Hoarde, Larry v. Rockford Bd 205 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3200
People Who Care, et al.,
Plaintiffs-Appellees,
v.
Rockford Board of Education,
School District No. 205,
Defendant-Appellant.
Appeal from the United States District Court
for the
Northern District of Illinois, Western
Division.
No. 89 C 20168--P. Michael Mahoney, Magistrate
Judge.
Argued March 27, 2001--Decided April 18, 2001
Before Bauer, Posner, and Kanne, Circuit
Judges.
Posner, Circuit Judge. Twelve years ago
the plaintiffs filed this suit against
the board of education of Rockford,
Illinois, charging that the board had
intentionally discriminated against black
and Hispanic students. Though nominally a
new suit, it was actually a continuation
of school desegregation litigation that
had started long before and had resulted
in the entry of a remedial decree as
early as 1973. See Quality Education for
All Children, Inc. v. School Board, 362
F. Supp. 985 (N.D. Ill. 1973).
Realistically, we are dealing with a
lawsuit that is almost 30 years old.
In 1994, the district judge found, by
inference from disparities in educational
achievement between white and minority
students and from the school board’s
failure to take effective measures to
prevent individual public schools from
becoming all white or all minority, that
the board had indeed engaged in
intentional racial discrimination. 851 F.
Supp. 905 (N.D. Ill. 1994). The board did
not appeal, and so the litigation moved
into the remedial stage, presided over by
a magistrate judge with the consent of
the parties. A formidably complex and
ambitious remedial decree was entered in
1996, provoking appeals that led us the
following year to vacate many of its
provisions, such as racial quotas for
cheerleaders, superseniority for minority
teachers, unrealistic goals for closing
the white-minority gap in test scores,
and limits on the number of minority stu
dents who could enroll in remedial
classes. 111 F.3d 528 (7th Cir. 1997). We
pointedly warned against "ambitious
schemes of social engineering" and stated
that children "should not be made
subjects of utopian projects." Id. at
534. Apart from misdescribing our opinion
as having merely "modified" certain
provisions of the decree, the magistrate
judge managed to avoid any reference to
that opinion in his latest, 57-page
opinion here under review.
Later we remarked "the failure of the
parties, and, it seems, the magistrate
judge and the special master who is
assisting him, to heed the admonition of
the Supreme Court, see Missouri v.
Jenkins, 515 U.S. 70, 99 (1995); Board of
Education v. Dowell, 498 U.S. 237, 248
(1991), which we have repeated, United
States v. Board of School Commissioners,
128 F.3d 507, 510 (7th Cir. 1997), to
bend every effort to winding up school
litigation and returning the operation of
the schools to the local school
authorities." 153 F.3d 834 (7th Cir.
1998) (per curiam). And the following
year, in still another opinion, we warned
of "the looming interminability of this
litigation," and noting the school
board’s representation that full
compliance with the decree was achievable
by 2002 we suggested that the board
submit to the magistrate judge a plan for
winding up the litigation. 171 F.3d 1083,
1090-91 (7th Cir. 1999). The board then
moved the magistrate judge to dissolve
the decree, effective June 30, 2002, the
end of the 2001 school year. The board
argued that it had achieved full
compliance with the decree’s objectives
and that the remaining inequalities in
educational achievement between white and
minority students could not be attributed
to the illegal conduct on which the
litigation was based. (Why the board
asked for deferred rather than immediate
dissolution is unclear, but we are not
disposed to give it more relief than it
asked for.) The magistrate judge agreed
to relax some provisions of the decree,
but ruled that others must continue for
at least another six (now five) years.
The plaintiffs would like the decree to
continue in effect for at least 11 more
years. We stress "at least." Nothing in
the logic of either the magistrate
judge’s opinion or the plaintiffs’ brief
on appeal suggests any natural terminus
to the decree.
Through the end of 1999 the taxpayers of
Rockford had incurred total costs of $238
million to comply with the 1996 decree
and its predecessors going back only to
1989, of which more than half had been
incurred since 1996. By now the total
must be substantially greater. Attorneys’
fees alone are approaching $20 million.
Twenty percent of the school district
property taxes paid by homeowners in
Rockford go to fund the decree. As a
result of the improvements enabled by
this large expenditure, and a policy of
allowing parents to choose which Rockford
public school to send their kids to, the
school district had by the end of 1999,
when the school board filed its motion to
dissolve the decree, succeeded in
desegregating its schools. Desegregation
had been defined by the magistrate judge
as the condition in which the minority
composition of each school would not
deviate by more than 15 percentage points
from the minority composition of the
population of the school district.
