Full opinion text
SHADUR, District Judge. This case has tended to be sidetracked by a “false conflict” created by the United States: By creating an artificial limitation on funds otherwise available or potentially available to satisfy the extensive Desegregation Plan needs of Chicago’s Board of Education (let alone the varying needs of other claimants of funds), the United States has sought to place the Board (and this Court) into a position as though the Board (and this Court) were choking off deserving educational programs. That is simply not true. It is the United States itself that has created and is perpetuating that regrettable situation. This Court has held, 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”): Each party is obligated to make every good faith effort to find and provide every available form of financial resources adequate for the implementation of the desegregation plan. In a sense the United States is not like other litigants — because the concerns created by considerations such as separation of powers and sovereign immunity tend to prevent its promises from being fully enforced in precisely the same way as promises of (say) IBM or other private defendants. For that reason this Court has previously been compelled to impose a “freeze” order to avoid the risk its ability to order relief will arguably be frustrated. Because the United States has deliberately violated its original agreement to fund the Chicago Desegregation Plan, this Court has reluctantly found it necessary to prevent the distribution to other possible grantees of United States educational funds, in order to preserve access to all the dollars that would be potentially available to fund the honoring of the United States’ freely-undertaken (and then freely-broken) obligation to the Board. But as this Court has said during the course of hearings on this issue, the United States “has the key to its cell in its own pocket.” It could have, in the exercise of its “every good faith effort,” assured that all the needed funds would be potentially available to the Board by (1) shifting available dollars to the Board to the fullest extent possible without congressional approval or (2) going to Congress with a request to allow the shifting of dollars that were already available to the Department of Education, but that required reallocation because they were not in fact going to be used for the purposes that had been the subject of the original allocation. 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. It is of course a contract — and as a contract, it is enforceable to require the contracting parties to perform their voluntarily undertaken duties. Because unlike most contracts the parties have chosen to submit it for the stamp of court approval, it is also a court order —and as such, it is enforceable like any other court order, by contempt if need be. On the sorry record reflected by the matters detailed in this long opinion, a private litigant that did what the United States has done would unquestionably be held in contempt — with the potential for being subjected to a fine or imprisonment as well as to an order for civil compliance. But for the United States a contempt fine is meaningless — after all it is the public interest (and not the injured opposing party) that is vindicated by a fine, with the money going to the United States itself as surrogate for the public. Thus imposition of a fine against the United States would just transfer money from one federal pocket to the other. Similarly imprisonment of the United States as such is impossible, and any possible imprisonment of defiant ranking government officials would be unseemly at best. For those reasons voluntary adherence by the United States to its solemnly undertaken responsibilities becomes all the more important, and its deliberate flouting of those responsibilities becomes all the more unpardonable. Now the legal rights of the litigants have to be evaluated. This opinion has not been drafted in response to the United States’ conduct just referred to, but that conduct may have made the issues more clouded than would otherwise have been the case. This Court now has before it the evidence developed in extensive hearings on remand from the Court of Appeals’ decision (“Opinion III,” see n. 4) confirming the United States’ violation of Section 15.1. Although the Court of Appeals did that, it also vacated the part of this Court’s June 30, 1983 order (the “Order,” issued contemporaneously with “Opinion II,” see n. 3) that had directed the United States to undertake an affirmative program to preserve the availability of funds potentially available to fulfill its obligations under the Decree. As the Court of Appeals put it (717 F.2d at 384), this Court had “acted with excessive dispatch” in doing so. This Court of course had shared the respect for separation of powers that underlay the Court of Appeals’ opinion. This Court’s fault, if it was one, was in a skepticism (grounded in prior conduct by the United States, not in mere surmise) as to whether the United States would in fact “fashion its proposed remedy for past non-compliance, as well as ... show that it intends to comply in the future...” (717 F.2d at 385). As the following findings of fact (“Findings”) and conclusions of law (“Conclusions”) will reflect, this Court’s anticipatory doubts were unfortunately all too justified. Now the Department of Education has been given the opportunity mandated by the Court of Appeals, and it has failed its charge dismally. In accordance with Fed.R.Civ.P. (“Rule”) 52(a), this Court sets forth the Findings and Conclusions that constitute the grounds of its action referred to in this lengthy opinion. FINDINGS OF FACT (“Findings”) Adoption and Approval of the Desegregation Plan (the “Plan”), and the Nature of the Plan Consent Decree Negotiations 101. Chicago’s Board of Education (“Board”) operates the third largest public school system in the United States. In the 1980-81 school year Board operated 634 schools, including 495 elementary schools, 66 high schools and 73 special needs schools of various types. In October of that school year Board had 458,497 students, whose racial/ethnic makeup was as follows: White Non-Hispanic 85,292 18.6% Black Non-Hispanic 278,726 60.8% Hispanic 84,226 18.4% Asian/Indian 10,253 2.2% At the same time Board employed approximately 43,000 persons, including 29,000 members of the Chicago Teachers Union. Board is the largest employer in Chicago and the second largest in Illinois. (Stip. 101) 102. After protracted and complex negotiations, the United States and Board entered into a Consent Decree, which was filed with and approved by this Court September 24,1980. (Stip. 102) Findings 103-04 give the background of the Consent Decree. 