Palmer v. Board of Educ. of Community Unit School Dist. 201-U, Will County, Ill.

• Decision Date: 03 February 1995
• Docket Number: 94-1229,Nos. 93-3591,s. 93-3591
• Citation: 46 F.3d 682
• Parties: , 31 Fed.R.Serv.3d 563 Edward PALMER, et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF COMMUNITY UNIT SCHOOL DISTRICT 201-U, WILL COUNTY, ILLINOIS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 682

46 F.3d 682

63 USLW 2504, 31 Fed.R.Serv.3d 563

Edward PALMER, et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF COMMUNITY UNIT SCHOOL DISTRICT 201-U WILL COUNTY, ILLINOIS, et al., Defendants-Appellees.

Nos. 93-3591, 94-1229.

United States Court of Appeals Seventh Circuit.

Argued Sept. 12, 1994.

Decided Feb. 3, 1995.

Forest J. Miles (argued), Richard J. Witry, McCarthy, Duffy, Neidhart & Snakard, Carlton Lowe (argued), Thomas S. Moore, Chicago, IL, for Edward Palmer, Rose Simpson, Jerry Crockett and James Harris, individually and on behalf of a class of persons similarly situated, plaintiffs-appellants.

Lawrence J. Weiner, John M. Izzo, Anthony G. Scariano, Raymond A. Hauser (argued), Jon Gardner Crawford, Scariano, Kula, Ellch & Himes, Chicago, IL, for Board of Educ. of Community Unit School Dist. 201-U, Will County, IL, Michael E. Stallings, John Ebner, Kenneth D. Schmitt, John W. Ritchie, Randall G. Farmer, Donna L. Swanstrom, Peg Kullio, Bruce Setchell and Jack Slaybaugh.

Jon Gardner Crawford, Scariano, Kula, Ellch & Himes, Stuart D. Gordon, Chicago, IL, for Jan Gould.

Before LAY, ^* EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

The principal question in this case is whether the suits that produced Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), should have been dismissed as untimely rather than decided on the merits. Some of the states whose laws were at issue had segregated their schools by race since the nineteenth century, but the plaintiffs did not file suit until 1950. If the claim accrued when the discriminatory assignment system came into being, then the suit was far too late. Our case involves a school system that the plaintiffs believe instituted a discriminatory assignment and school closing plan in 1987. They did not file suit until late 1990, and the defendants insist that the suit is untimely. We believe--as the Court assumed in Brown--that a claim of racial discrimination arises each day a child is assigned to school under a racially discriminatory policy.

Community Unit School District 201-U comprises all of Monee Township and most of Crete Township in Will County, Illinois. The population of the Village of University Park, in Monee Township, is predominantly black; the population of the rest of the district is predominantly white. Until 1987 the School District operated two junior high schools, one in University Park and the other in Crete. Deer Creek Junior High, in University Park, is newer, larger, and better equipped. Nonetheless the District closed it and began to bus pupils to the other junior high school. The school board said that the closing was temporary, until renovations could be completed. But renovations have not been scheduled and Deer Creek remains closed. Black children bear a disproportionate burden of transportation. The board says that it lacks the money; plaintiffs say that Deer Creek does not need renovation (the board has never explained what renovations are contemplated) and that the explanation is a pretext for discrimination--that the real reason is the reluctance of white residents to send their children into University Park. Plaintiffs say that this unwillingness also explains the attendance patterns of the district's five elementary schools. One (Hickory) is located in University Park. The district busses pupils out of University Park to the other four schools but no one from the surrounding area into University Park. The district permits parents to choose which elementary school their children will attend; the result is that many white children within Hickory's residence zone attend other schools (even though Hickory is underutilized in comparison to the other four), and no white children from outside Hickory's zone opt in, producing a greater racial imbalance in the schools than in residence patterns. More than 80% of Hickory's pupils are black; the other four schools have a population that is 10% to 39% black. Cf. Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

Plaintiffs, a class of black parents and children living in University Park, filed this suit in 1990, and the defendants pleaded the statute of limitations. According to defendants, the time limit of one year began to run when Deer Creek was closed in 1987 and when the attendance rules for elementary schools were adopted, some years ago. Plaintiffs replied that racial discrimination in the operation of the schools is a continuing violation, actionable as long as the discriminatory effects remain, and that at all events the claim did not accrue until 1989 when the board reneged on a promise to reopen Deer Creek. The district court rejected the continuing-violation theory and, applying a one-year period of limitations, held that the school claims are untimely even if they accrued in 1989. 1991 WL 171342, 1991 U.S. Dist. LEXIS 12130. The court also dismissed several claims of discrimination in the electoral system (we turn to one of these at the end of this opinion) but retained a claim under Sec. 2(b) of the Voting Rights Act, 42 U.S.C. Sec. 1973(b). After additional proceedings the court held that at-large elections to the school board violated Sec. 2(b). It approved a plan creating seven single-member districts. Entry of the permanent injunction under the Voting Rights Act made the dismissal of the other claims final, and plaintiffs appealed.

