Petition — Johnson v. Board of Education

Supreme Court brief1980

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Text

FILED

lh MAR 5 1980

No. 79-

-185 Glee moe ., CLERR

In the

Supreme Court of the United States

Octoser TERM, 1979

KATHY SUE JOHNSON, etc. et al. and

DARCEL MILTON, etc. et al,

Petitioners,

vs.

BOARD OF EDUCATION OF THE CITY OF CHICAGO, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Of Counsel:

SyYBILLe Frirzscue

Lawyers Committee for

Civil Rights Under Law

220 South State Street

Chicago, Illinois 60604

(312) 787-7845

March, 1980

THomas H. Morscu

SHatom L. Koun

Siptey & Austin

One First National Plaza

Chicago, Illinois 60603

(312) 329-5400

Aitorneys for Petitioners

ETL

UNITED STATES LAW PRINTING CO.,

CHICAGO, ILLINOIS 60618 (312) 525-6581

TABLE OF CONTENTS

pee PAGE

peereniony Witenes ee 1

TI TION ccc ace te ne de 1

III dirnivcacscoadumorwaaieniesian aie snvicchedbinenlan 2

pervs orarath edn cance OE a OTT eID, oe 2

Constitutional and Statutory Provisions Involved ....... 2

CN OE eb ON acini 3

Reasons for Granting the Writ... 11

1. The Issues in this Case Are of Extreme Im-

portance .................... siintnaietain ue:

2. The Decision Below Conflicts in Principle with

the Decisions of this Court and Other Courts .. 15

II i cisctscliestsnsd.cciudintainisltabicaacei bet a 18

Appendices:

A. Opinion of the Court of Appeals ................. A-1

B. Court of Appeals Order Denying Rehearing .. A-29

C. Judgment Order of the District Court A-31

D. Findings of Fact and Conclusions of Law by

Te Deseret OWING oe a oe, A-33

E. Order of the District Court on Attorneys Fees A-50

TABLE OF CITATIONS

CasEs:

PAGE

Arvizu v. Waco Independent School District, 495 F.2d

I a 16

Brice v. Landis, 314 F.Supp. 974 (N.D. Cal. 1969) ........ 17

Brown v. Board of Education, 347 U.S. 483 (1954) ....12, 14

Clark v. Board of Education, 449 F.2d 493 (8th Cir.

1971), cert. denied, 405 U.S. 936 (1972) oe... 16

Haney v. County Board of Education, 429 F.2d 364 (8th

i er vnsesnataeanmevtisnenicimnsnasinvsesio 17

Korematsu v. United States, 323 U.S. 214 (1944) ... 14

Lee v. Macon County Board of Education, 448 F.2d 746

i ninsatnneashaindecnnteenessitovenssenes 16-17

McLaughlin v. Florida, 379 U.S. 184 (1964) 0... 13

Moss v. Stamford Board of Education, 350 F.Supp. §79

NN ES ing ceseetitccnecnstevcennsescenecceeesesase ipseniail 17

NAACP v. Lansing Board of Education, 559 F.2d 1042

(6th Cir.), cert. denied, 434 U.S. 997 (1977), aff’g,

429 F. Supp. 583 (W.D. Mich. 1976) oe. 17

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) .......... Nida bitieieh digptinineahibgatinsaeiciicsninoee 17

United States v. Carolene Products Co., 304 U.S. 144

tls A sis csaestesisamannonvneenenseneeenacimeransgemaconnes 14

United States v. Scotland Neck Board of Education,

GOT UG. SB4 (1978) nanan nance csecceee 13

University of California Regents v. Bakke, 438 U-S.

archaea csencctesinienvinevsersssamasercsenecresserysinnes 13, 15

ConsTITUTIONAL PRovisIon :

PAGE

Amendment XIV, Section 1 oo... cece. 2

STaturEs :

seclie stee s I Ne ELEM 21 8

ee BRON Song cnn a 3, 16

Pe A WOE sepia cobiachacaauciciicae tons 16

SURAT 3k. sanbubibtciabcomcaaes siete 3, 16

Oe ROM OE | sinietininn carlo chaining ce 8

WFR OE line ao oe ee 16

In the

Supreme Court of the United States

Ocroser T'eRM, 1979

No. 79-

KATHY SUE JOHNSON, etc. et al, and

DARCEL MILTON, etc. et al.,

Petitioners,

vs.

BOARD OF EDUCATION OF THE CITY OF CHICAGO, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

INTRODUCTORY STATEMENT

Petitioners respectfully pray that this Court issue a writ

of certiorari to review the judgment and opinion of the

United States Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals, reported at 604 F.2d

904, and the unreported findings of fact and conclusions

of law of the District Court, are reproduced in the Appen-

dix.

JURISDICTION

The judgment of the Court of Appeals was entered on

August 13, 1979. A timely petition for rehearing and re-

hearing en banc was denied on December 6, 1979, and this

petition for certiorari was filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C. §1254

(1).

QUESTIONS PRESENTED

1. Can the annual exclusion solely on account of race of

hundreds of black children and not a single white child

from two integrated high schools be justified by a school

board’s stated purpose of preventing white flight, where

the program effectively denies an integrated education to

most of the black children who are excluded?

2. Does a school board’s alleged purpose to preserve

two schools as integrated either (a) justify an explicit

racial classification which imposes the burdens exclusively

on black children, or (b) preclude strict judicial scrutiny

of the actual purpose and effect of the classification or the

board’s failure to adopt less discriminatory alternatives

which equalize the burdens between blacks and whites?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution, Amendment XIV, Section 1:

‘*. .. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.’’

42 U.S.C. §1983:

‘‘Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citi-

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights.

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.’’

20 U.S.C. §1703(c) :

‘‘No State shall deny equal educational opportunity

to an individual on account of his or her race, color,

sex, or national origin, by—

‘“*(C) the assignment by an educational agency

of a student to a school, other than the one closest

te-his or her place of residence within the school

district in which he or she resides, if the assign-

ment results in a greater degree of segregation of

students on the basis of race, color, sex, or na-

tional origin among the schools of such agency

than would result if such student were assigned

to the school closest to his or her place of residence

within the school district of such agency provid-

ing the appropriate grade level and type of educa-

tion for such student;’’

STATEMENT OF THE CASE

At issue in this case is the legality of racial quotas al-

legedly designed to preserve racial balance at two schools

in a generally segregated school system, where those quotas

place the entire burden of integration on blacks and none

on whites.

The Background of the Quota Plans

Public schools in the City of Chicago are principally

organized on a neighborhood school basis, and exhibit a

pattern of substantial segregation. In 1976, for example,

79% of Chicago’s public elementary schools and 67% of

its public high schools had student bodies which were more

than 85% majority or minority (Pl. Ex. 2). Despite con-

siderable pressure from the Illinois State Board of Educa-

tion to eliminate segregation, the Chicago Board has re-

fused to adopt any mandatory measures to desegregate.*

The racial quotas involved in this case were adopted at

two public high schools on Chicago’s far south side—Gage

Park High School and Morgan Park High School. The at-

tendance areas for these schools are generally speaking

located between the all-black inner city schools to the east,

and predominantly white schools to the west. (Pl. Exs. 2,

36).** Although racial quotas are applied to certain spe;

cial ‘‘magnet’’ schools which are not operated on a neigh-

borhood basis, black children living in the Morgan Park

and Gage Park areas are the only children in the City of

Chicago excluded from their neighborhood schools on ac-

count of their race. (Johnson, R. 9, $18 at 10-11).

The racial quota for Gage Park High School was adopted

by Respondents in May, 1975, and established a 48% black,

42% white, 8% Hispanic and 2% ‘‘principal’s option”’

school-wide quota for the school. The Morgan Park quota,

* These facts are generally known in Chicago and are set forth

in the Chicago Board’s Report, Access to Excellence, Recommenda-

tions for Equalizing Educational Opportunity, at xv, xix, which

both parties cited to the Court of Appeals.

** These white schools are Kelly (78.1% white in 1976), Ken-

nedy (89% white), Bogan (97.4% white), Hubbard (93.4%

white), and Curie (76% white) (Pl. Ex. 2).

adopted the following year, established a 00% black —50%

white quota for each entering class. The quotas were

adopted over the express and determined opposition of

the black community (Pl. Ex. 74 at 40-42, 44-47) (Morgan

Park), and the specific ratios were selected at the urging

of the white community. (Def. Ex. 35, at 29, 37) (Gage

Park). In each case, the Board’s stated purpose for the

quota was to reduce overcrowding and prevent increasingly

black enrollments. (A-36, 12). As the District Court ex-

plicitly found, the ceiling on black enrollments was neces-

sarily set at a lower level than that at which blacks would

have been admitted but for the quotas. (A-36, 712). The

quotas were thus designed to exclude black children from

Morgan Park and Gage Park High Schools.

The quotas had their intended effect. In three years,

over 1630 black children were excluded, and not a single

white child. (A-47, 42). In fact, the admission of every

white child was apparent from the moment the quota re-

sults were first announced. (A-37 to A-39, A-45). The quota

plans also achieved their objective of aitaining the pre-

scribed quota levels, since increasing numbers of black chil-

dren were excluded each year until the quota levels were

satisfied. (See A-40, 126). However, there was no evi-

dence that the quota plans were effective in reversing the

decline in white enrollment at the two schools. To the

contrary, from 1975 to 1977, the white enrollment at Gage

Park fell from 1034 to 881 and that at Morgan Park fell

from 1262 to 1071. (Compare Pl. Ex. 1 with A-40, 126).

At the same time, the quotas resulted in an effective de-

nial of an integrated education to the excluded black chil-

dren. When the plans were originally adopted, the Board

provided that excluded black children could attend any one

of a list of so-called ‘‘under-utilized’’ public high schools,

via public transportation. (A-39 to A-40, 24). The only

under-utilized schools with significant white enrollments

were located on the north side of Chicago, at least 11.4

miles from Gage Park and 18 miles from Morgan Park.

(A-41, 28). As a result, virtually all the black children

excluded from Morgan Park or Gage Park High Schools

in 1975 and 1976 attended schools which were all or pre-

dominantly minority, and not a single child attended any

under-utilized white school made available by the Board.

(A-42 to A-44, 30-32). The Board’s indifference as to

excluded black children’s ability to obtain an integrated

education is underlined by its failure even to investigate

whetner excluded black children were attending integrated

schools. (R.16, f1(d) at 2; R.25, Ex. 2).

The action below

Petitioners are black elementary and high school students

who reside in the Morgan Park or Gage Park attendance

areas. They brought the action below seeking an injunction

against the quota plans and damages.

This case was presented to the trial judge for decision

on an entirely documentary record. No Board member or

representative testified as to the rationale for the quotas,

and no demographer testified as to either past patterns or

future projections of racial change. The sole evidence in

support of the quotas were statistics showing past racial

change in Gage Park and Morgan Park and in three other

schools, Fenger, Orr, and Bowen. (e.g., A-21). But the

Record equally contains evidence that nearby schools like

Kenwood remained constant from 1970-76 ‘at 26% white

(Pl. Exs. 2,50) and absolutely no explanation of why Gage

Park and Morgan Park were more like Fenger than Ken-

wood.* There was also no evidence that the quotas would

be effective in preventing the decline in white enrollments.

In short, on the critical points of the need for the quotas,

their rationality, and anticipated efficacy, there was little

more in the Record than the ipse dizxit of the Board.

Upon submission of all the evidence, the District Court

announced that it was prepared to find the quota plans un-

constitutional, but would reserve ruling pending any modifi-

cation the Board might seek to propose. The Board there-

after modified the plans to provide free bus transportation

for excluded black children to predominantly white or inte-

grated schools principally on the north side of Chicago.

This option involved a 114 hour bus trip each way. (R.71,

Beverly Review, September 14, 1977). In 1977, only 102

of the 1632 excluded children availed themselves of that

option (A-47, 42). In 1978, after the exclusion of several

hundred additional children, the Board reported that 359

students were participating in the busing program (A-14).

Recent reports by the Board for the 1979 school year indi-

cate that after another year of exclusion, the number of

black children availing themselves of the busing option

has dropped to 285.**

* The Record also shows that some of the “under-utilized” schools

made available to excluded black students themselves exhibited rapid

change during this period (Lakeview went from 64.2% white to

43.6% white and Senn from 61.5% white to 44.0% white. Pl. Ex.

2, 50)—but contains no explanation of why a board purportedly in-

tending to prevent racial change chose to bus excluded black students

to schools already undergoing racial change. And nothing in the

Record explains racial change in particular neighborhoods in the

context of overall enrollment patterns in Chicago in which the white

percentage dropped from 34.6% to 24.9% from 1970-76 (/d.).

** Chicago Board of Education, “Access to Excellence, Summary

of Continuing Programs,” Jan. 31, 1980, at 5.

The District Court held that although the original quota

plans were unconstitutional, the post-trial modifications

adopted by the Board cured any constitutional defects.

