Full opinion text
ORDER ROSZKOWSKI, District Judge. TABLE OF CONTENTS PROCEDURAL HISTORY.908 LEGAL STANDARDS.909 STUDENT TRACKING AND ABILITY GROUPING.912 SEGREGATION OF STUDENTS BY RACE WITHIN SCHOOLS.915 STUDENT ASSIGNMENT.917 FACILITIES AND EQUIPMENT DISPARITIES.919 1989 REORGANIZATION PLAN .922 EMPLOYMENT DISCRIMINATION.923 STAFF ASSIGNMENT.924 INEQUITABLE ACCESS TO TRANSPORTATION.925 DISCRIMINATORY CONDITIONS IN THE COMPOSITION OF THE BOARD ... 926 EXTRACURRICULAR ACTIVITIES.928 BILINGUAL EDUCATION AND OTHER EDUCATIONAL DISCRIMINATION ISSUES AFFECTING HISPANICS.929 SPECIAL EDUCATION.929 CONCLUSION .980 ORDER.933 INTRODUCTION This matter comes before the court on the plaintiffs’ motion for a permanent injunction. Hearing was held before Magistrate Judge P. Michael Mahoney, who issued a Report and Recommendation making extensive findings of fact and conclusions of law, ultimately concluding that the defendant had violated the plaintiffs’ Fourteenth Amendment rights to equal protection under the law by separating public school children on the basis of race. The plaintiffs, the defendant, and the intervenor-defendants have all filed objections to the Report and Recommendation. The parties have all extensively briefed the issues and the court hereby makes its findings of fact and conclusions of law. PROCEDURAL HISTORY This lawsuit was filed on May 11, 1989. It was filed by the plaintiffs, People Who Care, et al., as a reaction to the 1989 Reorganization Plan that had been adopted by the defendant, Rockford Board of Education School District #205, in January and February of 1989. The lawsuit not only attacks the 1989 Reorganization Plan, but also alleges that the school district historically has engaged in a pattern of intentional segregation and discrimination on a systemwide basis. Approximately two months into the litigation, the parties entered into an Interim Settlement in response to the plaintiffs’ motion for a preliminary injunction. The Interim Settlement dealt mainly with the 1989 Reorganization Plan. The settlement was embodied in an Interim Agreed Order entered by the court on July 7,1989. That order provided for certain modifications of the Reorganization Plan and for other remedial steps to be taken by the District. A Second Amended Complaint was filed on November 9, 1989. On April 24, 1991, the plaintiffs and the defendant agreed to, and the court approved and entered, a Second Interim Order. The Second Interim Order was a more comprehensive interim remedial plan. The Second Interim Order did not resolve the plaintiffs’ underlying liability claim and the District made no admission of liability in connection with either of the Interim Remedial Orders. Certain parts of the Second Interim Order were subsequently stricken by the Seventh Circuit Court of Appeals. See People Who Care v. Rockford Bd. of Educ., 961 F.2d 1335 (7th Cir.1992). On June 29, 1992, this court, by Minute Order, referred all matters pertaining to the plaintiffs’ motion for a supplemental remedial order to Magistrate Judge P. Michael Maho-ney for ruling. By Order of September 8, 1992, this court, pursuant to Local Rule 1.71(c)(4) of the General Rules of the Northern District of Illinois, and pursuant to 28 U.S.C. § 636(a), (b) and (c), transferred to the Magistrate Judge all “matters currently pending.” On April 8, 1993, this court reiterated the referral to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), and in April of 1993 the Magistrate Judge commenced hearing the motion for a permanent injunction. The injunction hearing began April 2,1993. Approximately thirty witnesses testified on behalf of the plaintiffs, and approximately nine witnesses testified on behalf of the defendant and the intervenor-defendants. Over 3,600 pages of testimony were taken over the twenty-four days of the hearing. In addition, the court has taken into consideration 150 depositions presented to the court as evidence in lieu of testimony, as well as the literally thousands of pages of documents that have been presented to the court. Pursuant to an “Agreement of Plaintiffs, Defendant Rockford School District 205 and Intervenor-Defendants Concerning the Liability Hearing Adjudication Process and Certain Remedial Matters,” dated May 5, 1993, all parties stipulated that the Magistrate Judge would make a Report and Recommendation to this court which would then rule upon the permanent injunction and liability issues. Pursuant to the May 5th Agreement, the parties agreed that all present and future remedial matters in this case, without limitation, would be referred to the Magistrate Judge under 28 U.S.C. § 636(c)(1) and (c)(3), and under the rules of the United States District Court for the Northern District of Illinois. The Agreement also allowed the plaintiffs to file an amended complaint which conformed to the proofs presented. This Third Amended Complaint was filed June 23, 1993. On May 5,1993, pursuant to Rule 53 of the Federal Rules of Civil Procedure, the Second Interim Order, and Paragraph 13 of the May 5 Agreement, this court appointed Dr. Eugene E. Eubanks as Special Master. The permanent injunction hearing ended on May 13, 1993. The parties submitted post-hearing briefs as well as proposed findings of fact and conclusions of law. On November 3,1993, Magistrate Judge P. Michael Mahoney issued his Report and Recommendation. The Magistrate Judge made extensive findings of fact and conclusions of law, recommending that the defendant be found liable for violating the Fourteenth Amendment rights of the plaintiff class, and that the court enter an appropriate injunction and declaratory order against the defendant. All parties have filed objections to the Magistrate Judge’s Report and Recommendation and have extensively briefed their objections. Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1)(C), any party may serve and file written objections to a Magistrate Judge’s proposed findings of fact and recommendation. The statute further provides, in pertinent part: A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. 28 U.S.C. § 636(b)(1)(C). The standard calls for a de novo determination, not a de novo hearing. United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980). In making its de novo determination of the record, the court is entitled to afford the Magistrate Judge’s credibility findings “such weight as their merit commands and the sound discretion of the judge warrants.” Id. at 683, 100 S.Ct. at 2416. LEGAL STANDARDS Fourteenth Amendment and the Equal Protection Clause No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const, amend. XIV, '§ 1. This ease is based upon the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The plaintiffs have alleged thajrthe defendant has separated public schooFchildren by race and has discriminated against African-American and other minority school children because of their race>~?For almost forty years, federal law on this issue has been clear. “[I]n the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954). The elements for a prima facie case of intentional discrimination against a school district requiresmatTheré be segregation or discrimination, causation and intent. Keyes v. School Dist. No. 1, Denver, Col., 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (1973); Diaz v. San Jose Unified School Dist., 733 F.2d 660, 662 (9th Cir.1984), cert. denied, 471 U.S. 1065, 105 S.Ct. 2140, 85 L.Ed.2d 497 (1985). The Equal Protection Clause requires State and local governments to treat similarly situated groups of people in a similar fashion if that government classifies individuals in the distribution of particular benefits and burdens. Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618, 105 S.Ct. 2862, 2866, 86 L.Ed.2d 487 (1985). Classifications which burden a discrete and insular minority group are inherently suspect and are subject to “strict” judicial scrutiny. See United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938). Racial classifications are inherently suspect and are presumptively invalid absent an extraordinary justification. Personnel Administrator v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292-93, 60 L.Ed.2d 870 (1979). Even facially neutral state action violates the Equal Protection Clause when such action is intended to have a racial effect and does, in fact, have such an effect. Washington v. Davis, 426 U.S. 229, 240-41, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). The fact that racially segregated schools exist is not automatically a constitutional violation. Columbus Bd. of Educ. v. Panache, 443 U.S. 449, 464, 99 S.Ct. 2941, 2950, 61 L.Ed.2d 666 (1979). It is a violation when intentional governmental conduct has created or perpetuated the segregative conditions. Keyes, 413 U.S. at 213-14, 93 S.Ct. at 2699-2700. Absent statutory segregation in a state, a school district violates the constitution when “school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system.” Id. at 201, 93 S.Ct. at 2694. To establish unconstitutional racial imbalance within a school system, the plaintiff must show that the governmental authorities created or maintained racial segregation in the schools and that their actions were motivated by segregative intent. Id. at 208, 93 S.Ct. at 2697; Diaz, 733 F.2d at 662. Absolute segregation is certainly prohibited, as well as substantial segregation and racially identifiable schools. Pursuant to Green v. County School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), the court must examine the ethnic and racial composition of the schools as well as “every facet of school operations—faculty, staff, transportation, extra-curricular activities and facilities.” Id. at 435, 88 S.Ct. at 1693. The court will also consider the quality of education provided to both white and minority students. See Freeman v. Pitts, — U.S. -, -, 112 S.Ct. 1430, 1446, 118 L.Ed.2d 108 (1992). Causation is established when it is showm that the defendant’s conduct contributed in a substantial manner to the creation or perpetuation of racial segregation. In other words, the defendant’s conduct must have more than a de minimis impact. United States v. Yonkers Bd. of Educ., 624 F.Supp. 1276, 1379 (S.D.N.Y.1985), aff'd, 837 F.2d 1181 (2nd Cir.1987); Berry v. School Dist. of Benton Harbor, 442 F.Supp. 1280, 1292 (W.D.Mich.1977). Second, the plaintiff must show segregative intent. Circumstantial evidence is sufficient to establish segregative intent. Diaz, 733 F.2d at 662. Types of proof which support an inference of segregative intent include: discriminatory impact of acts, omissions or policies of the defendant; the history of events leading to conduct maintaining or exacerbating racial imbalance in schools; departures from regular procedures and policies used by the decision-makers; and evidence concerning the decision-making process. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266-68, 97 S.Ct. 555, 563-65, 50 L.Ed.2d 450 (1977). Upon a showing of a prima facie ease of intentional segregation, the burden shifts to the defendant to show that the same segregative conduct would have occurred “even had the impermissible purpose not been considered.” Id. at 271 n. 21, 97 S.Ct. at 566 n. 21. Injunctive Relief For a permanent injunction to issue from the court, the plaintiffs must prevail on the merits of their claim and establish that equitable relief is appropriate. Beacon Theatres, Inc. v. Westerner, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954-55, 3 L.Ed.2d 988 (1959). Beacon Theaters implies that the factors considered for a permanent injunction are the same as those considered for a preliminary injunction, with victory on the merits replacing a reasonable likelihood of success. See e.g., United States v. Rural Electric Convenience Co-Op. Co., 922 F.2d 429, 432 (7th Cir.1991). Those other factors in the balance of equities are: an inadequate remedy at law; irreparable harm to the plaintiffs absent in-junctive relief; the degree of hardship on the defendant; the public interest served; and the ability to fashion an appropriate injunction. The Magistrate Judge found each of those factors favored the plaintiffs and recommended that appropriate injunctive relief be entered against the defendant. Objections to Evidence Hearing on the motion for a permanent injunction was held before Magistrate Judge P. Michael Mahoney pursuant to this court’s referral order under 28 U.S.C. § 636 and Rule 1.71(c)(4) of the General Rules of the Northern District of Illinois (“Local Rules”). Pursuant to the referral, the Magistrate Judge entered a report and recommendation for review by the court. The district court has de novo review over such a report. “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.” 28 U.S.C. § 636(b)(1). As an initial matter, the parties have objected to various rulings made by the Magistrate Judge. A substantial number of depositions and affidavits were received in evidence in lieu of live testimony at the hearing. The Magistrate Judge allowed the submission of this evidence with the provision that specific objections made to deposition testimony would be ruled upon, and ruled upon those objections in an order dated June 23, 1993. The plaintiffs have objected to those rulings arguing that the defendant has waived those objections, that the court has previously rejected such objections, and that those objections are meritless. The defendant argues that its objections were based on the Federal Rules of Evidence and were hot waived, based on an agreed order of the parties and approved by the court, allowing the defendant to preserve its objections to deposition testimony. Although the Magistrate Judge did overrule many of the defendant’s motions in limine, a part of the basis for his ruling was that the defendant’s objections were too generalized to identify to what the defendant had objected. Furthermore, some of the defendant’s objections, once specified to particular portions of evidence, were meritorious. The defendant’s objections to parts of the depositions focused on relevant , matters such as whether the testimony was based on personal knowledge, whether there, was proper foundation, whether the testimony was hearsay or multiple hearsay, whether the testimony related to post-1989 conduct, or whether the testimony was improper opinion testimony. The depositions and affidavits were admitted into evidence subject to objections, which were made to specific portions of testimony, rather than the generic, generalized objections made in the defendant’s motions in limine. Having reviewed the depositions