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Appellate court reverses Mahoney-ruling, FYI, part II

July 1, 1993

Appellate court reverses Mahoney-ruling, FYI, part II

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Editor’s note: For our readers’ information, the following is part II of the complete text of Seventh Circuit Court of Appeals ruling on the People Who Care desegregation lawsuit. Part I ran in last week’s issue.

The purpose of a school desegregation decree is to eliminate the consequences of segregation. When they have been eliminated the decree has done its job and should be lifted. This simple principle, which we don’t understand the plaintiffs to be quarreling with, dictates our decision. The Rockford public schools have been desegregated. No longer are there any schools that are “white only” or “minority only,” or even approximations to such schools. Hundreds of millions of dollars have been poured into the construction and renovation of schools and into programs designed to extirpate the traces of unlawful segregation. Although minority educational achievement lags behind that of whites, there is no evidence that the lag is any greater in Rockford than in otherwise similar districts that have no history of racial discrimination.

Four years ago almost to the day we noted the absence of “evidence that the gap in scholastic achievement between white and minority students in Rockford is any greater than the gap between white and minority students in school districts that have not been found to have discriminated against their black and Hispanic students.” 111 F.3d at 537. One might have expected the plaintiffs to take the hint and look for such evidence. If they have looked, they have found nothing. Although peppered with references to programs designed to achieve “vestige elimination,” the plaintiffs’ brief cites no evidence that there are vestiges of unlawful discrimination still to eliminate. “At some point,” moreover, “the continuing and ineliminable traces of an earlier violation are too slight to justify continued federal judicial control of public education.” United States v. Board of School Commissioners, supra, 128 F.3d at 511.

The reality is that until minority students achieve parity of educational achievement with the white students in the Rockford public schools, the plaintiffs will contend that the minority students are victims of the unlawful discrimination of an earlier period in Rockford’s history. Yet it is obvious that other factors besides discrimination contribute to unequal educational attainment, such as poverty, parents’ education and employment, family size, parental attitudes and behavior, prenatal, neonatal, and child health care, peer-group pressures, and ethnic culture. Some of these factors may themselves be due to or exacerbated by discrimination, but not to discrimination by the Rockford school board. The board has no legal duty to remove those vestiges of societal discrimination for which it is not responsible. Insofar as the factors that we have mentioned, rather than unlawful conduct by the Rockford school board in years past, are responsible for lags in educational achievement by minority students, the board has no duty that a federal court can enforce to help those students catch up. It may have a moral duty; it has no federal constitutional duty.

No effort has been made by the plaintiffs, despite our warnings, to partition, however crudely, the lag in achievement that is due to the school board’s past illegalities and the lag that is due to other factors, factors for which the school board bears no federal legal responsibility. The partition could be made by comparing minority academic performance in Rockford with the performance of minority students in other school districts after adjusting for the various factors that are not the school board’s legal responsibility yet might be thought to influence the academic performance of Rockford’s minority students, such as poverty, family stability, health, class size, and quality of teachers. There are statistical methods for holding these factors constant in order to isolate the influence, if any, of the board’s illegal conduct on the academic performance of Rockford’s minority students. No such scientific comparison has been attempted- -nor even anything cruder.

The plaintiffs’ failure to recognize the importance of trying to unpack the causes of disparate educational performance is illustrated by their contention that although the Rockford schools may now be desegregated, the classrooms within those schools remain segregated and until they are desegregrated the decree must remain in force. What they mean by the classrooms still being segregated is that minority students are underrepresented in advanced courses. Yet enrollment in those courses is open. No one is being kept out. (If enrollment were not open but instead were rationed by test scores, a much smaller percentage of minority students would be enrolled in the advanced classes, the magistrate judge found—6 percent rather than 23 percent.) To suppose that minority students are enrolling in these classes at a lower rate than white students because of school segregation in the past is illogical, or at least unsubstantiated. The schools are desegregated, the advanced courses are open to any student, and if fewer minority students are enrolling than their proportion in the school or school district as a whole, the natural inference is not that the proportion is being held down by the fact that years ago the schools were segregated. That is conceivable, but so improbable that evidence is required to use the fact as a basis for continuing a federal judicial officer in control of the public school system. The plaintiffs’ case is an extreme version of post hoc ergo propter hoc. It is provincial and naive to suppose that because Rockford once engaged in de facto segregation of its public schools, the choices of its minority students regarding voluntary enrollment in advanced classes open to all are a legacy of that segregation.

The plaintiffs’ principal argument for the indefinite continuation of the decree is that the school board has not been complying with it in good faith. The difference between technical compliance and compliance in good faith is that the latter form of compliance does not exploit loopholes and ambiguities. Philips Medical Systems Int’l B.V. v. Bruetman, 8 F.3d 600, 604 (7th Cir. 1993); United States v. Board of Education, 799 F.2d 281, 289-90, 295 (7th Cir. 1986); Manning v. School Board, No. 99-2049, 2001 WL 264977, at *16 (11th Cir. March 16, 2001). It is not, as the plaintiffs would have it, that the school board must “actively” support the decree, must express “commitment” to it, and, above all, must not criticize it. The undemocratic implications of this position leave us almost speechless. Are elected officials, the members of the school board, elected long after and not complicit in the illegalities that gave rise to the litigation, forbidden, under threat of never resuming control of the public school system that they were elected to govern, to criticize a decree that in pursuit of an ambitious and possibly quixotic scheme of social engineering has imposed a formidable tax burden on the people who elected these officials?

Pressed at argument, the plaintiffs’ able lawyer could not cite an instance in which the school board has violated any of the numerous provisions of the decree. He may well be correct that the decree would have achieved more had it been enthusiastically embraced by the board, but state and local officials are under no duty to love the chains that federal judges, however justifiably, fasten upon them.

The judgment is reversed with instructions to grant the relief requested by the school board. It should go without saying that if the board takes advantage of its new freedom from federal judicial control to discriminate against minority students in violation of federal law, it will expose itself to a new and draconian round of litigation. We trust that $238 million later, it has learned its lesson.

Reversed and Remanded, with Instructions.

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