(A-48, {]1, 3). The District Court also found that these

modifications to the quota plan ‘‘would not have been

adopted but for the efforts of plaintiffs and their counsel’’

(A-48 to A-49, 96).*

The Court of Appeals affirmed in all respects. It began

by noting that, as a racial classification, the quotas would

be subject to the compelling state interest test, even though

they were purportedly adopted for the benign purpose of

preserving integration (A-19 n.); but that this test was

satisfied because the preservation of integrated schools was

ipso facto a compelling state interest (A-20 to A-21).

The Court of Appeals then rejected Petitioners’ conten-

tion that the need for the quotas had not been established,

by citing instances where rapid racial change had taken

place (A-21), and ignoring schools like Kenwood, where

an enrollment of 26% white had been maintained for years.

(Pl. Exs. 2, 50). It also rejected the contention that the

quotas were impermissible because they were a surrender

to the racial prejudice of white students disinclined to at-

tend schools attended by large numbers of blacks (‘‘white

* Nevertheless, the District Court, while awarding costs to plain-

tiffs, denied their request for attorneys fees under 20 U.S.C. §1617

and 42 U.S.C. §1988 (A-51), principally on the erroneous ground

—not even defended by the Board on appeal—that plaintiff's coun-

sel was not entitled to fees because it accepted the case on a pro

bono publico basis through the Lawyers Committee for Civil Rights

Under Law (Tr., Jan. 13, 1978). The District Court also expressed

“doubts” if plaintiffs “prevailed” within the meaning of the attor-

neys’ fee statute, since they continued to urge that the revised plans

were unconstitutional (Tr. Jan. 13, 1978).

flight’’). The Court of Appeals recognized that the quotas

were in fact necessitated by white flight (A-22 to A-23),

and that white flight could not be used as an excuse to avoid

eradicating past discrimination (A-21 to A-22). It held,

however, that preventing white flight was a permissible

basis for a ‘‘voluntary affirmative action”’ program, even

if it disadvantaged black children. (A-23).

In the final portion of its opinion, the Court of Appeals

conceded that the quotas could not be upheld if there was

an alternative less burdensome on blacks. (A-26). Peti-

tioners, in fact, had suggested a number of such alterna-

tives, including a broader desegregation plan, efforts to

integrate the predominantly white schools near Morgan

Park and Gage Park, and a plan involving the pairing of

Gage Park and Curie, an under-utilized school less than 2

miles away which was 76% white. (R. 71, Letter of July 22,

1977). The sole reason the Board rejected the pairing pro-

posal was that Curie was located in Marquette Park (an

area that had witnessed racial disturbances by whites pro-

testing against an influx of minorities), so that a pairing

program allegedly ‘‘would be educationally disruptive.’’

(Transcript, August 5, 1977, at 7-10). The Court of Appeals

did not give strict scrutiny to the Board’s rejection of these

and other conce‘vable less discriminatory alternatives, but

instead explicitly deferred to the Board’s judgment (A-27):

“The appellants have advanced alternative pro-

posals which they claim would preserve integrated

student bodies at Gage Park and Morgan Park High

Schools in a less discriminatory fashion. We are not

persuaded, however, that these alternatives offer a

viable means of preventing de facto segregation at

these two high schools. Moreover, we regard the

mechanics of integration, particularly in the cireum-

stances of voluntary remedial action, where the pur-

pose is obviously to implement the promise of Brown

v. Board of Education, 347 U.S. 483 (1954), and effec-

tively achieves that objective, to be ordinarily a matter

within the discretion of local school authorities.’’

In short, the effect of the Court of Appeals decision is

to defer to a schoo! board’s imposition of unique hardships

on blacks, even when greater than necessary to achieve its

goals, whenever the school board professes an integrative

purpose.

REASONS FOR GRANTING THE WRIT

1. The Issues in this Case Are of Extreme Importance

The quotas in this case were purportedly adopted to

arrest a pattern of neighborhood racial change prevalent

in many cities, especially those in the north. The pattern

is simple—blacks move into a neighborhood and attend the

public schools, and white enrollments drop as the ‘‘white

flight’’ phenomenon takes place. (A-21 to A-23). As neigh-

borhood after neighborhood undergoes such change, overall

enrollments in a city’s public schools become increasingly

minority.

The ‘‘solution’’ adopted by the Chicago Board was to

place a ceiling on black enrollments in an effort to stem

white flight. The surface simplicity of this approach will

make it an attractive prospect for all cities with changing

neighborhoods. The Court of Appeals decision will there-

fore have broad ramifications throughout the nation.

The problem, however, is that the Court of Appeals deci-

sion explicitly defers to the ‘‘discretion of local school

authorities’? (A-27) in placing the burdens of integration

exclusively on blacks, so long as the school board invokes

an integrative purpose. This deference is apparent at two

erucial stages of the Court of Appeals’ analysis. First,

after an elaborate insistence that racial quotas purported-

ly designed to preserve integration must still be justified

by a compelling state interest (A-19 n.), the Court of Ap-

peals holds that preservation of integration is ipso facto

sufficiently compelling. (A-20 to A-21). This reasoning is

not only circular, but it effectively precludes a searching

judicial inquiry into either the bona fides of a racial clas-

‘ sification or its detrimental effects. The second example of

deference is even more explicit, and involves the Court of

Appeals’ failure to scrutinize the Board’s refusal to adopt

less discriminatory alternatives. (A-27).

‘he dire effects of such deference by a reviewing Court

ure apparent in this case. lor example, it is at least equal-

ly plausible—-particularly given the Board’s adherence to

overall segregation patterns in Chicago—that the preven-

tion of racial change in Morgan Fark and Gage Park was

designed to preserve those communities as buffer zones .

between the black inner city and the predominantly white

enclaves farther to the west. Indeed, this conclusion is

buttressed by the Board’s refusal to pair Gage Park and

Curie for the sole reason that the white residents of Mar-

quette Park would resent ‘‘a large influx of minority stu-

dents.’’ (Transcript, Aug. 5, 1977 at 7-10). Moreover, the

effects of the program scarcely support a conclusion that -

a benign purpose is being achieved. While quota levels are

being attained through the exclusion of increasing numbers

of blacks annually, the flight of whites has not been

stemmed. Black children alone are stigmatized as unwanted

in their neighborhood school, when no other child in Chi-

cago is so treated.* And the vast majority of excluded

blacks do not obtain an integrated education, even after

the Board’s post-trial adoption of an optional busing pro-

gram. Thus, on balance, it is scarcely apparent that the

quota plans are more helpful than harmful. The problem

with the Court of Appeals decision, however, is that it does

not even purport to strike that balance, but merely defers

to the ipse dixit of the Board.

* As this Court noted in Brown v. Board of Education, 347 U.S.

483, 494 (1954) with respect to children in grade and high schools:

“To separate them from others of similar age and qualifications

solely because of their race generates a feeling of inferiority as

to their status in the community that may affect their hearts

and minds in a way unlikely ever to be undone.”

As the facts of this case demonstrate, an uncritical ac-

ceptance of a stated purpose to prevent segregation as a

compelling state interest (A-20 to A-21), and an explicit

deference to the discretion of local school authorities

(A-27), will not fully protect the constitutional rights of

blacks. As four Justices of this Court have noted, ‘‘any

statute must be stricken that stigmatizes any group or

singles out those least well represented in a political pro-

cess to bear the brunt of a benign program.”’ University

of California Regents v. Bakke, 438 U.S. 265, 361 (1978)

(Brennan, White, Marshall & Blackmun, JJ.). Thus, in

the absence of a rule of law requiring strict scrutiny and

a compelling state interest for all aspects of an explicit

racial classification—the reason for the program, the basis

if any for restricting the scope of the problem to be solved,*

the effects of the program, and the specific reasons for not

seleciing less discriminatory alternatives—there can be no

assurance that a political majority is not discriminating

against a minority under the banner of a benign motive.

And this is particularly true where, as here, the purported

benign motive of preventing segregation has its origins in

the racial prejudice underlying the white flight phenome-

non. See United States v. Scotland Neck Board of Educa-

tion, 407 U.S. 484, 487, 490-91 (1972) (fears of white flight

do not justify racial discrimination even though the school

system would be 57% white and thus ‘‘integrated’’).

* For example, it is well-established that where there are general

evils to be corrected, the choice of piecemeal solutions may not be

made on racial grounds. McLaughlin vy. Florida, 379 U.S. 184, 193-

94 (1964). Thus, under a properly-applied strict scrutiny test, the

Board should have explained why its efforts to foster integration

extended only to limiting black attendance at integrated schools,

and did not include mandatory measures to integrate schools which

were predominantly white. The Court of Appeals required no such

explanation.

Significantly, the Court of Appeals’ deference to local

school authorities is most explicit at the very point that

strict scrutiny is most critical—in the choice of less dis-

criminatory alternatives. By such deference, the Court of

Appeals is eliminating the core of the equal protection

guarantee—the assurance that blacks will not suffer de-

privations which the state will not inflict on whites. The

acid test is not whether a state’s motive for a racial

classification is laudable, but whether the state is willing to

achieve its allegedly benign purposes by imposing the same

burdens on whites as it imposes on blacks. All the evidence

in this case suggests that the Chicago Board will not adopt

any mandatory measures involving white children in the

name of integration. By contrast, the Board adopted the

quotas disadvantaging blacks over the protests of the black

community, and without any concern—until forced to modi-

fy its plan by this litigation—for excluded black children’s

opportunity to attend integrated schools. This disparate

treatment of whites and blacks is the antithesis of equal

protection, but it is entirely overlooked in the Court of

Appeals’ broad deference to local authorities.

In short, the Court of Appeals’ approach to this case

sanctions explicit racial quotas disadvantaging blacks

whenever the government invokes the talisman of integra-

tive purpose. Such an approach falls far short of the

‘most rigid scrutiny,’’ Korematsu v. United States, 323

U.S. 214, 216 (1944), which is necessary to vindicate the

purpose of the equal protection clause to protect politically

disadvantaged groups. United States v. Carolene Products

(Co., 304 U.S. 144, 152 n.4 (1938). It would be a bitter irony

if the goal of integration, which this Court extended to

minorities in Brown v. Board of Education, 347 U.S. 483

(1954), as a promise of equality, became a justification for

further discrimination.

2. The Decision Below Conflicts in Principle with the

Decisions of this Court and Other Circuits

The Court of Appeals decision, moreover, conflicts with

the holding and individual opinions of this Court in Uni-

versity of California Regents v. Bakke, 438 U.S. 265 (1978).

The conflict in result is clear. If an explicit quota cannot

be used to discriminate against whites for the benefit of

blacks, it surely cannot be used to discriminate against

blacks, the traditional victims of discrimination, particular-

ly where the principal beneficiaries of the quota are the

whites who otherwise would be disinclined to attend the

public schools.*

The opinions of the individual Justices in Bakke equally

refute the Court of Appeals’ decision. The very purpose

of the Chicago quotas ‘‘is to assure within [a] student

body some specified percentage of a particular group mere-

* The Court of Appeals purported to distinguish Bakke by draw-

ing a distinction between a total deprivation of a medical education

as opposed to an assignment to a different school. (A-25). This

distinction ignores the palpable deprivations suffered by quota vic-

tims. There is no question, for example, that every black child in

the affected Chicago neighborhoods faces uncertainty as to the

school he will attend, while every white child is assured of his ad-

mittance. (A-37 to A-39, § 15-20). It is equally clear that even

under the court-sanctioned busing plan, black children must travel

1} hours each way to obtain an integrated education (R. 71, Bev-

erly Review, September 14, 1977) and that faced with these bur-

dens, the vast majority of excluded children choose to attend a

closer, nonintegrated school. (A-42 to A-44, 730-32). Thus, the

distinction adopted by the Court of Appeals would approve the

quota in Bakke if Mr. Bakke found a place in another, perhaps in-

ferior, medical school, and would approve affirmative action job

quotas if the worker were demoted rather than fired. The Court of

Appeals’ “total denial” test is thus not only a semantic quicksand—

petitioners, after all, were “totally denied” a right to attend their

neighborhood school—but also creates a shifting standard that can

only breed confusion and uncertainty in the development and appli-

cation of racial quotas generally.

hes

ly because of its race,’’ and is thus ‘‘discrimination for its

own sake’’ and ‘‘facially invalid.’’ 438 U.S. at 307 (Powell,

J.). And the quotas, unlike others approved by this Court,

were not adopted in response to any ‘‘judicial, legislative,

or administrative finding of constitutional or statutory

violations.’’ Jd. The quotas here, moreover, suffer from

all the infirmities which the Bakke quotas were said not to

have—the quotas here harm a class with the ‘‘traditional

indicia of suspectness,’’ id. at 357 (Brennan, White, Mar-

shall and Blackmun, JJ.); they are not designed either to

‘‘remove the disparate racial impact’’ of past government

actions or to cure ‘‘the product of past discrimination,’’ id.

at 369; they ‘‘operate to stigmatize or single out [a] dis-

crete and insular’’ minority group, id. at 374; they rele-

gate excluded children to other schools which, in a neigh-

borhood school system, creates ‘‘a significant likelihood

that they will be treated as second-class citizens because

of their color,’’ sd. at 375; and they ‘‘establish a quota in

the invidious sense of a ceiling on the number of minority

applicants to be admitted.’’ Jd. And finally, $601 of the

1964 Civil Rights Act, 42 U.S.C. $2000d, is not only itself

applicable to the quotas here, but similar reasoning applies

to invalidate the quotas under 42 U.S.C. §$1981, 1983 and

20 U.S.C. $1703(c). See 438 U.S. at 412-18 (Stevens, J.).

Thus, the Court of Appeals decision conflicts with Bakke

and the reasoning of the Justices reflected therein.

