567 F. Supp. 272 (1983) | Cited 0 times | N.D. Illinois | June 30, 1983


This Court has conducted hearings on June 1, 7, 8, 22 and 27,1983 on a petition filed by the Board of Education of the City ofChicago ("Board"). It has considered the testimony and exhibitssubmitted at those hearings, designations from the depositiontestimony of Monika Edwards Harrison and Jack Simms, affidavitsof those two deponents and of Carol Cichowski and J. MaxeyBacchus ("Bacchus"), stipulations of the parties and the UnitedStates' answers to the Board's First and Second Set ofInterrogatories and First Request To Admit.

Findings of Fact ("Findings")

Based on all the evidence this Court determines pursuant toFed.R.Civ.P. ("Rule") 52(a) that each of the following Findingsis supported by a preponderance of all the evidence now beforeit:1

1. This is a proceeding to enforce compliance with a ConsentDecree between the United States of America and Board, the termsof which were embodied in this Court's September 24, 1980 Order.Specifically, it is to determine the nature and extent of theUnited States' obligations undertaken by the inclusion of ConsentDecree I § 15.1 ("Section 15.1," App. A).

2. Since September 24, 1980 Board has made good faith effortsto implement fully the Comprehensive Student Assignment Plan andthe Educational Components of the Chicago desegregation plan(collectively "the Plan"). [Stip.]

3. Since September 24, 1980 Board has made every good faitheffort to find and provide every available form of financialresources adequate to pay the cost of full implementation of thePlan. [Bacchus Testimony]

4. Since September 24, 1980 Board has expended approximately$120 million in its efforts to implement fully the variouselements and components of the Plan. [Stip.]

5. In school year 1982-832 Board has expended or will expendapproximately $57.9 million to implement the Plan. [Stip.]

6. For school year 1983-84 Board has budgeted $66.9 million forimplementation of the Plan. [Stip.]

7. Board presently projects a budget deficit of approximately$200 million for its 1983-84 fiscal year. [Stip.]

8. During school year 1980-81, specifically on September 28,1980, Board received a Title IV planning grant in the amount of$422,800. [Stip.]

9. During school year 1980-81, specifically on June 15, 1981,Board received a Title IV grant in the amount of $298,639.[Stip.]

10. During school year 1981-82, specifically on September 22,1981, Board received an out-of-cycle Emergency School Aid Act("ESAA") grant in the amount of $1,813,025, in response to anapplication that requested $23,138,977. All the reasons for thedifference in funding are not before this Court. [Stip.]

11. All the amounts of funding referred to in Findings 8-10were received directly from the United States through theDepartment of Education or its predecessor agency, the Office ofEducation of the Department of Health, Education and Welfare, andwere available to Board for implementation of the Plan. [Stip.]

12. During school year 1982-83 Board received a block grantpursuant to the Educational Consolidation and Improvement Act of1981 ("ECIA") in the amount of $5.385 million, of which $1.8million was allocated by Board for implementation of the Plan.Board used the remainder of the block grant to fund othereducational programming allowable under ECIA, which would nothave been funded absent the allocation of block grant money.[Bacchus Testimony]

13. Board received approximately $674,432 ofdesegregation-related assistance under Title VII for school year1981-82 and approximately $528,267 for school year 1982-83.[Stip.]

14. Beginning in federal fiscal year 1981,3 and for federalfiscal years 1982 and 1983, it has been a priority and a policyobjective of the Executive Branch of the United States and theDepartment of Education to dismantle the Department of Educationand turn most of its functions over to state educationalagencies. [Stip.]

15. Since federal fiscal year 1981 it has been the policy ofthe Department of Education not to provide desegregationassistance to local educational agencies through direct grants tolocal educational agencies of funds appropriated by Congressunder Title IV of the Civil Rights Act of 1964 ("Title IV").[Harrison Dep. 35-36; Sims Dep. 11-14; Bd. Ex. 16]

16. After federal fiscal year 1981 the Executive Branch of theUnited States and the Department of Education sought repeal ofall categorical programs under which the United States couldprovide direct grants to local educational agencies fordesegregation assistance and replacement of those programs, alongwith all categorical programs under which the United Statesprovided other assistance to local educational agencies, with ablock grant of federal funds. Such block grants are allocated tolocal educational agencies by the states and can be used for thevarious purposes set forth in ECIA, including the purposes of theformer ESAA programs. Title IV remains as a categorical program,as is more fully explained in other Findings. [Stip.]

17. Since federal fiscal year 1981 it has been the policy ofthe Department of Education and the Executive Branch of theUnited States to reduce the total amount of funds provided by theUnited States to the states for the various purposes set forth inECIA. [Request To Admit Nos. 25, 26.]

18. Since federal fiscal year 1981 it has been the policy ofthe Department of Education and the Executive Branch of theUnited States not to seek any legislation or appropriation otherthan through ECIA that would provide direct financial assistancefor desegregation to local educational agencies implementingdesegregation plans, and specifically to Board. [Harrison Dep.105-06; Bd. Ex. 16]

19. All the United States' policy decisions not to providedirect grants to local educational agencies pursuant to Title IV,to provide funding to the states only through block grants, toreduce federal funding to the states for any of the purposeslisted in the block grant legislation, and not to seeklegislation or appropriations that would directly providefinancial desegregation assistance to Board, were determined bythe general priority and objective of dismantling the Departmentof Education and turning most of its functions over to stategovernmental agencies. [Stip.]

20. Since fiscal year 1981 it has been the policy of theDepartment of Education to use funds in the Secretary'sDiscretionary Fund only for the programs required by 20 U.S.C. § 3851(b)or to support projects for research, demonstrations,training, dissemination or other activities that address somenational education emphasis, as determined by the Secretary, notincluding the funding of specific desegregation plans. [HarrisonDep. 124; Request To Admit 27; Bd. Ex. 25]

21. In fiscal year 1981 and in each of the succeeding fiscalyears it was, and still is, the position of the Department ofEducation that it could not and would not approve stateeducational agency criteria for allocation of block grant fundsthat were based in part on the amounts local agencies within thestate received or could have received under ESAA because suchcriteria would not adequately reflect "a higher than average costper child." [Harrison Dep. 133-35; Harrison Dep. Ex. 26, 27]

22. In its development of the policies and in taking itsactions described in Findings 14-21, the United States did notgive any consideration to its obligations under the ConsentDecree in general and under Section 15.1 in particular. [HarrisonDep. 41]

23. Before October 1, 1982 ESAA was the primary means for theUnited States to provide direct desegregation assistance to localeducational agencies. [Stip.]

24. In furtherance of the policies and priorities described inFindings 14-21, the Executive Branch of the United States and theDepartment of Education have:

(a) requested a significant reduction in ESAA funding from Congress for fiscal 1981; [Stip.]