The school discrimination claims depend on 42 U.S.C. Sec. 1983, which obtains its statute of limitations (via 42 U.S.C. Sec. 1988) from state law. In Illinois the period is two years. Kalimara v. Illinois Department of Corrections, 879 F.2d 276 (7th Cir.1989). The district court chose a one-year period from 745 ILCS 10/8-101, which applies to tort litigation against municipalities. The school district is a municipal body and therefore, the district court held, is not exposed to suit after a year has passed. Yet Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), held that there can be only one Sec. 1983 statute of limitations per state--the general law applicable to personal injuries, and not special laws applicable to subsets of personal injuries. See also, e.g., Anderson v. Romero, 42 F.3d 1121, 1123 (7th Cir.1994). Recognizing this holding, the Illinois courts have acknowledged that 745 ILCS 10/8-101 may not be employed in Sec. 1983 litigation. Weiss v. Downers Grove, 225 Ill.App.3d 466, 167 Ill.Dec. 794, 588 N.E.2d 435 (2d Dist.1992). Statutes such as 745 ILCS 10/8-101 that establish short time limits for suing governmental bodies are especially poor candidates for absorption under Sec. 1988. States are not free to endow themselves and their employees with special protection from Sec. 1983 suits, which after all apply only to state actors. See Dixon v. Chrans, 986 F.2d 201 (7th Cir.1993) (holding that states may not modify the tolling rule for prisoners' suits only when public personnel are defendants, while preserving tolling for suits against private parties). The idea behind Owens and Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), is to apply to the states the same periods of limitation that they deem satisfactory for private suits within their borders; states' desire to afford ample opportunities to victims in ordinary private litigation gives vicarious protection to victims of constitutional torts.

To all of this the defendants' principal reply is that the plaintiffs forfeited any application of the two-year period by failing to contest defendants' invocation of 745 ILCS 10/8-101 in the district court. Actually plaintiffs did make the right arguments, but only after the district court had eliminated the school discrimination claims from the case. Because the litigation was ongoing when plaintiffs presented their arguments to the district court, our case is a far cry from Deppe v. Tripp, 863 F.2d 1356, 1361-62 (7th Cir.1988), which held that litigants who fail to make accurate objections to jury instructions in civil cases may not invoke the plain error doctrine on appeal. The school counts were dismissed under Fed.R.Civ.P. 12(b)(6), and when acting on a motion to dismiss the district court is supposed to indulge all factual and legal possibilities in plaintiffs' favor. See Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073 (7th Cir.1992). Plaintiffs did not concede that the statute of limitations bars their claims; they simply missed one good argument in support of a legal position they explicitly advanced and developed. A court should apply the right body of law even if the parties fail to cite their best cases. Elder v. Holloway, --- U.S. ----, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). Cf. United States National Bank of Oregon v. Independent Insurance Agents of America, Inc., --- U.S. ----, ---- - ----, 113 S.Ct. 2173, 2177-79, 124 L.Ed.2d 402 (1993); Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 1717, 114 L.Ed.2d 152 (1991). The right rule of law here is a two-year period of limitations.

Even the two-year period does not matter if the time has been running since Deer Creek closed and the school board adopted its assignment rules for elementary schools. So the district court held. The court treated accrual of a claim as a once-and-for-all proposition: passage of time gives the defendant immunity from litigation, even when the plaintiff may have been unaware of, and unaffected by, the defendant's act until years later. A wrongful act does not mark the accrual of a claim, however; the time begins with injury rather than with the act that leads to injury. E.g., Goodhand v. United States, 40 F.3d 209 (7th Cir.1994). (If the victim discovers the injury only later, the time may be postponed, but our case does not entail any claim of belated discovery.) An auto manufacturer that makes a defective steering system faces suit if, many years later, the defect causes the car...