It also conflicts with a long line of cases in other cir-

cuits which hold it impermissible to impose a dispropor-

tionate burden of integration on blacks. E.g., Arvizu v.

Waco Independent School District, 495 F.2d 499, 504-07

(5th Cir. 1974) (and cases there cited) (‘‘[I]t is ineumbent

upon district courts to insure that the burdens of desegre-

gation are distributed equitably’’); Clark v. Board of

Education, 449 F.2d 493, 499 (8th Cir. 1971), cert. denied,

405 U.S. 936 (1972) (‘‘the burden on all students, black

and white, should be as equitable as possible’’); Lee v.

Macon County Board of Education, 448 F.2d 746, 753-54

(Sth Cir. 1971) ; Moss v. Stamford Board of Education, 350

F.Supp. 879 (D. Conn. 1972); Brice v. Landis, 314 F.Supp.

974, 976-78 (N.D. Cal. 1969). See also Haney v. County

Board of Education, 429 F.2d 364, 371-72 (8th Cir. 1970).

And fear of ‘‘white flight’’ is not a sufficient explanation

for imposition of an excessive burden on blacks. E.g., Lee,

supra, 448 F.2d at 754.

In concluding that it was appropriate to place the entire

burden of integration on blacks, the Court of Appeals’

opinion conflicts with these cases holding even a dispro-

portionate burden on blacks to be impermissible. It also

conflicts, specifically, with the holding in NAACP vy. Lans-

ing Board of Education, 559 F.2d 1042, 1052 (6th Cir.)

cert, denied, 434 U.S. 997 (1977), aff "9g, 429 F. Supp. 583,

620-21 (W.D. Mich. 1976) that a ‘‘one-way bussing’’ pro-

gram which transported blacks but allowed whites to re-

main in their neighborhood school, ‘‘without a correspond-

ing effort to spread the burdens of integration more equit-

ably through the system, is an act of de jure segregation.’’

And the quotas here, unlike the plans addressed in several

eases cited by the Court of Appeals (A-22 to A-23), do

not even have the virtue of being part of an effort tc

eradicate segregation on a system-wide basis.*

*The same point disposes of the Court of Appeals’ reliance on

this Court's dictum in Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 16 (1971), that a school board may adopt

a voluntary plan to promote integration. In Swann, however, this

Court carefully noted that such a program would be permissible

where “each school” in the district would reflect the district-wide

racial make-up. Here, the quotas are not part of an effort to de-

segregate an entire system, and the racial balance they are seeking

to preserve at two schools is virtually twice the 25% white enroll-

ment of the system as a whole. (Pl. Ex. 2). To preserve some

schools as 50% white in such a setting necessarily means that the

remaining schools will have disproportionately black enrollments.

And the failure to eradicate segregation on a system-wide basis

raises the danger, amply present here, that a school board’s selective

efforts are an attempt to disadvantage blacks under the guise

of benign objectives.

Thus, while purporting to adhere ‘to the strict scrutiny

standards applicable to explicit racial classifications, the

Court of Appeals in fact accepted the mere recitation of a

benign purpose as an automatic shield for a quota dis-

advantaging blacks. It appeared to place the burden of

proving the absence of less discriminatory alternatives on

plaintiffs rather than on the Board by explicitly deferring

to the ‘‘discretion of local school officials.’’ (A-27). In

peremptory fashion, it dismissed the viability of other

alternatives, including the suggestion for a pairing of Gage

Park and Curie which the Board had rejected for the sole

reason that it would discomfit the white residents of

Marquette Park. (Transcript, August 5, 1977, at 7-10).

In short, the Court of Appeals decision is inconsistent with

the standards articulated by this Court and other Circuits

to test racial classifications, particularly those adversely

affecting blacks.

CONCLUSION

For the reasons stated, the petition for writ of certiorari

should be granted.

Respectfully submitted,

Tomas H. Morscu

SHatom L. Koun

Sriptey & Austin

One First National Plaza

Chicago, Illinois 60603

Attorneys for Petitioners

Of Counsel:

Sysrnte F’r1TzscHE

Lawyers Committee for

Civil Rights Under Law

220 South State Street

Chicago, Illinois 60604

March, 1980

Appendices

APPENDICES

APPENDIX A

Opinion of the Court of Appeals

in the

United States Court of Appeals

Hor the Seventh Circuit

No. 78-1215

Karuy Sur JOHNSON, etc., et al., and Darce, M

ILTON, ete.,

et al.,

Plaintiffs-A ppellants,

30arp Or Epucation Or Tue Crry Or Curcaco, et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 76-C-995, 76-C-996—Huserr L.. Wu, Judge.

Argued October 30, 1978—Decided August 13, 1979

Before Castur, Senior Circuit Judg

é, Baver and Woon,

Circuit Judges.

Bauer, Circuit Judge. The principal issue presented

by this appeal is whether the Constitution permits local

school authorities to impose racial quotas on enrollments

—

A-2 |

in connection with a desegregation plan voluntarily en-

acted to prevent de facto segregation in the public schools.

Plaintiffs-appellants appeal from the order of the district

court upholding the challenged desegregation plan as con-

stitutional and enjoining the defendants-appellees to main-

tain and to continue the plan, as modified to provide for

the voluntary busing of students excluded from admission

to their neighborhood high schools to alternative integrated

high schools. Appellants further appeal from the order

of the district court denying their petition for attorneys

fees. We affirm the judgments appealed from for the rea-

sons set forth below.

These consolidated civil rights actions for declaratory

judgment and injunctive relief were filed on March 15,

1976, challenging as unconstitutional a desegregation plan

adopted voluntarily by the Board of Education of the City

of Chicago in an effort to arrest the trend toward segre-

gated enrollments at two Chicago public secondary schools.

The challenged desegregation plan, commonly referred to as

the ‘‘Student Racial Stabilization Quota Plan’’ (‘‘Plan’’),

established a ceiling on enrollments and imposed racial

quotas with respect to admissions at Morgan Park and

Gage Park High Schools. Plaintiffs-appellants in Johnson

v. Board of Education are black children and their parents

residing in the Morgan Park High School attendance area.

1 The term “attendance area”, as used herein, refers to the geo-

graphic zone or sub-district of the Chicago public school district

established by the Board of Education for Gege Park and Morgan

Park High Schools. All elementary students residing within the

Gage Park sub-district are eligible to attend Gage Park High

School. Similarly, all elementary students residing in the Morgan

Park sub-district are eligible to attend Morgan Park High School.

A-3

Plaintiffs-appellants in Milton v. Board of Education are

black children and their parents residing in the Gage Park

High School attendance area. Plaintiffs’ complaints alleged

that the Plans, as instituted at Morgan Park and Gage

Park High Schools, deprived them of their rights under

the Constitution and under Title 42 U.S.C. §§ 1981 and

1983, and under Title 20 U.S.C. § 1703(c) because the Plans

restricted the admission of minority students to these high

schools solely on the basis of race.

Defendants-appellees named in these actions are the

Board of Education of the City of Chicago, the individual

members of the Board of Education, and Dr. Joseph P.

Hannon, General Superintendent of Schools. Defendants

filed answers to the complaints, denying the Plans were

unconstitutional and denying plaintiffs were deprived of

any rights under federal law. Defendants further alleged

that plaintiffs had no constitutional right to attend Morgan

Park or Gage Park High School since the Board of Educa-

tion, vested by state statute with the supervision and man-

agement of the public school system of the City of Chicago,

is empowered to divide the city into attendance areas and

to apportion the pupils to the several schools, taking into

consideration the prevention of racial segregation in the

public schools. In the performance of these statutory duties,

the Board contended the Plans were necessary to alleviate

overcrowding and to promote integration at Morgan Park

and Gage Park High Schools, both of which had experi-

enced an accelerated change in the size and racial composi-

tion of their enrollments as a result of a concomitant demo-

graphic change in the residential neighborhoods encom-

passing the attendance areas of these schools.

On April 29, 1976, three days after the filing of defen-

dants’ answer, plaintiffs in Johnson presented a motion

for a temporary restraining order seeking to enjoin the

A-4

implementation of the Plan at Morgan Park High School,

which was scheduled to begin the next day with a lottery

drawing to select the incoming freshman class for the fall

of 1976. The district court denied the motion. On August

17, 1976, after extensive discovery by means of interroga-

tories and document production, plaintiffs filed a motion

for a preliminary injunction or in the alternative for sum-

mary judgment. On September 27, 1976, the district court

denied the alternative motion for summary judgment, but

deferred ruling on plaintiffs’ motion for preliminary in-

junction, stating its preference for a modification of the

Plans to include a voluntary busing program for students

excluded from these two schools to attend alternative inte-

grated high schools.

At the conclusion of discovery, entry of a final pre-trial

order, stipulation of additional facts and admission of ex-

hibits into evidence, and after both parties agreed to with-

draw objections, the parties rested on June 27, 1977. At

that time, counsel for the Board advised the court of a

pending modification of the Plans to be acted upon at the

next Board meeting. The district court then stated it was

prepared to find the Plans as originally adopted to be un-

constitutional, but would reserve final ruling pending any

modification the Board might wish to present.

On July 13, 1977, the Board adopted a modification of

the Plans, which provided bus transportation to white or

integrated schools from a convenient point near the resi-

dences of all students in the Gage Park and Morgan Park

attendance areas who were not selected for admission to

these two schools under the Plans. By an order of the dis-

trict court entered August 12, 1977, the Board was directed

to implement procedures for publicity and student counsel-

ing with respect to the Plans, as modified, and further, to

provide that designated spaces at the alternative schools

A-5

which were not filled by students excluded from one school

(e.g., Gage Park) would be made available to students ex-

cluded from the other school (e.g., Morgan Park).

On December 30, 1977, the district court entered its find-

ings of fact and conclusions of law, and granted judgment

in favor of the defendants. The court held that the Plans,

as modified to include bus transportation to primarily

white or integrated schools for those students not admitted

te Gage Park or Morgan Park High Schools, restored to

plaintiffs their constitutional rights in that plaintiffs had

a meaningful opportunity to attend a Chicago public high

school in an integrated setting. The court further ordered

that defendants be enjoined to continue the Plans, as modi-

fied. On January 23, 1978, the district court granted plain-

tiffs’ petition for costs, but denied their request for attor-

neys fees.

Plaintiffs subsequently appealed from these adverse

judgments to this Court. First, appellants contend the

Plans, as modified, violate their rights secured by the equal

_ protection clause of the Fourteenth Amendment. Second,

appellants contend that the district court erred in denying

their request for attorneys fees.

Before addressing the merits of the appellants’ conten-

tions, however, it is necessary to explicate in appropriate

detail the development and implementation of the chal-

lenged desegregation plan, as supported by the record be-

fore this Court.

Gage Park and Morgan Park High Schools Prior to the

Adoption of the Plans

Gage Park High School, 5630 South Rockwell Avenue

(2600 West), Chicago, and Morgan Park High School,

1744 West Pryor Avenue (11200 South), are public high

A-6

schools owned and operated by the Board of Education

of the City of Chicago. But for the Board’s Plans, freez-

ing enrollment and establishing racial quotas with respect

to admissions at these two high schools, all eighth grade

students residing in the Gage Park or Morgan Park at-

tendance areas would have been offered the opportunity

to attend Gage Park or Morgan Park High School. In

1975, Gage Park High School was approximately 41%

white and 59% nonwhite, while Morgan Park was 37%

white and 63% nonwhite. The comparable figures for 1976

are 42% white and 58% nonwhite for Gage Park, and 38%

white and 62% nonwhite for Morgan Park. As the district

court found, students enrolled at Gage Park and Morgan

Park are thus attending school in an integrated setting.

The district court also found that the residential neigh-

borhoods encompassing attendance areas for these two

schools were in part undergoing an accelerated racial

change from white to black in the period immediately pre-

ceding the implementation of the Plans, which began in

September 1975 at Gage Park High School and in Septem-

ber 1976 at Morgan Park High School. Both schools were

also operating in excess of their permanent facility capaci-

ties because of increasing enrollments.