and affidavits and the plaintiffs’ objections, and the Magistrate Judge’s rulings, the court cannot find that the Magistrate Judge was clearly erroneous in any of those rulings. Therefore, the plaintiffs’ objections to the rulings on the defendant’s objections to depositions and affidavits are overruled. The depositions and affidavits are admitted, except for the portions of those depositions and affidavits which have had objections sustained to them. The defendant’s primary objection throughout its briefs is that the Magistrate Judge erred in concluding that the defendant intentionally discriminated against minority students. The defendant argues that the plaintiffs failed to prove by a preponderance of the evidence that the defendant engaged in purposeful and intentional discrimination and that the Magistrate Judge improperly jumped to that conclusion. The defendant further argues that the Magistrate Judge improperly gave too much weight to evidence it characterizes as “[isolated incidents of conduct by school officials” and that “almost all' evidence favorable to the District has been excluded from the proposed findings.” The defendant correctly points out, as the court has stated earlier, that this court is reviewing the evidence de novo. The court is mindful of the burdens of proof in this case and is also aware of the degree of circumstantial evidence presented. As stated earlier here, and in the Magistrate Judge’s Report, circumstantial evidence can be sufficient to infer the defendant’s intent. The court has reviewed all the evidence in this case in considering the Magistrate Judge’s Report and Recommendation. The following discussion should be read in conjunction with the corresponding sections of the Magistrate Judge’s opinion. The court will not attempt to answer each and every objection to the Magistrate Judge’s Report and'Recommendation filed by the parties, but will briefly comment on some of those objections. The parties have filed a multitude of objections, many of which have no basis in the record. Those objections not discussed here are rejected as meritless. As stated earlier, the standard that guides the court in a case such as this, is that this court must make a de novo determination of the record. As the courts have consistently held a de novo hearing is not required. Furthermore, the court is entitled to accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge, and to afford his credibility findings such weight as their merit commands and the sound discretion of the court warrants. United States v. Raddatz, 447 U.S. 667, 674-76, 100 S.Ct. 2406, 2411-13, 65 L.Ed.2d 424 (1980). The excellent Report and Recommendation submitted by the Magistrate Judge evidences a thorough understanding of both the law and the facts and how those facts apply to the law. In making its de novo determination in this case, the court has given due consideration to the Magistrate Judge’s Report and Recommendation in conjunction with the evidence. STUDENT TRACKING AND ABILITY GROUPING The Magistrate Judge found that the ability grouping and tracking practices of the Rockford School District (hereinafter RSD) did not represent a trustworthy enactment of any academically acceptable theory or practice and that the RSD tracking practices skewed enrollment in favor of whites and to the disadvantage of minority students. The Magistrate Judge further found that it was the policy of the RSD to use tracking to intentionally segregate white students, and that the policy existed in 1989 and had existed for many years prior thereto. The defendant’s principal objection to this finding is that the Magistrate Judge relied, to a large extent, on the testimony of the plaintiffs expert witness, Dr. Jeanne Oakes. The Magistrate Judge stated that “the most devastating witness testifying on behalf of the plaintiffs was Dr. Jeanne Oakes.” Report and Recommendation at 940. ' The defendant objects to the Magistrate Judge’s finding because, the defendant asserts, “Dr. Oakes neither visited a single school, nor spoke with a solitary student, administrator, or member of the Rockford community. She completed all of her analysis relative to the District through reliance on hearsay without ever personally viewing any of the Rockford Public Schools.” Further, the defendant seems to question the Magistrate Judge’s acceptance of Dr. Oakes as an expert witness, questioning her qualifications to state her opinions, based on her qualifications. The court rejects the defendant’s contentions. The Magistrate Judge’s conclusion on this point is convincingly supported by the evidence. First, Dr. Oakes is clearly qualified to testify on the subject of tracking and her testimony is entitled to great weight, as the Magistrate Judge found. Dr. Oakes’s expertise, integrity and credentials were acknowledged by the defendant’s counsel. Tr. at 818, 322. Her conclusions were supported, at least in part, by the defendant’s own expert, Dr. James Heald. Tr. 3293. Furthermore, contrary to the defendant’s contention, Dr. Oakes’s analysis was not based on hearsay. As the Magistrate Judge stated in his Report and Recommendation, her analysis is based upon an examination of a wide range of materials, which are documents obtained from- the defendant’s files. In addition, Dr. Oakes’s testimony is wholly corroborated by the testimony of the defendant’s personnel who are intimately acquainted with the tracking practice of the District. Specifically, see the testimony of Mr. William Bowen (Report and Recommendation at 947) and Mr. Nathaniel Martin’s (Report and Recommendation at 948) both veteran administrators of the District, with many years of experience in observing the operation of the District’s tracking method. The defendant also objects to the Magistrate Judge’s finding that the defendant’s tracking practices “did not represent a trustworthy enactment of any academically acceptable theory or practice.” This conclusion is supported by the testimony of Dr. Oakes and, in large part, by the testimony of Dr. Willis. The Magistrate Judge further found that “it was the policy of RSD to use tracking to intentionally segregate white students from minority students.” Report and Recommendation at 940. The defendant objects on the grounds that “no evidence was adduced at the hearing which demonstrated that the defendant was motivated on the basis of race to track or ability group students according to their race or had the invidious intent to do so.” As the plaintiffs correctly point out, the defendant’s intent is what is at issue here, not its motivation. Furthermore, there is ample evidence to support the Magistrate Judge’s conclusion on this point, including but not limited to: the assignment of minority students to lower track classes in consistently disproportionate numbers (Report and Recommendation at 946, 950-53), knowledge of these racial disproportions and woefully inadequate efforts to correct them (Report and Recommendation at 999), placing black students whose achievement scores qualified them for two or more tracks in lower tracks (Report and Recommendation at 959) and corroboration by District personnel (Report and Recommendation at 947-48). The defendant also objects to the Magistrate Judge’s finding that children were publicly labelled when