People Who Care v. Rockford Bd. of Educ. School Dist. No. 205, 91-2438

• Citation: 961 F.2d 1335
• Decision Date: 22 April 1992
• Docket Number: No. 91-2438,91-2438
• Parties: 140 L.R.R.M. (BNA) 2199, 58 Fair Empl.Prac.Cas. (BNA) 1121, 58 Empl. Prac. Dec. P 41,514, 60 USLW 2711, 74 Ed. Law Rep. 475 PEOPLE WHO CARE, et al., Plaintiffs-Appellees, v. ROCKFORD BOARD OF EDUCATION SCHOOL DISTRICT NO. 205, Defendant-Appellee, and Rockford Education Association, et al., Intervenors-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1335

961 F.2d 1335

140 L.R.R.M. (BNA) 2199, 58 Fair

Empl.Prac.Cas. (BNA) 1121,

58 Empl. Prac. Dec. P 41,514, 60 USLW 2711,

74 Ed. Law Rep. 475

PEOPLE WHO CARE, et al., Plaintiffs-Appellees, v. ROCKFORD BOARD OF EDUCATION SCHOOL DISTRICT NO. 205,

Defendant-Appellee,

and

Rockford Education Association, et al., Intervenors-Appellants.

No. 91-2438.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 16, 1991.

Decided April 22, 1992.

Ronald L. Futterman, Kathleen Mangold-Spoto, Robert C. Howard (argued), Hartunian, Futterman & Howard, Chicago, Ill., Andrew Campos, Rockford Area Hispanic Coalition, Centro Hispano Sembrador, Rockford, Ill., Eugene Eubanks, Kansas City, Mo., for plaintiff-appellee People Who Care.

Ronald L. Futterman, Kathleen Mangold-Spoto, Robert C. Howard (argued), Hartunian, Futterman & Howard, Chicago, Ill., for plaintiffs-appellees, Larry Hoarde, Chastity Hoarde, Johnathan Hughes, Shaheed Saleem, Anissa Tripplett, Asia Eason, Sidney Malone, Andre Malone, James Curtin, Kelly Curtin and Leonardo Medrano.

Lawrence J. Weiner, Justino D. Petrarca, Scariano, Kula, Ellch & Himes, Chicago, Ill., Thomas A. Bueschel, Conde, Stoner & Killoren, Rockford, Ill., Anthony G. Scariano (argued), Scariano, Kula, Ellch & Himes, Chicago Heights, Ill., John N. Schmidt, Rockford Public Schools, Rockford Ill., for defendant-appellee Rockford Bd. of Educ., School Dist. No. 205.

Stephen G. Katz, Katz, Friedman, Schur & Eagle, Chicago, Ill., Jeremiah A. Collins, Robert H. Chanin (argued), Susan Carle, Bredhoff & Kaiser, Washington, D.C., Barbara J. Buhai, Illinois Educ. Ass'n, Chicago, Ill., for intervenors-appellants Educational Office Personnel Ass'n, Rockford Bldg. Maintenance Ass'n, and Rockford Educ. Ass'n.

Before BAUER, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Pupils, parents, and civic associations filed this suit seeking desegregation of the public schools in Rockford, the second-largest city in Illinois. The district court certified a class of all black or Hispanic pupils in the district, plus all other children attending racially identifiable schools there.

Figures compiled for litigation during the 1970s showed that although minorities made up approximately 15% of the pupils in Rockford's schools, several elementary schools had more than 70% minority enrollment and one had more than 90%. The school district adopted a plan involving voluntary transfers and educational enrichment, see Quality Education for All Children, Inc. v. School District No. 205, 385 F.Supp. 803 (N.D.Ill.1974) (Bauer, J.), but imbalance persisted. A second suit foundered when the plaintiffs were unwilling to allege that Rockford's officials intentionally used race as a ground of decision. Coates v. Illinois State Board of Education, 559 F.2d 445 (7th Cir.1977). Plaintiffs in this suit have alleged intentional discrimination. But they have yet to prove it. They settled with the Board, and the court entered the settlement agreement as an injunction.

