# Appendix — Board of Education v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2457%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1116

## Text

84-138

Court. US
ED

IN THE FEB 28 1985
Supreme Court of the United] Mrater — stevas

CLERK

OCTOBER TERM, 1984

BOARD OF EDUCATION OF THE CITY OF CHICAGO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Of Counsel:

HuGuH R. McComas, Jr.
DaviID NAREFSKY

DENISE L. JARRARD

ISHAM, LINCOLN & BEALE
Three First National Plaza
Suite 5200

Chicago, Illinois 6602
(312) 558-7500

C. RICHARD JOHNSON
Three First National Plaza
Suite 5200
Chicago, Illinois 60602
Counsel for Petitioner

RoBERT C. HOWARD

ROBERT M. WEISSBOURD

JAMES G. BRADTKE

HARTUNIAN, FUTTERMAN
& HowarD

55 E. Monroe

Suite 4005

«Chicago, Illinois 60603
(312) 372-6475

x

Pandick Midwest, Inc., Chicago ¢ 454-7600 sv

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
Table of Contents

Second Opinion of the Court of Appeals (744 F.2d

1300 ( 7th Cir. 1984) ) ................ RT TERRE Te ee Ee la
Second Findings of Fact and Conclusions of Law of

the District Court (588 F.Supp. 132 (N.D. Il.

Pe lkicthctcdiciiihisinticatladandbicnidipaehscimsisanmnisientinaennhaistinnten 18a
Remedial Order of the District Court (592 F.Supp.

ee I viciicescnedincenenbescninisiherninmnanbiindanien 216a
First Findings of Fact and Conclusions of Law of the

District Court (567 F.Supp. 272 (N.D. Ill. 1983)). 234a
First Opinion of the Court of Appeals (717 F.2d 378

go FR EE ee 269a
CI i i ciininsetcinittiitincciniciabitnenisinnilingennitcneliiinntcin 282a
Judgment of the Court of jaa Qo 297a
Denial of Petition for Rehearing ........................:cee00 298a
Section 405 of Title IV of the Civil Rights Act of 1964 299a
Section 565 of the Education Consolidation and

RSI FA GE FIGS cincenrecrinvensicrrreeseetimarerntens 299a
Section 577 of the Education Consolidation and

EINER BA GE TEES winceseee reese 300a
Section 583 of the Education Consolidation and

I FUE GE BIE vnncennciterninmneceenerenesenieion 302a
Appropriations Act for the Department of Education

PR Te NE ee ecitiirccincncnniitinnnsisitinnstiiniieannitsinnaen 304a
Appropriations Act for the Department of Education

EE Ce MED stahneckeremiemannniinnieinnnenmnnnte 30Sa
Regulations for the Secretary’s Discretionary Pro-

|___REPORT Te 307a

la

in the
United States Court of Appeals
Zor the Seventh Cirrnit

Wo. 84-2405
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.

Boarp Or EpucaTIon Or THE City OF CHICAGO,

Defendant-Appellee.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 80 C 5124—Milton I. Shadur, Judge.

ARGUED SEPTEMBER 6, 1984—DECIDED SEPTEMBER 26, 1984

Before CuMMINGS, Chief Judge, Woop and FLauM, Cir-
cuit Judges.

FLauM, Circuit Judge. This case comes before us for
eee on ae ee oe ee
court interpreting enforcing a consent decree was
executed by the United States and the Board of Educa-
tion of Chicago (“Board”). For the reasons set forth
below, we vacate the order and remand this case for an

evidentiary hearing.

2 No. 84-2405
I. FACTS
A. Events Prior to the First Appeal
As we explai in our first opinion, see United States

v. Board of Education of Chicago, 717 F.2d 378 (7th Cir.
1983), this case arises from a complaint that the United

y in vi
and titles and VI of the Civil Rights Act of 1964. On
the the a j con-

directing the United States to comply with ¢ 15.1 of the
Decree, which provides that
[elach party is obligated to make every good faith
effort to find and provide every available form of
financial resources for the implementation
of the desegregation
days i

After five of hearings, the district court entered an
order on June 30, pe Ay Ra MS ee Berd
provi

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84-2405

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Conclusion of Law No. 142. Such

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for

activities to the extent

ial if

8a
8 No. 84-2405

After allowing the United States time to respond to its
opinion, the district court issued an order on August 13,
1984 (“1984 Remedial Order’’), declaring that, “in light
of the{ ] present circumstances. the United States has an
unconditional obligation to provide Board with $103.858
million for implementation of the [ tion] [pjlan in
school year 1984-85.” 1984 Remedial at 9. The court
further ordered that, in the event the United States failed
to provide the funds by A t 22, 1984, the United
States was permanently enjoined to take all necessary
steps to obligate for the use of the Board $17 million in
the 1984 Discretionary Fund and $11.775 million in the
1984 Title IV account. Jd. at 11-12. Furthermore, the court
declared that the United States must formulate an affirm-
ative program each year to assure that up to $103.858
million is placed in an escrow account. Such a program
would consist of the identification of available funds,
— to Congress, and lobbying activities. Id.
at 12-15.

The government now appeals the district court’s 1984
Opinion and 1984 Remedial Order, and it advances two
— ts. opie the United wg Ps pence that ~

istrict court in interpreting { 15.1 as requiring
Executive Branch to engage in legislative activity, to
iaplamiintiog Sin Meecinaioted rime end toe dams ent
implementing the tion plan and the t
the Board has budgeted for this p , and to award
Title IV funds and Discretionary Funds to the Board with-
out regard to other grantees. Second, the government
maintains that if the district court’s interpretation of
q 15.1 is correct, the Decree is unenforceable because it
violates the constitutional doctrine of separation of powers.
According to the government, the Executive Branch does
not have the authority to bargain away its discretion with
respect to its legislative activities or to commit unlimited
financial assistance to only one grantee, in contravention
of the legislative purpose of the desegregation funding
statutes.

ne ne

9a

POT Se:

No. 84-2405 9

II. ANALYSIS

As both parties and the district court have acknowl-
edged, {15.1 is a unique funding provision in a consent
decree that constitutes an unprecedented settlement of
a school desegregation claim by the United States. Mind-
ful of the novelty of the agreement, we carefully crafted
our prior opinion so as to permit the maximum amount
of flexibility and coo ion among the participants in
the Decree as they red toward a workable resolution
of the dispute regarding funds for Chicago school
gation. Our review of the events that transpired on re-
mand convinces us that the process of dispute resolution
has failed remarkably in this case.

A. Interpretation of ¢ 15.1

As we recounted above, our prior opinion interpreted
715.1 as “{mpos{ing] a substantial obligation on the
a to provide available funds to the Board.”

mited States v. Board of Education of Chicago, 717 F.2d
at 383. Since the United States had misinterpreted { 15.1

3 Since we noted s discrepancy in the district court's 1963 Order
as to whether funds in the e IV account and in the Discre-
i Fund were available for use by the Board, we directed

penaitures required by Board to achieve the necessary threhol

i to achieve necessary

evel of furding for Educational Components in predominately

minority schools.’” Jd. at 380 n.2. Both of these district court tasks
(Footnote continued on following page)

10a
10 No. 84-2405

submitted the “Plan of the United States for Supporting
_ the er ae Plan of the Board of Education of the

City of Chicago” (“November 10 Plan’’), in which it out-
lined its position, later rejected by the district court, that
the Wei Amendment had rendered unavailable to the
Board any 1984 funds beyond the $20 million allocated
by the Yates Bil’ * However, in the November 10 Plan,
the government also stated for the first time that it was
— to give the Board priority in the distribution
of desegregation funds under existing federal programs.‘
The district court gave little weight to the November 10
Plan. In its 1984 Opinion, the court stated that the plan
“contained no adequate suggestions at all for remedying
the United States’ past Consent Decree violations or for
providing further funding for the [desegregation] ({pjlan.”
1984 Conclusion of Law No. 123.5

During the most recent oral arguments before this
court, counsel for the government answered questions

ee ay government’s system of “priority” and ex-
plained under this system, the Department of Educa-
tion will put the Board “at the top of the list” for any

;

ng ee
reese
i

necessary for clarification of the record and were to be car-
within the context of our carefully expressed instruction
istri afford the government an opportunity to

the means by which it would attempt to comply with
has wisely abandoned this position in its argu-

its submission of the November 10 Plan, the United

lit
Hi
ity
i
i
il

July 19, 1983,

the district court concluded that by submi the
vernment “willfully and in bad faith”
October 28 order directing the United
lan for its compliance with { 15.1.

&
iB

sz"
i
ty
iF

:

lla

No. 84-2405 11

program grants that can be applied to desegregation
assistance and for which the Board is eligible. According
to the government’s counsel, “top of the list priority” for
Title IV funds not only is a tee that the Board will
receive its “equitable fair ” of funding under Title
IV criteria, but also requires that this funding be ear-
marked for Chicago and be set apart from the usual block
grant funding that is allocated to the regional desegre-
gation centers serving the Midwest. Furthermore, the
vernment’s counsel explained that, with regard to the
i — Fund, “top of the list” priority means that
if the tie tbenae salt aga dheggery ment
project aid its rips ty n efforts,
would have priority “to get what the project called for.’

is subject to the review of the district court,” the gov-
ernment would comply with our interpretation of { 15.1
and would fulfill its “substantial obligation to provide
available funds.”

A 2
il
i
u
H
[it
i: Be
r

4
i
;
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i
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53

and i
jects received . See United States
to Chicago Board of Education’s Second and Third
terrogatories, at A - with Board’s Motion to Com-
1

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12a

12 No. 84-2405
By so ruling, we reject the district court’s conclusion
that 715.1 mandates that the government attempt to
_juathe tae Gate Wf caeeader Toten Gen toe Seed
rovi rtion of necessary
cannot sup . The district court had reached this con-

1984 hearings, which established the
earings, W e
t the Board’s

In its te 1984 Opinion, the district court noted
we had not its 1983 conclusion regard-
ap riede des obligation,® that conclusion became
of the case. 1984 Conclusions of Law Nos. 6-8.
, the district court also observed that it was not

2.
5
ge
ms *
8

Ha
nl

ate
cae

are te S neiiinn
En ight of gre hyve Conclusion of Law No. Vial
t o strong indication in our prior a t
vernment’s attempts to Rigas A. its liance
a consent decree are to be preferred icially-
Meet remedies, the district court nt have acted
with optimal prudence if it had not inferred that our
silence its 1983 conclusions indicated validation,
see 1984 clusion of Law No. 6, and if it had freshly

$ he

the e work already undertaken by the district
court and the understandable frustration that attended the

13a
No. 84-2405 13

After closely examining the extrinsic evidence surround-
ing the adoption of { 15.1 into the Decree, we must con-
clude that there is inadequate support for the district
court’s interpretation. In the parties’ stipulation regarding
the negotiations leading to the adoption of { 15.1, we find
no indication that the parties had any federal fundi
sources in mind other than programs that could be used,
consistent with the intent of Congress, to fund school de-

ion efforts. To the extent that the district court
reads the June 19, 1980, letter from Assistant Attorney
Cee Sao ee, 2 Se See A See ped pe
parties con lated legislative initiatives on the part o
the Sesedies Bron to make funds available, see 1984
Conclusion of Law No. 139, we find this reading to be
clearly erroneous. The applicable wording in this letter
tracks the language in 415.1 and does not amplify or
further explain the parties’ intent.

We thus remand this case for a determination of
whether the Board is receiving the maximum level of

i sh» eee ee Se eee © grams
sbursed.

thro which funds for ion can be

In the likely event that the has financial needs that

scnask sak Et ths ¢ “der Go cna aaa Sy that

mi t it eo. to amo t
"enseriet of

yom gg had indeed made .. . available.”
April 5, 1984, at 1416. The best proof that the govern-
ment is fulfilling this duty would be the assignment of
nnel to the task of periodically reviewing federal
ding p , in the Department of Education and

in other fi agencies, for unencumbered funds that
may be used to advance the Board’s desegregation plan.