Because this is a tighter range than
imposed in most school desegregation
cases, the Rockford public schools are
now less segregated than those in any
previous case in which a school system
was declared "unitary" (that is, declared
sufficiently desegregated to require the
dissolution of the decree and the return
of control of the public schools to the
school board). The plaintiffs fear
backsliding, and so want a wait-and-see
period of at least 15 years after
desegregation, during which the decree
would remain in force.
The length of the litigation, the scale
of the expenditures, and the achievement
of desegregation constitute, against the
background of applicable law, compelling
arguments to end this litigation. It used
to be extremely difficult to modify any
kind of equitable decree. See United
States v. Swift & Co., 286 U.S. 106
(1932). But as we noted recently in
ordering radical modification of another
institutional reform decree, one that had
subjected the Chicago police to severe
restrictions on its power to investigate
terrorist activities, the Supreme Court
has adopted a much more flexible standard
for the modification of decrees entered
in institutional reform litigation than
the Swift standard of yore. Alliance to
End Repression v. City of Chicago, 237
F.3d 799, 800-01 (7th Cir. 2001); see
Rufo v. Inmates of Suffolk County Jail,
502 U.S. 367, 378-81 (1992); Board of
Education v. Dowell, supra, 498 U.S. at
248; see also Alexander v. Britt, 89 F.3d
194, 197-98 (4th Cir. 1996). The Court
believes the states and their
subdivisions have a right to the
restoration of control over the
institutions of state and local
government as soon as the objectives of
the federal remedial decree have been
achieved. Missouri v. Jenkins, supra, 515
U.S. at 99; Bogard v. Wright, 159 F.3d
1060, 1065 (7th Cir. 1998); People Who
Care v. Rockford Board of Education, 153
F.3d 834 (7th Cir. 1998) (per curiam);
United States v. Board of School
Commissioners, supra, 128 F.3d at 510.
Unlike decrees that bind private parties,
decrees that hand over the control of
important state functions, such as
education, to federal courts "are not
intended to operate in perpetuity." Board
of Education v. Dowell, supra, 498 U.S.
at 248. "[T]he Supreme Court disfavors
permanent injunctions in school cases.
The administration of public schools is a
state executive function rather than a
federal judicial function, and so ought
not to be subjected to the perpetual
tutelage of the federal courts." United
States v. Board of School Commissioners,
supra, 128 F.3d at 510.
The purpose of a school desegration
decree is to eliminate the consequences
of segregation. When they have been
eliminated the decree has done its job
and should be lifted. This simple
principle, which we don’t understand the
plaintiffs to be quarreling with,
dictates our decision. The Rockford
public schools have been desegregated. No
longer are there any schools that are
"white only" or "minority only," or even
approximations to such schools. Hundreds
of millions of dollars have been poured
into the construction and renovation of
schools and into programs designed to
extirpate the traces of unlawful
segregation. Although minority
educational achievement lags behind that
of whites, there is no evidence that the
lag is any greater in Rockford than in
otherwise similar districts that have no
history of racial discrimination.
Four years ago almost to the day we
noted the absence of "evidence that the
gap in scholastic achievement between
white and minority students in Rockford
is any greater than the gap between white
and minority students in school districts
that have not been found to have
discriminated against their black and
Hispanic students." 111 F.3d at 537. One
might have expected the plaintiffs to
take the hint and look for such evidence.
If they have looked, they have found
nothing. Although peppered with
references to programs designed to
achieve "vestige elimination," the
plaintiffs’ brief cites no evidence that
there are vestiges of unlawful
discrimination still to eliminate. "At
some point," moreover, "the continuing
and ineliminable traces of an earlier
violation are too slight to justify
continued federal judicial control of
public education." United States v. Board
of School Commissioners, supra, 128 F.3d
at 511.