they were “tracked.” Contrary to the defendant’s objections, the evidence clearly supports this finding, including the testimony of Dr. Oakes and the incredibly insensitive practice of the District of labelling the students by color-coding them for all of the student body to see. Not only is this evidence compelling, it is astonishing, and completely uncontroverted. The defendant also attacks Dr. Oakes’s expertise on statistical analysis, although it presented no statistical expert in order to impeach her analysis, which it could have done. The defendant’s claim is without merit. The defendant objects to the Magistrate Judge’s finding that the matters contained in Dr. Oakes’s charts and tables are true and correct and his adopting them as findings of the court. The Magistrate Judge further found that “the record is replete with situations where, there were students (usually white) who scored below the national mean and who were still placed in the honors classes and, incredibly, there were students (usually minority) who scored in the ninety-ninth percentile who were placed in basic classes.” This finding is amply supported by the record in this case. It is significant that the defendant offered no evidence to rebut the plaintiffs’ proof, presumably because it could not do so. The defendant also objects to the Magistrate Judge’s finding that the defendant did not track students objectively and had a rigid tracking program. The defendant attributes these inequities to “mistakes” and not “intentional discrimination.” The evidence on this point is replete with statistical, documentary and anecdotal support which establishes that the defendant was aware of the problem, but chose to do nothing to correct it. It is supported by the record in this ease. The Magistrate Judge found that the tracking systems used by the RSD did not remedy differences or ameliorate disparities in achievement among racial groups, nor did it function to move students out of the low-level track or move minority students into high-level tracks. The ability grouping used by the RSD, therefore, cannot be justified as an attempt to target minority students with the hope of advancing them to higher achievement levels. The grouping practices used created racially identifiable classrooms, provided unequal opportunities to learn and served no remedial function for minority students. These practices did not even enable minority students to sustain their position relative to white students in the district achievement hierarchy. Report and Recommendation at 999. The defendant’s objections to this finding seem to be that since the plaintiffs failed to prove that all minorities were improperly placed, no intent to discriminate can be found. The court finds such a suggestion to be incongruous and without any legal foundation. It would obviously be an impossible burden in any discrimination case to require the plaintiffs to demonstrate that every act of the District was discriminatory. Furthermore, the record reflects that the evidence supports that groups of higher track students whose scores fell within a range that would qualify them for participation in either a higher or lower track were consistently “whiter” than groups of students whose scores fell within the same range but who were placed in the lower track and in a number of cases, high track classes included exceptionally low-scoring white students, but this was rarely the case for blacks. Conversely, quite high-scoring blacks who were often excluded from high track classes, were often found instead in low track classes. This was seldom the case for white students. Report and Recommendation at 959. The defendant apparently contends that these disparities show that since the District mistracked both black and white students, no racial discrimination is shown. Contrary to the defendant’s position, the evidence presented reveals that while blacks were misplaced “down” (i.e. into lower classes), whites were misplaced “up” (i.e. into higher classes). The evidence clearly supports a finding that the mistracking resulted in unfavorable treatment for minority students. The ultimate result of this mistracking was that minority students whose achievement scores qualified them for regular and basic tracks were far more, likely to be placed in the lower than the higher track for which they qualified, and white students were far more likely to be placed in the higher track than the lower track when their achievement scores qualified them for both tracks. Report and Recommendation at 977. As to the defendant’s contention that socioeconomic factors account for the disparate treatment of minorities in track placement in the District, there is little, if anything, in the record supporting the defendant’s position. The defendant raises additional objections to the Magistrate Judge’s findings under the heading “Student Tracking and Ability Grouping.” The court finds that those objections are without merit and adopts the finds of the Magistrate Judge on those issues. SEGREGATION OF STUDENTS BY RACE WITHIN SCHOOLS In conjunction with the segregative practices involved in the tracking of students, the Magistrate Judge also found further use of special programs to separate children by race within Rockford public schools. During the periods when the RSD was involved with the Illinois State Board of Education (ISBE) and the QUEFAC lawsuit, the RSD took actions which were purported to have de-segregative effects. The Magistrate Judge found that those actions did not bring about any real racial interaction and instead, used programs which included intact busing and part-time programs, which had little, if any, desegregative effect. Those programs were subsequently rejected by the QUEFAC court and the ISBE in the mid-1970’s. The RSD then began to use both full-site and partial-site programs. Full-site programs included focus centers and open enrollment. Partial-site programs included such programs to place students in classrooms separate from the regular students in a school where the transfer students would not have much contact with the regular students. The use of the so-called “high status” partial-site programs, those with academic entrance requirements, placed groups of white students in minority schools, but the structure of the programs prevented the students from interacting with the minority students of the host school. The use of these kinds of programs allowed the District to count desegregation in terms of numerical percentages without consideration of continued separation of students within individual schools. Furthermore, prior to the filing of this lawsuit, the RSD used voluntary alternative programs for desegregation which were primarily composed of white students. Desegregation programs for minority students were primarily mandatory transfers and often included mandatory busing. The alternative programs created isolated classrooms of white students in predominantly black schools in which children were in the same buildings, but had no interaction. The defendant objects to the Magistrate Judge’s findings on the basis that they are not supported by the evidence and because many of the programs discussed were done with the approval of the QUEFAC court. The QUEFAC court did not make a finding