B. Bad Faith

The district court relied on its finding of governmental
bad faith, in addition to its interpretation of { 15.1, as sup-
port for its 1984 remedial ruling that the United States
had an unconditional obligation to provide $103.858 million
to the Board for the 1984-85 school year. In light of our

l4a

trict court’s determination of bad faith in the govern-
ment’s decision not to provide direct grants for school de-
ion. This policy decision applies to all school

In its most significant finding of bad faith, the district
court described lobbying activities of the Executive Branch
during the passage of the Yates Bill and the Weicker

court, see 1984 Findings of Fact Nos. 504-17, the Ex-
ecutive Branch supported a p addition to the
Yates Bill that specifically would have made unavailable
to the Board the funds that had been restrained by the
district court. Although this proposed provision was not
adopted by the House of Representatives, the Executive
Branch continued to lobby for specific language in the
Yates Bill to make the restrained funds unavailable to the
Board. Even after the Yates Bill was signed into law with-

iSa
No. 84-2405 15

out the desired language, the Executive Branch worked
toward the inclusion of such language in the Weicker
Amendment. On October 5, 1983, prior to the passage of
the Weicker Amendment, the United States
Ingitilien Uieboay storeundiner tae yenuncnsuted Weems

eB aay - vera i
Amendment indicated that no funds other than the $20
million allocated by the Yates Bill were available to the
Board and that, as a result, the court’s 1983 Order should
be dismissed. See Transcript of October 5, 1983, at 31-33.
Although the Executive Branch continued to lobby for lan-
guage in the Weicker Amendment to make funds unavail-
able to the Board, the amendment ultimately was enacted
without this language.

The United States consistently has maintained that its
legislative activities are unreviewable by the judiciary,

thus promp the Board to lain the govern-
ment’s Yates Weicker lobbying were designed to

force a constitutional issue upon the courts. Transcript of
March 20, 1984, at 36-37. We need not reach any conclu-
sion regarding the Yates-Weicker legislative activities, for
we that, even if these activities constituted bad faith
violations of che Decree, the district court abused its dis-
cretion ~~ Se a $103.858 million monetary remedy
against government. Given the clear factual and pro-
cedural background of this case, it shouid have been ap-
ee ras tee ae re cggellgnany
compelled to pay this judgment for its ith, no fed-
eral d ion money would have been available (or
would have been made available) to other school districts.
Such a result would have been unreasonable.

The proper remedy for any bad faith violations of the
Decree in connection with the Yates-Weicker activities
would have been a civil contempt citation under which
the district court could have ordered the government
either to refrain from specific efforts to make .
tion funds unavailable to the Board or to inform Congress
about the funding obligations of the government under

l6a

16

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863

ag

By age
= bas

if eile

Public Lave

Oct, 1984)

mane a ee SS eee =
8
ep ibe arecar
na Ga on

ry 4

Sit nt

Board asked the director of the

At the

17a

17

No. 84-2405

r-

of the Executive Branch
below could

this case, we deem it i
ns
reflected in the

III. CONCLUSION

IN THE UNrrep States District Court
For the Northern District of Illinois
Eastern Division

UNITED STATES OF AMERICA,

v.

Plaintiff,

BOARD OF EDUCATION OF THE
Crry oF CHICAGO,

Defendant.

BACKGROUND

FINDINGS OF FACT (“Find-

ings”)

Adoption and A val of the

Desegregation an (the

— and the Nature of the
an

Consent Decree Negotiations

Development of Part I of the
Plan, Educational Com-
ponents

Statements of the United
States and this Court Relating
to the Educational Com-
ponents

Overview of the Student As-
signment Plan

Demographics of the City of
Chicago and the Chicago
Public Schools

Propriety and Cost of Programs
Proposed for Adequate
Implementation of the Plan

145-61

201-72

No. 80 C 5124

JUNE 8, 1984 OPINION—TABLE OF CONTENTS

Pages
2la-25a

26a-60a
26a-34a

34a-39a

40a-47a

47a-S4a

55a-60a

602a-89a

19a

Board's Financial Affairs and
Condition and the Financial As-
pects of School Desegregation
1983-84 Incremental Desegre-
gation Expenditures
1983-84 Ancillary Desegrega-
tion Expenditures
1983-84 School Budget—
Board Resources and
Expenditures
1979-80 Financial Crisis
Relationship to School
Finance Authority
Projected Deficits for
Future Years
Board Efforts To Find
Resources
Federal and State Funds Re-
ceived by Board
Board's Good Faith Efforts
Addendum A to Findings
Availability of Federal Funds to
Implement the Chicago
Desegregation Plan
Presently Available Funds
Actions by the United States
Affecting the Availability of
Funds
Actions with Respect to the
Yates Bill and Weicker Amend-
ment

The United States’ Non-
Compliance With Section 15.1

501-18

601-09

Pages

90a-l 15a
90a-93a
93a-94a

94a-97a

97a-98a

98a-10la

10la-105Sa

105a-106a

107a-l 13a
113a-11Sa
116a-122a

123a-139a
123a-132a

132a-13$a

139a-l44a

144a-147a

20a

Il. CONCLUSIONS OF LAW

(“Conclusions”)

Law of the Case

Standards for Determining
the Amount of Funding
“Adequate for Implementa-
tion of the Pian”
Standards for Determining the
Share the United States Is Obli-
gated To Attempt To Provide of
the Amount “Adequate for
Implementation of the Plan™
Consideration of Funding Con-
tentions of the United States
Propriety of the Programs Pro-
posed by Board for Impiementa-
tion of the Plan, and Summary
as to the Amount of United

Verification of the Current
Availability of Funds
Meaning and Effect of the Yates
Bul
Meaning and Effect of the Weic-
ker Amendment
Additional United States Viola-
tions of Section 15.1 and

1-9

10-16

17-21

22-35

Conclusions = =—_-~ Pages

147a-iSla

1Sta-iS5a

1S6a-158a

1S8a-162a

163a-165a
16Sa-18la
18la-184a

184a-196a

196a-202a

202a-208a

208a-2!2a
213a-215a

2la
IN THE UNrrep States District Court
For the Northern District of Illinois
Eastern Division

UNITED STATES OF AMERICA,

Plaintiff, |
v , No. 86C 5124
BOaRD OF EDUCATION OF THE
Crry oF CHicaco,
Defendant. |

This case has tended to be sidetracked by a “false con-
flict”"S created by the United States: By creating an artificial
limitation on funds otherwise available or potentially available
to satisfy the extensive Desegregation Plan needs of Chicago's
Board of Education (let alone the varying needs of other
claimants of funds), the United States has sought to place the
Board (and this Court) into a position as though the Board
(and this Court) were choking off deserving educational pro-
gtams."* That is simply not true. It is the United States itself
that has created and is perpetuating that regrettabie situation.

"8 In the law that term is most commonly used in choice-of-law
problems, refiecting the theory of analysis with which Professor David
Currie is most often associated. See, e.g. Jn re Air Crash Disaster
Near Chicago, lilinois on May 25, 1979, 644 F.2d 594, 605 & n.2 (7th
Cir. 1981).

*® Someone has given the educators in the State of New Hamp-
shire the idea this Court should be appealed to because the New
Hampshire affiliate of the National Diffusion Network, funded by the
United States Department of Education (the “Department”) ran out
of funds May 11, 1984. To date, |! separate letters have come in
about the loss of a program that (though this Court is not itself an
educator) sounds highly worthwhile. If the United States will not be
candid and acknowledge that this baby, and all the other orphans
created by the United States’ intransigence, must be laid at its
doorstep and not that of this Court, either this Court or someone else
ought to make that clear.

22a

This Court has held,'‘7 and our Court of Appeals has
confirmed,'® that the United States has broken its word by
refusing to keep the promise it made on the day this lawsuit was
filed, Consent Decree § 15.1, (“Section 15.1”):19

Each party is obligated to make every good faith effort to
find and provide every available form of financial re-
sources adequate for the implementation of the desegrega-
tion plan.

In a sense the United States is not like cther litigants because
the concerns created by considerations such as separation of
powers and sovereign immunity tend to prevent its promises
from being fully enforced in precisely the same way as promises
of (say) IBM or other private defendants. For that reason that
Court has previously been compelled to impose a “freeze”
order to avoid the risk its ability to order relief will arguably be
frustrated. Because the United States has deliberately violated
its original agreement to fund the Chicago Desegregation Plan,
this Court has reluctantly found it necessary to prevent the
distribution to other possible grantees of United States
educational funds, in order to preserve access to all the dollars
that would be potentially available to fund the honoring of the
United Siates’ freely-undertaken (and then freely-broken ) obli-
gation to the Board.

But as this Court has said during the course of hearings on
this issue, the United States “has the key to its cell in its own

17 567 F.Supp. 272 (N.D. Ill. 1983) (“Opinion IT’”’), followed by
the contemporaneously issued June 30, 1983 “Order,” id. at 285.

18717 F.2d 378 (7th Cir. 1983) (“Opinion III’).

19 More accurately, Section 15.1 is part of Part I of the Consent
Decree. For convenience all references in this opinion to the Consent
Decree will omit “Part I,” and whenever the following Findings and
Conclusions refer to “Section—” without identifying a document, the
reference is to that section of Part I of the Consent Decree.

23a

pocket.”’20° It could have, in the exercise of its “every good faith
effort,” assured that all the needed funds would be potentially
available to the Board by (1) shifting available dollars to the
Board to the fullest extent possible without congressional
approval or (2) going to Congress with a request to allow the
shifting of dollars that were already available to the Depart-
ment of Education, but required reallocation because they were
not in fact going to be used for the purposes that had been the
subject of the original allocation.2' It could have done both
those things if necessary. Instead the United States has chosen
to pit deserving applicants for funds one against the other, and
to put the issue before Congress as though the Board and this
Court—rather than the United States as the breaker of its own
voluntary promise—were the malefactors.

One other related point should be emphasized at the
outset. Section 15.1 is part of a consent decree. Like every
consent decree, it has a twofold aspect.22 It is of course a

20 That phrase is one with an honored history in a somewhat
different—though this time closely-related—legal context. It is
customarily used to describe the situation of the party that, having
violated a court order, is sentenced to confinement until he or she
complies with that order. Gompers v. Buck’s Stove & Range Co., 221
U.S. 418, 442 (1911) (“he carries the keys of his prison in his own
pocket”). Of course the parallel to the present case is too obvious to
require spelling out.

21To the extent congressional action was required to free up
funds, but might not have been obtained because of competing
considerations that Congress might have deemed more important
despite a request from the administration, the United States as a
litigant could not be faulted or held liable for a violation of Section
15.1. However the United States’ conduct has poisoned the well by
violating its agreement “to make every good faith effort to find and
provide every available form of financial resources,” and it cannot
therefore excuse itself by pointing to congressional attitudes created
by its own flouting of its contractual obligations.

22 United States v. City of Miami, 664 F.2d 435, 439-40 (Sth Cir.
1981).

24a

contract—and as a contract, it is enforceable to require the
contracting parties to perform their voluntarily undertaken
duties. Because unlike most contracts the parties have chosen
to submit it for the stamp of court approval, it is also a court
-order—and as such, it is enforceable like any other court order,
by contempt if need be.29

On the sorry record reflected by the matters detailed in this
long opinion, a private litigant that did what the United States
has done would unquestionably be held in contempt—with the
potential for being subjected to a fine or imprisonment as well
as to an order for civil compliance. But for the United States a
contempt fine is meaningless—after all it is the public interest
(and not the injured opposing party) that is vindicated by a
fine, with the money going to the United States itself as
surrogate for the public. Thus imposition of a fine against the
United States would just transfer money from one federal
pocket to the other. Similarly imprisonment of the United
States as such is impossible, and any possible imprisonment of
defiant ranking government officials would be unseemly at best.
For those reasons voluntary adherence by the United States to
its solemnly undertaken responsibilities becomes all the more
important, and its deliberate flouting of those responsibilities
becomes all the more unpardonable.

