US v. Bd. of Educ. of City of Chicago, 80 C 5124

• Citation: 567 F. Supp. 290
• Decision Date: 14 July 1983
• Docket Number: 76 C 995 and 76 C 996.,No. 80 C 5124,80 C 5124
• Parties: UNITED STATES of America, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, Defendant. Kathy Sue JOHNSON, et al., and Darcel Milton, et al., Plaintiffs, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

567 F. Supp. 290

UNITED STATES of America, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, Defendant.

Kathy Sue JOHNSON, et al., and Darcel Milton, et al., Plaintiffs, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, et al., Defendants.

Nos. 80 C 5124, 76 C 995 and 76 C 996.

United States District Court, N.D. Illinois, E.D.

July 14, 1983.

Thomas H. Morsch, Shalom Kohn, Steven Baskin, Sidley & Austin, Chicago, Ill., for Johnson and Milton plaintiffs.

C. Richard Johnson, Hugh R. McCombs, Jr., Isham, Lincoln & Beale, and Robert C. Howard, Robert C. Weissbourd, Hatunian, Futterman & Howard, Chtd., Chicago, Ill., for Board of Educ.

William Bradford Reynolds, Asst. Atty. Gen., Civ. Rights Div., Dept. of Justice, Alexander C. Ross, Washington, D.C., for the U.S.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

This Court's January 6, 1983 memorandum opinion and order in the United States action (the "Opinion," 554 F.Supp. 912, 928) approved the desegregation plan (the "Plan") developed by the Board of Education of the City of Chicago ("Board") "as being clearly within the `broad range of constitutionally acceptable plans'." Final judgment (the "Judgment") upholding the Plan's constitutionality was then entered February 11. Board has now moved for judgment as a matter of law in the Johnson and Milton cases recently consolidated with the United States action, arguing the Opinion and Judgment are dispositive of the constitutional issues raised in Johnson and Milton. For the reasons stated in this memorandum opinion and order Board's motion is granted.

Background

Some four years ago our Court of Appeals first dealt with the Johnson and Milton actions in Johnson v. Board of Education, 604 F.2d 504 (7th Cir.1979). It summarized the relevant factual background, id. at 507-09, footnote omitted:

These consolidated civil rights actions for declaratory judgment and injunctive relief were filed on March 15, 1976, challenging as unconstitutional a desegregation plan adopted voluntarily by the Board of Education of the City of Chicago in an effort to arrest the trend toward segregated enrollments at two Chicago public secondary schools. The challenged desegregation plan, commonly referred to as the "Student Racial Stabilization Quota Plan" "Plan" in this quotation, established a ceiling on enrollments and imposed racial quotas with respect to admissions at Morgan Park and Gage Park High Schools. Plaintiffs-appellants in Johnson are black children and their parents residing in the Morgan Park High School attendance area. Plaintiffs-appellants in Milton are black children and their parents residing in the Gage Park High School attendance area.

Plaintiffs' complaints alleged that the Plans, as instituted at Morgan Park and Gage Park High Schools, deprived them of their rights under the Constitution and under Title 42 U.S.C. §§ 1981 and 1983, and under Title 20 U.S.C. § 1703(c) because the Plans restricted the admission of minority students to these high schools solely on the basis of race....

Board filed answers to the complaints, denying the Plans were unconstitutional and denying plaintiffs were deprived of any rights under federal law. Board further alleged that plaintiffs had no constitutional right to attend Morgan Park or Gage Park High School since the Board of Education, vested by state statute with the supervision and management of the public school system of the City of Chicago, is empowered to divide the city into attendance areas and to apportion the pupils to the several schools, taking into consideration the prevention of racial segregation in the public schools. In the performance of these statutory duties, the Board contended the Plans were necessary to alleviate overcrowding and to promote integration at Morgan Park and Gage Park High Schools, both of which had experienced an accelerated change in the size and racial composition of their enrollments as a result of a concomitant demographic change in the residential neighborhoods encompassing the attendance areas of these schools.

On April 29, 1976, three days after the filing of Board's answer, plaintiffs in Johnson presented a motion for a temporary restraining order seeking to enjoin the implementation of the Plan at Morgan Park High School, which was scheduled to begin the next day with a lottery drawing to select the incoming freshman class for the fall of 1976. The district court Will, J. denied the motion. On August 17, 1976, after extensive discovery by means of interrogatories and document production, plaintiffs filed a motion for a preliminary injunction or in the alternative for summary judgment. On September 27, 1976, the district court denied the alternative motion for summary judgment, but deferred ruling on plaintiffs' motion for preliminary injunction, stating its preference for a modification of the Plans to include a voluntary busing program for students excluded from these two schools to attend alternative integrated high schools.