During the period from 1972 to 1974, black enrollment

at Gage Park had increased from 1,056 to 1,361. The racial

composition of all students attending public and nonpublic

elementary schools in the Gage Park attendance area in

1975 was 5,235 black, 8,617 white, 1,174 Hispanic and 110

‘‘other’’. As of January 30, 1976, enrollment at Gage Park

High School was 2,441 and the school was operating at

106% of capacity.

During the period from 1972 to 1975, black student en-

rollment at Morgan Park had increased from 52.3% to

62.3% and white student enrollment had declined from

A-7.

45.7% to 36.9%. In this same period, total enrollment in-

creased from 3,092 to 3,423. The racial composition of

all students attending public and nonpublic elementary

schools and residing in the Morgan Park attendance area

in 1976 was 6,842 black, 7,312 white, and 144 ‘‘other’’. As

of January 30, 1976, enrollment at Morgan Park High

School was 3,323 and the school was operating at 128.6%

of capacity of permanent facilities.

Statistics presented by the Board of Education indi-

cated that in rapidly changing neighborhoods where no

action had been undertaken by the Board segregated

schools had resulted. For example, during the period from

1970-1975, white enrollment at the following Chicago public

high schools declined dramatically: Fenger High School,

46.6% to 1.0%; Orr High School, 30.6% to 5.0%; Bowen

High School, 36.2% to 6.6%. The Board therefore regarded

the Student Racial Stabilization Plans as necessary to pre-

vent the incidences of racial isolation which had occurred

at schools situated in neighborhoods experiencing a rapid

change in racial composition.

The Board’s stated purpose for the adoption of the

racial quotas was to prevent overcrowding and to prevent

Gage Park and Morgan Park High Schools from becoming

racially segregated. Consequently, the quota for the ad-

mission of black students at each school was necessarily

set at a lower level than that at which black students would

have applied and have been admitted but for the quota.

The Gage Park Plan

On May 14, 1975, the Board of Education of the City of

Chicago adopted a Student Racial Stabilization Quota Plan

establishing a ceiling on enrollment and a racial quota with

respect to admissions at Gage Park High School. Under

this Plan, enrollment, which had reached 2,441 and was

A-8

projected at 3,100 for September 1975, would be held to a

maximum of 2,800 students with a racial composition of

48% black, 42% white, 8% Hispanic and 2% principal’s

option. The selection of incoming freshmen would be de-

termined by lottery.

The first lottery, in preparation for the September 1975

academic year at Gage Park High School, was held on June

2, 1975. Under the Plan, separate lottery lists were pre-

pared for white, black and Hispanic students and students

were selected for admission in the order their names ap-

peared on the list until the quota for their race had been

filled. Thus, the group of students accepted into Gage Park

for the September 1975 school year included all those

names down to a red line on the lottery list for each race.

The red line appeared immediately below the last name on

the lottery list for white students—No. 289. By contrast.

the red line appeared below name 200 on the black list,

which had a total of 498 names, indicating the exclusion as

of that date of 298 applicants.

Students initially denied admission were offered the

opportunity to attend Gage Park High School in the event

another student of the same race, previously admitted to

the school, elected not to attend. Moreover, since the racial

percentages were to be applicable to the school as a whole

rather than to the incoming class, additional black students

were to be admitted to the extent that additional white

students elected to attend Gage Park so that the prescribed

racial balance was maintained. Thus, within two weeks

after the lottery drawing an additional 60 black elementary

students who had been placed on a ‘‘waiting list’’ were

given the option to enroll in Gage Park High School. By

October 1, 1975, all of the originally excluded 498 black

students had been offered the option of enrolling in Gage

Park. An additional] 212 black students who applied for

A-9

admission after the June 2, 1975 lottery were not offered

the option of enrolling into Gage Park High School. Each

of the 136 additional white students applying for admission

after the June 2, 1975 lottery were offered the opportunity

to enroll at Gage Park High School.

The Gage Park Plan was also applied to the freshman

class entering in, September 1976, with the applicable lot-

tery drawing held on January 19, 1976. The entering class

in 1976, as determined by the drawing, was 44% white

(229/519), 43% black (224/519) and 12% Hispanic (61/

519). A student racial/ethnic survey dated October 29,

1976, and conducted by the Board of Education, showed

that the entering freshman class of September 1976 at

Gage Park was in fact 42.6% white (228/535), 45.4% black

(243/535), and 11.4% Hispanic (61/535) .?

With respect to the J anuary 1976 drawing for the school

year commencing in September 1976, a red line appeared

immediately below the last name on the list for white

students, No. 309. By contrast, the red line appeared below

name No. 300 on the black list, which contained a total of

626 names, indicating the exclusion at the time of the draw-

ing of 326 black applicants. Thus, all 309 white students

included in the January lottery and all 181 white students

applying thereafter were offered the opportunity to enroll

in Gage Park for September 1976. Of the 626 black students

included in the lottery and the 210 additional students

applying thereafter, 300 black students were permitted to

enroll and 243 actually attended Gage Park High School.

At least 411 black students were excluded from Gage Park

High School as of October 12, 1976 as a result of the racial

quota. |

*In 1975 and 1976, all of the freshmen attended the Gage Park

High School “branch”, which is on the same campus as the high

school, is part of the permanent facility, and is utilized by freshmen

only.

A-10

On January 21, 1977, a lottery drawing was held for

the September 1977 freshman class at Gage Park High

School. Of the 754 black children in the lottery drawing,

425 were accepted as enrollees and 329 were denied ad-

mission. Of the 85 Hispanic students, 35 were accepted

and 50 were denied admission. Not one of the 364 white

students who applied was denied admission to Gage Park

High School.

The Morgan Park Plan

On March 10, 1976, the Board of Education adopted a

Student Racial Stabilization Quota Plan which established

a ceiling on enrollment and imposed a racial quota with

respect to admissions at Morgan Park High School. Over-

crowding at Morgan Park, which was operating at 128.6%

of its permanent facilities capacity, was to be reduced by

limiting the enrollment of incoming 9th graders to 700

students divided approximately 50% white and 50% black.

Unlike Gage Park, there is no significant number of His-

panic students attending Morgan Park High School. The

Morgan Park Plan differed in two other respects from

that implemented at Gage Park. First, the racial quotas

were applied to each entering class, rather than to the

school as a whole. Second, the Morgan Park Plan provide’

for the admission of a maximum of 350 black students,

even if less than 350 white students applied. By contrast,

the Gage Park Plan admitted black students to the extent

that sufficient numbers of white students were in attendance

so that the requisite 48% to 42% black-to-white student

ratio was maintained.

The lottery to determine the September 1976 admissions

to Morgan Park High School was held on April 30, 1976.

As of May 10, 1976, ten days after the drawing, all 484

white students in the lottery were offered the option to

A-11

enroll in Morgan Park. An additional white student, who

apparently was never assigned a lottery number, was noti-

fied of her admission on May 11, 1976. Subsequently, 33

white students applying as transfer students were also ad-

mitted. Of the 480 black students seeking admission, 350

were offered the option to enroll in Morgan Park, indicat-

ing that 131 black students were denied admission as of

that date. On or after September 27, 1976, 33 of the black

students placed on the ‘‘waiting list’’ were offered the Oop-

portunity to enroll at Morgan Park. A number of such

students, who were attending other schools at that time,

declined to transfer to Morgan Park. Thus, as of October

29, 1976, 538 black and 490 nonblack students were eligible

to apply for admission to the 1976 freshman class. No

white student was denied admission to Morgan Park, but

126 black students were denied admission, which number

included 15 transfer students. The number of students

actually admitted to Morgan Park High School as fresh-

men in September 1976 was 350 black and 272 nonblack.

On February 3, 1977, the applicable lottery drawing was

held for the September 1977 freshman class at Morgan

Park High School. The eligible students included 610

whites and 612 blacks. In April 1977, each white student

who wished to attend Morgan Park High School was noti-

fied of his or her admission; the total admitted was 317.

At the same time, 350 black students were notified of their

admission, and 157 black children who wished to attend

the school were excluded.

Results of the Original Plans

At the time the Student Racial Stabilization Quota Plans

were adopted there were substantially more white students

than black students in public and nonpublic elementary

schools in the Morgan Park and Gage Park attendance

A-12

areas. However, it became apparent after the Plans were

in operation that the number of white students seeking

admission at each high school was less than the quota set

for white students and that the number of black and His-

panic students applying exceeded the quotas for those

groups. Thus, no white student was ever denied admission

as a result of the quotas instituted at Gage Park and

Morgan Park High Schools, but hundreds of black and

Hispanic students were denied admission to these schools

annually from the inception of the Plans.

Under the Plans as originally adopted by the Board,

students denied admission to Gage Park and Morgan Park

High Schools were permitted to attend any ‘under-

utilized’’ Chicago public high school through the Board’s

Permissive Transfer Program.* Under this Program,

every child attending an over-utilized high school in the

City of Chicago (which included Gage Park and Morgan

Park High Schools) was given the option of attending an

under-utilized school. Thus, prior to and irrespective of

the Student Racial Stabilization Quota Plans, Gage Park

and Morgan Park High School students could have elected

to attend these under-utilized schools.

Until the Board adopted a revised voluntary transfer

program, excluded students residing in the Morgan Park

und Gage Park attendance areas were required to travel

to alternative schools using public transportation. Carfare

was provided to students excluded from Gage Park High

School commencing in September or October 1976, the

*“Under-utilized” was defined to mean a school with a total

student enrollment below the “city-wide per cent of capacity” of

101.3%. In 1975, 22 of 51 general high schools were above the

level of 101.3% utilization (excluding so-called “temporary facili-

ties”). In 1976, 29 of 51 high schools were above that level.

A-13

second year the Plan was in operation. For students ex-

cluded from Morgan Park High School carfare was pro-

vided from the inception of the Plan in September 1976.

Of the eighteen general high schools available to those

denied admission as a result of the racial quotas, six have

significant white enrollments and are located on the north

side of the City of Chicago. None of these six predomi-

nantly white-attended schools are situated south of 4000

North and three are north of 5800 North in Chicago. By

contrast, Gage Park High School is located at 5600 South

and Morgan Park is located at 11200 South in Chicago.

Thus, the closest of these primarily white alternative

schools, Lakeview, is 11.4 miles from Gage Park and 18.15

miles from Morgan Park High School.

Accordingly, under the original Plans, travel to these

eighteen schools from Gage Park or Morgan Park High

Schools involved (1) taking a bus to the Dan Ryan rapid

transit line; (2) transferring from the Dan Ryan to the

Howard or Ravenswood rapid transit lines; (3) travel on

the Howard or Ravenswood rapid transit lines; and in

two instances (4) an additional bus trip to the school.

Of the 416 black students excluded from Gage Park

High School as a result of the 1975 lottery, 306 of these

students enrolled in 28 other predominantly black high

schools, 11 attended 6 other schools with significant white

enrollments, and data with respect to the 99 additional

black students was unavailable. Of the 539 black students

denied admission to Gage Park in the 1976 lottery, 471

students attended 24 alternative high schools with pre-

dominantly black enrollments, and 68 students enrolled in

6 alternative high schools with significant white enroll-

ments.

Of the 193 black students excluded from admission to

Morgan Park High School in the 1976 lottery, 191 at-

A-14

tended alternative schools whose enrollments were over

99% minority, and two students attended one school which

had a significant white student enrollment.

Modification of the Plans

On July 13, 1977, the Board of Education adopted Board

Report No. 77-212-6 (Revised), which modified the Gage

Park and Morgan Park Student Racial Stabilization Quota

Plans by providing excluded minority students the option

of attending certain North side predominantly white or

integrated schools by means of bus transportation pro-

vided by the Board of Education. Under the terms of

the modification enacted by the Board, ten alternative white

or integrated schools were made available to excluded Gage

Park and Morgan Park black children, with up to 1,262

spaces designated for Gage Park transfer students and up

to 390 spaces designated for Morgan Park transfer stu-

dents to these schools. In addition, the modification in-

cluded a publicity program concerning the Plans and a

counseling service for students who participated in the

Plans. These modifications were implemented immediately

by the Board in order to be incorporated into the operation

of the Plans for the school term beginning in September

1977.

Results of the Modified Plans

As of October 12, 1977, 102 of the 1,632 students ex-

cluded as a result of the Gage Park and Morgan Park

Plans had availed themselves of the opportunity to at-

tend one of these ten alternative high schools, utilizing 7

buses at a cost of $1,014 per day. As of October 1978, the

Board reported that 359 excluded students were par-

ticipating in the Plan for the 1978 school year, and at-

tending nine of the alternative schools offered under the

modified Plan.