103. After desegregation negotiations in 1979 between the former Department of Health Education and Welfare and the former representatives of Board had proved unsuccessful, the United States Department of Justice notified former Interim Superintendent of Schools Caruso on April 21, 1980, that if further negotiations were not successful, the United States would initiate a desegregation lawsuit against Board. (GX1-27 [Government Exhibit 1, June 1983 hearing, Document 27]) Ensuing negotiating sessions between the Department of Justice and former Board representatives primarily addressed whether the parties could agree on specific racial percentages for a student assignment plan and on the specific amount and timing of the Emergency School Aid Act (ESAA) funds that the Board would receive to implement such a plan. (GXl-21,22) Board counsel indicated that if the negotiations failed and litigation commenced, Board would present counterclaims against agencies of the federal government. (GX1-39) There was no significant progress in those negotiations. (GX1-21, GX1-22) (Stip. 103) 104. During those negotiations a new Board was appointed and took office. (GX1-22) That new Board formed a Desegregation Committee (GX1-21) and indicated to the United States it would bring fresh approaches to the negotiations (Id.) Thereafter Board was represented by' its new leadership and by new counsel. (GX116) Negotiations then progressed rapidly, leading to a draft agreement within a few weeks (GX1-16) and to consummation of the Consent Decree within another six weeks. (GX1-14, 15) That progress resulted from an altogether different focus. Rather than seeking to negotiate the specific terms (or even somewhat more generalized terms) of a student assignment plan, the parties instead agreed to general principles that would guide subsequent development of a plan. (Consent Decree, Part I) Correspondingly with respect to funding, the parties negotiated a general principle applicable to both parties. Those negotiations concerning the general funding provision have been described in a Joint Stipulation of the parties as follows: At a relatively early stage in the negotiations leading to the Consent Decree, the parties discussed the question of financial support from the United States for the Board’s desegregation activities. It was the Government’s position that no funding commitment specific as to form and amount could be made in the context of the Consent Decree, because there was no way to anticipate the nature and costs of the Board’s Plan, the amount and sources of Government funding, or a variety of other matters. The parties briefly discussed funding possibilities relating not only to the Department of Education (including ESAA and other programs), but also other federal agencies such as the Department of Justice, the Department of Transportation, and the Department of Housing and Urban Development. Thereafter Mr. Ross conveyed to Mr. Howard by telephone brief descriptions (obtained by Mr. Ross from the Department of Education) of some of the types of planning and implementation activities funded in other instances. Mr. Ross also conveyed to Mr. Howard very sketchy information about grant amounts to other cities, but in general it was the position of the Department of Education that it would not disclose such information. These discussions took place approximately two months before the completion and execution of the Consent Decree. It was concluded that the matter of federal financial support would be handled by including general provisions in the Consent Decree, and Section 15.1 was drafted and incorporated into the Decree. Section 15.1 was not designed to incorporate any specific discussions between the parties on this issue, but to establish a general obligation on the part of both parties which would be interpreted and applied as appropriate in whatever future circumstances might arise. Section 15.1 provides: , 15.1 Each party is obligated to make every good faith effort to find and provide every available form of financial resources adequate for the implementation of the desegregation plan. Section 15.3 provides: 15.3 The parties recognize that financial cost of implementation does not excuse the failure to develop a desegregation plan consistent with the principles set forth in §§ 2-14, and is not a basis for postponement, cancellation or curtailment of implementation of the plan after it has been finally adopted, but is one legitimate consideration of practicability in meeting the objective stated in § 2.1. (Stip. 104) 105. On September 24, 1980 four events occurred to make the Consent Decree fully operative: (a) filing of a Complaint by the United States; (b) execution and filing of the Consent Decree; (c) after a hearing and after consideration of the Complaint, the Consent Decree and the United States’ Memorandum of Law, approval by the Court of the Consent Decree and its entry by the Court; and (d) Board’s non-filing of any counterclaim against the United States. (Stip. 105) 106. Among the general principles set forth in the Consent Decree to guide subsequent development of a desegregation plan were the following: § 2. Basic Objectives 2.1 Desegregated Schools. The plan will provide for the establishment of the greatest practicable number of stably desegregated schools, considering all the circumstances in Chicago. 2.2 Compensatory Programs in Schools Remaining Segregated. In order to assure participation by all students in a system-wide remedy and to alleviate the effects of both past and ongoing segregation, the plan shall provide educational and related programs for any Black or Hispanic schools remaining segregated. 2.3 Participation. To the greatest extent practicable, the plan will provide for desegregation of all racial and ethnic groups, and in all age and grade levels above kindergarten. 2.4 Fair Allocation of Burdens. The plan shall ensure that the burdens of desegregation are not imposed on any racial or ethnic group. § 7. Compensatory Programs in Schools Remaining Segregated. To accomplish the objective stated in § 2.2, the plan will include specific programs for Black or Hispanic schools remaining segregated, in the following areas among others: 7.1 Remedial and compensatory educational programs. 7.2 Improved curricula and instructional and evaluative techniques (including the utilization of tests that validly measure student achievement) for academic, vocational and alternative educational studies. 7.3 Pre-service and in-service instruction for administrators, principals, teachers and other school personnel. 7.4 Selection, and evaluation of the performance of, principals and supporting leadership staff. 7.5 Testing, counseling, guidance and student welfare. 7.6 Physical facilities, safety and security. 