(b) requested no ESAA funding from Congress for fiscal 1982; [Request To Admit 11]

(c) sought and supported in Congress the repeal of ESAA, which became effective October 1, 1982; [Request To Admit 6]

(d) supported the passage by Congress of the ECIA block grant legislation (as described in Finding 15), which became effective October 1, 1981; [Stip.]

(e) requested from Congress for fiscal 1982 an appropriation of ECIA block grant funding in the amount of $487,525,000, which was (1) $103,843,000 less than Congress had authorized and (2) $50,852,828 less than the amount appropriated by Congress in fiscal 1981 for the categorical grant programs, including ESAA, which the ECIA block grant funding was intended to replace; [Request To Admit 25]

(f) requested from Congress for fiscal 1983 an appropriation of ECIA block grant funding in the amount of $406,080,000, which was (1) $183,288,000 less than Congress had authorized and (2) $130,297,828 less than the amount appropriated by Congress in fiscal 1981 for the categorical programs, including ESAA, which ECIA block grant funding was intended to replace; [Request To Admit 26]

(g) continued a similar request policy for fiscal 1984; [Stip.]

(h) done nothing to ensure that, in fiscal 1982 and 1983, any portion of the ECIA block grant for Illinois was used to support a purpose related to school desegregation; [Harrison Dep. 120]

(i) opposed congressional efforts to reenact ESAA; [Stip.]

(j) failed to request from Congress in fiscal 1982 and 1983 an appropriation to fund any desegregation programs contemplated by Title IV; [Harrison Dep. 34; Request To Admit 13, 16]

(k) in each of fiscal 1982 and 1983 requested Congress to rescind the $24,000,000 of Title IV funding Congress had previously appropriated; [Harrison Dep. 48]

(l) in fiscal 1983 requested Congress to rescind $2.54 million appropriated to the Secretary of Education's Discretionary Fund; [Stip.]

(m) requested Congress to rescind $41,600,000 appropriated to the Department of Education for special programs and populations, other than Title IV programs, in fiscal 1982 and to rescind at least $28,000,000 appropriated for such programs in fiscal 1983; [Stip.]

(n) determined as a matter of policy to provide no Title IV funding in fiscal 1982 and 1983 to local educational agencies; [Harrison Dep. 26, 35-36; Request To Admit 15]

(o) requested Congress to rescind approximately $900 million in unexpended student loan funding; [Bd. Ex. 28 at 61]

(p) failed to use any portion of the Secretary of Education's Discretionary Fund in fiscal 1982 and 1983 for a direct grant of desegregation assistance to any local educational agency; [Request To Admit 31]

(q) failed to urge state educational agencies to adopt criteria for determining the allocation of block grant funds to "high cost children" that include giving particular consideration or weight to a local educational agency implementing a desegregation plan. [Request To Admit 22, 23]

25. Terrel H. Bell has been Secretary of Education sinceJanuary 21, 1981. He is responsible for the formulation of thepolicies and priorities set forth in Findings 14-21 and for theactions taken by the Department of Education to implement thosepolicies and priorities. Since January 21, 1981 he has also beenresponsible for ensuring that the Department of Educationfulfills all its obligations under the Consent Decree, includingspecifically the obligations imposed by Section 15.1. [HarrisonDep. 12, 32-34, 107, 114.]

26. Monika Edwards Harrison is Director, Policy Planning andExecutive Operations, Office of Elementary and SecondaryEducation, Department of Education. Her immediate superior isLaurence Davenport, Assistant Secretary for Elementary andSecondary Education. Mr. Davenport reports directly to Mr. Bell,the Secretary of Education. [Stip.]

27. Ms. Harrison was responsible for making the policyrecommendation to Mr. Bell, through her superior Mr. Davenport,that Title IV funds in fiscal 1982 and 1983 not be used toprovide the desegregation assistance contemplated by the purposesof Title IV to local educational agencies, including Chicago. Mr.Bell accepted this recommendation and made it a policy decisionof the Department of Education. [Stip.]

28. Ms. Harrison was responsible for making the policyrecommendation to Mr. Bell, through her superior Mr. Davenport,that the Department of Education seek to rescind in Congress theTitle IV funds appropriated by Congress for use in fiscal 1982.[Harrison Dep. 48]

29. Title IV funds appropriated by Congress for use in fiscal1982 and 1983 were distributed as direct grants to stateeducational agencies and desegregation assistance centers. Infiscal 1982 the Illinois Department of Education received a TitleIV grant in the amount of $705,832. Desegregation assistancecenters that could provide technical and in-service trainingdesegregation assistance to Board are located only at IndianaUniversity, in Bloomington, Indiana and the University ofWisconsin branch in Milwaukee, Wisconsin. Only the center atIndiana University is a race-specific desegregation assistancecenter. In fiscal 1982 the Title IV grant to the IndianaUniversity center was $311,629. In fiscal 1982 the Title IV grantto the University of Wisconsin-Milwaukee center was $385,560.[Stip.]

30. In fiscal 1982 and 1983 the Department of Education took noactions to ensure that Board received the desegregationassistance contemplated by Title IV from the Illinois Departmentof Education and the desegregation assistance centers describedin Finding 29. [Harrison Dep. 45-47, 147, 154; Sims Dep. 36, 38]

31. In fiscal 1982 the Department of Education made Title IVgrants to 42 state educational agencies. There are 49 suchapplicants for 1983. In fiscal 1982 the Department of Educationmade Title IV grants to 25 desegregation assistance centers, andit plans to make similar grants in fiscal 1983. [Response To Int.16, 17]

32. Use of the Title IV appropriations in fiscal 1982 and 1983to fund state educational agencies and desegregation assistancecenters by definition reduced the level of technical andin-service training assistance available to Board from the levelsof such assistance available to it under Title IV in prior fiscalyears.

33. In fiscal 1982 and 1983 the Department of Education took noactions toward providing a grant of Title IV funds to Board toassist its implementation of the Plan. [Harrison Dep. 26, 35-36]

34. In fiscal 1982 the Secretary of Education or his delegeehad the authority to provide a grant of Title IV funds to Boardto assist its implementation of the Plan, and it is still withinthe Secretary's discretion to do so. [Harrison Dep. 70-71]

35. Of the Title IV funds appropriated to the Department ofEducation by Congress in fiscal 1982, $24,000,000 remainsunobligated at this time. [Stip.]

36. No state educational agency ("SEA") will cease operationsolely because it failed to receive a grant of Title IV fundingin fiscal 1983. [Harrison Dep. 147-48] No SEA program will ceaseto exist solely because that program failed to receive Title IVfunding in fiscal 1983. [Sims Dep. 24-25; Harrison Dep. 147-48]No desegregation assistance center ("DAC") will cease operationsolely because it failed to receive a grant of Title IV fundingin fiscal 1983. [Stip.]

37. Some largely administrative inconvenience may result forDAC and SEA projects currently receiving Title IV funding fromdelaying any obligation of such funding beyond August 15, 1983.There isno evidence those projects would suffer substantial harm from thedelay in further obligation of funding. There is also no evidencemost of those projects could not continue even without receivingthe funding after August 15. Nothing in the record shows thoseprojects would not receive funding from other sources or receivecontinued support from the state agencies and universities withwhich nearly all of them are affiliated.

