United States v. BD. OF EDUC. OF CITY OF CHICAGO, 80 C 5124.

642 F. Supp. 206

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

No. 80 C 5124.

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

July 16, 1986.

Neil H. Koslowe, Sp. Litigation Counsel, Civil Div., Dept. of Justice, Washington, D.C., for plaintiff.

Robert C. Howard, Robert M. Weissbourd and James Bradtke, Hartunian, Futterman & Howard, Chtd., and Hugh R. McCombs, Jr., David Narefsky and Denise L. Jarrard, Isham, Lincoln & Beale, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Before the Court is the Board of Education's motion to compel the United States to provide interim funding of the Board's Desegregation Plan pending appeal, under paragraph 12 of the Court's December 23, 1985 Remedial Order. Specifically, the Board seeks release of certain funds in the Discretionary Fund account and the Bilingual Education account. For the reasons that follow, the Board's motion is granted in part and denied in part.

The parties are well aware that the Court has strongly favored private resolution of the disputes, and we appreciate that they have resolved most of the interim funding dispute themselves. The Consent Decree called for the parties to work side-by-side in creating, implementing and funding the Desegregation Plan, but the history of the case has seen more battles than cooperation. We hope that the recent cooperation signals a return to the original spirit of the Consent Decree, and that the parties will henceforth spend more time on desegregation than litigation. Unfortunately, not every dispute has been resolved; specifically, the parties feel their differences over the Discretionary and Bilingual funds¹ are irreconcilable. The level of mutual distrust and suspicion in this case is extraordinarily high and is dropping only slowly. Had the parties' relationship not been poisoned, they probably could have settled even the issues before us, we think. In any event, the Court must now resolve this dispute.

A. Discretionary Fund

The Board seeks the release of $750,000 of Discretionary Fund money to support a project it is implementing in ten schools. The Board wants to fund a "modified version" of the Chicago Effective Schools Project ("CESP"). This project is described in our Findings 213-33. See 621 F.Supp. 1296, 1346-50 (N.D.Ill.1985). The Board proposes to use the federal money to pay for some, but not all, parts of the CESP plan in these schools. Virtually all of the money would be devoted to paying salaries of assistant principals (who would assume many of the principals' normal duties so that principals would be forced to coordinate and evaluate the CESP) and paying for field trips, which serve as "cultural enrichment" in the "open schools" that the CESP creates. The parties dispute whether the money will be spent on a "model" program, of "national significance," as required by the relevant statute, 20 U.S.C. § 3851. In particular, the United States complains that: (1) the project will not make "a contribution of national significance"; (2) it uses no "innovative techniques"; (3) it is not "self-contained" and easily replicated. It argues that the money would simply be squandered on field trips and assistant principals (performing other tasks), perverting the purposes of the Discretionary Fund. In response, the Board emphasizes that the CESP project as a whole is a model program of national significance, innovative, capable of dissemination and replication.

The parties' arguments remind one of the fabled disagreement about whether the half-filled glass is half-empty or half-full. Neither side really disagrees with what the other is saying; they are instead coming at the problem from opposite sides and talking past each other. The United States is correct that the details of the Board's funding proposal would hardly raise an educator's eyebrow: field trips qua field trips are not innovative, even if glossed with the new name "cultural enrichment activities"; similarly, the "extended day program," which involves "extra" instruction in basic skills, contemplates more rather than a new kind of instruction. But the Board is also correct, and the United States does not dispute, that the CESP, as a whole, is innovative and can be seen as a model. See Findings 213-33, 566-67. The requested funds go a long way to making the whole project run. How, then, to resolve this disagreement as to approach?