7.7 Supportive relationships between such schools and groups and institutions in the community and in government. (Stip. 106) 107. Thus in agreeing in Section 15.1 to find and provide financial resources “adequate for implementation of the desegregation plan,” the United States was agreeing to help pay for a plan that would include educational components in racially isolated schools (§ 2.2) covering the subject matter outlined in § 7, in the development of which the Board would exercise discretion (§ 3.1). (Stipulations 101-06) 108. Circumstances surrounding entry of the Consent Decree indicate that a joint and mutual obligation was contemplated. The Consent Decree represents the only instance in which a major urban school system has agreed, without any litigation or determination of liability issues, to develop and implement a system-wide desegregation plan under court supervision. It contemplated that because of the demographics of the Chicago school system, a substantial number of minority children would inevitably remain in racially isolated schools, requiring the extensive and expensive use of compensatory educational remedies to alleviate the effects of past segregation. In 1980 (as now) Board was faced with massive financial deficits, and the joint funding provision of the Consent Decree reflected recognition that Board’s finances were such that it could not voluntarily agree to develop, or successfully to implement, an effective desegregation plan of this type unless the federal government were sharing the financial burdens. (Stipulations 101-56; June 1983 Findings and Plan/ADR data on Board finances) 109. Stated simply, the parties had a common and overriding goal of assuring that an effective desegregation plan was developed and implemented in Chicago. This joint purpose, with respect to financing, included a requirement that the parties provide the total amount of funds adequate for implementation of the Plan. In Section 15.1 each party agreed to do everything possible to supply the necessary funding. (Stipulations 101-56; June 1983 Findings and Plan/ADR data on Board finances) The United States’ financial commitment under Section 15.1 was the principal quid pro quo for Board’s willingness to forego litigation and develop the Plan. In return for that commitment, the United States secured the full result it sought (and may not otherwise have achieved) without the expense and delay of complex litigation. The United States also avoided potential liability for a number of counterclaims that would have been brought against it. (Findings 103, 105) 110. With respect to “what the parties reasonably expected at the time of signing,” the parties’ Joint Stipulation (Government’s Exhibit 2 in the June 1983 hearing) states: Section 15.1 was not designed to incorporate any specific discussions between the parties [on the issue of federal financial support], but to establish a general obligation on the part of both parties which would be interpreted and applied as appropriate in whatever future circumstances might arise. All the extrinsic evidence concerning this issue does not support any notion that there was a recognized specific dollar limitation incorporated in Section 15.1, based on the amount of previous ESAA grants or otherwise. Indeed the Joint Stipulation reflects the parties had been discussing “funding possibilities relating not only to the Department of Education (including ESAA and other programs), but also other federal agencies such as the Department of Justice, the Department of Transportation, and the Department of Housing and Urban Development.” As this Court has determined previously, the extrinsic evidence points to an obligation to conduct a “universal search” (567 F.Supp. at 282 n. 6), not a limited examination of what ESAA funding was theoretically available to Board. (Stipulations 101-06; Government Exhibits 1 and 2 in the June 1983 hearing) This does not of course mean the parties contemplated issuance of a blank check to Board by the United States. But given the circumstances of the negotiations, Board’s known financial difficulties, its inability to generate funds without the approval of other governmental agencies, the known major problems (and hence major costs) of implementing a desegregation plan in a school system as large as Chicago’s (and with its racial mix), and other relevant factors, the parties’ reasonable expectations should certainly have embraced the potential need for the United States regularly “to find and provide” sums of the magnitude represented by Board’s proof at the current hearing. Although this Court ruled in limine (prior to the current hearings) certain areas of proof by the United States would be excluded, this Court has nevertheless given full consideration to (a) the United States’ offer of proof suggested by this Court as the means to complete the record and (b) Board’s post-hearing response to that offer of proof. Even taking that offer of proof fully into account (rather than treating it as excluded) this Court finds nothing in the United States’ proof or proposed proof persuasively refutes the reasonableness of the expectations referred to in this Finding. Given the parties’ Joint Stipulation that Section 15.1’s “general obligation ... would be interpreted and applied as appropriate in whatever future circumstances might arise,” this Court finds the current circumstances make the interpretation of that obligation to embrace the Board’s current request (as modified by this opinion) to be wholly appropriate for funding by the United States. 111. The Consent Decree in this ease is the only instance in which the United States has entered into a desegregation settlement containing the same or substantially similar language to that in Section 15.1. (Stip. 107) Development of Part I of the Plan, the Educational Components 112. To develop the Educational Components of the Plan, Board retained a team of independent, nationally recognized consultants. Dr. Robert L. Green was the Lead Consultant, with principal overall responsibility for the process. Dr. Green (now the President of the University of the District of Columbia) was then Dean of the College of Urban Development, Michigan State University. He was a leading national expert on desegregation plans, especially the aspect of desegregation that emphasizes educational programs to provide equal and effective education for urban and minority children. Dr. Green had participated in many desegregation cases and desegregation plans, traditionally as an expert for the plaintiffs in such litigation, and frequently on behalf of the NAACP. (Stip. 108) In addition to Dr. Green, five other education experts from outside the school system were retained on a full-time basis to work on the Educational Components, along with 24 part-time “national consultants.” Professor Ronald Edmonds (who has since died) was the primary national consultant in the area of curriculum. While on the faculty of the Harvard Graduate School of Education, Dr. Edmonds had directed the well-known major research project, Search for Effective Schools: The Identification and Analysis of City Schools That Are Instructionally Effective for Poor Children. Professor Edmonds had also implemented his “effective schools” design as the principal instructional officer for the New York City schools, with the title of Senior Assistant for Instruction. 113. Board’s complete list of desegregation project consultants is as follows: (Stip. 109) 114. During the development of the Educational Components from November 1980 through March 1981, Board submitted monthly progress reports to the Department of Justice, as required by the Consent Decree. (Stip. 110) 115. Dr. Green submitted his Recommendations on Educational Components to Board April 3, 1981. Two weeks later the Recommendations were adopted by Board as Part I of the Desegregation Plan: Educational Components. Part I’s content is summarized by its Table of Contents: (Stip. Ill) 116. The following statements about Plan costs appeared at pages 17 and 19 of the “Financial Aspects” section in Part II of the Plan, adopted in April 1981: 1. Cost and Funding of the Plan. Due to the relatively short time available under the Consent Decree for development of the desegregation plan, the planning process has been addressed to the formulation of programs that would be desirable to effectuate the purposes of the Decree. 