Appellate court reverses Mahoney–ruling, FYI

July 1, 1993

Appellate court reverses Mahoney–ruling, FYI

By

Editor’s note: For our readers’ information, the following is the complete text of Seventh Circuit Court of Appeals ruling on the People Who Care desegregation lawsuit, Part I

No. 00-3200

People Who Care, et al., Plaintiffs-Appellees, v. Rockford Board of Education,

School District No. 205,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Illinois, Western Division.

No. 89 C 20168—P. Michael Mahoney, Magistrate Judge.

Argued March 27, 2001—

Decided April 18, 2001

Before Bauer, Posner, and Kanne, Circuit Judges. Posner, Circuit Judge.

Twelve years ago the plaintiffs filed this suit against the board of education of Rockford, Illinois, charging that the board had intentionally discriminated against black and Hispanic students. Though nominally a new suit, it was actually a continuation of school desegregation litigation that had started long before and had resulted in the entry of a remedial decree as early as 1973. See Quality Education for All Children, Inc. v. School Board, 362 F. Supp. 985 (N.D. Ill. 1973). Realistically, we are dealing with a lawsuit that is almost 30 years old.

In 1994, the district judge found, by inference from disparities in educational achievement between white and minority students and from the school board’s failure to take effective measures to prevent individual public schools from becoming all white or all minority, that the board had indeed engaged in intentional racial discrimination. 851 F. Supp. 905 (N.D. Ill. 1994). The board did not appeal, and so the litigation moved into the remedial stage, presided over by a magistrate judge with the consent of the parties. A formidably complex and ambitious remedial decree was entered in 1996, provoking appeals that led us the following year to vacate many of its provisions, such as racial quotas for cheerleaders, superseniority for minority teachers, unrealistic goals for closing the white-minority gap in test scores, and limits on the number of minority students who could enroll in remedial classes. 111 F.3d 528 (7th Cir. 1997). We pointedly warned against “ambitious schemes of social engineering” and stated that children “should not be made subjects of utopian projects.” Id. at 534. Apart from misdescribing our opinion as having merely “modified” certain provisions of the decree, the magistrate judge managed to avoid any reference to that opinion in his latest, 57-page opinion here under review.

Later we remarked “the failure of the parties, and, it seems, the magistrate judge and the special master who is assisting him, to heed the admonition of the Supreme Court, see Missouri v. Jenkins, 515 U.S. 70, 99 (1995); Board of Education v. Dowell, 498 U.S. 237, 248 (1991), which we have repeated, United States v. Board of School Commissioners, 128 F.3d 507, 510 (7th Cir. 1997), to bend every effort to winding up school litigation and returning the operation of the schools to the local school authorities.” 153 F.3d 834 (7th Cir. 1998) (per curiam). And the following year, in still another opinion, we warned of “the looming interminability of this litigation,” and noting the school board’s representation that full compliance with the decree was achievable by 2002 we suggested that the board submit to the magistrate judge a plan for winding up the litigation. 171 F.3d 1083, 1090-91 (7th Cir. 1999). The board then

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moved the magistrate judge to dissolve the decree, effective June 30, 2002, the end of the 2001 school year. The board argued that it had achieved full compliance with the decree’s objectives and that the remaining inequalities in educational achievement between white and minority students could not be attributed to the illegal conduct on which the litigation was based. (Why the board asked for deferred rather than immediate dissolution is unclear, but we are not disposed to give it more relief than it asked for.) The magistrate judge agreed to relax some provisions of the decree, but ruled that others must continue for at least another six (now five) years. The plaintiffs would like the decree to continue in effect for at least 11 more years. We stress “at least.” Nothing in the logic of either the magistrate judge’s opinion or the plaintiffs’ brief on appeal suggests any natural terminus to the decree.

Through the end of 1999 the taxpayers of Rockford had incurred total costs of $238 million to comply with the 1996 decree and its predecessors going back only to 1989, of which more than half had been incurred since 1996. By now the total must be substantially greater. Attorneys’ fees alone are approaching $20 million. Twenty percent of the school district property taxes paid by homeowners in Rockford go to fund the decree. As a result of the improvements enabled by this large expenditure, and a policy of allowing parents to choose which Rockford public school to send their kids to, the school district had by the end of 1999, when the school board filed its motion to dissolve the decree, succeeded in desegregating its schools. Desegregation had been defined by the magistrate judge as the condition in which the minority composition of each school would not deviate by more than 15 percentage points from the minority composition of the population of the school district. Because this is a tighter range than imposed in most school desegregation cases, the Rockford public schools are now less segregated than those in any previous case in which a school system was declared “unitary” (that is, declared sufficiently

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desegregated to require the dissolution of the decree and the return of control of the public schools to the school board). The plaintiffs fear backsliding, and so want a wait-and-see period of at least 15 years after desegregation, during which the decree would remain in force.

The length of the litigation, the scale of the expenditures, and the achievement of desegregation constitute, against the background of applicable law, compelling arguments to end this litigation. It used to be extremely difficult to modify any kind of equitable decree. See United States v. Swift & Co., 286 U.S. 106 (1932). But as we noted recently in ordering radical modification of another institutional reform decree, one that had subjected the Chicago police to severe restrictions on its power to investigate terrorist activities, the Supreme Court has adopted a much more flexible standard for the modification of decrees entered in institutional reform litigation than the Swift standard of yore. Alliance to End Repression v. City of Chicago, 237 F.3d 799, 800-01 (7th Cir. 2001); see Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378-81 (1992); Board of Education v. Dowell, supra, 498 U.S. at 248; see also Alexander v. Britt, 89 F.3d 194, 197-98 (4th Cir. 1996). The Court believes the states and their subdivisions have a right to the restoration of control over the institutions of state and local government as soon as the objectives of the federal remedial decree have been achieved. Missouri v. Jenkins, supra, 515 U.S. at 99; Bogard v. Wright, 159 F.3d 1060, 1065 (7th Cir. 1998); People Who Care v. Rockford Board of Education, 153 F.3d 834 (7th Cir. 1998) (per curiam); United States v. Board of School Commissioners, supra, 128 F.3d at 510. Unlike decrees that bind private parties, decrees that hand over the control of important state functions, such as education, to federal courts “are not intended to operate in perpetuity.” Board of Education v. Dowell, supra, 498 U.S. at 248. “[T]he Supreme Court disfavors permanent injunctions in school cases. The administration of public schools is a state executive function rather than a federal judicial function, and so ought not to be subjected to the perpetual tutelage of the federal courts.” United States v. Board of School Commissioners, supra, 128 F.3d at 510.

To be continued next week because of space limitations.

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