At the conclusion of discovery, entry of a final pretrial order, stipulation of additional facts and admission of exhibits into evidence, and after both parties agreed to withdraw objections, the parties rested on June 27, 1977. At that time, counsel for the Board advised the court of a pending modification of the Plans to be acted upon at the next Board meeting. The district court then stated it was prepared to find the Plans as originally adopted to be unconstitutional, but would reserve final ruling pending any modification the Board might wish to present.

On July 13, 1977, the Board adopted a modification of the Plans, which provided bus transportation to white or integrated schools from a convenient point near the residences of all students in the Gage Park and Morgan Park attendance areas who were not selected for admission to these two schools under the Plans. By an order of the district court entered August 12, 1977 the Board was directed to implement procedures for publicity and student counseling with respect to the Plans, as modified, and further, to provide that designated spaces at the alternative schools which were not filled by students excluded from one school (e.g., Gage Park) would be made available to students excluded from the other school (e.g., Morgan Park).

On December 30, 1977, the district court entered its findings of fact and conclusions of law, and granted judgment in favor of Board. The court held that the Plans, as modified to include bus transportation to primarily white or integrated schools for those students not admitted to Gage Park or Morgan Park High Schools, restored to plaintiffs their constitutional rights in that plaintiffs had a meaningful opportunity to attend a Chicago public high school in an integrated setting. The court further ordered that Board be enjoined to continue the Plans, as modified.

In affirming the district court's order, the Court of Appeals concluded (id. at 518):

Accordingly, in view of the findings on the record of the existence of white flight and the compelling state interest in promoting integration, we hold that voluntary state action directed toward the prevention of de facto segregation in the public schools is constitutionally permissible where, as here, the racial quotas imposed in connection with the desegregation plan provide all students residing in the attendance areas with a meaningful opportunity to attend an integrated high school.

Although the Supreme Court initially granted certiorari, 448 U.S. 910, 100 S.Ct. 3055, 65 L.Ed.2d 1139 (1980), it later vacated that grant and remanded Johnson and Milton to our Court of Appeals to consider whether the actions were moot in light of (1) Board's decision to rescind the stabilization plans and (2) this Court's September 24, 1980 order approving and entering the Consent Decree (the "Decree") in the United States action. 449 U.S. 915, 101 S.Ct. 339, 66 L.Ed.2d 162 (1980). See Opinion, 554 F.Supp. at 913 n. 1. In turn our Court of Appeals remanded Johnson and Milton to this Court's colleague Judge Will, 645 F.2d 75 (7th Cir.1981).

Pending final development of the Plan, Board reinstated its stabilization plans for Morgan Park and Gage Park High Schools in April 1981. In June 1981 Judge Will accordingly found Johnson and Milton were not moot, but he again denied plaintiffs' motion for a permanent injunction against use of the challenged quotas. Our Court of Appeals (1) affirmed Judge Will's finding the cases were not moot and (2) reinstated its earlier opinion in Johnson. 664 F.2d 1069, 1073 (7th Cir.1981).

Once again the Supreme Court granted certiorari but then vacated and remanded in a per curiam opinion, 457 U.S. 52, 102 S.Ct. 2223, 72 L.Ed.2d 668 (1982). It said (id. at 53-54, 102 S.Ct. at 2224):

We agree with the Court of Appeals that the case is not moot and that the subsequent development i.e., entry of the Decree does not undermine that court's original decision upholding the racial quotas. However, since if we were to grant certiorari we would consider the constitutional challenge as an original matter, the subsequent development might well be relevant to that consideration. It was for that reason that we vacated the Court of Appeals' judgment for further consideration in light of the subsequent development. No additional evidence was taken and therefore neither the record nor the District Court or Court of Appeals opinions reflect the subsequent development. We therefore grant certiorari, vacate the judgment, and remand the case with the direction that the matter be consolidated with the ongoing proceeding in the District Court in United States v. Board of Education of Chicago, No. 80-C-5124, so that court may decide petitioners' challenge on the basis of a complete factual record. 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

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