2. It has not yet been possible to determine the financial feasibility of the programs — i.e., the administrative details of the programs, the exact costs associat- . ed with the various elements of the plan, the extent to which these costs can be met from existing resources or require new funding, and the availability of such new funding. While the exact costs of the educational components are not yet known, the Board believes that the core level of funding required to make reasonably effective those educational components directed to Black and Hispanic schools remaining racially isolated is $40 million annually in fiscal years 1982 and 1983, and $20 million annually thereafter (although additional funding would be strongly desirable). (Stip. 112) 117. Before the Consent Decree, Board’s desegregation programs were administered by a staff of three persons. Shortly after the initial adoption of the Educational Components, Board created a special Office of Equal Educational Opportunity (“OEEO”) to coordinate the implementation of the Plan. OEEO is presently headed by Dr. Nelvia Brady, Associate Superintendent, who was a member of Dr. Green’s original desegregation planning staff. OEEO’s office staff has expanded continuously since 1981 and presently comprises 53 persons, of whom eight are clerical staff, eight are teachers (who are district-assigned), 13 are school-committee representatives and 24 are teachers (7) and administrators (17) assigned to the central office. Twenty-nine of the 40 education professionals (72.5%) have their principal responsibilities in the area of implementing the Educational Components of the Plan. (Stip. 113) ■ Statements of the United States and this Court Relating to the Educational Components 118. On June 3, 1981 Attorney General William French Smith delivered an address before the American Law Institute. In discussing the policy of the United States as to desegregation remedies, Mr. Smith stated (at 8-9): All of these considerations [concerning mandatory reassignment] point to the need for more innovative and practical approaches to achieve equal educational opportunity. Mandatory busing is not an effective educational remedy, and in many cases it has also proven counterproductive. But this does not mean that desegregation should not continue or that improving the quality of public education for all our children cannot be achieved. .To do so, however, we must tailor the remedy to the facts of each case in which a constitutional violation has occurred. Rather than focusing solely on the means by which discrimination has been practiced in the past, it is time we devoted more attention to remedying the resulting harms actually being suffered today. We should emphasize those remedies that actually improve the quality of education. Rather than continuing to insist in court that the only and best remedy for unconstitutional segregation is pupil reassignment through busing, the Department of Justice will henceforward propose remedies that have the best chance of both improving the quality of education in the schools and promoting desegregation. (Stip. 114) 119. In the Response of the United States to the Desegregation Plan, filed in July 1981, the United States made the following comments about the Educational Components of the Plan: (a) With respect to the provision of the Consent Decree concerning providing compensatory programs in schools remaining segregated, the United States said (at 5): This principle is' based squarely on common sense and Supreme Court holdings. The method of compliance with this objective is largely within the discretion of the Board, which has the expertise in educational methods. (b) After a brief summary of the Educational Components, the United States stated (at 22) that “the Government endorses” them. (c) Finally, in evaluating the Educational Components, the United States said (at 32-33): The Educational Components have been more fully developed than the student assignment principles. The Board hired an impressive team of nationally known experts and the Plan reflects the substantial time and effort that has gone into the preparation of the Educational Components. The Board and its planners deserve a great deal of credit for the accomplishment of this task. We expect that when these new educational programs are developed in detail and implemented, they will complement the student assignment principles by enhancing the workability of voluntary desegregation techniques and that they will contribute to bringing about equality of educational opportunity in the one-race schools which remain under the final plan. (Stip. 115) 120. On August 28, 1981 the United States and Board submitted their Joint Statement to the Court as to the development of the Plan. With respect to the Educational Components, the Joint Statement (at 5) informed the Court that The Board and the United States are in agreement in these general respects: ... (2) the Educational Components are an integral and necessary aspect of the Board’s Plan. They are consistent with the Consent Decree and the Constitution. The United States fully endorses the Educational Components from a legal perspective, although it views the particular educational policy choices as within the Board’s discretion. (Stip. 116) 121. On September 27, 1981 Assistant Attorney General William Bradford Reynolds delivered a speech to the Education Commission of the States, meeting in Chicago. In discussing the policy of the Department of Justice concerning desegregation remedies, Mr. Reynolds stated: Experience teaches us that blacks in a segregated school environment more often than not receive inferior educational attention. To the extent necessary, their facilities and curriculum must be enhanced to bring them into educational parity with the other public schools in the system. In sum, we must ensure, whatever the ultimate racial composition in the classroom, that all students attending public schools, regardless of race, color, or ethnic background, have an equal opportunity to receive an education. We are concerned, quite frankly, much less with student relocation than we are with student education and our school desegregation plans will be drawn to reflect that predominant concern. Pursuant to the Department’s civil rights policies, we are overseeing the development of a desegregation plan here in Chicago that will be designed to enhance educational opportunities for all students. The public school enrollment in Chicago is approximately 61% black, 18% white, and 21% non-black minorities, mostly Hispanic. The Chicago School Board and the Justice Department recognize that there are schools in the system that will remain racially identifiable under the desegregation plan, and the Board has thus undertaken compensatory programs to enhance the quality of education provided in those schools in order to guarantee equal educational opportunity to all students in the system. To this end, the Board has developed and submitted to the Court, with our’ enthusiastic approval, detailed plans to enhance educational quality in the schools, and implementation of those plans began this fall. By concentrating our attention and resources on teachers and administrators, course offerings, incentives for learning, and other components of