion (or approximately 75%) is budgeted for employee compensation, including pension and fringe benefits. All elements of employee compensation are subject to negotiation between Board and the various employee groups with which it engages in collective bargaining, including the Chicago Teachers’ Union. Employee compensation levels cannot be determined .unilaterally by Board. (Stip. 223)
329. Of the same $1,455 billion, approximately $91 million is budgeted for food and utilities, approximately $33 million for repair and rehabilitation of school buildings and approximately $23 million for payment of tuition for handicapped children who cannot be served in the public schools. That tuition rate is set by the State Board of Education, not Board. In the aggregate
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the various expenditure components described in Findings 328-29 represent approximately $1,309 billion, or 90% of Board’s budgeted operating expenditures for school year 1983-84. (Stip. 224)
1979-80 Financial Crisis
330. Board suffered an acute financial crisis in November 1979. Its causes were the subject of various studies and commentaries, in particular a report of the Illinois General Assembly Joint House and Senate Chicago Board of Education Investigation Committee. Its most immediate cause, however, was Board’s inability to engage in short-term borrowing. As a result it suffered a severe cash shortfall. It was forced to decide which of its obligations would be paid in timely fashion and which would of necessity be delayed in payment. By the latter part of December 1979 Board was virtually without any available cash. Governor Thompson convened a meeting in Springfield in early January 1980 to address Board’s financial crisis. Participants at that meeting agreed to a multi-faceted plan, including (a) adoption of the School Finance Authority Act (the “Act”), leading to the creation of the Chicago School Finance Authority (“Authority”); (b) a three-phased financing plan to provide funds for Board (which plan was fully implemented during 1980); and (c) imposition of certain financial, legal and structural changes upon Board, including (i) the reduction in Board’s educational fund tax rate from 2.11% to 1.61% of equalized assessed valuation, (ii) the appointment of a chief financial officer who has responsibility for preparing and supervising Board’s budget and financial plan and who reports directly to Board and (iii) the expiration on April 30, 1980 of the terms of office of all Board members who held office on January 16, 1980. (Stip. 225)
Relationship to School Finance Authority
331. Authority is a five-member body whose members are appointed by the May- or and Governor and are not subject to approval by the General Assembly. It was created to serve two basic functions: (a) to exercise financial oversight and control over Board; and (b) to issue bonds and notes to provide financing for Board. It is to remain in existence until one year after the date that all bonds and notes it has issued are paid in full. It is currently anticipated Authority’s obligations will not be fully paid until 2009, so that it will remain in existence until 2010. However, as discussed in the last paragraph of this Finding, it is likely many of its powers will be suspended before that time.
Financial Control and Oversight Powers.
The most significant powers and responsibilities (and the corresponding duties imposed upon Board) are in the following areas:
(A)
Budgets:
Authority must approve or reject Board’s annual

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1679443. Public record. Not legal advice.