Now the legal rights of the litigants have to be evaluated.
This opinion has not been drafted in response to the United
States’ conduct just referred to, but that conduct may have
made the issues more clouded than would otherwise have been
the case.

This Court now has before it the evidence developed in
extensive hearings on remand from the Court of Appeals’
decision (“Opinion III,” see n.4) confirming the United States’

23 EEOC v. Liberty Trucking Co., 695 F.2d 1038, 1043 (7th Cir.
1982).

25a

violation of Section 15.1. Although the Court of Appeals did
that, it also vacated the part of this Court’s June 30, 1983 order
(the “Order,” issued contemporaneously with “Opinion II,” see
n.3) that had directed the United States to undertake an
affirmative program to preserve the availability of funds poten-
tially available to fulfill its obligations under the Decree. As the
Court of Appeals put it (717 F.2d at 384), this Court had “acted
with excessive dispatch” in doing so. This Court of course had
shared the respect for separation of powers that underlay the
Court of Appeals’ opinion. This Court’s fault, if it was one, was
in a skepticism (grounded in prior conduct by the United
States, not in mere surmise) as to whether the United States
would in fact “fashion its proposed remedy for past non-
compliance, as well as...show that it intends to comply in the
future...” (717 F.2d at 385).

As the following findings of fact (“Findings”) and con-
clusions of law (“Conclusions”) will reflect, this Court’s
anticipatory doubts were unfortunately all too justified. Now
the Department of Education has been given the opportunity
mandated by the Court of Appeals, and it has failed its charge
dismally. In accordance with Fed. R. Civ. P. (“Rule”) 52(a),
this Court sets forth the Findings and Conclusions that con-
stitute the grounds of its action referred to in this lengthy

opinion. es

26a

FINDINGS OF FACT (“Findings”)

Adoption and Approval of the Desegregation
Plan (the “Plan”), and the Nature of the Plan

Consent Decree Negotiations

101. Chicago’s Board of Education (“Board”) operates
the third largest public school system in the United States, In
the 1980-81 school year Board operated 634 schools, including
495 elementary schools, 66 high schools and 73 special needs
schools of various types. In October of that school year Board
had 458,497 students, whose racial/ethnic makeup was as
follows:

White Non-Hispanic ..................:00008 85,292 18.6%
Black Non-Hispanic ...................css000 278,726 60.8%
tii isceics dareiniidhdetcnsenieanshadnevennanaies 84,226 18.4%
Asian/Indian 10,253 2.2%

At the same time Board employed approximately 43,000
persons, including 29,000 members of the Chicago Teachers
Union. Board is the largest employer in Chicago and the
second largest in Illinois. (Stip. 101)

102. After protracted and complex negotiations, the
United States and Board entered into a Consent Decree, which
was filed with and approved by this Court September 24, 1980.
(Stip. 102) Findings 103-04 give the background of the
Consent Decree.

103. After desegregation negotiations in 1979 between the
former Department of Health Education and Welfare and the
former representatives of Board had proved unsuccessful, the
United States Department of Justice notified former Interim
Superintendent of Schools Caruso on April 21, 1980, that if
further negotiations were not successful, the United States
would initiate a desegregation lawsuit against Board. (GX1-27

27a

{Government Exhibit 1, June 1983 hearing, Document 27!)
Ensuing negotiating sessions between the Department of Justice
and former Board representatives primarily addressed whether
the parties could agree on specific racial percentages for a
student assignment plan and on the specific amount and timing
of the Emergency School Aid Act (ESAA) funds that the Board
would receive to implement such a plan. (GX1-21,22) Board
counsel indicated that if the negotiations failed and {itigation
commenced, Board would present counterclaims against
agencies of the federal government. (GX1-39) There was no
significant progress in those negotiations. (GX1-21, GX1-22)
(Stip. 103)

104. During those negotiations a new Board was appoint-
ed and took office. (GX1-22) That new Board formed a
Desegregation Committee (GX1-21) and indicated to the
United States it would bring fresh approaches to the negotia-
tions (Jd. ) Thereafter Board was represented by its new
leadership and by new counsel. (GX1-16) Negotiations then
progressed rapidly, leading to a draft agreement within a few
weeks (GX1-16) and to consummation of the Consent Decree
within another six weeks. (GX1-14,15) That progress resulted
from an altogether different focus. Rather than seeking to
negotiate the specific terms (or even somewhat more general-
ized terms ) of a student assignment plan, the parties instead
agreed to general principles that would guide subsequent
development of a plan. (Consent Decree, Part I) Correspond-
ingly with respect to funding, the parties negotiated a general
principle applicable to both parties. Those negotiations con-
cerning the general funding provision have been described in a
Joint Stipulation of the parties as follows:

At a relatively early stage in the negotiations leading to the
Consent Decree, the parties discussed the question of
financial support from the United States for the Board’s
desegregation activities. It was the Government’s position

28a

that no funding commitment specific as to form and
amount could be made in the context of the Consent
Decree, because there was no way to anticipate the nature
and costs of the Board’s Plan, the amount and sources of
Government funding, or a variety of other matters. The
parties briefly discussed funding possibilities relating not
only to the Department of Education (including ESAA and
other programs), but also other federal agencies such as
the Department of Justice, the Department of Trans-
portaion, and the Department of Housing and Urban
Development. Thereafter Mr. Ross conveyed to Mr.
Howard by telephone brief descriptions (obtained by Mr.
Ross from the Department of Education) of some of the
types of planning and implementation activities funded in
other instances. Mr. Ross also conveyed to Mr. Howard
very sketchy information about grant amounts to other
cities, but in general it was the position of the Department
of Education that it would not disclose such information.
These discussions took place approximately two months
before the completion and execution of the Consent De-
cree. It was concluded that the matter of federal financial
support would be handled by including general provisions
in the Consent Decree, and Section 15.1 was drafted and
incorporated into the Decree. Section 15.1 was not de-
signed to incorporate any specific discussions between the
parties on this issue, but to establish a general obligation on
the part of both parties which would be interpreted and
applied as appropriate in whatever future circumstances

might arise.
Section 15.1 provides:

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

Section 15.3 provides:

15.3 The parties recognize that financial cost of
implementation does not excuse the failure to develop a

29a

desegregation plan consistent with the principles set forth
in §§ 2-14, and is not a basis for postponement, cancella-
tion or curtailment of implementation of the plan after it
has been finally adopted, but is one legitimate consid-
eration of practicability in meeting the objective stated in
§ 2.1.

(Stip. 104)

105. On September 24, 1980 four events occurred to make
the Consent Decree fully operative:

(a) filing of a Complaint by the United States;

(b) execution and filing of the Consent Decree;

(c) after a hearing and after consideration of the
Compiaint, the Consent Decree and the United States’
Memorandum of Law, approval by the Court of the
Consent Decree and its entry by the Court; and

(d) Board’s non-filing of any counterclaim against the
United States.

(Stip. 105)

106. Among the general principles set forth in the Consent
| Decree to guide subsequent development of a desegregation

plan were the following:
| - § 2. Basic Objectives
2.1 Desegregated Schools. The plan will provide for
the establishment of the greatest practicable num-
ber of stably desegregated schools, considering
all the circumstances in Chicago.

2.2 Compensatory Programs in Schools Remaining

Segregated. In order to assure participation by all

students in a system-wide remedy and to alleviate
the effects of both past and ongoing segregation,

§ 7.

2.3

2.4

30a

the plan shall provide educational and related
programs for any Black or Hispanic schools

remaining segregated.

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

Fair Allocation of Burdens. The plan shall ensure

that the burdens of desegregation are not im-
posed on any racial or ethnic group.

Compensatory Programs in Schools Remaining Segre-
gated. To accomplish the objective stated in § 2.2, the
plan will include specific programs for Black or His-
panic schools remaining segregated, in the following
areas among others:

7.1

7.2

7.3

7.4

7.5

7.6

Remedial and compensatory educational pro-
prams.

Improved curricula and instructional and eval-
uative techniques (including the utilization of
tests that validly measure student achievement)
for academic, vocational and _ alternative
educationai studies.

Pre-service and in-service instruction for adminis-
trators, principals, teachers and other school per-
sonnel.

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

Testing, counseling, guidance and student wel-
fare.

Physical facilities, safety and security.

3la

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

(Stip. 106)

107. Thus in agreeing in Section 15.1 to find and provide
financial resources “adequate for implementation of the
desegregation plan,” the United States was agreeing to help
pay for a plan that would include educational components in
racially isolated schools (§2.2)24 covering the subject matter
outlined in §7, in the development of which the Board would
exercise discretion (§3.1). (Stipulations 101-06)

108. Circumstances surrounding entry of the Consent
Decree indicate that a joint and mutual obligation was con-
templated. The Consent Decree represents the only instance in
which a major urban school system has agreed, without any
litigation or determination of liability issues, to develop and
implement a system-wide desegregation plan under court su-
pervision. It contemplated that because of the demographics of
the Chicago school system, a substantial number of minority
children would inevitably remain in racially isolated schools,
requiring the extensive and expensive use of compensatory
educational remedies to alleviate the effects of past segregation.
In 1980 (as now) Board was faced with massive financial
deficits, and the joint funding provision of the Consent Decree
reflected recognition that Board’s finances were such that it
could not voluntarily agree to develop, or successfully to
implement, an effective desegregation plan of this type unless
the federal government were sharing the financial burdens.
(Stipulations 101-56; June 1983 Findings and Plan/ADR data
on Board finances )

24As well as in magnet schools (§ 4.1.2) and desegregated
schools ( §§ 10.1 and 10.4).

32a

109. Stated simply, the parties had a common and over-
riding goal of assuring that an effective desegregation plan was
developed and implemented in Chicago. This joint purpose,
with respect to financing, included a requirement that the
parties provide the total mmount of funds adequate for
implementation of the Plan. In Section 15.i each party agreed
to do everything possible to supply the necessary funding.
(Stipulations 101-56; June 1983 Findings and Plan/ADR data
on Board finances) The United States’ financial commitment
under Section 15.1 was the principal guid pro quo for Board's
willingness to forego litigation and develop the Plan. In return
for that commitment, the United States secured the full result it
sought (and may not otherwise have achieved) without the
expense and delay of complex litigation. The United States
also avoided potential liability for a number of counterclaims
that would have been brought against it. ( Findings 103, 105)

110. With respect to “what the parties reasonably ex-
pected at the time of signing,” the parties’ Joint Stipulation
(Government's Exhibit 2 in the June 1983 hearing) states:

Section 15.1 was not designed to incorporate any
specific discussions between the parties [on the issue of
federal financial support], but to establish a general
obligation on the part of both parties which would be
interpreted and applied as appropriate in whatever future
circumstances might ase.