A-15

The district court found that the Plans were attempts on

the part of the Board to relieve overcrowding and to pro-

mote integration at schools situated in rapidly changing

neighborhoods, and that experience had shown that the

Board achieved both objectives at each high school. Thus,

as a result of the modified Plans, the racial balance at

Gage Park High School is 45.4% black, 41.9% white, and

12.7% ‘‘other’’, and the racial balance at Morgan Park is

09% black and 41% white. The enrollment at Gage Park

has been reduced to 2,102 students and the school is operat-

ing at 91.3% of capacity. The Morgan Park enrollment has

been reduced to 2,613 students and the school is operating

at 101.2% of capacity.

III

Appellants’ principal contention on appeal is that the

Student Racial Stabilization Quota Plans instituted by the

Board of Education at Gage Park and Morgan Park High

Schools are statutorily and constitutionally infirm. We

are not persuaded by the arguments advanced in support

of these contentions, and accordingly conclude that the

Plans, as modified, are statutorily and constitutionally

permissible.

We begin by addressing the appellants’ argument that

the Illinois School Code explicitly proscribes the racial

quotas challenged in this litigation. It is true, as the

* The Illinois statute governing the powers of the Board of Educa-

tion of the City of Chicago provides, in pertinent part, as follows:

“The board shall exercise general supervision and management

of the public education and the public school system of the city,

and shall have power:

* * * & &

“7. To divide the city into sub-districts and apportion the

pupils to the several schools, but no pupil shall be excluded

(footnote continued)

. 4

A-16

appellants argue, that the statute appears on its face to

prohibit the Board from considering race as a basis for

excluding a student from admission to a public school

situated within a particular attendance area. However,

it is also true that the statute empowers the Board to

consider race as a basis for revising the geographic

boundaries of a particular attendance area where neces-

sary to prevent racially segregated enrollments. Indeed,

we think a fair reading of the statute discloses that the

central purpose of this provision was to invest the Board

with sufficient discretionary authority to achieve ‘‘the pre-

vention of segregation and the elimination of separation

of children in public schools because of color, race, sex or

nationality.’’ Viewing the statute in light of this purpose,

we perceive no rational basis for a statutory construction

which permits the Board to prevent segregation through a

racially-based redistricting plan but prohibits the Board

from achieving the same end through a racially-based in-

tradistrict transfer plan. We therefore decline to ascribe

to the statute a prohibition inconsistent with its underlying

purpose, and accordingly hold that the statute does not

foreclose the Board from restricting the racial composi-

tion of the enrollment at a school within a particular at-

tendance area where, as here, such a remedial measure

achieves the prevention of de facto segregation in the public

schools. See North Carolina State Board of Education v.

Swann, 402 U.S. 43, 45-46 (1971).

(footnote continued)

from or segregated in any such school on account of his color,

race, sex, or nationality. The board shall, as soon as practicable,

and from time to time thereafter, change or revise existing sub-

districts or create new sub-districts in a manner which will take

into consideration the prevention of segregation and the elimi-

nation of separation of children in public schools because of

color, race, sex or nationality. . . .”

Ill. Rev. Stat. 1975, ch. 122, § 34-18, para. 7.

A-17

Nor are we persuaded that the Board of Education ex-

ceeded its statutory authority in establishing racial quotas

with respect to admissions at Gage Park and Morgan Park

High Schools. In reviewing various integration solutions

promulgated by local school boards, the Supreme Court

has consistently recognized that local autonomy of school

districts is a vital national tradition. Milliken v. Bradley,

418 U.S. 717, 741-742 (1974); San Antonio Independent

School District v. Rodriquez, 411 U.S. 1, 49 ( 1973) ; Wright

v. Council of City of Emporia, 407 U.S. 451, 469 (1972).

Moreover, it is well-settled in both federal and state

law that local school boards may voluntarily adopt plans

including busing to promote integration. As the Supreme

Court declared in Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1 (1971):

‘‘School authorities are traditionally charged with

broad power to formulate and implement educational

policy and might well conclude, for example, that in

order to prepare students to live in a pluarlistic society

each school should have a prescribed ratio of Negro to

white students reflecting the proportion for the district

as a whole. To do this is within the broad discretionary

powers of school authorities. .. .”’

402 U.S. at 16. The Illinois Supreme Court has also

recognized the authority of local school boards to under-

take voluntary programs designed to remedy de facto

segregation, as stated in Tometz v. Board of Education,

Waukegan City School District No. 61, 39 Il.2a 593, 237

N.E.2d 498 (1968) :

‘State laws or administrative policies, directed

toward the reduction and eventual elimination of de

facto segregation of children in the schools and racial

imbalance, have been approved by every high State

court which has considered the issue... . Similarly,

A-18

the Federal courts which have considered the issue

... have recognized that voluntary programs of local

school authorities designed to alleviate de facto segre-

gation and racial imbalance in the schools are not con-

stitutionally forbidden... .’’

39 Ill.2d 597, 237 N.E.2d at 501 (citations omitted) (empha-

sis added).

In the case at bar, the Chicago Board of Education

voluntarily adopted a desegration plan designed to prevent

de facto racial segregation at two public high schools.

The record is uncontroverted that prior to the implementa-

tion of the Plans, the attendance areas for Gage Park and

Morgan Park High Schools were rapidly changing in resi-

dential occupancy from white to black and the trend in

enrollments was toward segregated student bodies. The

district court found, based on a volaminous record, that

the Plans successfully arrested this trend and concluded

that, as a result of the Board’s modification of the Plans,

all high school students living in those attendance areas

were provided with a meaningful and viable opportunity

to attend an integrated high school.

Accordingly, in view of the broad statutory powers vested

in the Board to formulate and to implement educational

policy, including the establishment of programs designed

to preserve integration in the public schools, we regard the

Board’s efforts to prevent de facto segregation as a legi-

timate exercise of its discretionary authority consistent

with its legislative mandate and established principles of

local school autonomy.

Of course, no state law may operate in contravention

of the Constitution. School board policies and the present

laws with respect to local autonomy are not sacrosanct,

and if they conflict with the Fourteenth Amendment fed-

A-19

eral courts are charged with an affirmative duty to pre-

scribe appropriate remedies. Milliken v. Bradley, 418

U.S. 717, 744 (1973). The principal task before this Court,

therefore, is to determine whether the imposition of a

racial quota against the admission of minority students

to particular schools, however ‘‘benign’’ in its objectives,

violates the equal protection clause of the Fourteenth

Amendment.®

It is well-seitled that state actions which restrict fun-

damental rights or which distinguish between in-

dividuals solely on the basis of race are regarded as in-

herently suspect and subject to strict judicial scrutiny.

Korematsu v. United States, 323 U.S. 214, 216 (1944) ;

San Antonia Independent School District v. Rodriguez,

411 U.S. 1, 16-17 (1973). The state action challenged

here, however, does not involve a fundamental right.

Federal and state courts have uniformly rejected the

® The threshold question raised by the parties is the proper stan-

dard of judicial review. Appellants contend the racial quotas are ex-

plicit classifications based solely upon race. As such, appellants

argue the Plans merit strict judicial scrutiny and accordingly can-

not be justified in the absence of a compelling state interest. Ap-

pellees contend the appropriate standard of review is whether the

assertedly benign discrimination attendant with the racial quotas

bears a rational relationship to the legitimate governmental purpose

of preventing de facto segregation in the public schools. We reject

appellees’ contention, as well as their further argument that, by

characterizing the Plans as voluntary affirmative action, the applica-

ble standard of review is less exacting than strict scrutiny. We

regard any state action involving racial discrimination, however

“benign”, as requiring analysis under the strict scrutiny-compelling

state interest standard. See, e.g., University of California Regents

*. Bakke, 438 U.S. 265, 291 (Opinion of Powell, J.), 357 (Opinion

of Brennan, White, Marshall, Blackmun, JJ.) (1978).

A-20

contention of a constitutional right to attend a particular ‘

school. See, e.g., McDaniel v. Barresi, 402 U.S. 39 (1971);

Norwalk C.0.R.E. v. Norwalk Board of Education, 423

F.2d 121 (2d Cir. 1970); Allen v. Asheville City Board of

Education, 434 F.2d 902, 905 (4th Cir. 1970); Moss v.

Stamford Board of Education, 356 F.Supp. 675 (D.C. Conn.

1973) ; People ex rel. Altman v. Board of Education of the

City of Chicago, 90 Ill. App.2d 21, 30, 234 N.E.2d 362, 366

(1967) ; Citizens Against Busing v. Palmason, 80 Wash.2d

445, 495 P.2d 657 (1972).

But there is no question that the challenged desegra-

tion plan rests solely upon distinctions according to race.

Therefore, if the Plans are to be upheld, they must be

shown to be necessary to the accomplishment of some per-

missible state objective, independent of the racial dis-

crimination which it was the object of the Fourteenth

Amendment to eliminate, Loving v. Virginia, 388 U.S. 1, 11

(1967), and even then, only if no less restrictive alterna-

tive is available. See, e.g., San Antonio Independent School

District v. Rodriguez, supra; Dunn v. Blumstein, 405 U.S.

330 (1972). 7

Guided by these principles, we proceed to an examina-

tion of the merits of the arguments advanced by the appel-

lants in support of their contention that the Plans are

violative of the Fourteenth Amendment. First, appellants

contend the Board failed to establish the requisite com-

pelling staie interest to justify the imposition of racial

quotas in connection with the Plans. The record in these

cases plainly refutes this contention. The Board’s articu-

lated purpose for the adoption of the Plans was the allevia-

tion of overcrowding and the prevention of de facto segre-

gation at Gage Park and Morgan Park High Schools. We

find the state interest in promoting integration in these two

high schools and communities, while at the same time

A-21

affording all students residing in these attendance areas

a viable opportunity to attend high school in an inte-

grated setting, to be compelling.

Second, appellants argue that the Board failed to show

that the racial quotas were necessary to achieve the state

interest in preventing the racial segregation of Gage Park

or Morgan Park High Schools. This assertion is similarly

unsupported by the record. It had been the Board’s ex-

perience that, where no stabilization quota plans were in-

stituted, schools situated in rapidly changing residential

neighborhoods had become racially segregated. For ex-

ample, Fenger High School, which adjoins the Morgan Park

attendance area on the east, went from white enrollment

of 46% to 1% during the period from 1970-1975. The Gage

Park and Morgan Park attendance areas had been under-

going an accelerated change in residential occupancy from

white to black and, while these high schools were still

integrated at the time the Plans were instituted, their en-

rollments were rapidly becoming predominantly black. Ac-

cordingly, the Plans were designed to stabilize the inte-

grated character of Gage Park and Morgan Park High

Schools and to prevent their enrollment from becoming

segregated. The district court found the Plans success-

fully arrested the segregative impact of population change

in the attendance areas of these two high schools.

Thus, the legitimacy of the racial quotas imposed in

connection with this voluntary desegregation plan turns

upon a determination of whether the Board may proper-

ly consider the unpleasant realities of demographic

change and the phenomenon of ‘white flight’’ when it

seeks to preserve integration in the public schools.

It is clear that the prospect of white flight and conse-

quent resegregation cannot justify failure to comply with

a court decree ordering integration. Monroe v. Board of

A-22

Commissioners of the City of Jackson, 391 U.S. 450, 459

(1968); Umited States v. Scotland Neck City Board of

Education, 407 U.S. 484, 490-491 (1972). But we regard

these cases as inapposite to the factual setting in this case.

Both Monroe and Scotland Neck involved resistance to a

judicial order to desegregate, and the circumstances in

each case revealed that the motivating concern with respect

to white flight was not the preservation of integration, but

the interests of white students seeking to accommodate their

own prejudice—the disinclination to attend school with

black students. In this case, there is no basis in the record

to support the contention that the racial quotas imposed

were intended to retard integration and to create racial

imbalance at these two high schools. On the contrary, it is

evident that the Board’s voluntary action was motivated

by a good faith effort to stabilize the enrollments at Gage

Park and Morgan Park High Schools, and to promote in-

tegration not only at these two high schools but also at

the alternative high schools designated under the Plans.

Moreover, where the existence of white flight is not

used as a shield to avoid mandatory desegregation or to

perpetuate segregation, federal courts have held that local

school authorities may legitimately take into account the

phenomenon of white flight in formulating voluntary pro-

grams designed to achieve integration. See, e.g., Higgins

v. Board of Education of the City of Grand Rapids, 508

F.2d 779, 794 (6th Cir. 1974) ; Parent Association of Andrew

Jackson High School v. Ambach, 598 F.2d 705, 720 (2d Cir.

1979).

Contrary to the appellants’ contention, the record in

these cases documents the existence of white flight from

these two high schools. Although more white students

than black students resided in the Morgan Park and Gage

Park attendance areas, white enrollments in these schools

were declining while black enrollments were increasing.

A-23

The difference between the numbers of white students

eligible to enroll at these high schools and those actually

admitted is attributable to the fact that white students

were enrolling in parochial schools serving these attendance

areas.