38. Delay in obligating Title IV funding for new DAC and SEAprojects similarly will result in some largely administrativeinconvenience, which cannot be considered substantial harm. Delayuntil August 1 in obligating monies from the Discretionary Fundwill create some administrative inconvenience and minordetrimental effects on planning, but will also not causesubstantial harm.

39. Both the Secretary of Education and the Department ofEducation recognize that the implementation of a desegregationplan can impose a higher educational cost per child on the schooldistrict that is implementing the Plan. [Request To Admit 22]

40. For fiscal 1982 $28,224,000 was allocated to the Secretaryof Education's Discretionary Fund. In fiscal 1982 the Departmentof Education took no actions toward providing a grant from theSecretary's Discretionary Fund to Board to assist itsimplementation of the Plan. [Request To Admit 28, 31]

41. For fiscal 1983 $28,765,000 was allocated to the Secretaryof Education's Discretionary Fund. In fiscal 1983 the Departmentof Education has taken no actions toward providing a grant fromthe Secretary's Discretionary Fund to Board to assist itsimplementation of the Plan. [Request To Admit 29, 31]

42. Of the amounts appropriated in fiscal 1982 and 1983 for theSecretary's Discretionary Fund, $10,725,000 had to be used eachfiscal year to support certain programs mandated by Congress. Infiscal 1982 the Secretary of Education or his delegee had theauthority to grant all or part of the remaining unencumberedfunds in the Secretary's Discretionary Fund to Board to assistits implementation of the Plan. Similarly, the Secretary ofEducation or his delegee had and has the authority to grant allor part of the unencumbered funds currently in the Secretary'sDiscretionary Fund to Board to assist its implementation of thePlan. [Request To Admit 27, 30; 20 U.S.C. § 3851]

43. There is $8,980,470 in the Secretary's Discretionary Fundfor fiscal 1983 which remains unobligated at this time, withoutconsidering the three programs mandated by ECIA § 583(b). [Stip.]

44. Except as stated in Finding 48, the Executive Branch of theUnited States and the Department of Education have taken noaction either to initiate legislation or to support pendinglegislation that would result in Board receiving direct financialassistance from the United States for implementation of the Plan.[Harrison Dep. 105-06]

45. Neither the Executive Branch of the United States generallynor the Department of Education specifically has taken any actiontoward reprogramming funds in a manner that would result in Boardreceiving direct financial assistance from the United States forimplementation of the Plan. [Harrison Dep. 140]

46. Except as stated in Finding 48, the Executive Branch of theUnited States and the Department of Education have taken noaction to seek congressional approval for reappropriating someportion of the excess student loan funds in a manner that wouldresult in Board receiving direct financial assistance from theUnited States for implementation of the Plan. [Harrison Dep.139-40, 143]

47. Board, through its counsel and its Superintendent ofSchools Dr. Ruth B. Love, has repeatedly asked the ExecutiveBranch of the United States and the Department of Education fordirect financial assistance to enable Board to implement fullythe Plan. Among these requests were the following:

(a) a June 2, 1982 letter to William Bradford Reynolds from Robert C. Howard, one of Board's attorneys; [Bd. Ex. 3]

(b) A July 12, 1982 letter to Mr. Reynolds from C. Richard Johnson and Mr. Howard, two of Board's attorneys, enclosing the outline for a "Federal Government Financial Plan for the Chicago Desegregation Plan"; [Bd. Exs. 4, 5]

(c) an August 3, 1982 letter to Alexander Ross of the Department of Justice from Hugh R. McCombs, Jr., one of Board's attorneys; [Bd. Ex. 7]

(d) an August 10, 1982 letter to Mr. Ross from Mr. Howard; [Bd. Ex. 8]

(e) a February 16, 1983 letter to Secretary of Education Terrel H. Bell from Dr. Love; [Bd. Ex. 17]

(f) a February 17, 1983 letter to Mr. Bell from Dr. Love; [Bd. Ex. 18]

(g) a May 13, 1983 letter to Mr. Bell from Messrs. Howard and Johnson; [Bd. Ex. 20] and

(h) a May 25, 1983 letter to Mr. Bell from Messrs. Howard and Johnson. [Bd. Ex. 19]


48. Since entry of the Consent Decree the Executive Branch ofthe United States and the Department of Education have taken onlythe following actions (in addition to those referred to inFindings 8-10) to fulfill the obligations of the United Statesunder Section 15.1:4

(a) Since early 1982 the Department of Justice has made telephone inquiries of Monika Harrison at the Department of Education to determine the amount of funding that could be made available to Board through the Office of Elementary and Secondary Education to assist Board's efforts fully to implement the Plan. [Stip.]

(b) In August 1982 Mr. Reynolds, head of the Civil Rights Division of the Department of Justice, met with Board members, Dr. Love, staff and Board counsel in Chicago to discuss the United States' efforts to provide funding to assist Board's efforts fully to implement the Plan. Mr. Reynolds told Board the United States would make no decision on funding until after this Court had decided the Plan was constitutional. [Stip.]

(c) Before August 1982 Ms. Harrison had taken actions, both personally and through her subordinates and colleagues at the Department of Justice, to identify funding that could be made available to Board through the Office of Elementary and Secondary Education to assist Board's efforts fully to implement the Plan. Those actions involved reading applicable statutes and regulations and budget documents. Before August 1982 Ms. Harrison concluded no such funding could be made available to Board, and her conclusion was communicated to the Department of Justice. Since then she has stated that conclusion to the Department of Justice in response to all inquiries concerning available desegregation funds for Board. [Harrison Dep. 26-26, 29-30]

(d) On September 14, 1982 Mr. Reynolds wrote the Secretary of Education asking him to identify any available sources of desegregation funding for the Plan. [Bd. Ex. 12]

(e) On November 15, 1982 the Secretary of Education replied in writing to Mr. Reynolds' letter. He stated the Department of Education could provide no direct desegregation funding to Board and such funding could be made available to Board through the ECIA block grant to the State of Illinois. [Bd. Ex. 16]

(f) On February 14, 1983 the Secretary of Education met in Washington with Board members, Dr. Love and Board counsel. During that conference Board asked Secretary Bell to seek direct federal funding to assist Board's efforts fully to implement the Plan. Despite that request the Executive Branch sought no legislative initiative. [Bd. Ex. 17]

(g) On May 20, 1983 the Undersecretary of Education circulated a memorandum to the Assistant Secretaries of Education requesting them to examine ways to provide direct desegregation funding to Board. Attached to the memorandum was a copy of the Consent Decree. Before May 20, 1983 the Consent Decree had not been circulated within the Department of Education at either the Assistant Secretary or Director level. To date the Plan has not been circulated to or read by anyone within the Department of Education. [Harrison Dep. 16-17, 111-12; Sims Dep. 29-33]

49. For fiscal year 1983 Congress appropriated funds for anumber of programs as to which the Executive Branch of the UnitedStates and the Department of Education have requestedcongressional rescission of the appropriated funds: $5.76 millionfor Women's Educational Equity, $19.440 million forFollow-Through, $960,000 for Territorial Training and $1.92million for Aid to the Virgin Islands. Congress has not enactedthe proposed rescission for the Special Programs and Populationsaccount. Substantially all those funds remain unobligated as ofJune 27, 1983. [Stip.] By the end of fiscal year 1984 theDepartment plans to obligate all those funds. [Harrison Dep.]