All the extrinsic evidence concerning this issue does not support
any notion that there was a recognized specific dollar /imitation
incorporated in Section 15.1, based on the amount of previous
ESAA grants or otherwise. Indeed the Joint Stipulation reflects
the parties had been discussing “funding possibilities relating
not only to the Department of Education (including ESAA and
other programs), but also other federal agencies such as the
Department of Justice, the Department of Transportation, and

BEST AVAILABLE COPY

33a

the Department of Housing and Urban Development.”?5 As
points to an obligation to conduct a “universal search” (567 F.
Supp. at 282 n.6), not a limited examination of what ESAA
funding was theoretically availabie to Board. (Stipulations
101-06; Government Exhibits | and 2 in the June 1983
hearing ) This does not of course mean the parties contemplated
issuance of a blank check to Board by the United States. But
given the circumstances of the negotiations, Board’s known
financial difficulties, its inability to generate funds without the
approval of other governmental agencies, the known major
problems (and hence major costs) of implementing a desegre-
gation plan in a school system as large as Chicago's (and with
its racial mix), and other relevant factors, the parties’ reason-
able expectations should certainly have embraced the potential
need for the United States regularly “to find and provide” sums
of the magnitude represented by Board's proof at the current
hearing. Although this Court ruled in limine (prior to the
current hearings) certain areas of proof by the United States
would be excluded, this Court has nevertheless given full
consideration to (a) the United States’ offer of proof suggested
by this Court as the means to complete the record and (b)
Board's post-hearing response to that offer of proof. Even
taking that offer of proof fully into account ( rather than treating
it as excluded) this Court finds nothing in the United States’
proof or proposed proof persuasively refutes the reasonableness

28 Moreover, Stipulations 101-02 and the extrinsic evidence
offered by the Government, in the form of its correspondence file,
reflect that in the spring of 1980, the former counsel representing a
former Board were preoccupied with the potential amount of an
ESAA grant that might be generated if the parties could agree on the
specific parameters of a student assignment plan. However, after a
a sharply different direction, leajing to agreement on a general
funding principle not incorporating any previous specific discussions.

34a

of the expectations referred to in this Finding. Given the
parties’ Joint Stipulation that Section 15.1's “general obligation
... would be interpreted and applied as appropriate in whatever
future circumstances might arise,” this Court finds the current
circumstances make the interpretation of that obligation to
embrace the Board's current request (as modified by this
opinion) to be wholly appropriate for funding by the United
States.

111. The Consent Decree in this case is the only instance
in which the United States has entered into a desegregation
settlement containing the same or substantially similar lan-
guage to that in Section 15.1. (Stip. 107)

Development of Part I of the
Pian, the Educational Components

112. To develop the Educational Components of the Plan,
Board retained a team of independent, nationally recognized
consultants. Dr. Robert L. Green was the Lead Consultant,
with principal overall responsibility for the process. Dr. Green
(now the President of the University of the District of Colum-
bia) was then Dean of the College of Urban Development,
Michigan State University. He was a leading national expert on
desegregation plans, especially the aspect of desegregation that
emphasizes educational programs to provide equal and effec-
tive education for urban and minority children. Dr. Green had
participated in many desegregation cases and desegregation
plans, traditionally as an expert for the plaintiffs in such
litigation, and frequently on behalf of the NAACP. (Stip. 108)
In addition to Dr. Green, five other education experts from
outside the school system were retained on a full-time basis to
work on the Educaticnal Components, along with 24 part-tine
“national consultants.” Professor Ronald Edmonds (who has
since died) was the primary national consultant in the area of
curnculum. While on the faculty of the Harvard Graduate

35a

School of Education, Dr. Edmonds had directed the well-
known major research project, Search for Effective Schools:
The Identification and Analysis of City Schools That Are
Instructionally Effective for Poor Children. Professor Edmonds
had also implemented his “effective schools” design as the
principal instructional officer for the New York City schools,
with the title of Senior Assistant for Instruction.

113. Board's complete list of desegregation project con-
sultants is as follows:
Robert L. Green, Ph.D., Lead Consultant

Dean, College of Urban Development

Michigan State University

East Lansing, Michigan
Staff
Nelvia M. Brady, Ph.D., Staff Director

Professional Associate

Educational Testing Service

Evanston, Illinois
Elizabeth Jill Hirt, Ph.D., Staff Associate

Research Associate

College of Urban Development

Michigan State University
Judson Hixson, M.A., Staff Associate

Educational Director on Leave

Chicogo Urban League

Chicago, Mlinois
Jodi Martinez-Martin, Ed.D., Consultant

Teacher Education Specialist

Illinois State Office of Education

Springfield, Iinois

36a

Frances S. Thomas, Ph.D., Consultant

Assistant Professor

College of Urban Development
Michigan State University

East Lansing, Michigan

Primary National Consultants

Curriculum:

Staff Development:

Professor Ronald Edmonds

Senior Assistant to the
Chancellor for Instruction,
NYC Public Schools

Dr. Cassandra Simmons

Assistant Professor and Director,
Office of Student Affairs

College of Urban Development

Michigan State University

East Lansing, Michigan

Additional Consultants and Resource Persons

Dr. Beatriz Arias
Stanford University
Stanford, CA

Ms. Norma Barnes
Norma Bamies Assoc.
Chicago, IL

Dr. Sainuel Bstances

Northeastern Illinois
University

Ciicago, IL

Dr. Duane Brown
University of North Carolina
Chapel Hill, NC

Dr. Josue Gonzalez
Office of Education
Washington, DC

Dr. Robert J. Griffore
Michigan State University
East Lansing, MI

Dr. James Hawkins,
Superintendent

Benton Harbor Public Schools

Benton Harbor, MI

Ms. Maureen Larkin
Milwaukee Public Schools
Milwaukee, WI

Dr. Robert Crain
Johns Hopkins University
Baltimore, MD

Ms. Jane Creeden Dore
Freelance Editor/ Writer
Chicago, IL

Dr. Joseph Darden
Michigan State University
East Lansing, MI

Dr. Harold Dent

Westside Community Mental

Health Center
San Francisco, CA

Dr. Edgar Epps
University of Chicago
Chicago, IL

Dr. Reynolds Farley
University of Michigan
Ann Arbor, MI

Dr. Walter Farrell
University of Wisconsin
Milwaukee, WI

(Stip. 109)

37a

Dr. Jane Mercer
University of California
Riverside, CA

Dr. Margaret Parsons
Michigan State University
East Lansing, MI

Ms. Rachel Patrick, J.D.
American Bar Association
Chicago, IL

Dr. Diana Pearce

Center for National Policy
Review

Washington, D.C.

Mr. Joseph Rosen
Educational Consultant
Chicago, iL

Dr. Charles Thomas, Supt.
School District #64
North Chicago, IL

Ms. Rebecca Yarlott
Minneapolis Public Schools
Minneapolis, MN

114. During the development of the Educational Com-
ponents from November 1980 through March 1981, Board
submitted monthly progress reports to the Department of

~— Justice, as required by the Consent Decree. (Stip. 110)

115. Dr. Green submitted his Recommendations on
Educational Components to Board April 3, 1981. Two weeks

38a

later the Recommendations were adopted by Board as Part I of
the Desegregation Plan: Educational Components. Part I’s
content is summarized by its Table of Contents:

A. Introduction
B. Educational components

Curriculum and Instruction—Elementary Schools
Curriculum and Instruction—High Schools
Magnet Schools

Vocational and Technical High schools

Special Education and Testing

Bilingual Education

Within-School Segregation

Student Discipline

rrr PP He}

2)

Staff Development

D. Other Components

1. Public Participation
2. Metropolitan Initiatives
3. Faculty Desegregation and Affirmative Action
4. Evaluation
5. Monitoring
E. Appendix
(Stip. 111)

116. The following statements about Plan costs appeared
at pages 17 and 19 of the “Financial Aspects” section in Part II
of the Plan, adopted in April 1981:

1. Cost and Funding of the Plan. Due to the relatively
short time available under the Consent Decree for devel-
opment of the desegregation plan, the planning process has
been addressed to the formulation of programs that would
be desirable to effectuate the purposes of the Decree.

39a

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

~ * *

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

(Stip. 112)

117. Before the Consent Decree, Board’s desegregation
programs were administered by a staff of three persons. Shortly
after the initial adoption of the Educational Components,
Board created a special Office of Equal Educational Opportu-
nity (“OEEO”) to coordinate the implementation of the Plan.
OEEO is presently headed by Dr. Nelvia Brady, Associate
Superintendent, who was a member of Dr. Green’s original
desegregation planning staff. OEEO’s office staff has expanded
continuously since 1981 and presently comprises 53 persons, of
whom eight are clerical staff, eight are teachers (who are
district-assigned ), 13 are school-committee representatives and
24 are teachers (7) and administrators (17) assigned to the
central office. Twenty-nine of the 40 education professionals
(72.5%) have their principal responsibilities in the area of
implementing the Educational Components of the Plan.
(Stip. 113)

40a

Statements of the United States and this
Court Relating to the Educational Components

118. On June 3, 1981 Attorney General William French
Smith delivered an address before the American Law Institute.
In discussing the policy of the United States as to desegregation
remedies, Mr. Smith stated (at 8-9):

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

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

(Stip. 114)

119. In the Response of the United States to the Desegre-
gation Plan, filed in July 1981, the United States made the
following comments about the Educational Components of the
Plan:

(a) With respect to the provision of the Consent Decree
concerning providing compensatory programs in
schools remaining segregated, the United States said
(at 5):

4la

This principle is based squarely on common sense
and Supreme Court holdings. The method of com-
pliance with this objective is largely within the dis-
cretion of the Board, which has the expertise in
educational methods.

(b) After a brief summary of the Educational Com-
ponents, the United States stated (at 22) that “the
Government endorses” them.

(c) Finally, in evaluating the Educational Components,
the United States said (at 32-33):

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

(Stip. 115)

120. On August 28, 1981 the United States and Board
submitted their Joint Statement to the Court as to the devel-
opment of the Plan. With respect to the Educational Com-
ponents, the Joint Statement (at 5) informed the Court that

the Board and the United States are in agreement in these
general respects: ... (2) the Educational Components are
an integral and necessary aspect of the Board’s Plan. They
are consistent with the Consent Decree and the Con-
stitution. The United States fully endorses the Educational
Components from a legal perspective, although it views the

42a

particular educational policy choices as within the Board’s
discretion.

(Stip. 116)

121. On September 27, 1981 Assistant Attorney General
William Bradford Reynolds delivered a speech to the Educa-
tion Commission of the States, meeting in Chicago. In dis-
cussing the policy of the Department of Justice concerning
desegregation remdies, Mr. Reynolds stated:

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

Pursuant to the Department’s civil rights policies, we
are overseeing the development of a desegregation plan
here in Chicago that will be designed to enhance educatio-
nal opportunities for all students. The public school
enrollment in Chicago is approximately 61% black, 18%
white, and 21% non-black minorities, mostly Hispanic.
The Chicago School Board and the Justice Department
recognize that there are schools in the system that will
remain racially identifiable under the desegregation plan,
and the Board has thus undertaken compensatory prog-
rams to enhance the quality of education provided in those
schools in order t© guarantee equal educational opportu-
nity to all students in the system. To this end, the Board
has developed and submitted to the Court, with our
enthusiastic approval, detailed plans to enhance educatio-
nal quality in the schools, and implementation of those
plans began this fall.

43a

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

(Stip. 117; Bd. Ex. 77)

122. In school year 1981-82 Board submitted quarterly
progress reports to the United States and to the Court, detailing
the process of implementing the Plan, including the Educatio-
nal Components. (Stip. 118)

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

The provision of extra funds — and therefore re-

sources — to schools which are to remain racially isolated
is a form of compensation intended to make up in part for

44a

the system’s failure to remedy all manifestations of segre-
gation. This component of the Plan is extraordinarily
important because the majority of the system’s schools are
to-remain segregated under the Board’s proposal ....

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

The Urban League went on to express concern that Board had
only committed itself to provide “Milliken II relief” to the
extent that funds are available. NAACP’s July 1981 memo-
randum on the Plan stated “we have no specific objection to the
content of these programs.” NAACP’s March 1982 brief did
not comment further on the Educational Components. (Stipu-
lations 119, 133)

124. On January 6, 1983 this Court issued its opinion
(“Opinion I,” 554 F. Supp. 912) approving Board’s Plan as
being clearly within the broad range of constitutionally accept-
able plans. With respect to the Educational Components and
funding, Opinion I stated (id. at 926):

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

Funding. Desegregation, like all other aspects of
affording quality education to all students in a school
system, costs money. In that respect the Board is not

4Sa

master of its own fate. If and to the extent other
governmental bodies and agencies that control the pursest-
rings were to thwart the Board’s ability to perform in the
way its Plan contemplates and the Constitution requires,
this Court would have to examine all appropriate and
available remedies. There is no reason to presume at this
time that any such delinquency in meeting the mandates of
the Constitution, or any such resulting power con-
frontation, will occur.