education quality, this Administration — with the help and cooperation of civil rights groups, state and local school authorities, and, most importantly, professional educators — can formulate desegregation plans that not only will ensure all public school students, irrespective of race, color or ethnic background, equal educational opportunity, but will do so within an educational environment free from state-enforced attendance barriers. If such a cooperative and united effort can be mounted to rid our Nation’s public schools of the tragic legacy of racial discrimination, I am confident that, in time, we will be able to review that effort against the test of experience, and say with pride “it worked.” (Stip. 117; Bd. Ex. 77) 122. In school year 1981-82 Board submitted quarterly progress reports to the United States and to the Court, detailing the process' of implementing the Plan, including the Educational Components. (Stip. 118) 123. In February and March 1982, following the adoption of Board’s Comprehensive Student Assignment Plan, the Court entertained briefs concerning the compliance of the total Plan with both constitutional requirements and the Consent Decree. The United States Assessment of the Plan commented on the Educational Components as described in Finding 139. The Chicago Urban League’s Assessment of the Plan expressed strong concern about the need to provide significant extra funding for implementation of the Educational Components in racially isolated schools: The provision of extra funds — and therefore resources — to schools which are to remain racially isolated is a form of compensation intended to make up in part for the system’s failure to remedy all manifestations of segregation. This component of the Plan is extraordinarily important because the majority of the system’s schools are to remain segregated under the Board’s proposal____ The Chicago Urban League believes the notion of compensatory funding requires that racially isolated schools receive extra funding above and beyond what other schools may be receiving____ The Urban League went on to express concern that Board had only committed itself to provide “Milliken II relief” to the extent that funds are available. NAACP’s July 1981 memorandum on the Plan stated “we have no specific objection to the content of these programs.” NAACP’s March 1982 brief did not comment further on the Educational Components. (Stipulations 119, 133) 124. On January 6, 1983 this Court issued its opinion (“Opinion I,” 554 F.Supp. 912) approving Board’s Plan as being clearly within the broad range of constitutionally acceptable plans. With respect to the Educational Components and funding, Opinion I stated (id. at 926): Educational Components. As already indicated, the Educational Components of the Plan were in definitive form well before the assignment provisions that have occupied the discussion in this opinion, and those Educational Components have not drawn the same heated attention. They were approved early by the United States and found favor with the NAACP as well. To the extent they have been criticized (chiefly by the Hispanic organizations and by Designs for Change), the criticisms did not go to claimed constitutional insufficiency and are therefore not within the province of this Court’s overview. Though they of course continue to form a vital part of the purposes and hoped-for impact of the Plan — the constitutional guaranty is after all one of equality of education — no more need be said at this time. Funding. Desegregation, like all other aspects of affording quality education to all students in a school system, costs money. In that respect the Board is not master of its own fate. If and to the extent other governmental bodies and agencies that control the pursestrings were to thwart the Board’s ability to perform in the way its Plan contemplates and the Constitution requires, this Court would have to examine all appropriate and available remedies. There is no reason to presume at this time that any such delinquency in meeting the mandates of the Constitution, or any such resulting power confrontation, will occur. (Stip. 120) 125. Board’s 1983 Annual Desegregation Review, Part I (filed April 15, 1983) contained a section on “Financial Aspects” at 402-23, which included the following statements: With regard to expenditures for racially identifiable schools, a brief explanation is in order. The Board’s initial commitment (as outlined in the April, 1981 Principles) was to spend $40 million a year in 1981-82 and 1982-83 and $20 million a year thereafter. As described above, spending specifically budgeted for this component of the Desegregation Plan has fallen somewhat short of this originally projected level in the first two years of implementation. As a result, the Board believes it to be appropriate to attempt to make up the difference in subsequent years. Hence, the Board believes to be desirable to spend at least $40 million in 1983-84, as opposed to the $20 million initially prescribed by the Principles. However, the funds needed to provide for this level of expenditure simply are not available from within the Board at this time. Over and above the level of expenditures for 1983-84 described above, additional resources would also be highly desirable to maximize the effectiveness of the Desegregation Plan. Such additional funding would help to strengthen and enrich the implementation of desegregation in Chicago in a variety of ways: intensified implementation and evaluation of educational components, expansion of magnet schools and programs (including metropolitan schools and scholastic academies), intensified recruitment efforts, improvement in vocational, technical and special educational programs, initiation of interdistrict transfer programs, to name only a few. Resources. The resources necessary to fund desegregation implementation at the levels set forth above unfortunately are not available at this time from within the Board. The Board, for its part, is committed to appropriations for 1983-84 of at least $57 million — a continuation of the amounts it budgeted for the current school year. To the extent additional moneys are made available, the Board will spend them to bring the aggregate levels of expenditures for racially identifiable schools up to $40 million and to further maximize optimum implementation of this and other aspects of student desegregation. Thus, at this time precise estimates of the Board’s financial condition for future years are slightly premature. However, it may be fairly stated that for 1983-84 the Board faces budget problems of an extremely serious magnitude. Preliminary projections suggest it is facing a budget deficit in the range of $200 million ____ In any event the Board believes that, in the first instance, the obligation to provide these additional resources for the substantial expenditures which full and complete implementation of the Plan entails lies with the federal and state governments. On April 13, 1983, the Board adopted a resolution directing its counsel to initiate litigation against the State of Illinois and the United States seeking contribution for the cost of implementing the Desegregation Plan. The Board expects that the initiation of these actions will be forthcoming. (Stip. 121) 126. Board’s statements as to