50. In the March 30, 1983 Federal Register (48 F.R. 13220) theDepartment of Education published a notice:

(a) inviting applications for grants under the Secretary's Discretionary Program;

(b) announcing priorities in three areas: (1) expanding parental choice in education, (2) improving teacher quality through incentives and (3) strengthening local school boards;

(c) stating if funds are left after awards are made for those priorities, the Secretary would consider for funding unsolicited grant applications; and

(d) requiring the grant applications to be mailed or hand-delivered on or before August 1, 1983.

Chicago has not yet submitted an application under the program.[Cichowski Aff. ¶ 3; 48 F.R. 13220] At present Board is engagedin the process of completing an application it intends to submitto the Department of Education.

51. Harrison Aff. ¶¶ 5 and 6 state:

5. Chicago received $3,449,658 for FY 1980 under the antecedent programs included in Chapter 2; $6,784,273 for FY 1981 under these programs; and $6,258,256 for FY 1982 under Chapter 2.

6. In FY 1982, Chicago received 30% of the Chapter 2 funds received by the State of Illinois. In FY 1981, Chicago received 30% of the funds received by all grant recipients in Illinois under the antecedent programs of Chapter 2. In FY 1980, Chicago received 11% of the funds received by all grant recipients in Illinois under the antecedent programs.

In fiscal years 1980 through 1982 limited portions of the fundsreceived by Chicago under those programs were expended pursuantto statute for children in private schools. [Stip.]

52. Information provided in the June 24, 1983 Affidavit of JackA. Simms ¶¶ 10, 11 and 12 was provided to Board for the firsttime on June 22 and June 24, 1983. Board has not had anopportunity to examine the records or depose the personnel of thefederal grantees involved.

53. Based on all the foregoing Findings, this Court finds theUnited States has failed to use its best efforts to find andprovide all available financial resources adequate for fullimplementation of the Plan. On the contrary, since January 21,1981 the Executive Branch of the United States and the Departmentof Education have been engaged in a continuous effort to stripaway all means by which they could fulfill the United States'obligations under Section 15.1.

54. For each school year since 1981-82 Board has made or hasbudgeted "specific desegregation expenditures" for the purpose ofPlan implementation. "Specific desegregation expenditures" arethose expendituresmade by Board to implement programs specifically resulting fromadoption of the Plan, such as magnet schools, voluntary transferprograms and compensatory educational remedies at raciallyisolated schools. In addition to specific desegregationexpenditures, Board has made other expenditures that would haveoccurred absent the Plan, but that are significantly impacted anddirected by the implementation of the Plan. Those include, forexample, expenditures devoted to reassessment and placement ofspecial education students pursuant to the Educational Componentsof the Plan. [Stip.]

55. For school year 1981-82 Board expended approximately $38.8million for specific desegregation expenditures. In additionBoard incurred expenditures for reassessment and placement ofspecial education students totalling approximately $4 millionpursuant to the provisions of the Plan. [Stip.]

56. For school year 1982-83 Board will expend approximately$56.9 million in specific desegregation expenditures. In additionto those specific desegregation expenditures, Board devotedapproximately $4.2 million to the reassessment and placement ofspecial education students pursuant to the provisions of thePlan. [Stip.]

57. For school year 1983-84 Board has budgeted approximately$66.9 million for specific desegregation expenditures. Itprojects an operating budget deficit of approximately $200million for that year, including the budgeted level of specificdesegregation expenditures. With the exception of an increase of$10 million for specific desegregation expenditures, the $200million budget deficit is based on an assumption that servicesand programs will be maintained at their 1982-83 level. It doesnot assume any expansion of programs or services or generalincreases in compensation for Board employees. [Stip.]

58. Any amounts over and above the $66.9 million budgeted forschool year 1983-84 that are devoted by the Board to Planimplementation and are not provided from funding sources externalto the Board will increase the Board's presently projected $200million deficit. [Stip.]

59. Board needs approximately $163 million over 5 years torehabilitate the facilities of schools that are racially isolatedminority schools. Board's projected expenditures for school year1983-84 do not include an expenditure for the rehabilitation ofany facilities. [Bacchus Testimony]

60. Board does not now have financial resources adequate fullyto implement the Plan in school year 1983-84 and does not expectto obtain such funds from the external and internal sources ofrevenue projected to be available to it in that fiscal year.[Bacchus Testimony]

Conclusions of Law ("Conclusions")

Based on the foregoing Findings, this Court has made and herebystates the following Conclusions in accordance with Rule 52(a):

1. On September 24, 1980 this Court properly approved andentered a Consent Decree between the United States and Board.That Consent Decree was properly executed by the AttorneyGeneral, who has plenary power to conduct and supervise allgovernment litigation. ICC v. Southern Railway Co., 543 F.2d 534,535 (5th Cir. 1976). It is an "order granting an injunction"within the meaning of Rule 65(d), ILA, Local 1291 v. PhiladelphiaMarine Trade Ass'n, 389 U.S. 64, 75, 88 S.Ct. 201, 207, 19L.Ed.2d 236 (1967), and is binding on the United States and allits officers, agents, servants, employees and attorneys.

2. Consent decrees are binding orders that have the same forceas any other judgment. Accordingly the Consent Decree is fullyenforceable by this Court. United States v. City of Miami,Florida, 664 F.2d 435, 440 (5th Cir. 1981).

3. Consent decrees also have many of the attributes ofcontracts and are construed according to contract principles.Accordingly the scope of a consent decree will be discerned fromits four corners, United States v. Armour & Co., 402 U.S. 673,682,91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971), although interpretiveaids consistent with contract law may be used if necessary.United States v. ITT Continental Baking Co., 420 U.S. 223, 236,95 S.Ct. 926, 934, 43 L.Ed.2d 148 (1975).