Under the consent decree the Board is to establish three magnet schools and several magnet programs. Another 15 schools will be home to supplemental programs for disadvantaged minority students. The Board believes that these programs will achieve more if it assigns teachers of its own choosing. Collective bargaining agreements with several unions contain seniority provisions giving teachers rather than principals the dominant role in matching teachers with schools. The settlement agreement undercuts seniority as a principle of assignment. Section B.11.b of the injunction provides that "[t]eaching staff for [the] programs shall be selected without emphasis on seniority and shall not be subject to displacement solely on the basis of seniority; rather, seniority shall be considered as one of the elements in determining qualification for selection or retention". Under the collective bargaining agreement the most junior teachers at a shrinking school are declared "surplus" and have bumping rights elsewhere in the system; under the injunction principals may choose teachers to let go without regard to seniority, and the "surplus" teachers lose their bumping rights at the magnet schools and new programs, which cover about 25% of the positions in the school district. The district's unions intervened to protest this alteration of their contracts.

Two other types of provisions in the injunction have drawn the unions' ire. Sections of the decree oblige the Board to establish training programs and specify the compensation for training time, to change class size, to extend the school year at one magnet school, to develop procedures to deal with complaints of discrimination, and so on. Unilateral action would abrogate the unions' entitlement, under state law, to bargain about changes in the terms and conditions of employment. The other category of provisions calls for racial preferences. Section E.7 of the decree compels the Board to discard the last-hired-first-fired system and instead to lay off white teachers exclusively, until it has reached specified levels of minority employment. Section E.6 requires the Board to take race into account when assigning teachers to schools. The unions contend that these provisions violate not only the collective bargaining agreements but also the equal protection clause of the fourteenth amendment. See Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986); Britton v. South Bend Community School Corp., 819 F.2d 766 (7th Cir.1987) (in banc). The district judge has suspended the application of §§ E.6 and 7, so we limit our attention to the provisions that alter the seniority rules and the obligation to bargain.

The district court issued the injunction on April 24, 1991. In June the court held what it called a "necessity hearing" to consider the unions' objections. This hearing took its name from language in Brown v. Neeb, 644 F.2d 551 (6th Cir.1981), to the effect that a court may abrogate parts of a contract when "necessary" to carry out the parties' agreement. The judge took evidence and in September issued an opinion concluding that "a sufficient factual predicate exists to support the District's decision to enter into" the consent decree. The court did not explain what this "factual predicate" is, but it appears to be racial imbalance in the schools. Next the court concluded that the decree is "necessary"--not to eliminate racial discrimination, for none has been found, but "necessary for equalizing the educational opportunities of minority students as compared to white students." Finally the court held that alteration of seniority is "necessary" to make the consent decree work. The decree's rules "are necessary to ensure staff quality, program quality and staff stability", which the court thought not only important to the success of the new programs but also hard to achieve when seniority allows teachers to choose where to teach.

Rockford has not admitted engaging in discrimination; it has denied all liability; the district court wrote that "there has not been an admission of ultimate liability by Defendant or a determination by the Court of such liability." The unions jump off from here. Consent decrees are fundamentally contracts. True, when the imprimatur of the injunction joins the parties' agreement, the result is more than a contract, but the source of authority to require the parties to act remains their acquiescence rather than rules of law. Firefighters Local 93 v. Cleveland, 478 U.S. 501, 519-22, 106 S.Ct. 3063, 3073-75, 92 L.Ed.2d 405 (1986). In consequence, "parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party's agreement." Id. at 529, 106 S.Ct. at 3079. See also Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989); Larry Kramer, Consent Decrees and the Rights of Third Parties, 87 Mich.L.Rev. 321 (1988). In particular, they may not alter collective bargaining agreements without the union's assent. W.R. Grace & Co. v. Rubber Workers Local 759, 461 U.S. 757, 771, 103 S.Ct. 2177, 2186, 76 L.Ed.2d 298 (1983). Neither may litigants agree to disregard valid state laws. Dunn v. Carey, 808 F.2d 555, 560 (7th Cir.1986); Kasper v. Board of Election Commissioners, 814 F.2d 332, 340-41 (7th Cir.1987); Bates v. Johnson, 901 F.2d 1424, 1426 (7th Cir.1990). Cf. Ragsdale v. Turnock, 941 F.2d 501 (7th Cir.1991), at 510-11 (Posner, J., concurring), 515 (Flaum, J., dissenting in part); Bass v. FSLIC, 698 F.2d 328 (7th Cir.1983).

What the parties may do for themselves, they may do through a consent decree even if third persons lose out; so, for example, a city might agree with the...