the desired expenditure of at least $40 million on the Educational Components in racially isolated schools and on the desired expenditure of additional amounts for these purposes, including the, statements described in Findings 116 and 125, do not reflect any determination by Board either that the expenditure of $40 million would be “adequate” for that aspect of the Plan (in terms of Section 15.1) or that the expenditure of additional amounts for that aspect of the Plan would not materially aid its success or would not be necessary for its full implementation. (Stipulations 101-21; Parts I, II and III of the Plan) 127. In August 1983 Board filed Part II of its 1983 Annual Desegregation Review, a 416 page document that reported in detail on the implementation of the Educational Components (“ADR II”). After the filing of ADR II this Court provided the United States and the amici curiae the opportunity to file comments. Neither the United States nor any of the amici filed comments with the Court. (Stip. 122) 128. As the preceding review of the record reflects, the United States (a) strongly supported (indeed, insisted upon the inclusion of) Board’s Educational Components as the developmental process moved from the Consent Decree principles to the April 1981 Educational Components Plan to approval by this Court and (b) raised no subsequent objection as Board proceeded to add programmatic details to those initial documents. Only when called upon to fulfill its financial responsibility did the United States begin to renege on its approval. (Stips. 101-22, 133) Overview of the Student Assignment Plan 129. Under the Consent Decree Board agreed to adopt a system-wide desegregation plan with two basic objectives. Section 2.1 called for creating the greatest practicable number of stably desegregated schools, considering all the circumstances in Chicago. As already described, the second objective was to provide educational and related programs for schools that remained racially isolated. (Stip. 123) 130. In January 1982 Board adopted its Comprehensive Student Assignment Plan, which divides all schools in the school system into four broad categories. First of those categories is that of the residentially integrated school (defined as one whose enrollment includes at least 30% white children and 30% minority children, derived principally from residential or other natural attendance patterns). Two basic types of schools come within that category: (a) stably integrated and (b) integrated but with potential for change. There is a third type of school identified in the Plan: currently integrated, but with an enrollment of white children projected to decline below 30%. As of October 1981 those three types of schools encompassed 67 schools with an enrollment of 52,067 students. (Stip. 124) 131. Next the Plan considers the category of the desegregated school: one whose enrollment includes at least 30% white children and 30% minority children, and which has been established primarily by student assignment techniques under the Plan. That category includes both (a) schools that have previously achieved stably desegregated status through the implementation of various student assignment measures (as of 1981, 42 schools with 20,-329 students) and (b) schools that in 1981 were yet to achieve desegregated status, through previously existing and newly adopted student assignment techniques (in 1981, 33 schools with 17,541 students). Such techniques include voluntary transfer programs and magnet and magnet-type programs within schools. (Stip. 125) 132. In addition the Plan describes various magnet-type schools, which are established primarily in minority communities and are designed to promote desegregation by special educational offerings and programs. Each such school has a target enrollment composition, generally 15-35% white, 65-85% minority. In 1981 such schools included 41 magnet schools, scholastic academies and metropolitan high schools, enrolling 28,824 students. (Stip. 126) 133. Finally the Plan also considers schools projected to remain racially identifiable (with an enrollment of greater than 70% minority children, less than 30% white children). In 1981 there were 354 such schools, enrolling 275,794 students. After describing why those schools cannot practicably be desegregated, the Plan describes the compensatory educational arrangements that will be provided for at those schools and the various voluntary transfer arrangements in which students enrolled at those schools may participate. (Stip. 127) 134. This table summarizes the school types identified in the Plan, and the number and enrollment of the schools: (Stip. 128) 135. Two mandatory requirements were established by the Plan. One was that every school achieve by October 1983 a minority enrollment of at least 30%. Under the other, by October 1983 the school system as a whole had to achieve a minimum total enrollment in all integrated and desegregated schools (including magnet schools). This latter requirement is generally referred to as the “desegregation index” requirement. (Stip. 129) 136. Additionally the Plan sets forth other student assignment provisions to be applied throughout the school system to provide and maintain the maximum practicable desegregation and to ensure that the Plan will not initiate or authorize any segregative actions. Among such provisions are those concerning school closings, boundary adjustments and within-school segregation. (Stip. 130) 137. In a separate volume, the Student Assignment Plan contains school-by-school analyses for each school in the system. Those analyses describe in summary terms the work and consideration that went into developing a desegregation strategy for each school. They also provide a detailed statement as to why it is not practicable to desegregate a large number of schools remaining racially identifiable. (Stip. 131) 138. Detailed evaluation of the student assignment component of the Plan, including analysis of enrollment composition and prescription of specific actions for over 200 individual schools, is undertaken every year. Each such evaluation is reported on in an Annual Desegregation Review (“ADR”). (Stip. 132) 139. After the adoption of the Comprehensive Student Assignment Plan in January 1982, the United States filed its 33-page Assessment of the Plan. It explained the United States’ belief that the Plan is constitutional and consistent with the Consent Decree. In conclusion the United States stated: We believe that, for the reasons stated in these comments, once the plan has been thoroughly implemented and the Educational Components completed, the Board will have: (a) provided a system-wide remedy with compensatory programs at remaining segregated schools, (b) established the greatest practicable number of stably desegregated schools, (c) insured that all racial and ethnic groups participate and (d) distributed the benefits and burdens of the plan on a fair basis. (Stip. 133) 140. In Opinion I (554 F.Supp. 914-15) this Court incorporated the Board’s summary of its extensive and effective activities in the 18 months from the entry of the Consent Decree to the adoption of Part III of the Desegregation Plan. This Court further noted it had deferred ruling on the Plan for several months, so that the 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 