U-46 desegregation trial: The issues

First of four parts

Few people would dispute that Elgin Area School District U-46 — the state's largest district outside Chicago — is racially diverse, and that the ethnic groups in the district are spread unequally among the district's 53 schools.

What is very much in dispute, and the subject of six years of federal litigation, is whether that unequal distribution constitutes discrimination and deprives minorities of equal educational opportunities.

U-46, which spans 11 towns and three counties and serves about 41,000 students, is facing a federal class-action suit filed on behalf of five black and Hispanic families. The lawsuit claims the district discriminated against minorities by sending them to inferior schools, denying them equal access to gifted programs and providing inadequate bilingual services.

Lawyers for U-46 will be in court Feb. 28 to argue against those claims in the first phase of the district's desegregation trial.

Although the lawsuit was filed in 2005, officials in the district expressed fears about civil rights litigation as early as 1996, when Bartlett High School opened and Rockford schools were mired in their own costly desegregation battle.

At the time, U-46 shifted its bilingual program from Elgin High School to Bartlett to mitigate crowding at Elgin and avoid creating a predominantly minority school.

In 2004, despite persistent threats of litigation from Elgin city leaders and parents, U-46 implemented controversial new attendance boundaries for its 48 elementary and middle schools.

That boundary plan shifted nearly 10,000 students to new schools. Many low-income, Hispanic students stayed at older schools in Elgin. Many middle-class white students were shipped out to newer schools in Hoffman Estates. At the same time, U-46 closed two elementary schools: Illinois Park in Elgin and Woodland Heights in Streamwood.

Even U-46's statistics showed the number of district schools in Elgin with majority low-income populations would increase to 16 from 13, out of 20 total.

Just three months later, amid further threats of litigation, the U-46 school board approved new high school attendance boundaries, shifting another 10,000 students to new schools, including the new South Elgin High School, over the next three years.

By 2010, the results were clear. At the three older high schools in U-46 — Elgin, Larkin and Streamwood — minorities and low-income students were in the majority. Elgin and Larkin were both majority Hispanic. At the two newer high schools — Bartlett and South Elgin — more than 60 percent of students were white; low-income kids made up a fifth to a quarter of kids at those schools.

Experts say that's far from proof that U-46 discriminated against minorities. But it doesn't look good, either, they say.

“Having racially identifiable schools in a racially diverse district does and should raise eyebrows,” said Craig Futterman, a University of Chicago law professor and former attorney for Futterman Howard, the firm suing U-46. (Craig Futterman was not involved in the U-46 litigation.)

“It doesn't mean it's necessarily illegal, but it does raise questions,” he said.

The case

The case against U-46 is divided into three parts, chief among them student assignment. Bilingual services and gifted programs are secondary matters. In all three areas, lawyers for the plaintiffs argue U-46 discriminated against minority students.

The student assignment claims, particularly involving elementary-age students, will be addressed in the first phase of the trial and are at the heart of the desegregation case.

In their 2006 amended complaint, lawyers for the plaintiffs wrote: “The district developed a redistricting plan with strict neighborhood attendance areas. Effectively, the redistricting plan limits the number of elementary age Hispanic and African-American students who will have access to the new educational facilities.”

In their response, lawyers for the district categorically denied the claims. In court filings and statements made when the boundary changes were approved, U-46 officials said the new district map kept students in schools close to home and cut down on busing costs.

“The district admits that a desire to create contiguous geographic attendance areas giving students the opportunity to attend a school near their home, if possible, was a goal of its redistricting plan,” U-46 attorneys wrote in 2006. “The district also admits that it considered the possibility that such a plan could also reduce transportation costs, but asserts that educational considerations were the primary factors considered.”

Like racially identifiable schools, the neighborhood schools philosophy — sending students to their closest school, regardless of housing patterns — is not illegal on its face but raises questions.

“That's not unconstitutional in any shape or form,” Futterman said. “But neighborhood schools at times, and I'm not saying that has been the case in U-46, has been used as code language for racial separation.”

While the Elgin schools trial is divided into three broad areas for convenience, all of those issues will be litigated through the lens of two major pieces of civil rights law: the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, and the Illinois Civil Rights Act of 2003.

To prove U-46 violated the Constitution, attorneys for the plaintiffs will have to show the district intentionally discriminated against minorities. That's not as hard as it might sound.

“To prove it, it's not necessary to have a bunch of board members say, ‘We did this because we want to treat blacks or Latinos worse,'” Futterman said. “It can be proven by knowledge of discriminatory effect ... or failure to address a practice that has a real racial impact.”

But even if the plaintiffs cannot prove intentional discrimination, U-46 will still have to contend with the Illinois Civil Rights complaint — which does not require intent.

To prove their case under the Illinois law, plaintiffs' attorneys would first have to show minorities have been treated differently. Then, they would have to either prove there was no educational justification for treating minorities differently or that there were other options available to the school district that were less discriminatory.

That's not so easy.

“If you can articulate a legitimate neutral reason for this — even if it has a huge disparate impact — the presumption is that the district wins,” Futterman said.

Still, the two-pronged discrimination case allows lawyers for the plaintiffs to essentially hedge their bets. If they can't prove intent, they still have the local statute to fall back on.

“From a legal perspective, these are independent claims,” Futterman said. “A set of lawyers who failed to bring both claims would probably be failing to do their jobs.”

What is segregation? When is it illegal?

Those questions are at the heart of the biggest desegregation case the Chicago suburbs have seen in decades.

That case, in which Elgin Area School District U-46 stands accused of segregating blacks and Hispanics in inferior schools, is set to go to trial Feb. 28.

In a four-part series, we will bring you up to date on the major claims and players in the lawsuit, as well as how the trial is likely to play out — and how the case could reshape Elgin and the surrounding communities for years to come.

Today: The issues

Saturday: The impact

Sunday: The players

Monday: Anatomy of a trial