that the RBE violated the rights of minority students. The case was, in fact, dismissed pursuant to a voluntary dismissal. Plans such as the Grade Exchange Plan and the Special Interest Centers were not ordered by the court. The Grade Exchange Plan was rejected because it effected no true integration. The plan for Special Interest Centers was allowed to proceed although Judge Bauer had serious reservations about the plan. He allowed the plan to go forward only because there was no time in which to implement an alternative. In 1977, the ISBE placed the RSD on probation because the plan it had submitted was found not to comply with the ISBE rules. Although these rules were held invalid by the Illinois Supreme Court, they did place the RSD on notice of the concern other governmental agencies had about its practices. The defendant also objects to the findings regarding the partial-site programs stating that the separation between the gifted students and the regular students occurred because the students would “necessarily be located in different classrooms.” The court finds this position meritless. The evidence supports the conclusion that minority students were excluded from the programs, with the resulting segregation among classrooms. The Grade Exchange Plan provided for the transfer of students and their teachers from predominantly white schools to predominantly minority schools and vice versa. Each class transferred remained intact at the receiving school. Again, this was a program to effect the appearance of integration without actually mixing minority and majority students. The defendant argues the evidence does not support this conclusion; however, the evidence is clear from the minutes of the school board and from the proceedings in QUEFAC. After the rejection of the Grade Exchange Plan, the District began using “Interest Centers” in 1975 to attempt to mix racially diverse students. The Interest Centers were designed to provide a course specific curriculum, but only for a five or ten day period during the school year. The plan was to provide a means to mix students while educating them in one particular field. The evidence shows, however, that classes were transferred en masse; minority classes were placed within an all white school, but were still kept separate. The evidence also supports the Magistrate Judge’s findings that even when minority students were placed in white schools, they were still kept separate from white students. The conclusion is supported by the discussion of student tracking, as well as the uncontra-dicted testimony of William Bowen and Keith Wilson. Further, the evidence supports the conclusion that many of the minority transfer students were part of Chapter I pull-out programs, who were then “pulled-out” of white classrooms to attend separate classes for significant portions of the day. The defendant asserts that this was not intentional segregation, but rather a means to maximize the District’s funding under Chapter I. The defendant offers no evidence to support its argument. This objection is also contradicted by Dr. Stolee’s testimony that there were no funding incentives to keep minority students in minority schools. In conjunction with the full-site magnet programs, the District used partial-site alternative programs which were highly segregated. The defendant objects stating that the evidence does not support the Magistrate Judge’s conclusions regarding the Focus Centers and Alternative Programs. The defendant states no basis for its objection. In 1987, the District changed its transportation policy, restricting eligible bus service to the school, which forced some minority students to drop out of the program because of the lack of transportation. Further, Dr. Greene’s testimony about his experiences at Haskell School is evidence of the District’s failure to support the Focus Center there and is not contradicted by the defendant. The RAES and RAMS showed promise as desegregative programs but were changed to partial-site programs and moved from the Lincoln Park school building. In 1982, RAES and RAMS were discontinued. The defendant argues that the closing of those programs does not show intent. The court disagrees. As the Magistrate Judge found, the use of these magnet programs showed that white students would participate in these types of desegregation programs. In the late 1970’s and early 1980’s, the RSD created partial-site magnet programs, “Alternative Programs”, and full-site programs called “Focus Centers.” In 1982, the RSD cancelled transportation to the Focus Centers, and effectively shut them down. The partial-site programs were of two types: the so-called “high status” programs such as the Gifted Program, CAPA, Montessori, and the Arts Alternative Program; and “low status” programs such as GIT and CASS. The Magistrate Judge found that the alternative programs were used as a means to emphasize and reinforce racial separation. The court agrees. Over time, the high status programs became more segregated white, while the low status programs continued with disproportionately high minority enrollments through the 1980’s. The District also created a “Minority Gifted Program”, but did not allow minority students to enter the all-white Gifted Program, even though the Program’s Director stated the minority gifted students were capable of performing just as well in the regular Gifted Program. The defendant’s objections that those findings are not supported by the evidence are without merit and the court adopts the Magistrate Judge’s findings regarding these programs. Within school segregation by intentional conduct is the same as intentional conduct resulting in systemwide segregation. This internal segregation is unlawful. Reed v. Rhodes, 607 F.2d 714, 731 (6th Cir.1979); Hobson v. Hansen, 269 F.Supp. 401, 511-14 (D.D.C.1967), aff'd sub. nom. Smuck v. Hobson, 408 F.2d 175 (D.C.Cir.1969). Such internal segregation may even be more invidious because its effects are observable to the students every school day. Hart v. Community School Bd. of Educ., New York School Dist. #21, 383 F.Supp. 699, 740 (E.D.N.Y.1974), aff'd, 512 F.2d 37 (2nd Cir.1975). The Magistrate Judge concluded, as does the court, that the RSD engaged in intentional and purposeful discrimination in the operation of the District’s purported desegregation programs, tracking system, bilingual education programs, magnet school programs, and the various alternative education programs. The defendant’s objections to these findings are dismissed. STUDENT ASSIGNMENT The Magistrate Judge’s section on Student Assignment found that over the years the RSD manipulated school attendance areas to separate majority students from minority students. When state and federal agencies pressured the RSD to change its practices, the changes had limited effects and often placed a disparate burden on the minority students. The section covers a long period of time, from the late 1950’s through the 1980’s. The defendant initially objects to the admission of evidence prior to 1973 as too remote in time to have any relevancy. The court has broad discretion in determining the admissibility of evidence based on remoteness. Cason v. Texaco, Inc., 621 F.Supp. 1518, 1527 (C.D.La.1985); Keyes v. School Dist. No. 1, 521 F.2d 465, 