execution of the Plan has been shown to disprove the premises on which it was designed” (id. at 915). Finally, having reviewed the Plan in detail, this Court approved it as being “clearly within the broad range of constitutionally acceptable plans” (id. at 928). (Stip. 134) 141. In April 1983 the Board’s Annual Desegregation Review (Part I, Student Assignment) (“ADR I”) showed that (a) implementation of the Plan during school year 1982-83 was a considerable success and (b) to a very significant degree its projections of student assignment outcomes had been realized. ADR I was also candid in its assessment of shortcomings and in adopting measures to address them. (Stip. 135) 142. In its May 1983 response to ADR I, the United States favorably evaluated the Board’s substantive implementation process (at 1-2, 4-5): The Chicago School Board’s April 19, 1983, filing on its first Annual Desegregation Review is an extremely well-conceived document and will be a valuable guide for assessing the Board’s compliance with the underlying principles established by the Consent Decree and the Court in this case. Like the desegregation plan itself, this document reflects extensive thought, preparation and effort at implementation in a context that is so complex that it often seems incapable of clear description. The review document makes a significant contribution to the clarification, for all involved, of what this plan has meant for the Chicago public schools. Our first comment is on the review process itself. We know of no other school board, large or small, that has made as comprehensive, detailed and careful examination of what it is doing to implement a desegregation plan. We think that the overall plan implementation process has been excellent and that the Board has applied it in good faith at each school ____ Should the Board fail to take the remedial steps recommended in the review or otherwise fail to take the steps necessary to fulfill the plan’s promise, the plan’s present constitutional sufficiency would suffer. At this point, we have no reason even to suspect that this' is a possibility. (Stip. 135) 143. As Finding 135 reflects, the mandatory requirements of the Student Assignment Plan became applicable as of October 1983. While the formal evaluation of the results of the Plan in the 1983-84 school year is not yet due to be filed, Board filed a Report Concerning Preliminary Fall 1983 Enrollment Data on November 2, 1983, informing this Court that the requirement of 30% minimum minority enrollment in all schools had been met. (Stip. 137) 144. For comparison with Finding 134, the following table shows fall 1983 data as to the number and total enrollment of the various school types identified in the Plan. Those data are comparable with Finding 134, but it should be noted that there has been some recategorization of schools to reflect the experience of the past two years. As in Finding 134, the figures exclude kindergarten students; therefore the total enrollment shown is for grades 1-12, 41,260 students less than systemwide enrollment. (Stip. 138) Demographics of the City of Chicago and the Chicago Public Schools 145. Extensive demographic information is presented in both the Comprehensive Student Assignment Plan (at 8-39) and in 1983 ADR I (at 20-23). (Stip. 139) 146. Racial composition of the total population of the City of Chicago from 1940 to 1980 is summarized in the following table: (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 (Stip. 141) 148. One principal reason the proportion of minorities is higher among public school students than among the overall city population is that a large number of children (more than half of whom are white) attend nonpublic schools in Chicago, especially the Catholic parochial schools. Their metropolitan-area enrollment of nearly 190,000 students makes the Catholic schools the fifth largest school system of any kind in the United States. Within Chicago the Catholic schools as of 1982 had 226 schools enrolling 114,299 students, of whom 56% were white, 25% black, 16% Hispanic and 3% Asian. (Stip. 142) 149. Total membership in the Chicago public schools has leveled off this year after 15 years of decline that were often characterized by very substantial drops. This year’s decline in total membership is only about 1800 (0.4%), compared with almost 19,000 (3.9%) in 1980. As a historic matter, enrollment was 372,278 in 1952. Student membership increased quite dramatically in the 1950s and the 1960s, reaching a peak of 580,292 in 1969. Since then enrollment has declined, generally at the rate of 2-4% per year, with the greatest declines between 1977-81 (over 15,000 students, or 3-4%, per year). In 1982 the decline was 1.6% (7046 students), as contrasted with the slight drop in 1983. (Stip. 143) 150. Enrollment of white students (now 67,829 or 15.6% systemwide) has declined at a significantly slower rate since adoption of the Plan. From 1977-81 white enrollment declined at 9-11% per year (or 10,COO-12,000 students). In 1982 white enrollment declined 6% (4,941 students) and in 1983, 5% (3,342 students). (Stip. 144) 151. Black students now number 263,-163 (60.6% systemwide). As with total enrollment and with white students, 1983 decline in black enrollment of 1,367 students (0.5%) is significantly lower than declines of 2-4% in the preceding five years. (Stip. 145) 152. In contrast to white and black enrollment, Hispanic enrollment in the school system has been increasing steadily since 1970, at the rate of 3-6% annually. Hispanic students now number 91,763 (21.2% systemwide). (Stip. 146) 153. Board’s demographers believe the enrollment changes summarized in Findings 149-52 can be attributed to the following factors: Demographics: continued effects of changes in the number of births, in- and out-migration, and the patterns of student distribution among grades. Economics: recent high unemployment rates which have curtailed ability to pay tuition for private schools and reduced job opportunities for potential high school dropouts; high mortgage rates which have slowed down the housing market and, in turn, the rate of suburbanization. Educational Initiatives: smooth implementation of the desegregation plan without busing; development of a variety of program options and specialty schools designed to attract students; an active recruitment program; increases in achievement scores; and greater parental and community involvement through programs such as report card pick-up and Adopt-A-School. (Stip. 147) 154. During the past two years of relatively stable enrollments, an important factor contributing to changes is the transfer rate between public and nonpublic schools. As the following table reflects, the Chicago public schools have been gaining more students and losing fewer since 1980: (Stip. 148) 155. It appears the recent trend of enrollment decline in the Chicago public schools has ended this year. Gradual increases can be expected to begin next year, if the general demographic trends (particularly migration and transfer rates) experienced in the recent past continue in the years to come. Such a development would point to increased demand for teachers and school facilities. As to racial/ethnic composition, the school system is expected to increase in minority enrollment. This