(Stip. 120)

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

With regard to expenditures for racially identifiable
schools, a brief explanation is in order. The Board’s initial
commitment (as outlined in the April, 1981 Principles)
was to spend $40 million a year in 1981-82 and 1982-83
and $20 million a year thereafter. As described above,

nding specifically budgeted for this component of the
gregation Plan has fallen somewhat short of this
originally projected level in the first two years of
implementation. As a result, the Board believes it to be
appropriate to attempt to make up the difference in
subsequent years. Hence, the Board believes to be desir-
able to spend at least $40 million in 1983-84, as opposed to
the $20 million initially prescribed by the Principles.
However, the funds needed to provide for this level of
expenditure simply are not available from within the
Board at this time.

Over and above the level of expensitures for 1983-84
described above, additional resources would also be highly
desirable to maximize the effectiveness of the Desegrega-
tion Plan. Such additional funding would help to strength-
en and enrich the implementation of desegregation in
Chicago in a variety of ways: intensified implementation
and evaluation of educational components, expansion of
magnet schools and programs (including metropolitan
schools and scholastic academies), intensified recruitment
efforts, improvement in vocational, technical and special

46a

educational programs, initiation of interdistrict transfer
programs, to name only a few.

Resources. The resources necessary to fund desegre-
gation implementation at the levels set forth above
unfortunately are not available at this time from within the
Board. The Board, for its part, is committed to appropria-
tions for 1983-84 of at least $57 million — a continuation
of the amounts it re geno for the current school year. To
the extent addition are made available, the
pean carling my them to bring the aggregate levels of

nditures for racially identi up to $40

million and to further maximize optimum implementation
of this and other aspects of student desegregation.

Thus, at this time precise estimates of the Board's
financial condition for future years are tly premature.
However, it may be fairl > hag that for 1983-84 the
— faces budget problems of an extremely serious

agnitude. Preliminary projections eee | it is facing a
calee deficit in the range of $200 million

In an death tb Bead SEDI te Rin ton
instance, obligation to provide these additional re-
sources for the substantial expenditures which full and
complete implementation of the Plan entails lies with the
federal and state governments.

On April 13, 1983, the Board adopted a resolution

ing its counsel to initiate litigation against the State of
Illinois and the United States seeking contribution for the
cost of implementing the Desegregation Plan. The Board
expects that the initiation of these actions will be forthcom-

ing.
(Stip. 121)

126. Board's statements as to the desired expenditure of at
least $40 million on the Educational Components in racially
isolated schools and on the desired expenditure of additional
amounts for these purposes, including the statements described
in Findings 116 and 125, do not reflect any determination by

47a

Board either that the expenditure of $40 million would be
“adequate” for that aspect of the Plan (ia terms of Section
15.1) or that the expenditure of additional amounts for that
aspect of the Plan would not materially aid its success or would
not be necessary for its full implementation. (Stipulations 101-
21; Parts I, II and III of the Pian)

127. In August 1983 Board filed Part II of its 1983 Annual
Desegregation Review, a 416 page document that reported in
detail on the implementation of the Educational Components
(“ADR II"). After the filing of ADR II this Court provided the
United States and the amici curiae the opportunity to file
comments. Neither the United States nor any of the amici filed
comments with the Court. (Stip. 122)

128. As the preceding review of the record reflects, the
United States (a) strongly supported (indeed, insisted upon the
inclusion of) Board's Educational Components as the devel-
opmental process moved from the Consent Decree principles to
the April 1981 Educational Components Plan to approval by
this Court and (b) raised no subsequent objection as Board
proceeded to add programmatic details to those initial docu-
ments. Only when called upon to fulfill its financial responsi-
bility did the United States begin to renege on its approval.
(Stips. 101-22, 133)

Overview of the Student Assignment Plan

129. Under the Consent Decree Board agreed to adopt a
system-wide desegregation plan with two basic objectives.
Section 2.1 called for creating the greatest practicable number
of stably desegregated schools, considering all the circum-
stances in Chicago. As already described, the second objective
was to provide educational and related programs for schools
that remained racially isolated. (Stip. 123)

. | its Comprehensive
Student Assignment Pian, all schools in the
school system into four broad categories. First of those

30%.* As of October 1981 those three types of schools emcom-
passed 67 schools with an enrollment of $2,067 students?’

(Stip. 124)

131. Next the Plan considers the category of the desegre-
gated school: one whose enroil/ment includes at least 30% white
established primarily by student assignment techniques under
the Plan. That category includes both (a) schools that have
previously achieved stably desegregaied status through the
implementation of various student assignment measures (as of
1981, 42 schools with 20,329 students) and (b) schools that in
1981 were yet to achieve desegregated status, through pre-
viously existing and newly adopted student assignment tech-
niques (in 1981, 33 schools with 17,541 students). Such
techniques include voluntary transfer programs and magnet
and magnet-type programs within schools. (Stip. 125)

2* Two other sub-categories are also identified: (a) sable mixed
schools having a small but relatively constant enrollment of white
children and (b) schools whose enrollment composition is currently
racially mixed but is projected to become racially identifiable.

*? All the enrollment data in Findings 130 through |34 excludes
pre-school and kindergarten children.

49a

132. In addition the Plan describes various magnet-type
schools, which are established primarily in minority commu-
nities and are designed to promote desegregation by special
educational offerings and programs. Each such school has a
target enrollment composition, generally 15-35% white, 65-85%
minority. In 1981 such schools included 41 magnet schools,
28,824 students. (Stip. 126)

133. Finally the Plan also considers schools projected to
remain racially identifiable ( with an enrollment of greater than
70% minority children, less than 30% white children). In 1981
there were 354 such schools, enrolling 275,794 students. After
describing why those schools cannot practicably be desegre-
gated, the Plan describes the compensatory educational
arrangements that will be provided for at those schools and the
various voluntary transfer arrangements ir which students
enrolled at those schools may participate. (Stip. 127)

50a

134. This table summarizes the school types identified in
the Plan, and the number and enrollment of the schools:

1981
Number Enr.2
Integrated Schools:
Stably integrated ................ccsesceesseeeseees 42 31,791
Integrated schools stable but projected
to become MiIXed ...............cceseeeseeeees 11 7,697
Integrated schools with potential for
IID ecccisanciensipnneinnnsntsinshtenrssenesianiains 14 12,579
DIN istiisitintinniccicinsinccncvendbadinbidiniadeinnhs 67 52,067 :
Schools Desegregated and To Be Desegre- :
gated: |
Schools presently desegregated ........... 42 20,269 :
Schools to be desegregated .................. 33 17,541 |
Magnet schools .............csccssssssssseseseseees 29 16,765 :
Scholastic Academies - 1982 ..............+ 6 2,406 |
Metropolitan High Schools - 1982 ....... 6 9,653 :
pn EE aN eur neeOeOEe 116 66,634 :
Predominantly Minority Schools: :
Stable mixed ( 15-29% white) ............. 14 11,481
Mixed with potential for racial
CE siiscctinnnnnciinnntnninnvinsinammmnangmnies 20 14,695
Schools more than 85% minority ......... 320 249,618
II sinisctihinsensinsinteitiatdttilinitcnmninninets 354 275,794
Special Needs/Special Admissions:
Physically handicapped, apprentice,
adult education, bilingual centers,
juvenile detention and pregnant stu-
GE ccenienvernnpaeinnatinniiinithinigimns: 43 9,173
p ERROR TRIE EM Met sen oats Cea PIF nee ee 580 403,668

(Stip. 128)

28 All enrollments excluding 39,221 preschool and kindergarten
children. Twenty-five child-parent centers omitted.

Sla

135. Two mandatory requirements were established by the
Plan. One was that every school achieve by October 1983 a
minority enrollment of at least 30%. Under the other, by
October 1983 the school system as a whole had to achieve a
minimum total enrollment in all integrated and desegregated
schools (including magnet schools). This latter requirement is
generally referred to as the “desegregation index” requirement.
(Stip. 129)

136. Additionally the Plan sets forth other student assign-
ment provisions to be applied throughout the school system to
provide and maintain the maximum practicable desegregation
and to ensure that the Plan will not initiate or authorize any
segregative actions. Among such provisions are those con-
cerning school closings, boundary adjustments and within-
school segregation. (Stip. 130)

137. In a separate volume, the Student Assignment Plan
contains school-by-school analyses for each school in the sys-
tem. Those analyses describe in summary terms the work and
consideration that went into developing a desegregation strate-
gy for each school. They also provide a detailed statement as to
why it is not practicable to desegregate a large number of
schools remaining racially identifiable. (Stip. 131)

138. Detailed evaluation of the student assignment com-
ponent of the Plan, including analysis of enrollment comi-
position and prescription of specific actions for over 200
individual schools, is undertaken every year. Each such
evaluation is reported on in an Annual Desegregation Re- view
(“ADR”). (Stip. 132)

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

52a

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

(Stip. 133)
140. In Opinion I (554 F. Supp. 914-15) this Court

incorporated the Board’s summary of its extensive and effective -

activities in the 18 months from the entry of the Consent Decree
to the adoption of Part III of the Desegregation Plan. This
Court further noted it had deferred ruling on the Plan for
several months, so that the promises of the Plan could be
“test{ed] in the crucible of reality.” In light of the fall 1982
implementation results, this Court found “nothing in the execu-
tion of the Plan has been shown to disprove the premises on
which it was designed” (id. at 915). Finally, having reviewed
the Plan in detail, this Court approved it as being “clearly
within the broad range of constitutionally acceptable plans”
(id. at 928). (Stip. 134)

141. In April 1983 the Board’s Annual Desegregation
Review (Part I, Student Assignment) (“ADR I’) showed that
(a) implementation of the Plan during school year 1982-83 was
a considerable success and (b) to a very significant degree its
projections of student assignment outcomes had been realized.
ADR I was also candid in its assessment of shortcomings and in
adopting measures to address them. (Stip. 135)

142. In its May 1983 response to ADR I, the United States
favorably evaluated the Board’s substantive implementation
process (at 1-2, 4-5):

The Chicago School Board’s April 19, 1983, filing on
its first Annual Desegregation Review is an extremely well-

53a

conceived document and will be a valuable guide for
assessing the Board’s compliance with the underlying
principles established by the Consent Decree and the Court
in this case. Like the desegregation plan itself, this
document reflects extensive thought, preparation and effort
at implementation in a context that is so complex that it
often seems incapable of clear description. The review
document makes a significant contribution to the clari-
fication, for ail invoived, of what this plan has meant for
the Chicago public schools.

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

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

(Stip. 135)

143. As Finding 135 reflects, the mandatory requirements
of the Student Assignment Plan became applicable as of
October 1983. While the formal evaluation of the results of the
Plan in the 1983-84 school year is not yet due to be filed, Board
filed a Report Concerning Preliminary Fall 1983 Enrollment
Data on November 2, 1983, informing this Court that the
requirement of 30% minimum minority enrollment in all
schools had been met. (Stip. 137)

144. For comparison with Finding 134, the following table
shows fall 1983 data as to the number and total enrollment of
the various school types identified in the Plan. Those data are
comparable with Finding 134, but it should be noted that there
has been some recategorization of schools to reflect the ex-
perience of the past two years. As in Finding 134, the figures

54a

exclude kindergarten students; therefore the total enrollment
shown is for grades 1-12, 41,260 students less than systemwide
enrollment.