The Supreme Court has recognized that ‘‘substantial

benefits flow to both whites and blacks from interracial

association... .’’? Linmark Associates, Inc. v. Willing-

boro, 431 U.S. 85, 94-95 (1977), and those benefits can-

not be achieved in the public schools unless a school board

may consider steps to resist racial segregation. The record

in these cases substantiates the emerging patterns of popu-

lation change and the concomitant phenomenon of white

flight in the Gage Park and Morgan Park communities. This

phenomenon cannot be ignored in any meaningful effort

to preserve integration at the public high schools serving

these communities. The exodus of white children from the

public schools would disadvantage the entire community

and would imperil the success of this voluntary desegrega-

tion plan. In light of these realities, we are persuaded that

considerations of race, and in particular, racial quotas, are

a necessary means of arresting de facto Segregation in

the public schools. “ndeed, in fashioning a school desegre-

gation remedy, race must inevitably be taken into account.

In McDaniel v. Barresi, 402 U.S. 39 (1971), involving the

busing of black students to other than their neighborhood

schools, the Supreme Court declared:

‘In this remedial process, steps will almest invari-

ably require that students be assigned ‘differently be-

cause of their race’... . Any other approach would

freeze the status quo that is the very target of all

desegregation processes.”?

402 U.S. at 41 (citations omitted). Thus, in the limited

circumstances of voluntary affirmative action, and in the

absence of an invidious or pernicious intent attributable

A-24

to the Board, we conclude that the Board was entitled to

consider the probability of white flight in formulating a

remedial plan to prevent de facto segregation in the public

schools.

We are aware of no persuasive authority to the con-

trary. Appellants rely on the prior decision of this Court

in Lawlor v. Board of Education of the City of Chicago,

458 F.2d 660 (7th Cir. 1972), cert. denied, 413 U.S. 921

(1973), as support for their contention that the racial

quotas violate the strictures of the Fourteenth Amend-

ment. In Lawlor, plaintiffs, who were parents of white

students residing in the O’Toole Elementary School at-

tendance area, brought a civil rights action under 42 U.S.C.

§ 1983 alleging that the administrative practices and poli-

cies of the Chicago Board of Education resulted in the

denial of due process and equal protection of law by per-

mitting too many black students to attend the O’Toole Ele-

mentary School, and that such conduct was causing the

departure of white students and would result in the O’Toole

attendance area becoming increasingly black. Plaintiffs

sought a judicial declaration to that effect, and an in-

junction which would limit to a range of 10% to 25% the

number of black students enrolled in the O’Toole area

schools. In affirming the district court’s dismissal of the

complaint for failure to state a claim, we held that plain-

tiffs had no constitutional right and the Board had no

constitutional duty to establish a particular racial balance.

The contention that appellants in the instant case have

a coustitutional right to demand that a school have a

particular racial balance was rejected in Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1,

24 (1971). Moreover, the absence of a constitutional

duty on the part of the school authorities to establishing

racially-based enrollments does not preclude the Board

A-25

from prescribing a racial balance to remedy the segrega-

tive impact of demographic change. We therefore find

appellants’ reliance on Lawlor to be misplaced.

Nor do we regard the decision in U niversity of California

Regents v. Bakke, 438 U.S. 265 (1978), rendered subse-

quent to the district court’s decision in this case, as re-

quiring reversal. Clearly, the Plans do not suffer from

the constitutional infirmity which the majority of the Su-

preme Court found existing in the total exclusionary ad-

missions program in Bakke. ‘The opinion of Mr. Justice

Powell (Brennan, White, Marshall, and Blackmun, JJ., con-

curring) noted that the position of Allan Bakke, who may

have been deprived altogether of a medica] education, was

wholly dissimilar to that of students who are bused from

their neighborhood schools to a comparable school for

integration purposes. Bakke, supra at 300, n.39. Thus,

unlike the admission program in Bukke, race is not used

under the Board’s Plans as the basis for distributing a

limited number of spaces among a large number of ap-

plicants. Appellants, unlike Allan Bakke, are not excluded

from attending school by the racial quotas imposed in this

case. Rather, the stabilization quotas established for stu-

dents living in the Gage Park and Morgan Park attendance

area merely involved the reassignment of students, each of

whom has been afforded a viable opportunity to attend an

integrated high school either at Gage Park or Morgan Park,

which have been racially stabilized by the Plans, or at one

of the 10 alternative integrated high schools which provide

a guarantee of enrollment and bus transportation to facili-

tate attendance.

Accordingly, in view of the findings on the record of the

existence of white flight and the compelling state interest

in promoting integration, we hold that voluntary state

action directed toward the prevention of de facto segrega-

A-26

tion in the public schools is constitutionally permissible

where, as here, the racial quotas imposed in connection

with the desegregation plan provide all students residing

in the attendance areas with a meaningful opportunity to

attend an integrated high school.

As an independent basis for finding a violation of the

equal protection clause, the appellants contend the Board

failed to establish that the objective of preventing de facto

segregation in the public schools could not be achieved

by less discriminatory alternatives. Appellants argue in

this connection that the racial quotas operated to devolve

upon minority students the entire burden of desegregation,

since only minority students were excluded from attending

Morgan Park and Gage Park High Schools.

It is true that no white student was ever denied ad-

mission to Gage Park or Morgan Park High Schools un-

der the Plans. But it is also true that white students

enrolled in these high schools were precluded from trans-

ferring to another schvol until the quota for white students

had been exceeded and that when the white enrollment

exceeded the established quotas they also would be denied

admission. Thus, the implementation of the racial quotas

resulted in the exclusion of mirority students only be-

cause the Plans were designed to address the practical

problem of the exodus of white students from Gage Park

and Morgan Park, and not because of any inherent inequity

in the Plans themselves. Indeed, the racial quotas estab-

lished for each high school permitted more minority stu-

dents than white students to enroll, even though the white

student population exceeded the nonwhite student popula-

tion residing in the attendance areas serving these schools.

A-27

As the district court found, the racial balance at Gage

Park is 58.2% nonwhite and 41.9% white, and the racial

balance achieved at Morgan Park is 99% nonwhite and 41%

white.

The appellants have advanced alternative proposals

which they claim would preserve integrated student bodies

at Gage Park and Morgan Park High Schools in a less

discriminatory fashion. We are not persuaded, however,

that these alternatives offer a viable means of preventing

de facto segregation at these two high schools. Moreover,

we regard the mechanics of integration, particularly in

the circumstances of voluntary remedial action, where the

purpose is obviously to implement the promise of Brown

v. Board of Education, 347 U.S. 483 (1954), and effectively

achieves that objective, to be ordinarily a matter within

the discretion of local school authorities.

Accordingly, in view of the compelling state interest

in preventing de facto school segregation, the realities of

population change, and the discretion accorded to local

school authorities in fashioning desegregation remedies, we

perceive no invidious discrimination in the Board’s modi-

fied stabilization quota plans, which successfully arrested

the segregative impact of demographic change and pre-

served the integrated character of the enrollments at Gage

Park and Morgan Park High Schools.

Appellants also appeal from the judgment entered upon

the district court order denying their petition for attorneys

fees, contending they were entitled to such fees under the

Emergency School Aid Act, 20 U.S.C. $$ 1601 et seq., and

under the Civil Rights Attorneys Fees Award Act of 1976,

42 U.S.C. § 1988. We are unpersuaded by the arguments

A-28

advanced in support of this contention, and therefore con-

clude that the district court properly denied the requests

for attorneys fees.

An award of attorneys fees under the statutes relied up-

on by the appellants is predicated upon the express condi-

tion precedent that the petitioner be a prevailing party,

and even then, fees may only be awarded upon the exercise

of the court’s discretion. Title 20 U.S.C. § 1617; Title 42

U.S.C. § 1988. It is patently clear from the record that

the appellants were not the prevailing parties in these pro-

ceedings. The relief sought by their complaints was the

abolition of the Board’s Student Racial Stabilization Quota

Plans instituted at Gage Park and Morgan Park High

Schools. Since th district court upheld the Plans as con-

stitutional, it cannot be said that the appellants prevailed

on the merits of their complaints.

Moreover, even assuming arguendo that appellants ‘‘pre-

vailed’’ in the sense that these actions resulted in the

modification of the Plans to provide bus transportation to

alternative schools for students denied admission to Gage

Park and Morgan Park High Schools, there is no basis in

the record for concluding that the district court abused its

discretion in denying appellants’ petition for attorneys

fees.

For the foregoing reasons, the judgments appealed from

are affirmed and the Clerk of this Court is directed to

enter judgment accordingly.

AFFIRMED.

A true Copy:

Teste:

late thE LL TET

Clerk of the United States Court of

Appeals for the Seventh Circuit

A-29

APPENDIX B

Court of Appeals Order Denying Rehearing

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

December 6, 1979.

Before

Hon. Latham Castle, Senior Circuit Judge

Hon. William J. Bauer, Circuit Judge

Hon. Harlington Wood, Jr., Circuit J udge

KATHY SUE JOHNSON, et al.,

Plaintiffs-A ppellants,

No. 78-1215 vs.

BOARD OF EDUCATION OF THE CITY OF

CHICAGO, et al.,

Defendants-Appellees.

and

DARCEL: MILTON, et al.,

Plaintiffs-A ppellants,

vs.

BOARD OF EDUCATION OF THE CITY OF

CHICAGO,

Defendants-Appellees.

On Petition for Rehearing and Suggestion for

Rehearing En Banc.

A-30

ORDER

On consideration of the petition for rehearing and sug-

gestion for rehearing en banc filed in the above-entitled

cause by the Plaintiffs-Appellants, no judge in active serv-

ice has requested a vote thereon,* and all of the judges on

the original panel have voted to deny a rehearing. Accord-

ingly,

IT IS ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.

*The Hon. Walter J. Cummings and the Hon. Robert A.

Sprecher did not participate in any consideration of the petition for

rehearing en banc.

A-31

Appendix C

Judgment Order of the District Court

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

KASTERN DIVISION

KATHY SUE JOHNSON, et al.,

Plaintiffs,

vs.

BOARD OF EDUCATION OF THE CITY

OF CHICAGO, et al.,

Defendants.

and

DARCEL MILTON, et al.,

Plaintiffs,

Vs.

BOARD OF EDUCATION OF THE CITY

OF CHICAGO, et al.,

Defendants.

75 C 995 and 76 C 996 (Consolidated)

JUDGMENT ORDER

These actions having come on for trial by the Court,

without a jury, and the issues having been duly heard, a

decision having been duly rendered, and the Court having

made its findings of fact and having stated its conclusions

of law,

A-32

IT IS ORDERED AND ADJUDGED:

1. That defendants Board of Education of the City of

Chicago, et al., their successors, and any others acting in

concert with any of them, be and hereby are permanently

enjoined and prohibited from adopting, maintaining, or

implementing any admissions or racial quota plan for

Morgan Park or Gage Park High School which excludes

black or Hispanic students, without providing them with

an opportunity to attend an integrated general high school

in the Chicago public school system which is equivalent to

the opportunity provided by Board Report No. 77-212-16

(Revised), as modified by this Court’s order of August 12,

1977.

2. That plaintiffs recover of defendant, Board of Edu-

cation of the City of Chicago, their costs herein.

3. That a ruling on plaintiffs’ petition for attorneys’

fees shall be and is reserved.

DATED at Chicago, Illinois, this 30th day of December, -

1977.

/3/ Hubert L. Will

United States District Judge

A-33

APPENDIX D

Findings of Fact and Conclusions of Law by

the District Court

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KATHY SUE JOHNSON, et al.,

Plaintiffs,

BOARD OF EDUCATION OF THE

CITY OF CHICAGO, et al.,

Defendants.

DARCEL MILTON, et al.,

Plaintiffs,

BOARD OF EDUCATION OF THE

CITY OF CHICAGO, et al.,

Defendants.

No. 75 C 995 and No. 75 C 996 — Consolidated

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

These actions having come on for trial by the Court,

without a jury, on plaintiffs’ complaints, and on defen-

dants’ answers thereto, and the parties having stipulated

to certain facts by means of a pretrial order entered here-

in on May 23, 1977 and a First Amendment thereto entered

herein on July 29, 1977, and additional evidence submitted

by and on behalf of the parties having been made a part

A-34

of the record herein, and the Court having heard the

arguments of counsel with respect thereto, the Court, pur-

suant to Rule 52, Fed.R.Civ.P., hereby finds the facts and

states its conclusions of law as follows:

Findings of Fact

1. Morgan Park High School, 1744 W. Pryor Avenue

(11200 South), Chicago, and Gage Park High School,

5630 S. Rockwell Avenue (2600 West), Chicago, are public

high schools owned and operated by the Board of Educa-

tion of the City of Chicago.