4. Section 15.1 is unambiguous in its terms. It clearlyexpressed and continues to express the mutual intent of theparties, and does not require extrinsic evidence to be construed.Even if it were to be viewed otherwise, and if resort were had toother parol evidence materials submitted by the United States inreliance on White v. Roughton, 689 F.2d 118 (7th Cir. 1982),cert. denied, ___ U.S. ___, 103 S.Ct. 1524, 75 L.Ed.2d 947(1983),5 these Conclusions would be the same. In essence theUnited States seeks to parse Section 15.1 in an impermissibleway, arguing the word "available" is a term of limitation thatcircumscribes what it must do to find and provide "financialresources" — money — adequate to implement the Plan. "Available"might alternatively be viewed as simply a term of emphasis (it isdirectly coupled with "every")6 or as tautological (after all, bydefinition "unavailable" financial resources could not beprovided). But the shades of meaning need not be resolved in thecircumstances of this case. What the United States glosses overis that it could not in good faith, having entered into theConsent Decree, work actively to make financial resourcesunavailable. That would permit a contracting party deliberatelyand by its own unilateral action to flout its own contractualundertaking and its obligations to this Court as well as toBoard. Yet that is precisely what the United States has done —and it acknowledges having done so, for it has stipulated to mostof the Findings to that effect. For that reason it is entirelyproper to require the United States to take all affirmative stepsavailable to it to seek to make available financial resourcesadequate for implementation of the Plan. And that is so whetheror not, absent its prior conduct to frustrate the Consent Decreeand its obligations under Section 15.1, that would have been therequired reading of that Section.7

5. All terms of the Consent Decree, including Section 15.1, areentitled to particular respect because they embody the conditionsupon which Board waived its right to litigate, a right guaranteedby the Due Process Clause of the Fourteenth Amendment. Armour &Co., 402 U.S. at 682, 91 S.Ct. at 1757.

6. To date Board has fulfilled its obligations under theConsent Decree, particularly including Section 15.1. Despite suchfulfillment of its obligations, Board cannot obtain "adequate"financing for full implementation of the Plan without receivingfinancial assistance from other sources, including the UnitedStates.

7. Under the Consent Decree Board is not required to exhaustall its available resources for implementation of the Plan beforethe United States becomes obligated to find and provide everyavailable form of financial resources adequate for implementationof the Plan.

8. In all events the United States' promise to "make every goodfaith effort" to find and provide available funds entails aserious and substantial obligation. Geisser v. United States,513 F.2d 862, 869-71 (5th Cir. 1975), on remand, 414 F. Supp. 49(S.D.Fla. 1976), appeal after remand, 554 F.2d 698 (5th Cir.1977), appeal after remand, 627 F.2d 745 (5th Cir. 1980), cert.denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981).Having properly exercised its discretion by entry into theConsent Decree, see Gautreaux v. Pierce, 690 F.2d 616, 628-29,637-38 (7th Cir. 1982) the United States does not have discretionto violate it.

9. Under the plain language of the Consent Decree and under thecircumstances described in Conclusion 4, the Executive Branch ofthe United States is unquestionably now obligated to take everyaffirmative step within its legal authority to find and provideadequate financing for the Plan. Brewster v. Dukakis, 675 F.2d 1(1st Cir. 1982), aff'g as modified decisions in Civil Action No.76-4423-F (D.Mass. Sept. 15, 1981; Dec. 23, 1981); Ricci v. Okin,537 F. Supp. 817 (D.Mass. 1982). That obligation includes thefollowing efforts and actions, to the extent necessary to assurefull implementation of the Plan:

(a) "provide" any presently available funds;

(b) "find" every available form of funds, by identifying excess or otherwise available appropriations for other purposes and

(1) notifying Congress of the intent to reprogram such funds when they are in the same budget account; or

(2) seeking congressional reappropriations of such funds from other budget accounts;

(c) "find" funds by supporting specific legislative initiatives to meet the obligations to Board;

(d) "find" funds by not failing to seek appropriations that could be used for desegregation assistance to Board, and by not attempting to rescind all such appropriations.

10. By taking actions to render financial assistanceunavailable for the purposes specified in Section 15.1, theUnited States has violated its obligations under the ConsentDecree. It has failed to make substantial efforts to find andprovide financial assistance, and it must now do so. Funds havebeen available to the United States that would have been providedto Board had the United States employed "every good faith effort"as it was bound to do.Such funds continue to be available at this time.

11. This Court has not had the opportunity in the limited timeavailable for the hearings to verify the validity of all of thefollowing. It appears however that the currently "available formsof financial resources" may include the following:

(a) Under ECIA the Secretary of Education is authorized to reserve up to 6% of the total amounts appropriated under the block grant provisions of ECIA, to carry out various programs, in his discretion. 20 U.S.C. § 3813, 3851. Of the $28,765,000 million set aside for the Secretary's Discretionary Fund in fiscal year 1983, $10,725,000 must be used to fund the programs mandated by 20 U.S.C. § 3851(b). Other moneys in the Discretionary Fund may be used to provide desegregation assistance directly to local educational agencies. 20 U.S.C. § 3832(7), 3811, 3851(a)(2)-(4). Approximately $8,980,000 is currently available in the Discretionary Fund. It is within the Secretary's authority to establish priorities, and to give a competitive or absolute preference to applications which meet those priorities, for grants from the Discretionary Fund. 34 C.F.R. § 75.105(c)(2), 75.105(c)(3). Nothing in the Education Department's General Administrative Regulations (EDGAR), which govern grants made out of the Secretary's Discretionary Fund, would prevent the Secretary from making an award to Board. 32 C.F.R. § 75.210, 75.217. There are no statutory, regulatory or other legal provisions that prevent the Secretary from using the unobligated monies in the Discretionary Fund to provide financial assistance to Board for desegregation.

(b) There are no statutory, regulatory or other legal provisions that would preclude the Secretary of Education from awarding all or part of the $24 million currently available in the Title IV program fund to Board for the purposes set forth in 42 U.S.C. § 2000c-2 and 2000c-4. EDGAR provisions do not apply to grant awards under Title IV, which can be made by the Secretary at any time.34 C.F.R. § 270.02(c), (e), 270.74(a).

(c) In addition to the foregoing items, the Secretary of Education may reprogram funds between programs within the same budget account by providing notice to the Chairmen of the two congressional appropriations committees. $28.058 million is currently available in programs other than Title IV, in the Special Projects and Populations account. Those funds could be reprogrammed to the Title IV program and made available to Board for desegregation assistance.

12. Funds distributed to Board pursuant to ECIA's block grantlegislation do not fully satisfy the United States' obligationsunder the Consent Decree. Moreover the Secretary of Education hasthe authority to issue regulations relating to the approval ofblock grant distribution criteria submitted by the states and toconsult with state and local officials regarding the distributionof block grant funds on his own initiative (20 U.S.C. § 3871(a)).Although the United States cannot itself "provide" the blockgrant funds, its "good faith effort" obligations under Section15.1 — in light of its past conduct — include the currentexercise of its retained authority to encourage provision ofblock grant funds in a manner that takes into account Board'sneed for desegregation assistance.