1983
Number Enr.2°
Integrated Schools:
Stably integrated ....................cccccscccseeees 47 36,569
Integrated schools stable but projected
IIS ccccnincmnseencienens 4 2,009
Integrated schools with potential for
I i sieitacienchintnnirtarnincstentiennttonins 4 5,033
iii tihnnrneicancatesdettaniaannaitiemenananannninnt 55 43,611
Schools Desegregated and To Be
Desegregated:
Schools presently desegregated ........... 77 42,382
Schools to be desegregated .................. 0
Magnet schools ..................scccceeseseeeseeees 33 19,155
Scholastic Academies 5 3,092
Metropolitan High Schools .................. 6 10,302
RENE EEE ES: eee 121 74,931
Predominantly Mixority Schools:
Stable mixed ( 15-29% white) ............. 17 12,683
Mixed with potential for racial
IE plschidensienintiuteenpinatnninbehshaniinsinnanens 10 8,065
Schools more than 85% minority ......... 334 =248,161
Subtotal ... ane 361 268,909
Special Needs/Special Admissions:
Physically handicapped, apprentice,
adult education, bilingual centers,
juvenile detention and pregnant stu-
IB aiicitecciciicnnbiinesibllicinhlitindnsicchibteaniabinniiinies 43 5,331
WE aidan thaniaibeshinntstadnpatiniatinitaicitinighienniienathadaaan 580 392,782

(Stip. 138)

29 All enrollments excluding 39,221 preschool and kindergarten
children. Twenty-five child-parent centers omitted.

55a

Demographics of the City of Chicago
and the Chicago Public Schools

145. Extensive demographic information is presented in
both the Comprehensive Student Assignment Plan (at 8-39)
and in 1983 ADR I (at 20-23). (Stip. 139)

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

White Non-White Total
Year No, ® No. q No.

1940 3,115,000 91.7 282,000 8.3 3,397,000
1970 2,208,000 65.6 1,159,000 34.4 3,368,000
1980 1,311,000 43.7 1,694,000 56.3 3,005,000

(Stip. 140)

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

Chicago Public Schools
Racial/Ethnic Composition 1970-1983

See chart in Supplemental Appendix, p. S-1
(Stip. 141)

148. One principal reason the proportion of minorities is
higher among public school students than among the overall
city population is that a large number of children (more than
half of whom are white) attend nonpublic schools in Chicago,
especially the Catholic parochial schools. Their metropolitan-
area enrollment of nearly 190,000 students makes the Catholic
schools the fifth largest school system of any kind in the United

S6a

States. Within Chicago the Catholic schools as of 1982 had 226
schools enrolling 114,299 students, of whom 56% were white,
25% black, 16% Hispanic and 3% Asian. (Stip. 142)

149. Total membership in the Chicago public schools has
leveled off this year after 15 years of decline that were often
characterized by very substantial drops. This year’s decline in
total membership is only about 1800 (0.4%), compared with
almost 19,000 (3.9%) in 1980. As a historic matter, enrollment
was 372,278 in 1952. Student membership increased quite
dramatically in the 1950s and the 1960s, reaching a peak of
580,292 in 1969. Since then enrollment has declined. generally
at the rate of 2-4% per year, with the greatest declines between
1977-81 (over 15,000 students, or 3-4%, per year). In 1982 the
decline was 1.6% (7046 students ), as contrasted with the slight
drop in 1983. (Stip. 143)

150. Enrollment of white students (now 67,829 or 15.6%
systemwide) has declined at a significantly slower rate since
adoption of the Plan. From 1977-81 white enrollment declined
at 9-11% per year (or 10,000-12,000 students). In 1982 white
enrollment declined 6% (4,941 students) and in 1983, 5%
(3,342 students). (Stip. 144)

151. Black students now number 263,163 (60.6% system-
wide). As with total enrollment and with white students, 1983
decline in black enrollment of 1,367 students (0.5%) is signifi-
cantly lower than declines of 2-4% in the preceding “ve years.
(Stip. 145)

152. In contrast to white and black enrollment, Hispanic
enrollment 1. the school system has been increasing steadily
since 1970, at the rate of 3-6% annually. Hispanic students now
number 91,763 (21.2% systemwide). (Stip. 146)

57a

153. Board's demographers believe the enrollment
changes summarized in Findings 149-52 can be attributed to
the following factors:

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

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

Educational Initiatives: smooth implementation of the
desegregation plan without busing; development of a
variety of program options and specialty schools designed
to attract students; an active recruitment program; increas-
es in achievement scores; and greater parental and commu-
nity involvement through programs such as report card
pick-up and Adopt-A-School.

(Stip. 147)

154. During the past two years of relatively stable enroll-
ments, an important factor contributing to changes is the
transfer rate between public and nonpublic schools. As the

following table reflects, the Chicago public schoo!s have been
gaining more students and losing fewer since 1980:

Student Transfers To/From Nonpublic Schools in Chicago

1980 1981 1982
Transfers from Nonpublic

Schools in Chicago ............ 6,084 7,041 7,934
Transfers to Nonpublic

Schools in Chicago ............ 12,919 11,648 10,177
| | 6,835 4,607 2,243
Total Membership ................ 458,497 442,889 435,843
Percentage Net Loss ............. 1.5% 1.0% 0.5%

(Stip. 148)

58a

155. It appears the recent trend of enrollment decline in
the Chicago public schools has ended this year. Gradual
increases can be expected to begin next year, if the general
demographic trends ( particularly migration and transfer rates )
experienced in the recent past continue in the years to come.
Such a development would point to increased demand for
teachers and school facilities. As to racial/ethnic composition,
the school system is expected to increase in minority enrollment.
This is partly because of the greater proportion of whites in the
upper grades, combined with continued outflow, and the higher
birth rates for minority groups ( particularly Hispanics ) coupled
with continued immigration of Hispanics.

(Stip. 149)

156. Racial/ethnic composition of the elementary and
secondary levels of the school system as of October 1983 is
detailed in the first table following Finding 157. These data are
briefly summarized as follows:

See tables, Supplemental Appendix p. S-2 and S-3.
(Stip. 150)

157. Racial/ethnic composition of the Chicago public
schools by grades is detailed in the second table following this
Finding. In brief summary the data reflect higher proportions
of minority students in the lower grades. For example, minority
enrollment is 75-80% in grades 11 and 12, and 85-86% in first
grade and kindergarten. (Stip. 151}

See table, Supplemental Appendix p. S-4.

59a

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

No. of Total
ai __ = =
70-80% 14 7,616
80-90% 37 20,452
90-95% 33 31,189
95-99% 31 28,348
99% + 292 215,554

407 303,159

Those students are 69.8% of the systemwide enrollment. There
are 275,091 students (69.4% of systemwide enrollment) attend-
ing schools more than 90% minority. (Stip. 152)

159. Schools with more than 70% black and/or Hispanic
enrollment will increase in number in coming years, as a result
of the demographic and transfer trends described in Findings
145-57. (Stip. 153)

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

Ké&
% Minority Enrollment
90-95% 3,130
95-99% 3,978
99% + 22,733
29,841

Such enrollment is projected to be at least as great in school
year 1984-85, and will probably increase. Kindergarten stu-
dents represent approximately two thirds of this total, or 20,000
students. (Stip. 154)

60a

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

Grate | — 1 ..—_]
l 16,913 4,361 21,274

Pre-2 2,369 710 3,079
2 16,497 4,310 20,807
3 15,733 4,002 19,735

Total $1,512 13,383 64,895

Those numbers are projected to be at least as great in school
year 1984-85, and will probably increase. (Stip. 155)

Propriety and Cost of Programs Proposed
for Adequate Implementation of the Plan

201. Dr. Nelvia Brady is a qualified expert as to the effects
of racial segregation on minority children; the nature and types
of desegregation programs that are capable of eliminating or
alleviating those effects; the design, development and
implementation of the Plan; and the ability of federal Chapter |
and State Title I eligible programs to alleviate the effects of past
segregation. She is presently Associate Superintendent, OEEO,
and has primary responsibiliy for implementation of the Plan.
( Brady testimony )

202. Dr. Brady was one of the experts with principal
responsibility for drafting the Educational Components of the
Plan. (Brady testimony)

203. In April 1981 Board adopted the Recommendations
on Educational Components ‘ prepared by its nationally known
expert, Dr. Green). Those Recommendations accurately ex-
plain the justifications for educational components:

The rationale for this approach lies in the notion that
the desegregation of a school system involves much more

6la

than the reassignment of students. Too often, desegrega-
tion planners have seemed to be concerned only with the
movement of students in order to achieve some specified
distribution by race and ethnic background. This pre-
occupation has been matched by a public concern with
“busing,” as though the question of how a student reached
school was more important than what the student received
from the school.

Research covering the last thirty years indicates that
——. tion of students by race and ethnic
always accompanied by disparities in
the “educational "services provided minority “and
nonminority students, and by significant g in the
achievement of minority stud¢ ots, particularly from
low-income backgrounds. Stated simply, segregation
creates educational deprivation for minority children
black, Hispanic, Asian, and Native American — and also
results in attitudinal deprivation for all students.

A desegregation plan must, therefore, address not
only the physical ee Sas = goa Se she Se
educational desegregation of individual students. The
educational disadvantages from past ra-
cial/ethnic isolation —- or any such isolation that may have
to continue — must be remedied. a
this plan is to address minority students’ educa nev ds

arising from the tion of the public schools. The
method being is through improving achievement
in all schools, emphasis on those schools
with the greatest and attended by children who have
been the most disadvantaged.

( Brady testimony )

204. Dr. Brady described elements of the Plan that have
been implemented to date and provided an evaluation of
Board's efforts in this area. In general that portion of her
testimony addressed both the student assignment aspects of the
Plan and the elements of the educational components of the
Plan as to which implementation has already been initiated.
She also discussed the elements Board intends to implement in
school year 1984-85 if there is sufficient available funding.

62a

More specific testimony as to the implementation status of the
Curriculum, Bilingual and Vocational/Technical Education
components was provided by Drs. Gerald Heing, Josue Gon-
zales, and Philip Viso, respectively (Testimony of Brady,
Heing, Gonza!*s and Viso)

205. Dr. Brady showed Board has experienced significant
successes in its implementation efforts to date. Her testimony
was supported by evaluations performed during \*> last two
years ai the 45 racially isolated targeted elementary schools that
were first included in the Chicago Effective Schools Project.
( Brady testimony )

206. Dr. Brady’s testiniony described the process by which
the Plan was designed and developed. She related how past
segregation in the Chicago public schools has affected the basic
‘earning skills achievement levels of children, particularily mi-
nority children now attending, or who in the future will attend,
racially identifiable minority schwols. She explained each com-
ponent of the Plan is (a) carefully designed to alleviate the
effects of past segregation and (b) will substantially further
implementation of a successful desegregation plan. She further
graphics of Chicago, full and successful implementation of the
Educational Components is crucial to the success of the Plan.
( Brady testimony )

207. In substantial part the Educationai Components are
intended to eliminate or alleviate the effects of past racial
segregation on minority children who will remain in racially
who will attend such racially identifiable schools in the future.
In pursuit of this goal, the Plan also addresses the need for
systemic and institutional changes in the manner in which the
school system provides educational services. (Brady testi-
mony )

63a

208. Minority children now attending Chicago public
schools suffer, or have been affected by, one or more of the
following effects of racial segregation:

(a) reading, math and communication skills one grade or

more below the students’ current grade levels;

(b) tests and testing procedures with racial, ethnic, or

cultural bias;

(c) unequal treatment of minority children in racially

identifiable schools by teachers and administrative
staff,

(d) less access for minority children to vocational and

technical educational programs;

(e) curncula colored by racial, ethnic or cultural bias;

(f) the psychological pressures of attending racially iden-

tifiable schools and the resulting loss of self-esteem;

(g) codes governing student conduct that are affected by

racial, ethnic or cultural bias;