2. Plaintiffs in Johnson v. Board of Education are black

children who reside in the Morgan Park attendance area,

aud their parents. Plaintiffs in Milton v. Board of Educa-

tion are black children who reside in the Gage Park at-

tendance area, and their parents. But for the ‘‘student

racial stabilization plans’’ freezing enrollment and estab-

lishing racial quotas instituted and applied by defendant

Chicago Board of Education, all eighth-grade students re-

siding in the Gage Park or Morgan Park attendance areas

would have been offered the opportunity to attend Gage

Park or Morgan Park High School.

3. In 1975, Gage Park High School was approximately

41% white and 59% minority, while Morgan Park High

School was 37% white and 63% minority. The comparable

figures for 1976 are 42% white and 58% minority for Gage

Park and 38% white and 62% minority for Morgan Park.

Black children attending Gage Park and Morgan Park are

thus attending school in an integrated setting.

4. The Morgan Park High School and Gage Park High

School attendance areas were in part undergoing acceler-

ated racial change from white to black in 1975-1976. The

schools were also over capacity because of increasing en-

rollment.

A-35

Do. During the period from 1972 to 1975, black student

enrollment at Morgan Park had increased from 52.3% to

62.3% and white student enrollment had declined from

45.77 to 36.9%. In this same period, total enrollment in-

creased from 3092 to 3423. As of January 30, 1976, en-

rollment at Morgan Park High School was 3323 and the

school was operating at 128.6% of capacity of permanent

facilities. The racial composition of all students attending

public and non-public elementary schools residing in the

Morgan Park attendance area in 1976 was 6842 black, 7312

white, and 144 other.

6. During the period from 1972 to 1974, black student

enrollment at Gage Park had increased from 1056 to 1361.

As of January 30, 1976, enrollment at Gage Park High

was 2441 and the school was operating at 106% of capacity.

The racial composition of all students attending public and

non-public elementary schools residing in the Gage Park

attendance area in 1975 was 5235 black, 8617 white, 1174

Hispanic and 110 other.

7. On May 14, 1975, the Board of Education of the City

of Chicago adopted a student racial stabilization plan

establishing a ceiling on enrollment and a racial quota with

respect to admissions to Gage Park High School. Under

this quota plan, the racial composition of Gage Park High

School was to be 48% black, 42% white, 8% Hispanic and

2% principai’s option with the selection of incoming fresh-

men students to be made by lottery.

8. The Board adopted an enrollment ceiling and racial

stabilization quota plan for Morgan Park High School

on March 10, 1976, that differs in two respects from that

applied to Gage Park. The Morgan Park plan set a 50%

white and 50% black quota with respect to each entering

class, rather than the school as a whole. In addition, the

Morgan Park quota plan provides for the admission of a

A -36

maximum of 350 black students even if less than 350 white

students apply. By contrast, the Gage Park plan admits

black students to the extent that sufficient numbers of white

students are in attendance so that the requisite overall

48 to 42 black-to-white ratio can be maintained.

9. The first lottery, in preparation for the 1975 school

year at Gage Park High School, was held on June 2, 1975.

Since the racial percentages were to be applicable to the

school as a whole rather than to the incoming class, the

entering class at Gage Park in September 1975 was in

actual fact 43% white (267/615), 42% black (259/615) and

14% Hispanic (85/615).

10. The Gage Park racial quota plan was also applied

to the class entering Gage Park High School in September

1976, with the applicable lottery drawing held on January

19, 1976. The entering class in 1976 as determined by the

drawing was 44% white (229/519), 43% black (224/519)

and 12% Hispanic (61/519).

11. A student racial/ethnic survey dated October 29,

1976, and conducted by the Board of Education, shows that

the entering freshman class of September 1976 at Gage

Park was in fact 42.6% white (228/535), 45.4% black (243/

535) and 11.4% Hispanic (61/535). In 1975 and 1976, all

freshmen attended the Gage Park High School ‘‘branch,’’

which is on the same campus as Gage Park High School,

is part of the permanent facility, and is used for freshmen

only.

12. The Board’s stated purpose for adoption of the

racial quotas was to prevent overcrowding and to prevent

Gage Park and Morgan Park High Schools from becoming

increasingly black. Consequently, the quota for admission

of black students at each school was necessarily set at a

lower level than that at which black students would have

applied and been admitted but for the quota.

A-37

13. No white student was ever denied admission as a

result of the quotas instituted at Gage Park and Morgan

Park High Schools, but hundreds of black and Hispanic

students have been denied admission annually since the

racial quotas were instituted.

14. Under the racial quota plans, separate lottery lists

are made for white, black and (in the ease of Gage Park)

Hispanic students. Students are admitted to Gage Park

or Morgan Park High Schools, as the case may be, in

the order their names appear on the applicable lottery lists

until the quota for their race is filled.

15. The group of students accepted into Gage Park

for the September 1975 school year included all those names

down to a red line on the lottery list for each race. The

red line appears immediately below the last name on the

white list, No. 289. By contrast, the red line appears below

name No. 200 on the black list, which has a total of 498

names, indicating the exclusion as of that date of 298

black applicants.

16. Within two weeks thereafter, an additional 60 black

elementary students were given the option to enroll into

Gage Park High School. By October 1, 1975, all of the

original 498 black students had been offered the option of

enrolling in Gage Park High School. Another 212 black

students, who applied for admission after the lottery of

June 2, 1975, were not offered the option of enrolling into

Gage Park High School. Each of the 136 additional white

students applying for admission after June 2, 1975 was

admitted.

17. With respect to the January 1976 Gage Park draw-

ing for the September 1976 school year, a red line again

appears immediately below the last name on the white

list, No. 309. By contrast, the red line appears below

name No. 300 on the black list, which has a total of 626

A-38

names, indicating the exclusion at the time of the drawing

of 326 black applicants.

18. With respect to the Gage Park lottery for the Sep-

tember 1976 school year, all 309 white students included

in the January 19, 1976 drawing, and all 181 white students

applying thereafter were offered the opportunity to enroll

at the time of the lottery drawing or at the time they

applied. Of the 626 black students included in the lottery

drawing and the 210 additional black students applying

thereafter, 300 black students were permitted to enroll and

243 actually attended Gage Park High School. At least 411

black students were excluded from Gage Park High School

as of October 12, 1976 as a result of the racial quota.

19. The lottery to determine September 1976 admissions

to Morgan Park High School was held on April 30, 1976.

As of October 29, 1976, 538 black and 490 non-black stu-

dents were eligible to apply to the 1976 freshman class.

As of May 10, 1976, ten days after the drawing, every white

student but one was offered the option to enroll in Morgan

Park. The highest lottery number offered the option to

enroll of 484. The one exception was Arlene Mickley, who

apparently was never assigned a lottery number, and who

was notified of her admission to Morgan Park on May 11,

1976. An additional 33 white students applying as transfer

students thereafter were also admitted to Morgan Park

High School.

20. In the 1976 Morgan Park lottery, as of May 10,

1976, 350 black students were offered the option to enroll

in Morgan Park, tne option to enroll with the highest lottery

number then offered being No. 368. One hundred and

thirty-one (131) black students were denied admission as

of that date. As of October 29, 1976, the number of black

students denied admission was 126, which included 15 black

transfer students. No white student was ever denied ad-

A-39

mission to Morgan Park as a result of the 1976 lottery.

The number of students actually admitted to Morgan Park

High School as freshmen in September 1976 (as of Octo-

ber 29, 1976) was 350 black and 272 non-black.

21. Students denied admission as a result of the racial

quotas are placed on a ‘‘waiting list,’’ and are offered the

opportunity to attend Morgan Park or Gage Park High

Schools in the event another student of the same race,

previously admitted to the school, elects not to attend, and

with respect to Gage Park High School, if additional white

students elect to attend so that additional black students

may be admitted and still maintain the prescribed racial

balance.

22. With respect to the Morgan Park lottery, 33 of the

black students on the waiting list were offered the op-

portunity to enroll on or after September 27, 1976 (some

as late as October 13, 1976), several weeks after the be-

ginning of school. A number of such students, who were

attending other schools at that time, declined the opportuni-

ty to transfer to Morgan Park.

23. At the time the student racial stabilization quota

plans were adopted, there were substantially more white

students than black students in public and non-public ele-

mentary schools in the Morgan Park and Gage Park at-

tendance areas. However, it became apparent after the

plans were in operation that the number of white students

seeking admission at each high school was less than the

quota set for white students and that the number of

blacks and Hispanic students applying exceeded the quotas

for those groups.

24. Students denied admission as a result of the racial

quota plans as originally adopted by the Board were per-

mitted to attend any ‘‘under-utilized”’ Chicago public high

school. These under-utilized schools are the same schools

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which under the provisions of Board Report No. 75-494-10

(adopted April 30, 1975), a Permissive Transfer Program,

every child attending an over-utilized high school in the

City of Chicago (which includes Gage Park and Morgan

Park High Schools) was given the option of attending.

Thus, under this Program, prior to and irrespective of the

racial quota plans, Gage Park and Morgan Park High

School students could have elected to attend these under-

utilized schools.

25. Until the Board adopted a revised voluntary trans-

fer program in July 1977, as described in Finding No. 39,

excluded students residing in the Morgan Park and Gage

Park attendance areas were required to travel to alterna-

tive schools using public transportation. Carfare was pro-

vided to students excluded from Gage Park High School

commencing in September or October 1976, and for students

excluded from Morgan Park High School from the incep-

tion of the racial quota for that school.

26. These plans were attempts on the part of the Board

to relieve overcrowding and to promote integration in

schools situated in rapidly changing neighborhoods. Ex-

perience has shown that the Board has achieved both objec-

tives at each school. The racial balance at Gage Park High

School is 45.4% black, 41.9% white, 12.7% other, and the

racial balance at Morgan Park High School is 59% black

and 41% white. The enrollment at Gage Park has been

reduced to 2102 and the school is operating at 91.3% of

capacity. The Morgan Park enrollment has been reduced

to 2613 and the school is operating at 101.2% of capacity.

27. The following is the racial composition of the

eighteen general high schools listed as available to those

denied admission as a result of the racial quotas:

A-41

School 1975 Racial % 1976 Racial %

Mather 93.0W; 14B; 1.7H 89.6W; 12B; 29H

Roosevelt 77.9W; 6.0B; 9.7H 76.0W; 2.7B; 12.6H

Sullivan 77.2W; 7.0B; 83H 73.4W; 82B; 88H

Von Steuben 67.8W; 10.3B ; 14.2H 63.2W; 7.4B; 184H

Lake View 47.3W; 2.6B; 44.8H 43.6W; 3.3B; 47.18

Senn 47.3W; 15.7B; 22.6H 44.0W; 15.3B; 2438

Kenwood 26.6W; 66.3B; 28H 26.4W; 66.78; 28H

Wells 18.6W; 23.0B; 57.5H 16.3W; 23.7B; 59.5H

Tilden 11.6W; 75.7B; 12.6H 11.1W; 76.8B; 11.8H

Waller 10.2W; 70.2B; 17.9H 9.1W; 72.3B; 17.4H

Harrison 5.0W; 59.8B; 35.0H 5.1W; 42.4B; 52.2H

Farragut 2.2W; 82.9B; 148H 15W; 83.4B; 15.1H

Manley OW; 99.9B; 1H OW; 99.9B; 0H

Marshall OW; 100.0B; 0H OW; 100.0B; 0H

Crane OW; 99.9B; 1H OW; 99.8B; .2H

DuSable OW; 100.0B; 0H OW; 100.0B; 0H

Hyde Park OW; 100.0B; 0H OW; 99.7B; 3H

Carver OW ; 100.0B; 0H OW; 100.0B; 0H

28. Of these eighteen under-utilized schools, six have

significant white enrollments. These are Roosevelt (78% /

76% white in 1975/1976), Von Steuben (68% /63% white),

Mather (93%/90% white), Sullivan (77% /73% white),

Lakeview (47%/44% white) and Senn (47% /44% white).

These schools are located on the north side of the City of

Chicago. None is south of 4000 North and three are north

of 5800 North. By contrast, Gage Park High School is

located at 5600 South and Morgan Park is at 11200 South.

The closest of these schools (Lakeview) is 11.4 miles from

Gage Park and 18.15 miles from Morgan Park High School.

29. Travel to the schools listed in Finding No. 27 from

Gage Park or Morgan Park High Schools involves (1) tak-

ing a bus to the Dan Ryan rapid transit line; (2) trans-

ferring from the Dan Ryan to the Howard or Ravenswood

rapid transit lines; (3) travel on the Howard or Ravens-

wood rapid transit lines and, in two instances, (4) an addi-

tional bus trip to the school.