The reality is that until minority
students achieve parity of educational
achievement with the white students in
the Rockford public schools, the
plaintiffs will contend that the minority
students are victims of the unlawful
discrimination of an earlier period in
Rockford’s history. Yet it is obvious
that other factors besides discrimination
contribute to unequal educational
attainment, such as poverty, parents’
education and employment, family size,
parental attitudes and behavior,
prenatal, neonatal, and child health
care, peer-group pressures, and ethnic
culture. Some of these factors may
themselves be due to or exacerbated by
discrimination, but not to discrimination
by the Rockford school board. The board
has no legal duty to remove those
vestiges of societal discrimination for
which it is not responsible. Insofar as
the factors that we have mentioned,
rather than unlawful conduct by the
Rockford school board in years past, are
responsible for lags in educational
achievement by minority students, the
board has no duty that a federal court
can enforce to help those students catch
up. It may have a moral duty; it has no
federal constitutional duty.
No effort has been made by the
plaintiffs, despite our warnings, to
partition, however crudely, the lag in
achievement that is due to the school
board’s past illegalities and the lag
that is due to other factors, factors for
which the school board bears no federal
legal responsibility. The partition could
be made by comparing minority academic
performance in Rockford with the
performance of minority students in other
school districts after adjusting for the
various factors that are not the school
board’s legal responsibility yet might be
thought to influence the academic
performance of Rockford’s minority
students, such as poverty, family
stability, health, class size, and
quality of teachers. There are
statistical methods for holding these
factors constant in order to isolate the
influence, if any, of the board’s illegal
conduct on the academic performance of
Rockford’s minority students. No such
scientific comparison has been attempted-
-nor even anything cruder.
The plaintiffs’ failure to recognize the
importance of trying to unpack the causes
of disparate educational performance is
illustrated by their contention that
although the Rockford schools may now be
desegregated, the classrooms within those
schools remain segregated and until they
are desegregrated the decree must remain
in force. What they mean by the
classrooms still being segregated is that
minority students are underrepresented in
advanced courses. Yet enrollment in those
courses is open. No one is being kept
out. (If enrollment were not open but
instead were rationed by test scores, a
much smaller percentage of minority
students would be enrolled in the
advanced classes, the magistrate judge
found--6 percent rather than 23 percent.)
To suppose that minority students are
enrolling in these classes at a lower
rate than white students because of
school segregation in the past is
illogical, or at least unsubstantiated.
The schools are desegregated, the
advanced courses are open to any student,
and if fewer minority students are
enrolling than their proportion in the
school or school district as a whole, the
natural inference is not that the
proportion is being held down by the fact
that years ago the schools were
segregated. That is conceivable, but so
improbable that evidence is required to
use the fact as a basis for continuing a
federal judicial officer in control of
the public school system. The plaintiffs’
case is an extreme version of post hoc
ergo propter hoc. It is provincial and
naive to suppose that because Rockford
once engaged in de facto segregation of
its public schools, the choices of its
minority students regarding voluntary
enrollment in advanced classes open to
all are a legacy of that segregation.
The plaintiffs’ principal argument for
the indefinite continuation of the decree
is that the school board has not been
complying with it in good faith. The
difference between technical compliance
and compliance in good faith is that the
latter form of compliance does not
exploit loopholes and ambiguities.
Philips Medical Systems Int’l B.V. v.
Bruetman, 8 F.3d 600, 604 (7th Cir.
1993); United States v. Board of
Education, 799 F.2d 281, 289-90, 295 (7th
Cir. 1986); Manning v. School Board, No.
99-2049, 2001 WL 264977, at *16 (11th
Cir. March 16, 2001). It is not, as the
plaintiffs would have it, that the school
board must "actively" support the decree,
must express "commitment" to it, and,
above all, must not criticize it. The
undemocratic implications of this
position leave us almost speechless. Are
elected officials, the members of the
school board, elected long after and not
complicit in the illegalities that gave
rise to the litigation, forbidden, under
threat of never resuming control of the
public school system that they were
elected to govern, to criticize a decree
that in pursuit of an ambitious and
possibly quixotic scheme of social
engineering has imposed a formidable tax
burden on the people who elected these
officials?
Pressed at argument, the plaintiffs’
able lawyer could not cite an instance in
which the school board has violated any
of the numerous provisions of the decree.
He may well be correct that the decree
would have achieved more had it been
enthusiastically embraced by the board,
but state and local officials are under
no duty to love the chains that federal
judges, however justifiably, fasten upon
them.
The judgment is reversed with
instructions to grant the relief
requested by the school board. It should
go without saying that if the board takes
advantage of its new freedom from federal
judicial control to discriminate against
minority students in violation of federal
law, it will expose itself to a new and
draconian round of litigation. We trust
that $238 million later, it has learned
its lesson.
Reversed and Remanded,
with Instructions.