(h) speech habits that vary from those used in an environ-

ment in which they must ultimately compete;

(i) lack of interpersonal learning experiences derived

from open association with other students of varying

(j) lack of access to majority culture, which is ref ed in

the standards that determine success in society.
(Stip. 155, Brady testimony. )

209. This broad spectrum of inequalities and injuries
resulting from racial isolation cannot be remedied only by
student assignment, even where student assignment is available.
It requires other remedies, particularly compensatory educa-

64a

t.onal remedies, where student assignment is unavailable.
( Brady testimony )

210. OEEO, in conjunction with other Board departments
and units, developed the programs described in Board Ex. 28.
OEEO was primarily responsible for developing the following
program eiements:

a. Effective Schools Project

b. Racially Isolated Schools
c. Magnet Schools

d. Trainers Institute

e. Management Information
f. Affirmative Action

g. Equity Compliance

h. Staff Development

i. Within School Segregation

Board’s Department of Pupil Personne! Services and Special
Education was primarily responsible for developing the Special
Education and Discipline program elements. Its Department of
Vocational and Ter’inical Education was primarily responsible
for developing the Vocational and Technical Education pro-
grams elements. Its Department of Curriculum and Instruction
was primarily responsible for developing the curriculum pro-
gram elements. Its Department of International and Multicul-
tural Education was primarily responsible for developing the
bilingual program. Its Department of Research and Evaluation
was primarily responsible for developing the program to eval-
vate the results of Plan implementation. (Brady, Viso, Heing
and Gonzales testimony )

Zil. Board’s original version of proposed Board Trial Ex.
28 was provided to the United States on or about September
16, 1983. (Response to Board’s Second Set of Requests to
Admit, No. 28)

65a

212. Dr. Brady reviewed each program ix Board Ex. 28
and testified each program was designed to implement the
Educational Components of the Plan, would significantly alle-
viate the effects of past segregation and was necessary for a
successful desegregation effort in Chicago. She described how
each program element was developed, how each works or is
expected to work and how each relates to one or more of the
Plan’s Educational Components. She testified each of those
program elements materially aids successful implementation of
the Plan by alleviating the effects of past segregation. Her
testimony also explained how the cost of each element was
calculated. This Court has considered in detail (a) Board’s
proof on an item-by-item basis (including all submitted Exhib-
its and this Court’s own notes on all the testimony made during
the course of the hearing, supplemented where necessary by
review of the transcript), (b) the United States’ specific
objections (as articulated at the hearing and as filed in a post-
hearing memorandum April 20, 1984) and (c) Board’s detailed
post-hearing response filed April 30. In so doing this Court has
applied the standards taught by the Liddell and Arthur cases
discussed in the Conclusions. Ii has paid close attention to
drawing the line between programs that will materially aid
successful implementation of the Plan and those that have a
more generalized primary focus of improving the quality of
general education in the school system. Except to the extent
reflected by these Findings and Conclusions, Board’s last
response to the United States’ argument as to “specific failures
of proof contained in the Board’s presentation” is wholly
persuasive, and the objections of the United States are therefore
rejected.

213. In school years 1981-82 and 1982-83, implemestation
of the Plan’s Educational Components included the in-
troduction and implementation of Effective Schools Project
(“ESP”) programs at 45 specially targeted racially identifiable
schools and the implementation of certain elements of the ESP

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program at other racially identifiable schools. The 45 specially
targeted schools are:
District School
3 Schiller
4 Hay Branch
5 Lowell

Morton
Stowe

6 Anderson
Diego
LaFayette
Moos
Von Humboldt
Yates

7 Beidler
Douglass Middle
Goldblatt
Melody
Tilton.

8 Chalmers
Komensky

10 Frazier

ll Donoghue

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District School

12 Fulton Branch
Sherman

13 Beethoven
Burke
Colman
Farren
Hartigan
McCorkle
Parkman

14 Oakenwald South
Robinson Branch
Wadsworth

15 Raster
Raster Branch

(ADR II; Brady testimony; Board Ex. 112)

2i4. Those target schools were selected from among all
racially identifiable schools in the system on the basis of a -
comparative need evaluation. First, all racially identifiable
schools were ranked lowest to highest based on achievement
test scores in reading and math, with a double weighting for
reading, over a two-year period. In addition, attendance and
student mobility statistics and the extent of racial isolation were
taken into consideration in the ranking process. That process
produced a ranked list of the lowest-achieving most racially
identifiable schools in the system, and the 45 lowest on the list
were chosen as target schools. (Brady testimony )

215. For school year 1983-84 the complete ESP program
was continued at the 45 target schools and implemented for the
first time at the 62 additional racially identifiable schools
(including 7 educational vocational guidance centers) listed
below:

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4

Gale Academy
Marti Bilingual Education Center

Byrd Academy
Jenner Elementary
Mulligan Elementary

Howe Elementary

Avondale Elementary
Norton E.V.G.C.
Nobel Elementary
Piccolo Middle School
Ryerson Elementary
L. Ward Elementary
Wright Elementary

Anderson E.V.G.C.
Chopin Elementary
Koscuiszko Elementary
Otis Elementary

M. Clark Middle School
DePriest Elementary
Ericson Elementary
Roetgen E.V.G.C.
Spencer Elementary

Bethune Elementary
Hammond Elementary
Howland Elementary
Lathrop Elementary
Pope Elementary

Spry Elementary

Brown Elementary
Grant —
Irving Elementary
McKinley E.V.G.C.
Medill Intermediate &
Upper Grades

dies fs a Tee

11

12

13

14

15
16

17

19

20

69a

School

Gregory Elementary

C. Hughes Elementary
McCormick Elementary
Webster Elementary

Abbott Elementary
Drake E.V.G.C.
Mayo Elementary

Copernicus Elementary
Fulton Elementary

Dyett Middle

Hope Community Academy
Ross Elementary

Terrell Elementary

Dulles Elementary

Mollison Elementary

Price Elementary

Woodson North Elementary

O’Toole Elementary

Bass Elementary
Goethals E.V.G.C.
Kershaw Elementary
Low Upper Cycle

Bryn Mawr Elementary
Revere Elementary

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

Aldndge Elementary
Carver Middle School
Kohn Elementary

(Board Exs. 30 and 112; Brady testimony)

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216. Those 62 additional schools chosen to participate in
the full ESP program in school year 1983-84 were selected
through the same means initially used to select the 45 target
schools. Using the formula stated in Fnding 214, all racially
identifiable schools in the system were again listed in order in
the fall of 1983, with the lowest-achieving most racially identi-
fiable school ranked first. After the 45 targeted schools already
participating in the ESP programs were deleted from the list (as
automatic continuing participants), the 62 lowest ranking
schools remaining on the list were selected for implementation
of the full ESP program in school year 1983-84. (Brady
testimony )

217. Implementation of the full ESP program at those 62
schools is possible only because of the $20 million appropria-
tion to Board pursuant to the Yates Bill (discussed in later
Findings), which provided only a one-year appropriation of
funds. Board currently lacks the financial resources to continue
the ESP programs at those 62 schools in school year 1984-85.
(Brady and Glasper testimony)

218. Board Exs. 28, 31, 32, 110 and 117 accurately
describe the full ESP programs implemented at 107 racially ,
identifiable Chicago public schools. Those ESP programs were
implemented in school year 1983-84 in accordance with the
Plan set forth in Board Ex. 30. ( Brady testimony)

219. Implementation of the full ESP program at the 107
schools in school year 1983-84 has not involved duplication of
other desegregation programs previously placed in those
schools, which Board is continuing to implement. Implementa-
tion of the full ESP program at those 107 schools and at an
additional 100 racially identifiable Chicago public schools in
school year 1984-85 will involve only minor duplication of
already existing desegregation programs in those schools.
( Brady testimony )

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

221. One of the major goals of the ESP program, as
described in Board Exs. 28, 31, 32, 110 and 117, is to reduce the
gap in achievement levels between national grade level norms
and the achievement levels of minority children now attending,
or who will attend, racially identifiable schools in the system.
( Brady testimony )

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

223. Board’s inservice training component at each ESP
school is a local, school-specific program that provides staff with

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the specialized skills necessary effectively to implement the
Plan’s educational remedies. Each school’s teaching staff is or
will be receiving training intended to eliminate unequal treat-
ment of minority pupils by raising each staff's awareness of its
possible racial biases and by modifying any biased attitudes,
expectations and behaviors toward the teaching of minority
pupils. Each school’s teaching staff also is or will be receiving
training designed to develop the specialized skills, instructional
methods and educational techniques necessary effectively to
teach and to increase the academic achievement of minority
pupils who must remain in racially identifiable schools. Each
ESP school’s inservice component is directed toward instructing
staff in meeting the particular educational needs of minority
pupils and in adapting existing instructional approaches to meet
those needs successfully. (Brady testimony )

224. Board’s ESP program described in Board Exs. 28, 30,
31, 110 and 117, as implemented in 107 racially identifiable
schools in school year 1983-84, materially aids the successful
implementation of the Educational Components of the Plan.
That ESP program eliminates or alleviates the effects of racial
segregation on minority children in that it raises the achieve-
ment levels of minority children, ends the unequal treatment of
minority children in racially identifiable schools by teachers and
administrative staff, and reduces the psychological pressures of
attending racially identifiable schools and the resulting loss of
self-esteem. (Brady testimony )

225. Implementation of the ESP program in the 45 racially
identifiable target schools in school years 1981-82 and 1982-83
has raised the median level achievement scores of minority
children as described in Board Exs. 36, 37 and 38 (as substi-
tuted and modified by Board Ex. 91). (Brady testimony)

226. To close the existing gap in grade level norms and
achievement levels between students in integrated schools and

Leone Ell provide transition services

|
;
:
|

8la

and special educational support for students who were pre-
viously placed in mentally handicapped classes, based upon
potentially biased assessment instruments, and who are now
being returned to the regular classroom. Inservice training is
required to provide teachers and other staff with awareness of
and the skills to deal with such students’ special educational
needs during the period of their transition to the regular
classroom. (Brady testimony )

247. All components of the program described in Finding
246 will materially aid Board’s implementation of the Plan. It
will eliminate or alleviate the effects of racial segregation on
minority pupils by assisting their return to regular classrooms
and thus raising their achievement levels, and it will help end
the unequal assessment and placement of minority pupils ‘n
special education classes. Its cost for school year 1984-85, as set
forth in Board Ex. 117, is reasonable under the circumstances.
( Brady testimony; Glasper testimony )

248. Board’s Vocational and Technical Education Prog-
ram, as described in Board Exs. 28 and 116, is intended to
provide vocational educational information to staff and stu-
dents, to recruit minority students for vocational education
classes, to provide vocational educational support services for
minority students, and to expand and adapt vocational educa-
tion program offerings to increase the opportunity for minority
students to participate in vocational education programs. In-
service training and consultant services are required to acquaint
teachers with vocational education opportunities open to minor-
ity pupils, to improve the staff's skills and capabilities effec-
tively to provide vocational education services to minority
students, and to assist staff in planning, developing and effec-
tively providing additional vocational program offerings to
students. These inservice and consulting components are
directly related to the Plan and will materially assist in
implementing its Vocational and Technical Education program.
( Brady testimony; Viso testimony )

82a

249. Except as stated in Finding 250, the components of
the Vocational and Technical Education program will mate-
rially assist the Board in implementing the Plan. They will
alleviate or eliminate the effects of past segregation in vocatio-
nal and technical education programs by various activities
intended to end the unequal participation of minority students
in these programs. Their respective costs for school year 1984-
85, as set forth in Board Ex. 117, are reasonable under the
circumstances. (Brady testimony; Viso testimony; Glasper
testimony )

250. One component of the Vocational and Technical
Education program testified to by Dr. Viso (the Handicapped
component) cannot fairly be included in the cost of the Plan for
current purposes. On the present record it lacks a sufficient
nexus to the purposes of the Plan — as compared with the
general goal of improving the overall quality of education.
Though in its post-hearing submission Board stated that blacks
represent a higher percentage of EMH students in the system
(about 81%) than their percentage of total school enrollment
(about 61%), no testimony established what percentage EMH
students were of the total “Handicapped” group that could be
assisted by the program. Thus the test of materiality is not
satisfied. This is simply a matter roof, and to the extent such

.«#proof may be sharpened in subsequent years the item may
“perhaps be allowable. This Court of course recognizes that
most of the other Vocational and Technical Education com-
ponents also involve estimates, but each of those estimates is
sufficiently reasonable (and not effectively challenged by the
United States) to satisfy Board’s burden of proof. In any case
Board will be fully accountable for its use of funds, and to the
exteut there may prove to be any over-allocation as to any item
based on actual experience, adjustments in the United States’

payments to Board can be made in future years.

