Samayoa by Samayoa v. Chicago Bd. of Educ.

• Decision Date: 10 December 1986
• Docket Number: No. 86-1355,86-1355
• Citation: 807 F.2d 643
• Parties: 38 Ed. Law Rep. 36 Marco SAMAYOA, By his mother Estela SAMAYOA, et al., Plaintiffs-Appellants, v. CHICAGO BOARD OF EDUCATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 643

807 F.2d 643

38 Ed. Law Rep. 36

Marco SAMAYOA, By his mother Estela SAMAYOA, et al Plaintiffs-Appellants, v. CHICAGO BOARD OF EDUCATION, et al., Defendants-Appellees.

No. 86-1355.

United States Court of Appeals Seventh Circuit.

Dec. 10, 1986.

Yvon D. Roustan, Chicago, Ill., for plaintiffs-appellants.

Patricia J. Whitten, Law Dept. Bd. of Ed., City of Chicago, Chicago, Ill., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division; Charles R. Norgle, District Judge.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE and MANION, Circuit Judges.

ORDER

On consideration of the petition for rehearing and suggestion for rehearing in banc filed in the above-entitled cause by plaintiffs-appellants on September 2, 1986, a vote of the active members of the Court was requested, and a majority of the active members of the Court have voted to deny a rehearing in banc. ¹ All of the judges on the original panel have voted to deny the petition for rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehearing be, and the same is hereby, DENIED.

EASTERBROOK, Circuit Judge, with whom POSNER, Circuit Judge, joins, and COFFEY, Circuit Judge, joins with respect to Parts II and III, dissenting.

Marco Samayoa and other children were admitted to the Walt Disney Magnet School, a public elementary school in Chicago. The consent decree now governing Chicago's public schools calls for annual revisions of the quotas at each school as the city's racial makeup changes. The number of white students in Chicago continues to fall. The revision effective in the fall of 1981 reduced the quota in force at Disney School and compelled the exclusion of the plaintiffs--American Indians, Cubans, and others of various lineages.

The panel held, 798 F.2d 1046, that the plaintiffs have not stated a constitutional claim. It relied principally on United States v. Board of Education, 567 F.Supp. 290 (N.D.Ill.1983) (Johnson III ), which rejected a claim made by black students excluded from schools in Chicago in order to make room for white students. The district court observed in Johnson III that every remedy for segregation entails the drawing of racial lines and that every line will affect some people more than it affects others. 567 F.Supp. at 295. Everyone has a racial identity, so if a line could be attacked on the ground that it injured a given person or race, the school board would be unable to consider race in assigning students to schools. The district court concluded that the way around this difficulty is to require any person objecting to the use of race to attack the plan as a whole. Id. at 295-96. No one may attack any particular line, the court held. The plan as a whole had been upheld by an earlier opinion of the district court, so Johnson III concluded that the plaintiffs could not obtain relief. The panel endorsed Johnson III, see 798 F.2d at 1049-50. The analysis of Johnson III is problematic, however, enough so that our court should review the matter independently.

I

The position taken by the panel--that people adversely affected by a consent decree cannot attack the decree without showing that every feature of the decree is unconstitutional--collides with Firefighters Local 93 v. City of Cleveland, --- U.S. ----, 106 S.Ct. 3063, 3073-80, 92 L.Ed.2d 405 (1986), which was decided after Johnson III and which the panel did not cite. Firefighters holds that for most purposes a consent decree is a contract. See also United States v. Western Electric Co., 797 F.2d 1082, 1089 (D.C.Cir.1986). Parties to litigation may not sign contracts, with or without the court's approval, that stipulate away the rights of strangers. Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 695-697 (7th Cir.1986) (en banc). A person is bound by a judicial decree only to the extent he had notice and an opportunity to participate fully. Consent decrees therefore are open to challenge by strangers. See United States v. Jefferson County, 720 F.2d 1511, 1517-18 (11th Cir.1983); Ashley v. City of Jackson, 464 U.S. 900, 901-02, 104 S.Ct. 255, 256-57, 78 L.Ed.2d 241 (1983) (Rehnquist & Brennan, JJ., dissenting from the denial of certiorari). See also United States v. City of Miami, 664 F.2d 435 (5th Cir.1981) (en banc); EEOC v. Safeway Stores, 714 F.2d 567 (5th Cir.1983). So far as strangers to the litigation are concerned, consent decrees are programs voluntarily adopted by the parties. The provisions of the decree may be challenged to the same extent these voluntary programs may be challenged. See Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961). We must treat the quota affecting Disney School as a program voluntarily adopted by Chicago's Board of Education, which it is.