13. Every citizen has a right to expect fair dealing from thegovernment and must be able to have confidence in the integrityof the nation's officials. S & E Contractors, Inc. v. UnitedStates, 406 U.S. 1, 10, 92 S.Ct. 1411, 1417, 31 L.Ed.2d 658(1972); United States v. 119.67 Acres of Land, 663 F.2d 1328,1333-34, 1336 (5th Cir. 1981). When government officials areinvolved, it is particularly important for this Court to insurecompliance with its orders. United States v. An UndeterminedQuantity of An Article of Drug Labeled As Benylin Cough Syrup,583 F.2d 942, 949 (7th Cir. 1978). As a judgment, a consentdecree may be enforced by citation for contempt if it isviolated. City of Miami, 664 F.2d at 440; United States ex rel.Shell Oil Co. v.Barco Corp., 430 F.2d 998, 1000 (8th Cir. 1970).

14. What the government's arguments here seek to do is tomodify the Consent Decree, though it denies that intention andcharges Board with the same motive. Both parties agree thestandard for modification of a consent decree is a strict one,and relief is granted only upon a showing of exceptionalcircumstances. Fox v. United States Department of Housing andUrban Development, 680 F.2d 315, 322 (3d Cir. 1982); Ricci, 537F. Supp. at 825 (D.Mass. 1982). That strict standard applies withequal force to cases involving government officials. Id.;Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114,1119-21 (3d Cir. 1979) cert. denied, 444 U.S. 1026, 100 S.Ct.689, 62 L.Ed.2d 660 (1980) (both involving state officials).

15. There are no circumstances advanced by either partyjustifying modification of the Consent Decree. Certainlyconditions created by a party itself, such as the United Statesinvokes here, are not grounds for modification. Delaware ValleyCitizens' Council for Clean Air v. Commonwealth of Pennsylvania,678 F.2d 470, 476 (3d Cir.), cert. denied, ___ U.S. ___, 103S.Ct. 298, 74 L.Ed.2d 280 (1982); Williston on Contracts § 1959(3d Ed. 1978).

16. To be entitled to preliminary injunctive relief, aplaintiff must show a reasonable likelihood of success on themerits, that irreparable harm will occur if the injunction doesnot issue, that the threatened injury to plaintiff outweighs thethreatened harm to defendant, and that the grant of theinjunction will not disserve the public interest. Wesley-JessenDivision of Schering Corp. v. Bausch & Lomb, Inc., 698 F.2d 862,864 (7th Cir. 1983). Application of those principles to this casedemonstrates Board has borne its burden on each of thosecriteria:

(a) There is a substantial likelihood Board will prevail on its Petition. There is substantial evidence the United States has violated its binding and enforceable obligations under the Consent Decree and the disposition of the funds at issue would constitute a further violation.

(b) Board will be irreparably injured if the United States is not restrained from committing or expending further funds, because the Court will be effectively deprived of its power to grant the relief sought.

(c) Any hardship imposed on the United States from the grant of this injunction is not substantial. It certainly does not outweigh the injury to be inflicted upon Board if the injunction is not granted.

(d) Without question the public interest is best served by granting the injunction. In particular, the public interests in assuring full and adequate implementation of the Plan, in preserving the integrity of the Consent Decree and in protecting the dignity and power of this Court would be served.

Accordingly Board continues to satisfy all of the requirementsfor preliminary injunctive relief.

17. Considerations of comity dictate that the United States begiven one final opportunity to comply with its obligations underthe Consent Decree and that it receive definitive guidance fromthis Court. Given that fact and the nature of the relief grantedby the Order entered contemporaneously with these Findings andConclusions, coupled with Board's identity as a public body, thisCourt finds the unlikelihood of any damages to be incurred orsuffered by any party who might be found to have been wrongfullyenjoined or restrained justifies issuance of an injunctionwithout the giving of security by Board.


15.1 Each party is obligated to make every good faith effort to find and provide every available form of financial resources adequate for the implementation of the desegregation plan.


This Court has considered the Petition filed by the Board ofEducation of the Cityof Chicago ("Board") and its Motion for Declaratory andInjunctive Relief, the full record in this litigation to date,and the hearings held and evidence received on June 1, 7, 8, 22and 27, 1983. In accordance with and in implementation of theFindings of Fact and Conclusions of Law entered by this Courtcontemporaneously with this Order,1 it is hereby ORDERED,ADJUDGED AND DECREED:

1. This Court declares the liability, rights and obligations ofthe parties as follows:

(a) This Court's September 24, 1980 Consent Decree, andparticularly Section 15.1, is a binding and enforceableobligation of the United States, its agencies and officers, bothas a settlement agreement among the parties and as an order ofthis Court.

(b) Under Section 15.1 the Executive Branch of the UnitedStates is now required to take every affirmative step within itslegal authority to seek to "find and provide" desegregationfunding to Board, until funding adequate for full implementationof the Plan has been provided.

(c) More specifically, the obligation of the United Statespursuant to Section 15.1 requires that the Executive Branch takethe following affirmative steps:

(1) identify all funds that are currently appropriated and can be used to provide desegregation assistance to Board without any further congressional action;

(2) identify all funds that are currently appropriated for purposes other than desegregation assistance to local educational agencies but that are within the same budget account as desegregation assistance funds, so they could be provided to Board by giving notice to Congress that the funds are being reprogrammed, but without any congressional action;

(3) identify all "excess" funds currently appropriated for budget accounts that do not include desegregation assistance in the Department of Education or any other agency that has authority to provide financial desegregation assistance, but that could be reallocated through congressional action to budget accounts allowing desegregation assistance;2

(4) identify any available legislative initiatives to the extent that such initiatives would provide financial desegregation assistance specifically to Board;

(5) to the extent funds are or become available, provide financial desegregation assistance to Board in an amount that, together with funds provided from Board and other sources, is adequate for full implementation of the Plan;3

(6) cooperate with Board so as to fulfill any administrative requirements, and remove any administrative obstacles, that bear upon providing general support, for the Plan; and

(7) take any steps available within its lawful authority to promote the use of funds provided to the State of Illinois Under ECIA for desegregation assistance to Board.

(d) Funds are currently available in the Discretionary Fund andin the Special Programs and Populations Fund, in amountsexceeding $15 million, that could be provided by the Secretary ofEducation to Board for desegregation assistance.

(e) Because the United States has failed to provide formerlyand presently available desegregation funding to Board, has takenvirtually no affirmative steps to find andprovide such funding and has indeed taken affirmative steps tominimize and eliminate available sources of such funding, theUnited States has violated and continues to violate the agreementbetween the parties and the order of this Court embodied in theConsent Decree.

(f) Under the Consent Decree the obligations of the UnitedStates concerning funding extend for a five-year period. Becausethe United States has not effectively begun to meet its fundingobligations before now, that five-year period shall begin withschool year 1983-84 rather than when the Plan was firstimplemented.