473 (10th Cir.1975). The plaintiffs presented this historical evidence to show long-standing practices in the District, as such, their evidence is admissible. The defendant’s objection goes only to the weight of the evidence and not its admissibility. The defendant also argues that the Magistrate Judge’s findings are not supported by the evidence. This objection is meritless. The defendant has offered nothing to contradict the substantial evidence presented by the plaintiffs regarding the movement of students in school assignment. The defendant also suggests that the QUEFAC court did not find the RSD had intentionally discriminated. The court is fully aware of that fact and of the fact that no findings were made because of a voluntary dismissal. No disposition was made on the merits. The court does not infer anything against the defendant based on QUEFAC, but does examine the total sum of evidence, including those time periods. Similarly, the defendant has objected to evidence dealing with actions taken with the ISBE and under the rules and regulations promulgated by the ISBE. The ISBE Rules dealing with desegregation efforts were determined to be unconstitutional by the Illinois Supreme Court in Aurora East Public School Dist. No. 131 v. Cronin, 92 Ill.2d 313, 66 Ill.Dec. 85, 442 N.E.2d 511 (1982). The Magistrate Judge found, as does the court, that evidence of resistance or failure to comply with state law provisions can be evidence of unlawful intent. Diaz, 733 F.2d 660, 666; Morgan v. Kerrigan, 509 F.2d 580, 585 (1st Cir.1974) cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975); Johnson v. San Francisco Unified School District, 339 F.Supp. 1315, 1342 (N.D.Cal.1971), vacated on other grounds, 500 F.2d 349 (9th Cir.1974). As in QUEFAC, the District worked with the ISBE to formulate desegregation programs. Although the rules and regulations of the ISBE were found to be an unconstitutional exercise of authority by a state agency, the actions taken by the RSD while those rules were in effect is probative of the pattern of segregative practices which the plaintiffs have alleged. Therefore, the defendant’s objection is dismissed. Most of the evidence presented here, as in the rest of this case, has been gleaned from the RSD’s own records. Changes in the school attendance boundaries and attendance patterns were established by the RSD’s School Boundary Descriptions, Student Attendance Maps, Board Minutes, RSD Memo-randa, RSD correspondence with the United States Department of Justice, RSD correspondence with the- ISBE, and the various RSD plans and reports, including the 1989 Reorganization Plan and the Individual Building Analysis. Additional support was provided by the testimony of former Superintendent Dr. Thomas Shaheen, former Board Member Marcella Harris, Pupil Placement Committee Member Robert Kufalk, Rev. William Collins, Bill Page, former Board Member Jo Minor, former ISBE Member Dr. Justine Walhout, M. Dickover and RBE Equity Consultant Dr. Harriet Doss Willis. Further documentary support included reports from the Community Desegregation Committee and the Pupil Placement Committee, the record of Quality Education For All Children, Inc. v. School Board, 362 F.Supp. 985 (N.D.Ill.1973) and ISBE • Reports. The defendant offered nothing to contradict this evidence. In fact, most of the evidentiary basis has been stipulated to by the defendant. The defendant argues that the evidence does not support the Magistrate Judge’s findings. The court, however, finds the evidence amply supports the Magistrate Judge’s findings. Although the Magistrate Judge adopted a substantial portion of the plaintiffs’ proposed findings, the plaintiffs’ have objected to the Magistrate Judge’s failure to adopt certain findings they proposed. Specifically, the plaintiffs object to the Magistrate Judge’s failure to adopt findings regarding the Teacher Development Center (TDC) and the study done by the American Association of University Women and the League of Women Voters. The court finds the Magistrate Judge properly rejected those proposed findings. Although the TDC was subsequently dropped by the Board, the plaintiffs have not sufficiently established that it was done with segregative intent. As to the plaintiffs’ objection to the study of the American Association of University Women and the League of Women Voters, the Magistrate Judge properly rejected findings regarding the study. The plaintiffs failed to establish the reliability of the methods and procedures used. The court rejects these objections to the Report and Recommendation as well as the plaintiffs’ other objections to the Magistrate Judge’s failure to adopt their proposed findings. School districts have often been found to have developed attendance boundaries in which racial segregation in school assignments resulted. See Report and Recommendation at 1078 (and citations therein). The court adopts the Magistrate Judge’s findings and conclusions regarding school attendance zones as well as the conclusions that those attendance zones were used to create and maintain separate school systems based upon race. The court adopts the Magistrate Judge’s conclusion that the RSD’s policy of maintaining neighborhood schools was, in fact, a policy of maintaining neighborhood white schools. Report and Recommendation at 1079. Furthermore, the RSD also used feeder patterns for student assignment at the District high schools as well as satellite zones for elementary students to maintain segregation in the schools. The use of optional attendance zones also contributes to the segregative conditions in a school district. United States v. School Dist. of Omaha, 521 F.2d 530, 540-43 (8th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 361, 46 L.Ed.2d 280 (1975). The result of giving majority and minority students the option of attending predominantly majority or minority schools is often student choices which will create or intensify student segregation. The court finds that the RSD’s open enrollment policy did not aid desegregation. Rather, the open enrollment policy benefited majority students with access to alternative programs, while burdening minority students through mandatory one-way busing. The RSD’s policies in the construction of new schools or school additions and the closing of old schools also contributed to segre-gative conditions in student assignments. See Report and Recommendation at 1079-80. The court adopts the Magistrate Judge’s findings and conclusions that the RSD maintained segregative conditions when schools were closed so that white students were assigned to racially-identifiable white schools and minority students were assigned to racially-identifiable minority schools. Further, in the construction of school additions, the RSD intentionally added facilities to promote and maintain segregation within the school system. The court further finds that the RSD manipulated school capacities and student transfer policies to maintain segregative conditions in the District. Racially-identifiable white schools were operated at overcapacity levels to avoid transferring white students to racially-identifiable minority schools. Transfer policies in the RSD allowed special transfers for majority students even when those transfers had a segregative effect