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Opposing attorneys differ over ‘victory’ in ruling on U46 discrimination lawsuit

Updated: August 17, 2013 6:19AM

As the long-running federal discrimination lawsuit against Elgin School District U46 enters its remedial phase, attorneys for both sides hold differing views of Judge Robert Gettleman’s decision issued last week.

Despite Gettleman ruling for the school district on two of the three major contentions brought by the case, “It’s a major, major victory for the plaintiffs,” lead trial counsel Stewart Weltman said Monday.

Weltman said the ruling will have civil rights ramifications across the country and benefits for future students. He sees the decision as calling out U46 for “intentionally discriminating in the admission and conducting of its gifted program” and said the district has an “indefensible position” on the matter.

But Patricia Whitten, attorney and U46 spokeswoman on the case, said Monday that “We don’t consider it major in any way.” She noted that the issue in which Gettleman seems to side with the plaintiffs was one the plaintiffs “didn’t even raise for the first five years of the case” and which has a narrow focus.

That focus would be the Spanish-English Transition/School Within a School (SET/SWAS) program, which U46 started 15 years ago. Whitten said it is one of only a few like it across the country, is considered innovative, and was designed with good intentions to benefit the students for whom it is intended.

The program is set up for bilingual students whose first language in the home is Spanish but who are good enough with English to take classes taught just in English. The effort is set up because of the level of language found in gifted classes frequently is at a higher level than typical peer discussions, Whitten said.

The district feels that students who take part in SET/SWAS in grade school are more successful than they otherwise would be when they move into middle school gifted classes, Whitten said.

In his decision, Gettleman wrote that “the district intentionally singled out one ethnic group for segregated rather than integrated instruction. Thus, as plaintiffs argue, the disparate impact created by the SET/SWAS program does not alone prove discriminatory intent, but is strong evidence of such intent because that impact was known by the district and allowed to continue. The ‘inevitability or foreseeability of consequences’ permits ‘a strong inference that the adverse effects were desired.’ ”

Other issues

The lawsuit originally was filed on behalf of nine Hispanic students and their parents in February 2005, and it boiled down to two other major contentions.

One was that the district discriminated against black and Latino students nine years ago when it redrew its boundaries, with students of color more likely to be sent to overcrowded schools with mobile classrooms than white students were. Gettleman sided with U46 in this matter.

Attorneys for U46 contended that schools actually have become more diverse since the boundary plan was put in place. In the school year before the changes, two of 39 elementary schools had enrollments in which at least 90 percent of students were one race. Afterward, there were none, and that remained true in 2008-09.

Another point of the lawsuit alleged that the U46 English Language Learners offering violated the Equal Education Opportunity Act. Attorneys for U46 contended that the ELL program is re-evaluated continually and modified to incorporate recognized best practices in ELL education within a changing educational and legal environment. Gettleman also found in favor of U46 in this matter.

Whitten said that the case is the longest in which she has personally been involved with during her 39 years in school law. She noted that the litigation’s 8½ years to this point included a lengthy discovery phase in which U46 provided 3 million or so pages of documents.

“And their issues kept changing,” Whitten said, noting that Gettleman’s ruling also stated that the plaintiffs shifted their claims and emphasis a number of times over the years.

Lawyer costs

Both Weltman and Whitten said there had been talks to settle the matters out of court. Weltman agreed that the case cost an unfortunate amount of money and noted Gettleman writing “it is unfortunate that the parents and children affected, not to mention the professional staff of the district, have had to wait so long to have this matter brought to a point of decision.”

Whitten countered that while the list of demands from the plaintiffs narrowed toward the end, what ultimately held up any agreement was what portion of the plaintiffs’ attorney’s fees the district would cover.

Whitten said the U46 school board will discuss the case in its executive session at Monday night’s meeting. Yet to be decided is what tack the district will take beyond this point as it weighs appealing Gettleman’s ruling, but Whitten didn’t expect that would come out of Monday’s session.

The two parties are due back in federal court in Chicago at 2 p.m. on July 25, which will set in motion the moves Gettleman will want the district to make regarding the gifted program in question — and how much the district might have to cover in paying the attorney bills for the plaintiffs.

“Should the court find that, consistent with the holdings of this opinion, the district’s gifted program continues to violate the constitutional and statutory rights of the plaintiff class, the court will direct the district to submit a remedial plan,” Gettleman wrote in his decision.

As of November, The Courier-News reported, U46 had spent close to $17 million defending itself in the case, with the number climbing higher still as matters come to their fruition.

The district could owe some fees if the plaintiffs should ultimately prevail, Whitten said. As the case enters the remedial phase, Whitten said it would continue to cost U46 money, but not at the pace it has to this point.

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