(g) For purposes of Section 15.1 and of Subparagraph 1(c)(5) ofthis Order, the amount of funding adequate for fullimplementation of the Plan on an annual basis includes thefollowing:

(1) $56.9 million in incremental desegregation expenditures budgeted by Board for school year 1982-83;

(2) $14.6 million, which is the amount of additional incremental expenditures required by Board to achieve the necessary threshold level of funding for Educational Components in predominantly minority schools, as identified by Board in Part II of the Plan (filed April 29, 1981);4 and

(3) such additional amounts as may hereafter be determined by this Court, pursuant to Board's contentions described in Subparagraph 1(h) of this Order.5

(h) Board contends the following additional amounts arenecessary for adequate full implementation of the Plan:

(1) expenditures for ongoing Board resources that have been wholly or substantially devoted to, or redirected for the purpose of, implementing the Plan (such as in the reassessment of all EMH students in the school system);6

(2) approximately $163 million over the next five to seven years for improving the physical conditions in predominantly minority schools to ensure a safe, clean and attractive environment in all such schools;

(3) amounts necessary to implement new desegregation measures adopted in Board's 1983 Annual Desegregation Review, including two new magnet schools, certain magnet and specialty programs, and measures to relieve over-capacity enrollments in predominantly minority schools; and

(4) amounts necessary for educational remedies in predominantly minority schools and integrated/desegregated schools, such as staff development at all levels, implementation of the Effective Schools Program, a summer school program for students achieving substantially below grade level and other programs.

(i) Both the Plan and the further evidence presented to thisCourt indicate Board is making every good faith effort to findand provide funding adequate for full implementation of the Plan.Nonetheless Board does not have resources adequate for the fullimplementation of the Plan, and in particular does not have the$14.6 million described in Subparagraph 1(g)(2).

(j) This Court recognizes the costs of the Plan must be borneby Board and the United States (and potentially third parties) inamounts or proportions yet to be finally determined. Thatdetermination will depend upon various factors, including thetotal funding adequate for full implementation of the Plan andthe resources that can be provided by Board, the United Statesand other parties. At this time the amount to be borne by theUnited States is, at a minimum, the portion of funding adequatefor full implementation of the Plan thatBoard cannot provide, to the extent such funding is available to,or can be made available by, the United States.

(k) At this stage, considering the minimum level of funding forfull Plan implementation that will be adequate for school year1983-84, the amount of funds available (and potentiallyavailable) to the United States and Board, the levels of fundingpreviously provided by the United States to desegregating schoolboards, and an equitable allocation of costs among the parties,this Court determines the obligation of the United States forfunding the Plan in school year 1983-84 is not less than $14.6million. Further obligations of the United States for suchfunding in school year 1983-84 will be determined after a furtherhearing concerning Board's contentions described in Subparagraph1(h) and after the United States has reported to this Courtpursuant to Paragraph 2 as to the amount of funds available.

2. For the reasons stated in Paragraph 1, the United States isdirected to undertake immediately an active and affirmativeprogram of making every good faith effort to find and provide forschool year 1983-84(a) the $14.6 million referred to inSubparagraph 1(k) and (b) such further level of funding as maybe determined by this Court. As n. 3 reflects, the particularform and details of the affirmative program, as well as theultimate sources of the funding, are within the discretion of theUnited States, except that the program shall include the elementsdescribed below. On or before July 11, 1983 the United States isdirected to formulate and submit to this Court the form anddetails of the affirmative program, with a clear designation ofthe persons responsible for leading and coordinating the program.It shall seek to implement that program within four weeksthereafter and shall submit weekly reports to this Courtdetailing its efforts and progress, the final report being dueAugust 8, 1983. That affirmative program shall be designed tomeet the obligations of the United States as defined in Paragraph1 and shall specifically include each of the following efforts,to the extent necessary to meet those obligations:

(a) efforts to provide to Board the $8.98 million that remains unobligated and available for local desegregation assistance in the Secretary of Education's Discretionary Fund;

(b) efforts to provide to the Board the $52.058 million that remains unobligated and available for local desegregation assistance in the Department of Education's Special Programs and Populations Fund;

(c) efforts to secure congressional consent for the reallocation of excess funds from the Department of Education's Guaranteed Student Loan Program into the Secretary's Discretionary Fund or another fund from which general support may be provided for implementation of the Plan;

(d) efforts to identify other available monies, or to reprogram or reallocate other excess monies, so that such funds may be provided as general support for the Plan;

(e) support of legislative initiatives that would provide desegregation funding to school districts that have entered into Consent Decrees that have been construed by courts to require efforts to provide such funding by the United States;

(f) efforts to eliminate any potential conflict between the obligations of the United States to Board and the Secretary of Education's intention to aid the grantees and projects that the Department of Education had contemplated funding from the Discretionary Fund and the Special Programs and Populations Fund, by attempting to fund such other grantees and projects from other sources; and

(g) cooperation with Board to identify all aspects of Board's desegregation activities that are or could be eligible for funding under Title IV.

That affirmative program, because it is the responsibility of theUnited States, shall not be limited to the Department ofEducation, but shall also include the Department of Justice, theOffice of Management and Budget, and any other personnel oragencies of the United States whose participation is necessaryfor the program to be successful.

3. While the United States is carrying out its obligations toBoard for school year 1983-84 as provided in Paragraph 2, it isnecessary to protect Board against the obligation or expenditureby the United States of monies available for providingdesegregation funding to Board. Accordingly this Court's June 8,1983 Order preserving the status quo is further extended andmodified as follows:

(a) Until August 10, 1983 the United States and its agent theSecretary of Education are directed to refrain from expending, ortaking any further action to obligate in any way, fundsappropriated by Congress for the Secretary of Education'sDiscretionary Fund for fiscal years 1983 and 1984, and forcertain other programs7 in the Department of Education's SpecialPrograms and Populations Account for fiscal year 1983 and 1984,except as provided in the following subparagraphs.

(b) This Order does not apply to the $10.725 millionappropriated to the Discretionary Fund for fiscal year 1983 thatis mandated by Congress, pursuant to 20 U.S.C. § 3851(b), to beexpended for three specific programs, or to fiscal year 1984funds the use of which is similarly mandated by Congress.

(c) This Order does not apply to unobligated DiscretionaryFunds in the amount of $50,000 that were exempted from the June8 Order.

(d) This Order does not apply to Discretionary Funds in theamount of $9.059 million that were obligated by the Department ofEducation prior to the close of business on June 8, 1983,consisting of $7.687 million for the National Diffusion Networkand $1.364 million for technology continuations, secondary schoolrecognition and the National Commission on Excellence inEducation.

(e) Funds in the five programs listed in n. 7 may be obligatedand expended by the Secretary of Education in amounts that arenecessary to enable all intended fiscal year 1983 grantees inthose programs to operate at present levels up to August 15,1983. No funds restrained by this Order may be obligated orexpended for operations after August 15, and the Secretary ofEducation shall insure that the provision of funds until August15 is accomplished so that it does not give rise to an obligationor claim for future funding. All such grantees shall first berequired to extend their fiscal year 1982 projects (if any) tothe extent that they have funds remaining for that purpose.8 Inthe aggregate the amounts obligated and expended by the Secretaryof Education pursuant to this subparagraph shall not exceed 11.5%of the fiscal year 1983 appropriation for the Special Programsand Populations Fund, which is $5.989 million.