To answer this, we return to our triad of requirements for funding projects in the Board's Plan: the project must materially further the overall success of the desegregation plan, contain reasonable costs and be consistent with statutory criteria. See, e.g., March 14, 1986 Memorandum Order. The parties do not raise an issue about the first two legs of the triad. They are essentially arguing about the third leg. Turning to the statute, we see that the Board's proposal is consistent with statutory criteria. 20 U.S.C. § 3851(a) authorizes the Secretary to fund a local educational agency to "carry out ... programs and projects" which, among other things, "carry out research and demonstrations related to the purposes of this chapter," "are designed to improve the training of teachers ... needed to carry out the purposes of this chapter," and "are designed to assist the Agency in the implementation of programs under this chapter." § 3851(a)(2), (3), (4). Desegregation is a purpose of the chapter. The Secretary does not contend that the CESP is not a valid program under the relevant chapter. Nor does it claim that the CESP, as a whole, is not a "program or project" which falls under § 3851(a). Finally, the Secretary does not argue that the statute forbids funding only a part of this otherwise statutorily eligible project. In sum, the Board's project appears consistent with express statutory criteria; at a minimum, the statute does not appear to forbid funding of the Board's project, even though most of the funds will go to a few non-innovative aspects which form part of a scheme which is innovative overall.

In light of our "pipeline holding," see, e.g., 621 F.Supp. 1317-22, we would be justified with ending here, without considering more than statutory criteria; however, even the regulatory criteria do not appear to forbid funding of the Board's Plan. The Secretary cites no regulation supporting his argument that the Fund can only underwrite a "self-contained" project. We found nothing in the regulations saying this, see 34 C.F.R. §§ 760.1-760.41 (1985). Nor do the regulations forbid the Secretary to fund "non-innovative techniques" which are part of a project which is a nationally significant model overall. "The extent to which the project involves techniques that are innovative" is merely one, relatively minor factor for the Secretary to consider in his overall rating of a project, see 34 C.F.R. § 760.31(g), not a necessary predicate to funding, which the Secretary implies.²

In short, the Board's proposed project satisfies our triad of requirements, and, moreover, is not inconsistent with regulations. This is not to say the Board chose the best project on which to use the Discretionary Fund money. And, frankly, we are at a loss to explain why the Board will be paying assistant principals who will "free up" principals instead of paying the principals directly. Because this is merely a matter of accounting procedure, and not substance,³ we do not see this as fatal under statutory criteria, but neither do we see it as a thoughtful proposal designed to assuage the Secretary's fears that the Board will spend federal dollars inappropriately.

B. Bilingual Funds

The parties have resolved most of their debate over the Board's proposed bilingual projects. The Secretary now voices two major objections, one with respect to the "Developmental Bilingual Education program" and one about the "Newcomer Student Program." We consider each in turn.

1. Developmental Program. Part of this program calls for teaching Spanish literacy, as well as history and culture, to "limited English proficiency" ("LEP") Hispanic children. The problem, according to the United States, is that English-speaking monolingual students will be part of this program, including the part involving teaching of Spanish literacy. The government contends that the relevant statute, 20 U.S.C. § 3261⁴ and the regulations, 34 C.F.R. Part 520 (1985), forbid spending these federal dollars on what it calls teaching Spanish to English-speaking students.

Were the Board merely trying to teach Spanish to English-speaking students, the government would surely be correct. But that is not what the Board is doing. It appears to the Court that the program is primarily aimed at the Hispanic students; the English-speaking students are included in order to keep the entire class together, probably for both pedagogical and desegregation-related reasons. This is not inconsistent with the statute and regulations cited by the government. In fact, the statute and regulations expressly contemplate that all students will take part in the culture and history instruction. See 20 U.S.C. § 3261(a)(1)(A); 34 C.F.R. § 520.10 (1985). While this part of the statute does not expressly include the "English-speakers" in the Spanish literacy training, neither does it say they cannot be part of such a class, where the majority of students is Hispanic and where the literacy is aimed primarily at this majority. Indeed, although neither side cited it, the definitional section of the statute seems to expressly endorse such an arrangement. 20 U.S.C. § 3223(a)(4)(A)(i) defines a "program of bilingual education" to include instruction of "the native language i.e., Spanish" of LEP children "to the extent necessary to allow a child to achieve competence" in English. 20 U.S.C. § 3223(a)(4)(B) adds (with our emphasis):

(B) In order to prevent the segregation of children on the basis of national origin in programs assisted under

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