83a

251. Board’s Department of Curriculum activities related
to its Plan needs, as described in Board Exs. 28 and 114, are
intended to ensure that curriculum offerings are consistent with
the goals of the educational components and modified and
refined to meet those goals. Desegregation-related activities in
the Department of Curriculum will include, planning, devel-
oping and implementing the special curriculum improvements
required by the Plan’s Educational Components, coordinating
those improvements and monitoring their consistency with
systemwide educational goals, maintaining the curriculum and
course quality of the special educational programs required by
the Educational Components. All inservice and advisory
components of those programs are necessary to provide Board
staff with the information and skills to plan and provide
effectively the various curriculum development and implemen-
tation activities necessary to achieve the overall goals of the
educaiional components. ( Brady testimony; Heing Testimony )

252. Except as stated in Finding 253, the components of
the Curriculum and Instruction program will materially assist
the Board in implementing the Plan by raising the achievement
levels of minority students and maintaining or enhancing the
quality of curriculum designed to raise the achievement of
minority students. Board Ex. 117 sets forth the cost of
implementing these curriculum and instruction agtivities in
school year 1984-85. That cost is reasonable under the
circumstances. (Brady testimony; Heing testimeny; Glasper
testimony )

253. “High School Renaissance,” as described in Dr.
Heing’s testimony, was not sufficiently distinguished from
Board’s ordinary goals of system-upgrading to justify inclusion
of that program in Plan costs. Dr. Heing referred to providing
a “strengthened diploma” — of course a commendable goal,
but one that appears clearly on the other side of what is

84a

admittedly not always a bright line distinction between (a)
Plan implementation and (b) general benefits to educational
goals of the school system as a whole.

254. Board’s Student Discipline program, described in
Board Ex. 28, is intended to provide discipline managers in
schools who will enforce the Uniform Discipline Code, provide
training to staff in the provisions of the Code and behavior
modification techniques, develop and operate in-school suspen-
sion and behavior improvement programs as an alternative to
suspension, and monitor and report on disciplinary infractions.
That program will materially assist the Board in implementing
the Plan by eliminating or alleviating unequal disciplinary
treatment of minority pupils. Its cost for school year 1984-85,
as set forth in Board Ex. 117, is reasonable under the circum-
stances. (Brady testimony; Glasper testimony )

255. Board’s Bilingual Education programs, as described
in Board Ex. 28, are intended to assist in achieving the national
origin desegregation required by the Plan. Activities that would
be undertaken include establishing special “immersion”
educational programs to instruct pupils in their native lan-
guages until they can ake the transition to regular classrooms,
developing a special curriculum responsive to the needs of
bilingual students, performing research on the educational
needs of bilingual and limited English proficient students, and
recruiting qualified bilingual teachers. Inservice training and
consulting activities are necessary to provide staff with the skills
to conduct research, plan and develop bilingual and limited
English proficient education programs, and effectively to in-
struct bilingual and limited English proficient students. (Brady
testimony; Gonzales testimony )

256. Except for Statewide Network (which was with-
drawn by Board), each component of the Bilingual Education
program will materially assist Board in implementing the Plan.
Each will alleviate or eliminate the effects of segregation on

85a

bilingual or limited English proficient students in that it will
assist the raising of their academic achievement and help end
the unequal treatment of and unequal educational opportunities
available to those children. Each component’s cost for school
year 1984-85, as set forth in Board Ex. 117, is reasonable under
the circumstances. (Brady testimony; Gonzales testimony;
Glasper testimony )

257. Board’s Evaluation program described in Board Ex.
28 is intended to permit OEEO to collect, analyze and evaluate
information to determine the overall effects of the Plan, as
implemented, and to indicate areas where programs must be
refined or modified to achieve the Plan’s goals. Consultant and
inservice programs are necessary to provide staff with the skills
to conduct this research and evaluate the effects of the Plan.
This Program will materially aid the successful implementation
of the Plan by providing information necessary to continue and
correct implementation of the plan and to reach the Plan’s
goals. Board Ex. 117 sets forth the costs of the Evaluation
Program for school year 1984-85. That cost is reasonable under
the circumstances. ( Brady testimony; Glasper testimony )

258. Inservice training and staff development programs
described in various of Findings 223-57 do not duplicate each
other and do not duplicate other inservice training provided by
Board. Each program-related training or staff development
activity will address specific needs and topics related to the
program it will assist in implementing. Those program-specific
needs will not be addressed to the extent required effectively to
implement the programs in the Educational Components in the
general, systemwide desegregation related staff development
programs operated by OEEO, nor in any other of Board’s
ongoing staff development activities. ( Brady testimony )

259. All costs ( with reference both to the total amount and
to the amount Board is unable to fund despite its every good

86a

faith effort) of the program elements set forth in Board Ex. 117
are reasonable estimates of the amounts needed to implement
such programs. (Testimony of Brady, Viso, Heing, Gonzalez
and Glasper) Those costs represent appropriate modifications,
where required, of costs originally reflected in Board Ex. 28. In
turn, the cost attributable to each program element of Board
Ex. 28 was included therein after consultation beteween the
Budget Office, OEEO and central office administrative personal
responsible for the preparation thereof. (Brady and Glasper
vestimony ) Those projected costs were reviewed and verified by
Board’s Office of Budget and Financial Planning. (Glasper
testimony )

260. Of the $108 million in program components identi-
fied by Board Ex. 28, approximately $6 million is being funded
by Board resources in school year 1983-84. (Glasper testi-
mony )

261. Another $20 million, appropriated by the Yates Bill,
is being devoted to Board Ex. 28 program components during
the second half of the 1983-84 school year. ( Brady testimony )
Board Ex. 31 sets forth those elements of the Educational
Components of the Plan that are being funded by the $20
million appropnated by the Yates Bill. ( Brady testimony)

262. Board Exs. 31, 35, 41 and 113 accurately describe the
desegregation programs and inticipated expenditures of Board
during school year 1983-84. Those include the approximately
$57 million in expenditures for programs continued from school
year 1982-83, the planned approximately $10 million increase
in desegregation expenditures for school year 1983-84 ( further
described in Board Exs. 35 and 113), and the $20 million in
anticipated expenditures resulting from by the Yates Bill ( fur-
ther described in Board Ex. 31). Each of the programs
described in those Exhibits is for adequate implemen-
tation of the Plan and maten aids in the implementation of
the Plan. (Glasper testimony; Brady testimony )

87a

263. Neither Board Ex. 28 nor Board Ex. 117 makes any
provision for increases in employee compensation over and
above the levels in effect for the 1982-83 school year. They do
not, for example, take account of the 5% salary increase agreed
to by Board and the Chicago Teachers’ Union for the 1983-84
school year or of any such future salary increases that may be
negotiated between Board and its employees. (Glasper testi-
mony )

264. Set forth after Finding 265 is a chart that reflects the
adjustments to Board Ex. 28 made by Board Ex. 117 (as
described in Finding 233) and that reflects the 5% salary
increase*®® implemented in school year 1983-84 referred to in
Finding 263. Set forth on the following seven pages are
individual charts that reflect such adjustments made for each of
the program components for which there is more than one
program element: Staff Development, Magnet Schools, Special
Education/Testing, Vocational/Technical Education, Curricu-
lum, Bilingual Educational and Evaluation ( Brady and Glasper
testimony ).

265. As reflected by the attached charts, the level of
funding adequate for full implementation of the Plan in school
year 1984-85 (as modified to reflect Findings 243, 250 and
253) is approximately $171.631 million. Of that amount,
Board has been able to budget approximately $67.773 million,
leaving an increment of approximately $103.858 million that
Board, despite its best efforts, will not be able to fund. For
planning purposes, it can reasonably be assumed that approxi-
mately $171.631 million will be necessary for adequate
implementation of the Plan in subsequent school years. ( Brady
testimony )

See charts, Supplemental Appendix pp. S-5—S-11.

% To reflect this increase, an appropriate adjustment was made
in the teacher salary and career service salary cost categories set forth
in the budget sheets included in Board Ex. 117.

266. Each of the various programmatic elements that, in
their entirety, make up the Student Assignment and Educatio-
nal Components of the Plan materially aids in the desegrega-
tion of the Chicago public schools. (Testimony of Brady, Viso,
Heing and Gonzales) Those programs work together with
Ongoing programs first implemented in earlier school years to
achieve the goals of the Plan’s Educational Components.
( Brady testimony )

267. Prior to school year 1983-84, only certain elements of
the Educational Components had been implemented at the vast
majority of racially identifiable schools and, as a result,
achievement of the Plan's overall objectives has been limited.
Even with the implementation of additional elements this
school year because of the increased Board budget for desegre-
gation and the appropriation in the Yates Bill, many other
elements have yet to be implemented. ( Brady testimony)

268. At this point, school year 1984-85 is the first in which
full implementation of the Plan could occur. In the months that
followed the June 1983 hearing, Board had anticipated that the
resources necessary to implement fully the various components
of the Plan would be made available by the United States for
the 1983-84 school year, so as to make it the first year of full
implementation. As a result, Board Ex. 28 was prepared under
the assumption that each of the various program elements
would be initially implemented in 1983-84. However, only $26
million in new financial resources became available, allowing
for only limited implementation of these program elements.
(Brady and Glasper testimony )

269. Because of the passage of time, full implementation
became impossible in school year 1983-84. Given both the
schedule of these proceedings (including the possibility of an
appeal by the United States) and the nature of the school year
calendar, additional resources could not be received and prop-

89a

erly devoted to implementation of the programs before the
beginning of school year 1984-85. It is accordingly necessary to
treat school year 1984-85 as the first year of full implementa-
tion. ( Brady testimony)

270. Educational Components of the Plan were intended
to supplement Chapter I programs in racially identifiable
schools where such programs are in effect. If Chapter I funds
were used for desegregation programs, the aggregate effects of
low income status and racial segregation would not be ad-
dressed, and low income minority students would receive less
compensatory programming than contemplated by Chapter I
and the Plan. (Brady testimony; Fagan cross-examination
testimony )

271. There are a substantial number of racially identi-
fiable schools not eligible for Chapter I programs, and even in
those schools eligible for Chapter I programs a significant
number of minority students are not qualified to participate
because their achievement levels, while below grade level, are
not low enough. In short, the latter group of minority children,
and those now attending or who will attend racially identifiable
schools ineligible for Chapter I programs, would be foreclosed
from critical remedial programs designed to alleviate the
educational impact of past segregation that affects each of
them, even if Chapter I funds were used for funding for the
Plan. (Fagan cross-examination testimony )

272. Diverting Chapter | funds to Desegregation Plan
costs would divest low income, educationally deprived students
of the benefits of Chapter | ECIA programs in order to provide
minority students the benefit of the Plan's Educational Com-
ponents. That would offset or neutralize the benefit of the
desegregation remedy and would diminish the ag

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2457%3A2. Public record. Not legal advice.