4. There are various funds appropriated to the Department ofEducation for purposes other than desegregation, including theGuaranteed Student Loan Fund, that (a) are in excess of theamounts that are or will be needed for those purposes in thisfiscal year and (b) potentially can be used by the United Statesto fulfill its obligations under the Consent Decree for schoolyear 1983-84 and the following four years of implementation ofthe Board's Plan. To ensure to the greatest extent possible thatsuch excess funds are not disposed of or otherwise renderedunavailable, the Executive Branch of the United States isdirected to undertake an affirmative program to preserve theavailability of such excess funds in the amount of $250 million.Both the form and details of that affirmative program shall bedetermined by the Executive Branch in its discretion except inthe following respects (which shall be part of the program in anyevent):

(a) withdrawal of any pending proposal for the rescission byCongress of the appropriations for the excess funds, to theextent of $250 million;

(b) affirmative efforts by the Executive Branch to preserve theavailability of excess funds in that amount; and

(c) such actions and legislative initiatives by the ExecutiveBranch as are appropriate to set aside $250 million of excessfunds in a reserve or escrow fund earmarked for potential use forfulfillment of the United States' obligations under the ConsentDecree during the next five-year period.9

5. For the reasons stated in Conclusion 17, this preliminaryinjunction order is issued without Board's giving of security.

6. These proceedings are scheduled for further hearing at 2p.m. August 10, 1983, for further consideration of the level offunding adequate for full implementation of the Plan, and othermatters as appropriate.

1. Each party has stipulated to the authenticity and genuinenessof the other party's documentary exhibits and that copies may beused in lieu of originals. There has been no stipulation as toadmissibility. Brackets in each Finding indicate the evidentiarysource of the Finding. "Stip." refers to the agreements containedin the Joint Statement of the Parties Concerning ProposedFindings of Fact, rather than indicating the underlying evidence.Some of the "Stip." Findings are agreed to, while others aresimply not disputed by the United States. Some are claimed by theUnited States to be irrelevant, though undisputed.

2. Board's "school year" is its fiscal year beginning September 1and ending the following August 31.

3. Federal fiscal years begin October 31 and end the followingSeptember 30. Thus "fiscal year 1981" is the year ended September30, 1981.

4. "Stip." in the subparagraphs of this Finding 48 reflect theparties' agreement the specified actions were taken. It is theUnited States' position that other actions have been taken by itas well. Because this Court's ultimate Findings and Conclusionsare not dependent on the specifics in that respect (given theUnited States' affirmative steps to disable itself fromfulfilling its obligations, see Conclusion 4), the disputed areasare irrelevant to this order.

5. White involved a situation very different from the present one.There the literal terms of the consent decree were at war withcommon sense, and the court considered the parties could not haveintended its literal meaning. That is not at all the case here,and this Court need not explore the possible implications ofWhite in other circumstances.

6. Indeed one of the United States' tendered documents as part ofits Group Ex. 1 makes that point graphically. In the June 19,1980 letter from Assistant Attorney General Drew Days III of theCivil Rights Division to Board attorney Frank Cicero (one of thesteps in the negotiations that led to the Consent Decree), Daysasked whether Board would be willing to include the followingprovision among others in a consent order (emphasis added):

A statement that while each party is obligated to search for every available means to provide adequate financial resources for the implementation of the desegregation plan and while each party reserves the right to seek to add additional parties who may be legally obligated to contribute to the cost of desegregation, the parties recognize that financial cost of implementation is not a legally sufficient basis for postponement, cancellation or curtailment of the desegregation plan. . . .

That emphasized language was obviously the antecedent of Section15.1, except that "search for" became "find and provide" — abroader obligation on the United States. Simply to read theemphasized clause compels recognition of the fact its stress wason a universal search — on "every" — and it is artificial todetach "available" from the rest of the clause as a limitingterm.

7. Government Ex. 2 is a joint stipulation as to negotiationsleading to the Consent Decree, an exhibit Board seeks to excludefrom consideration. It states in part:

At a relatively early stage in the negotiations leading to the Consent Decree, the parties discussed the question of financial support from the United States for the Board's desegregation activities. It was the Government's position that no funding commitment specific as to form and amount could be made in the context of the Consent Decree, because there was no way to anticipate the nature and costs of the Board's Plan, the amount and sources of Government funding, or a variety of other matters. . . . These discussions took place approximately two months before the completion and execution of the Consent Decree. It was concluded that the matter of federal financial support would be handled by including general provisions in the Consent Decree, and Section 15.1 was drafted and incorporated into the Decree. Section 15.1 was not designed to incorporate any specific discussions between the parties on this issue, but to establish a general obligation on the part of both parties which would be interpreted and applied as appropriate in whatever future circumstances might arise.

What the United States obviously fails to perceive is that itsown position, and the manner Section 15.1 came into being, barredit from the kind of conduct it has engaged in to frustrate itsown commitment. What this Court is in fact doing now is"interpret[ing] and apply[ing]" the "general obligation on thepart of [the United States] . . . as appropriate in [today's]circumstances. . . ." Again the history it seeks to urge on thisCourt supports, rather than undermining, this Conclusion.

[fn1a] All terms defined in the Findings and Conclusions shall havethe same meaning when used in this Order.

[fn2a] "Excess" funds include any allocated funds the agency hasdetermined it will not expend for the purpose for which they wereappropriated, but instead will seek to rescind, allow to lapse orseek to reallocate to other budget accounts.

[fn3a] If several sources of funds that are available to draw uponare more than adequate in the aggregate for full implementation,it is within the discretion of the United States to determinewhich of those sources to draw upon: funds identified underSubparagraph 1(c)(1), or funds obtained through reprogramming,reappropriation or new legislation pursuant to the possibilitiesidentified under Subparagraphs 1(c)(2) through 1(c)(4), or fundsobtained from any other possible source.

[fn4a] This amount includes the $10 million in additional incrementaldesegregation expenditures budgeted by the Board for school year1983-84.

[fn5a] This provision does not constitute a determination as to thevalidity or invalidity of those contentions, a subject thatremains for future determination by this Court.

[fn6a] Expenditures devoted to the EMH aspect of such desegregationimplementation was $4.6 million in school year 1982-83 and willbe the same amount in 1983-84.

[fn7a] Title IV, Women's Educational Equity, Follow-Through, Aid tothe Virgin Islands and Territorial Teacher Training.

8. By August 1 the United States shall submit a written report tothe Court documenting that the amount provided to each granteewas reduced by the amount the grantee estimated would remainunexpended from its fiscal year 1982 grant under that program.Such amounts of remaining fiscal year 1982 funds shall beverified by the Department of Education from the final reportssubmitted by such grantees on or about September 30, 1983.

9. This Court will enter a further order concerning the terms andconditions of the escrow fund after further facts have beensupplied it in that respect.

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