is partly because of the greater proportion of whites in the upper grades, combined with continued outflow, and the higher birth rates for minority groups (particularly Hispanics) coupled with continued immigration of Hispanics. (Stip. 149) 156. Racial/ethnic composition of the elementary and secondary levels of the school system as of October 1983 is detailed in the first table following Finding 157. These data are briefly summarized as follows: (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) 158. There are presently 407 schools with enrollments more than 70% black and/or Hispanic (excluding magnet schools): Those students are 69.8% of the system-wide enrollment. There are 275,091 students (69.4% of systemwide enrollment) attending schools more than 90% minority. (Stip. 152) 159. Schools with more than 70% black and/or Hispanic enrollment will increase in number in coming years, as a result of the demographic and transfer trends described in Findings 145-57. (Stip. 153) 160. In schools with enrollments more than 90% black and/or Hispanic, 1983-84 total kindergarten and pre-school enrollment is as follows: Such enrollment is projected to be at least as great in school year 1984-85, and will probably increase. Kindergarten students represent approximately two thirds of this total, or 20,000 students. (Stip. 154) 161. In schools with more than 90% black and/or Hispanic enrollment, the number of black and Hispanic children in grades 1-3 in school year 1983-84 is approximately as follows: Those numbers are projected to be at least as great in school year 1984-85, and will probably increase. (Stip. 155) Propriety and Cost of Programs Proposed for Adequate Implementation of the Plan 201. Dr. Nelvia Brady is a qualified expert as to the effects of racial segregation on minority children; the nature and types of desegregation programs that are capable of eliminating or alleviating those effects; the design, development and implementation of the Plan; and the ability of federal Chapter 1 and State Title I eligible programs to alleviate the effects of past segregation. She is presently Associate Superintendent, OEEO, and has primary responsibility for implementation of the Plan. (Brady testimony) 202. Dr. Brady was one of the experts with principal responsibility for drafting the Educational Components of the Plan. (Brady testimony) 203. In April 1981 Board adopted the Recommendations on Educational Components (prepared by its nationally known expert, Dr. Green). Those Recommenda-' tions accurately explain the justifications for educational components: The rationale for this approach lies in the notion that the desegregation of a school system involves much more than the reassignment of students. Too often, desegregation planners have seemed to be concerned only with the movement of students in order to achieve some specified distribution by race and ethnic background. This preoccupation has been matched by a public concern with “busing,” as though the question of how a student reached school was more important than what the student received from the school. Research covering the last thirty years indicates that the physical separation of students by race and ethnic background is almost always accompanied by disparities in the educational services provided to minority and nonminority students, and by significant gaps in the achievement of minority students, particularly those from low-income backgrounds. Stated simply, segregation creates educational deprivation for minority children— black, Hispanic, Asian, and Native American — and also results in attitudinal deprivation for all students. A desegregation plan must, therefore, address not only the physical desegregation of schools but also the educational desegregation of individual students. The educational disadvantages resulting from past racial/ethnic isolation — or any such isolation that may have to continue — must be remedied. The overriding goal of this plan is to address minority students’ educational needs arising from the segregation of the public schools. The method being proposed is through improving achievement in all schools, with particular emphasis on those schools with the greatest needs and attended by children who have been the most disadvantaged. (Brady testimony) 204. Dr. Brady described elements of the Plan that have been implemented to date and provided an evaluation of Board’s efforts in this area. In general that portion of her testimony addressed both the student assignment aspects of the Plan and the elements of the educational components of the Plan as to which implementation has already been initiated. She also discussed the elements Board intends to implement in school year 1984-85 if there is sufficient available funding. More specific testimony as to the implementation status of the Curriculum, Bilingual and Vocational/Technical Education components was provided by Drs. Gerald Heing, Josué Gonzales, and Philip Viso, respectively (Testimony of Brady, Heing, Gonzales and Viso) 205. Dr. Brady showed Board has experienced significant successes in its implementation efforts to date. Her testimony was supported by evaluations performed during the last two years at the 45 racially isolated targeted elementary schools that were first included in the Chicago Effective Schools Project. (Brady testimony) 206. Dr. Brady’s testimony described the process by which the Plan was designed and developed. She related how past segregation in the Chicago public schools has affected the basic learning skills achievement levels of children, particularly minority children now attending, or who in the future will attend, racially identifiable minority schools. She explained each component of the Plan is (a) carefully designed to alleviate the effects of past segregation and (b) will substantially further implementation of a successful desegregation plan. She further explained that, given the historic backdrop and the demographics of Chicago, full and successful implementation of the Educational Components is crucial to the success of the Plan. (Brady testimony) 207. In substantial part the Educational Components are intended to eliminate or alleviate the effects of past racial segregation on minority children who will remain in racially identifiable schools under the Student Assignment Plan and who will attend such racially identifiable schools in the future. In pursuit of this goal, the Plan also addresses the need for systematic and institutional changes in the manner in which the school system provides educational services. (Brady testimony) 208. Minority children now attending Chicago public schools suffer, or have been affected by, one or more of the following effects of racial segregation: (a) reading, math and communication, skills one grade or more below the students’ current grade levels; (b) tests and testing procedures with racial, ethnic, or cultural bias; (c) unequal treatment of minority children in racially identifiable schools by teachers and administrative staff; (d) less access for minority children to vocational and technical educational programs; (e) curricula colored by racial, ethnic or cultural bias; (f) the psychological pressures of attending racially identifiable schools and the resulting loss of self-esteem; (g) codes governing student conduct