on the schools involved. The court adopts the Magistrate Judge’s conclusion that the RSD was aware of desegregation plans which would have integrated the District. The RSD rejected those proposed plans and adopted plans which burdened minority students and benefited majority students. FACILITIES AND EQUIPMENT DISPARITIES In his Report and Recommendation, the Magistrate Judge concluded that: Systemwide disparities in facilities, equipment, materials and supplies between minority and predominantly white schools is unlawful. Such policies and practices of the RSD clearly indicate intentional discrimination. Report and Recommendation at 1081. The Magistrate Judge further found that system-wide disparities in facilities and in equipment, materials and supplies between predominantly minority and predominantly majority schools existed during the past two decades. The defendant’s objections to these findings are: 1) that they are unsupported by the evidence, and 2) while the evidence covered a period of forty years, the Magistrate Judge’s finding that disparities existed applies to only twenty years. At no time did the defendant offer any evidence to counter the evidence produced by the plaintiffs on this issue. There is ample testimony in the record to support such a finding. The defendant objects to the Magistrate Judge’s reliance on the testimony of certain witnesses, specifically Carl Towns, a former Board Member; Eloise Beals, a former teacher; Pat Redmond, a former student; Marcella Harris, a former Board Member; Hiram Gregory Luna, a former member of the School Desegregation Committee; Michael Bozym, a former teacher; Dr. Thomas Shaheen, the former superintendent of the District, and Dr. Joanne Shaheen, his wife, who was also a teacher in the District; and Mary Williams, a former teacher in the District. The gist of the defendant’s objections to the Magistrate Judge’s reliance on the testimony of all these witnesses seems to be that the testimony was hearsay, that it was based on observations of events which occurred prior to the last two decades and that any opinions were the opinions of lay witnesses and were, therefore, inadmissible. The court rejects the defendant’s objections. First, all of these witnesses testified as to their personal observations which are clearly admissible, whether they are the observations of lay or expert witnesses. Second, even though they may have been evidence of events which occurred prior to the last two decades, such evidence may be probative of the attitude and practices of the defendant over an extended period of time. Third, under the Federal Rules of Evidence, a lay witness may state opinions, provided that such testimony is limited to those opinions or inferences which are: (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. In each of these instances, the objection goes to the weight of the evidence, not its admissibility. All of the witnesses relied upon by the Magistrate Judge testified to their own personal observations and any opinions they may have had were based on the rational perception of the witness and their opinions were helpful to a clear understanding of the witness’ testimony or the determination of the fact in issue. The defendant also objects to the following Magistrate Judge’s finding in his Report and Recommendation: Chart I shows the mean ranking of the physical systems by school type (African-American, integrated, white), ranked on a scale of 1 to 4, with 1 being the lowest and 4 being the highest. African-American schools had a mean ranking with regard to physical systems of 2.45. Integrated schools had a mean of 2.51, and white schools a mean of 2.57. Report and Recommendation at 1082. The defendant’s principal objection seems to be on the grounds that it is simply a subjective judgment concerning “physical systems” broken down by “school type.” The defendant contends that without any type of explanation, such a finding cannot support a conclusion that the defendant intentionally discriminated with respect to physical facilities. Contrary to the defendant’s contention, the chart was based on the District’s own document, entitled “District Facility Plan.” Furthermore, the defendant stipulated to the chart. In view of the stipulation and the fact that the data used in the preparation of the chart was obtained from documents prepared by the District, it is difficult to see how the defendant can object to the Magistrate Judge’s finding. The defendant also objects to the Magistrate Judge’s findings, that: 1) for each category of equipment, as the percentage of African-American students in the school increased, the number of pieces of equipment allocated to the school declined, and 2) that the equipment disparities revealed by defendant’s January 2, 1990, Facilities and Equipment Evaluation were known to the School District through' an annual equipment inventory process conducted by the District. Report and Recommendation at 1084, 1090. In short, the defendant states that “the analysis provided simply counted objects with no consideration for the factors noted above. Without addressing these other factors, a finding of intentional discrimination based on such an incomplete and inconclusive analysis is without merit and cannot withstand review.” The court notes that the 1990 Facilities and Equipment Evaluation was prepared from the District’s own data for the purpose of evaluating equipment disparities between predominately white and predominately minority schools. Furthermore, the defendant presented no evidence as to why these equipment disparities existed or the reasons for the disparities. The court can only conclude that no such evidence was presented because none existed. The defendant also objects to the Magistrate Judge’s finding that: Defendant’s failure to produce pre-lawsuit inventory lists makes precise evaluation of equipment allocation to African-American schools at the time this suit was filed impossible. However, even defendant’s post-lawsuit equipment evaluations, performed after some remedial measures were taken, showed strong disparities in equipment allocation. Report and Recommendation at 1090. The defendant’s objection is that: One cannot conclude that, in the absence of inventory data for thirty years, the inventory data gathered after the filing of this lawsuit are dispositive of defendant’s intent prior to the filing of the lawsuit. No correlation was drawn by the Magistrate Judge. Furthermore, on November 28, 1993, the Magistrate Judge entered an order on three issues related to implementation of the Second Interim Order, such Order stating, inter alia, that: [A]s near as the court can tell, as of the date of this order the Board is substantially in compliance with and has engaged in no intentional violation of the Second Interim Order. Specifically, the defendant objects to the Magistrate Judge’s finding that the District’s annual inventories are both probative of the usefulness of equipment and of the defendant’s knowledge of the disparities in equipment. As to the knowledge which may be imputed to the defendant, the court notes that the inventory process was prepared, or at least coordinated, by the defendant’s Director of Purchasing. Under these circumstances, it is difficult to see how such knowledge cannot