If the Board had adopted a resolution imposing a racial quota on Disney School, students excluded from the school could have challenged their exclusion without showing that the Board's entire attendance policy is unconstitutional. A litigant is entitled to challenge governmental acts that apply to him, for the Constitution requires the Board to treat him as a person, and not merely as a member of a group identified by race. The plaintiffs are not pieces to be moved around in a board game, with no redress unless they can show that all of the rules of the game are stacked. A person aggrieved by one discriminatory clause in a statute need not show that every clause is unconstitutional. The Supreme Court has held that sections of statutes must be evaluated individually. E.g., Papasan v. Allain, --- U.S. ----, 106 S.Ct. 2932, 2945-47 & n. 17, 92 L.Ed.2d 209 (1986), rejecting an argument that discriminatory implementation of one statutory provision may be made up for by countervailing effects elsewhere. The Court has rejected "bottom line" defenses in the law of discrimination. Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982) (Title VII of the Civil Rights Act of 1964). The existence of a device that affects people adversely according to their race may not be justified by some other device that benefits other people of the same race. Neither the decree nor the existence of countervailing clauses allows a court to decline to adjudicate a challenge to a particular provision that affects third parties. Yet that is what the panel did. It accepted a "bottom line" defense without differentiating the rights of the plaintiffs from the interests of racial groups.

The panel did not explain why the plaintiffs must attack the whole decree in order to be heard on their own claims. One potential reason could be that consent decrees bind strangers to the litigation in a way that a plan unilaterally promulgated by the School Board does not, but that reason would be inconsistent with Firefighters. Another reason could be that there is something special about attendance plans for school districts, whether or not embodied in consent decrees, so that plaintiffs must challenge the whole plan. This reason would be inconsistent with the rule forbidding a litigant to raise the rights of others. A doctrine that makes jus tertii claims essential to constitutional litigation has little to recommend it and Article III of the Constitution to condemn it.

II

The district court in Johnson III relied on its earlier holding that the consent decree as a whole is constitutionally appropriate. The panel's reliance on Johnson III suggests that it, too, blessed the consent decree. Yet the panel did not address the constitutionality of the decree or any of its provisions, and this court has never done so before. The panel said (798 F.2d at 1049) that "the plaintiffs' argument was adequately addressed in United States v. Chicago Board of Education, 554 F.Supp. 912 (N.D.Ill.1983), aff'd, 717 F.2d 378 (7th Cir.1983)." But our opinion at 717 F.2d 378 was concerned only with the district court's order to the United States to provide additional funds to the Chicago Board of Education. We have never passed on the adequacy of this plan as a whole, on its application to Disney School in particular, or on the feature of the plan that gave rise to this case--the alteration in the quota every year to reflect changes in Chicago's population.

We have come close twice. Before the entry of the consent decree, we held in Johnson I and Johnson II that Chicago's voluntary quotas were constitutional. Johnson I was vacated with directions to consider mootness. Johnson v. Board of Education, 604 F.2d 504 (7th Cir.1979), vacated, 449 U.S. 915, 101 S.Ct. 339, 66 L.Ed.2d 162 (1980). After remand we reaffirmed the propriety of the quotas on the basis of Johnson I, see Johnson v. Board of Education, 664 F.2d 1069 (7th Cir.1981), and the Supreme Court vacated the decision again, this time with an opinion, 457 U.S. 52, 102 S.Ct. 2223, 72 L.Ed.2d 668 (1982). The Court thought the consent decree required a reassessment of the situation. It reminded us (id. at 53-54, 102 S.Ct. at 2224-25): "Because we have vacated the Court of Appeals' judgments in this case, the doctrine of the law of the case does not constrain either the District Court or, should an appeal subsequently be taken, the Court of Appeals." The Supreme Court expected our court to turn once more to the merits of racial quotas in Chicago's schools. But we have not done so. Johnson III was not appealed, and the panel in this case did not examine the question anew.

III

The merits of a case such as this are difficult to assess. Chicago has not been found to have engaged in racial discrimination in operating its schools. It has not confessed to such discrimination. We have not held that a quota system is an appropriate remedy for any misconduct that may have occurred in Chicago. Some such finding, based on a likelihood of a violation, is essential before children may be shuffled from one school to...