A-42

30. The following is a table of schools attended by

317 of the 416 black students excluded as a result of the

1975 Gage Park lottery. Data with respect to the 99

additional black students is not readily available:

Schools attended by 317 black students excluded

from Gage Park under 1975 racial quota

Harper OW; 99.9B ; 0H 139

Hyde Park OW; 100B ;sx 0H 31

Dunbar OW ; 99.6B; 0H 23

Englewood OW; 99.9B; 0H 18

Kiang OW ; 100B ;x 0H 17

DuSable OW ; 100B ;x 0H 13

C.V.S. OW; 99.8B ; .2H 8

South Shore 1W; 99.5B; 3H 7

Lindblom 1W; 97.2B; 1H 7

Crane OW; 99.9B; 1H 6

Tilden 11.6W; 75.7B; 12.6H 5

Calumet OW; 99.9B; 0H 4

Hubbard 93.9 W ; 0B; 3.9H 4

Farragut 2.2W ; 82.9B; 14.8H 3

Harrison 5.0W ; 59.8B; 35.0H 3

Curie 77.8W ; 16.8B; 5.8H 3

Parker OW ;s 99.8B; .2H 3

Hirsch OW ; 99.6B ; 3H 3

Austin 2W; 99.6B; 2H 2

Phillips 1W; 99.9B; 0H 2

Harlan 1W; 99.9B ; 0H 2

Fenger 1.2W; 96.7B; 2.0H 2

Julian 2W; 99.7B ; 1H 1

Tubman Fam.Lvg Ctr OW; 100B ;x 0H 1

Manley OW; 99.9B; 1H 1

Moseley Soc.Adj.Sch. OW; 89.8B; 10.2H 1

Bousfield Soc.Adj.Sch. OW; 100B ;sx 0H 1

Orr 5.0W ; 78.6B; 15.9H 1

Jones Commercial 10.6W; 62.6B; 22.8H 1

Waller 10.2W ; 70.2B; 17.9H 1

Metro 46.7W ; 45.6B; 46H 1

Young 34.0W ; 445B; 15.9H 1

Schurz 78.3W ; 1.4B; 18.8H 1

Kelly 82.7W ; 1B; 16.7H 1

A-43

31. The following is a list of schools attended by stu-

dents excluded as a result of the 1976 Gage Park lottery:

Schools attended by those excluded from

Gage Park under 1976 quota

Hyde Park OW ; 99.7B; 3H 90

DuSable OW ;s 100B; 0H 73

Collins 1W; 98.8B; 11H 65

Harper OW ;s 99.9B; 0H 61

Dunbar OW; 99.5B; 4H 37

Harrison 5.1W ; 42.4B; 52.2H 34

Lindblom 1W; 99.7B; 2H 33

Tilden 11.1W; 76.8B; 11.8H 33

Kenwood 26.4W ; 66.7B; 2.8H 25

Simeon OW; 100B ; 0H 23

C.V.S. OW; 99.1B; 4H 14

Englewood OW ; 99.8B ; .2H 9

Curie 75.7W ; 17.2B; 65H 7

Calumet OW; 99.6B; 4H 5

Parker OW; 100B ;x 0H 5

King OW; 100B ; 0H 4

Colley OW ; 99.8B; .2H 3

Phillips OW; 99.9B; 0H 3

Jones Commercial T.AW ; 70.6B; 21.5H 3

Austin 1W; 99.7B; 1H 2

Corliss OW; 99.9B; 1H 1

Crane OW ; 99.8B ; .2H 1

Harlan Ow; 99.9B; 0H 1

Hirsch OW; 99.6B ; 3H 1

Westinghouse OW ; 100B; 0H 1

Orr 3.7W ; 79.7B; 16.5H 1

Waller 9.1W; 46.78; 6.0H 1

Young 28.9W ; 52.7B; 14.7H 1

Kelly 78.1W ; 1B; 21.2H 1

Prosser 73.2W ; 10.8B; 14.1H 1

TOTAL 539

A-44

32. As of September 20, 1976, 193 black students had

been excluded as a result of the 1976 Morgan Park racial

quota. Two of these students attended Kenwood (27%/

26% white), while the remaining 191 attended schools

which were over 99% minority. Nearly all the excluded

students not attending a special technical or vocational

high school (110 of 117 students) attended Carver High

School, the closest under-utilized school to Morgan Park.

33. Students excluded from Gage Park and Morgan

Park High Schools as a result of the 1975 and 1976 racial

quota plans were permitted to attend only under-utilized

schools, with ‘‘under-utilized”’ defined to mean a school

with a total student enrollment below ‘‘the city-wide per-

cent of capacity’’ of 101.3%.

34. In 1975, 22 of 51 general high schools were above

the level of 101.3% utilization (excluding so-called ‘‘tem-

porary facilities’’). In 1976, 29 of 51 general high schools

were above that level.

35. As a consequence of the criteria limiting black stu-

dents excluded from Morgan Park and Gage Park High

Schools to ‘‘under-utilized’’ schools—t.e., schools with total

enrollments below 101.3% (Finding No. 33)—such students

were not permitted to attend any of the following schools:

Kelly (82.7%/78.1% white; 138.5%/141.5% utilization) ;

Kennedy (89.8% /89.0% white ; 127.7% /110.4% utilization) ;

Bogan (99.2% /97.4% white; 130.4%/126.6% utilization) ;

Hubbard (93.9% /93.4% white ; 127.3% /110.1% utilization) ;

Washington (94.3%/93.3% white; 119.6% /115.8% utiliza-

tion) ; Amundsen (83.4% /80.1% white; 104.2% /108.5% uti-

lization [1975/76]); Foreman (95.7%/95.2% white;

127.8% /127.4% utilization); Kelvyn Park (65.4%/58.2%

white; 118.6% /126.1% utilization); Schurz (78.6%/75.3%

white, 101.3%/103.9% utilization); or Steinmetz (92.5%/

A-45

90.9% white, 116.4% /115.9% utilization). Some of these

schools are more accessible to excluded Gage Park and

Morgan Park students’ homes than the white or integrated

“‘under-utilized’’ schools which have been made available

to them.

36. On January 21, 1977, a lottery drawing was held for

the September 1977 freshman class in Gage Park High

School. Of 754 black children in the lottery drawing, 425

were accepted as enrollees and 329 were denied admission.

Of 85 Hispanic students, 30 were accepted and 50 were

denied admission. Not one of the 364 white students who

applied was denied admission.

37. On February 3, 1977, a lottery drawing was held

for the September 1977 freshman class in Morgan Park

High School. Six hundred ten white students and 612

black students had their names included in the lottery

drawing. In April 1977, each white child who wished to

attend Morgan Park High School was notified of his ad-

mission; the total number admitted was 317. At the same

time, 350 black children were notified of their admission,

and 157 black children who wished to attend the school

were excluded.

38. On June 29, 1977, this case came on for trial, plain-

tiffs appearing with their witnesses. At that time counsel

for the Board indicated that a modification of the racial

quotas was being proposed to the Board of Education and

that the Board would waive its right to present any evi-

dence not already in the record. The Board also stipu-

lated to certain additional facts, and both sides rested. The

Court then stated that it was prepared to find the racial

quotas as originally adopted to be unconstitutional, but

would reserve final ruling pending any modification the

Board might wish to present.

A-46

39. On July 13, 1977, the Board of Education adopted

Board Report No. 77-212-16 (Revised), which modified the

Gage Park and Morgan Park racial quota plans by provid-

ing excluded black and Hispanic students the option of

attending certain North Side predominantly white and in-

tegrated schools by means of bus transportation provided

by the Board of Education.

40. The following schools were made available to ex-

cluded Gage Park and Morgan Park black children under

Board Report No. 77-212-16 (Revised) :

Receiving School No. of students who No. of students

may transfer from who may transfer

Gage Park High Morgan Park High

School attendance School attendance

area area

Roosevelt 130 50

Taft 50 —_—

Von Steuben 92 50

Mather 100 50

Sullivan 100 50

Curie 50 50

Lane Technical 100 50

Schurz 150 40

Senn 200 —

Lake View 140 50

150*

TOTAL: 1,262 390

* Places originally designated for Metropolitan High School.

41. By this Court’s order of August 12, 1977, the Board

was directed to implement procedures for publicity and

student counseling with respect to the alternatives pro-

vided by Board Report No. 77-212-16 (Revised), and to

provide that designated places at the alternative schools

which were not filled by students excluded from one school

A-47

(e.g., Morgan Park) would be made available to students

excluded from the other school (e.g., Gage Park).

42. As of October 12, 1977, 102 of the 1632 students

excluded as a result of the Morgan Park and Gage Park

racial quotas had availed themselves of the opportunity

provided by Board Report No. 77-212-16 (Revised). The

following is the number of students attending each alterna-

tive school:

PARTICIPATING STUDENTS FROM MORGAN PARK AREA

Receiving Number Number of Bus Cost

School of Buses Passengers Per Day

Von Steuben) 1 32

Lane) 3 $120

Roosevelt 1 23 120

Curie 1 10 120

Subtotals: 3 68 $360

PARTICIPATING STUDENTS FROM GAGE PARK AREA

Curie 2 9 $ 240

Roosevelt - )

Von Steuben ) 1 8 120

Lane - J 1

Lake View ) 16 120

Subtotal: 4 34 $ 480

TOTALS: 7 102

Buses Students

COSTS : Bus Cost $ 840

Aides 174

$1014 per day

Cost per student per day: $9.94.

A-48

CONCLUSIONS OF LAW

1. The Court has jurisdiction of the parties and of the

subject matter hereof by reason of 28 U.S.C. §§ 1331, 1343

and 2201, and 20 U.S.C. § 1706.

2. The defendant Board of Education of the City of

Chicago is a body politic and corporate, and an agency

of the State of Illinois, and may be sued as such.

3. The racial quota as originally adopted by the defen-

dant Board deprived at least some of the plaintiffs of their

rights under the Constitution of the United States and their

rights under 42 U.S.C. §§ 1981 and 1983 and 20 U.S.C.

§ 1703(c), in that they did not give excluded students a

viable opportunity to attend other integrated schools.

4. Those plaintiffs who were adversely and unlawfully

affected by the racial quota plans as originally adopted

were made to suffer irreparable injury for which there was

no adequate remedy at law.

5. The so-called ‘‘voluntary transfer’’ plan adopted by

the Board on July 13, 1977 as subsequently modified,

restored to those plaintiffs who were adversely and unlaw-

fully affected by the racial quota plans their rights under

the Constitution of the United States and under 42 U.S.C.

§§ 1981 and 1983 and 20 U.S.C. § 1703(c), in that under said

voluntary transfer plan there was made available to such

plaintiffs a meaningful opportunity to attend a Chicago

public high school in an integrated setting.

6. The aforesaid voluntary transfer plan was adopted

by the Board only after plaintiffs had filed their complaints

herein, engaged in substantial discovery, and had answered

ready for trial on the merits, and only after said trial was

commenced and the Court indicated that it was prepared to

find the racial quota plans as originally adopted to be un-

constitutional, and said voluntary transfer plan would not

A-49

have been adopted but for the efforts of plaintiffs and

their counsel.

7. Plaintiffs and others similarly situated would suffer

irreparable injury if the voluntary transfer plan, adopted

by the Board as a result of the instant suit, were modified

or abandoned.

8. It is desirable and appropriate that the Board con-

tinue in this way and to that end the Board of Education

will be enjoined to maintain and continue said plans, as

modified, incorporating provisions for the voluntary busing

of excluded students living in the Morgan Park or Gage

Park areas to alternative integrated public high schools.

9. A permanent injunction will issue directing or re-

quiring defendants to maintain and continue a transfer plan

equivalent to the plan set forth in Board Report No. 77-212-

16 (Revised).

10. Plaintiffs are entitled to recover their costs herein.

11. The Court reserves ruling on plaintiffs’ petition

for attorneys fees.

DATED at Chicago, Illinois, this 30th day of December,

1977.

/s/ Hubert L. Will

United States District Judge

A-50

APPENDIX E

Order of the District Court on Attorneys Fees

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KATHY SUE JOHNSON, et al.,

Plaintiffs,

vs.

BOARD OF EDUCATION OF THE CITY

OF CHICAGO, et al.,

Defendants.

and

DARCEL MILTON, et al.,

Plaintiffs,

vs.

BOARD OF EDUCATION OF THE CITY

OF CHICAGO, et al.,

Defendants.

76 C 995 and 76 C 996 (Consolidated)

ORDER

Whereas plaintiffs have filed a Petition for costs and

attorneys’ fees, and the Court having considered said Peti-

tion and the submissions of the parties in connection there-

A-51

IT IS ORDERED THAT

1. Plaintiffs shall recover from defendant Board of

Education of the City of Chicago the sum of $908.31, as

their costs and out-of-pocket expenses in this matter;

2. Plaintiffs shall recover from defendant Board of

Education of the City of Chicago the additional sum of

$1,000, as a witness fee for their expert witness, Professor

Karl E. Taeuber; and

3% Plaintiffs’ Petition for Attorneys’ Fees is otherwise

hereby denied.

Dated at Chicago, Dlinois

this 23rd day of January, 1978.

/s/ Hubert L. Will

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.