be imputed to the Director’s principal, the defendant. Furthermore, the defendant’s own forms called for comments on the condition of the various equipment. As to the defendant’s objection to the Magistrate Judge’s reliance on post-filing inventory, the court finds that under the circumstances here, the Magistrate Judge was entitled to rely on the data and to draw reasonable inferences therefrom, since they were the only inventories made available by the defendant. The defendant also objects to the following finding of the Magistrate Judge: Prior to its closing in 1973, Muldoon School, a predominantly African-American school in the Southwest Quadrant, was in dire need of renovation. Muldoon was an old, previously closed Catholic girls’ school, that was purchased by the RSD and operated for only one year, housing 4th, 5th and 6th grade children from Ellis. In response to parent protests, the RSD allocated a small sum of money for repair work for the school year 1972-73. Report and Recommendation at 1092-93. The court is amazed that the defendant would even mention the conduct of the District as it relates to this finding. The Magistrate Judge’s finding, was, in fact, very understated in view of the circumstances attending the so-called “restoration” of Mul-doon School. In fact, the evidence revealed that the defendant received a life safety report which outlined an expenditure of $350,-000.00 for necessary restoration and repairs. In response to the parents’ protests, the District expended a total sum of $3,700.00, approximately one percent (1%) of the amount recommended, which failed to include a fire alarm or new heating system. The court finds it incredible that the defendant would now point to such actions as “positive steps.” Although it is true that the students were housed in this building for only one year, the District is fortunate to have averted a tragedy during that year. The defendant also objects to the Magistrate Judge’s finding that the RSD’s private gifts policy contributed to EMS disparities. Specifically, the Magistrate Judge found that: For twenty-five years, the RSD consistently operated in a manner that allowed parent gifts and other private gifts to provide a much better educational experience for white students than for minority students. Schools serving middle and upper income students received more gifts from their PTAs, PTOs and other third-parties, than schools serving lower income students. Accordingly, the schools serving middle and upper income students had far more equipment, materials and supplies. Report and Recommendation at 1094. The defendant objects to these findings on the basis that private acts of non-state officials (e.g. PTO, PTA, etc.) do not support state action sufficient to prove a violation of the Fourteenth Amendment. The defendant further contends that knowledge of a twenty year history of accepting gifts cannot be imputed to each School Board and that no one Board had the benefit of knowledge of acts of its predecessory Boards so as to understand the impact of a policy on gifts accepted over a twenty year history. With respect to the chart contained on page 1096 of the Report and Recommendation and the statistics cited on page 1095, the defendant objects on the basis that these percentages were never “stipulated to by the parties, as is stated in footnote number 14.” Contrary to the defendant’s contention, the District’s practice in allocating these gifts was an exercise of its discretion, an affirmative state action. Furthermore, the Board was put on notice many times over a long period of years that its private gift practice had a disparate impact on predominately minority schools. As to the defendant’s denial that it did not stipulate to the by-quadrant gift figures, the plaintiff has filed an affidavit of one of its counsel, which is unrebutted, confirming the stipulation. The defendant raises some minor additional objections relative to the “Facilities and Equipment Disparities” section of the Magistrate Judge’s Report and Recommendation. The court rejects those objections as without merit and adopts the Magistrate Judge’s findings as its own. 1989 REORGANIZATION PLAN The complaint in this case was filed shortly after the RSD adopted a District-wide reorganization plan on February 28, 1989, entitled “Together Toward a Brighter Tomorrow.” (“The 1989 Reorganization Plan” or “Plan”) The immediate effects of the Plan as proposed were to close the naturally integrated West High School, resegre-gate District elementary schools and impose extreme disparate burdens on minority students. Some aspects of the Plan were implemented, many others were not. For the purposes of the Magistrate Judge’s Report and Recommendation, and this opinion, the court evaluates the Plan in terms of the effects the RSD anticipated at the time of adoption, primarily through enrollment and program projections the RSD had on February 28, 1989, and projections made through May 11, 1989, the date this lawsuit was filed. The defendant’s initial objections are that because the Plan was never fully implemented, the court cannot use it as a basis for a finding of intentional discrimination. The court examines the intent of the defendant at the time of the filing of the lawsuit. This includes past and present actions of the RSD. In this instance, the court is examining the completed action of the Board, namely, the adoption of the Reorganization Plan. Also, the Magistrate Judge often referred to proposals in the Plan as completed actions. As noted in the Report and Recommendation, however, and made clear throughout his discussion, the Magistrate Judge was looking at projected effects had the Plan been fully implemented from the time of the filing of the lawsuit to determine the defendant’s intent. In evaluating the Plan, the Magistrate Judge also considered evidence of earlier versions of the Plan. The defendant objects, arguing that those versions were not implemented and that public protest from portions of the community does not evidence intentional discrimination. The court finds that the events preceding the defendant’s decision is relevant to intent. Arlington Heights, 429 U.S. at 266-69, 97 S.Ct. at 563-69. Furthermore, the defendant’s responsiveness to public comment on its actions and foreseeability of the impact of its decisions are also relevant to the defendant’s intent. The defendant also objects to former Superintendent Maurice Sullivan’s testimony as an “ ‘after-the-fact’ criticism of the deliberative process.” The court finds Dr. Sullivan competent to offer testimony as an experienced school administrator and educator. He has a broad base of knowledge about the District and its practices. The court finds Dr. Sullivan well qualified to offer Ms opinions regarding the considerations taken in formulating the Reorganization Plan. Prior to the Reorganization Plan, the RSD had the following distribution of elementary schools: % of # of Schools Schools 36% Racially-identifiable white 14 Desegregated 15 Racially-identifiable minority 10 26% Total 39 100% At that time, the percentage of elementary students attending each type of school was as follows: African-American/ Hispanic Students White Students Racially-identifiable white 5% 42% Desegregated 39% 43% Racially-iden