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$16.8 million and counting in discrimination case costs

Mobile classrooms are shown Channing Elementary School ElgNovember 2012. Use mobile classrooms was cited lawsuit against District U46. | File~Sun-Times

Mobile classrooms are shown at Channing Elementary School in Elgin in November 2012. Use of mobile classrooms was cited in the lawsuit against District U46. | File~Sun-Times Media

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Updated: December 14, 2012 6:14AM

ELGIN — School District U46 has paid $16,791,643.79 in legal fees to defend itself in a nearly eight-year-old racial discrimination lawsuit against district.

And that number will go up as U46 waits for the plaintiffs in the trial to submit their closing arguments as a written brief later this month, according to district spokesman Patrick Mogge.

The plaintiffs’ brief is due to Judge Robert W. Gettleman on Nov. 30, and the district’s on Jan. 10, according to attorneys for both sides. Gettleman is hearing the lawsuit against the school district in a bench trial in the U.S. District Court for the Northern District of Illinois in Chicago.

The suit claims U46 discriminated against black and Hispanic students in its 2004 school boundary plan by placing them in overcrowded schools. It also claims that the district did not offer appropriate help to English Language Learner students or access to gifted and academy programs to students who were black and Hispanic.

Lawsuits against school districts aren’t unusual, Mogge said, “like any large organization.” U46 is the state’s second-largest school district.

“That’s a lot of stuff that’s dealt with in closed session” by the U46 Board of Education, he said.

In fact, the district has a Tort Immunity and Judgment Fund that handles expenditures related to legal services, risk management, security and other related issues, according to the district. That money comes from tax levies and/or bonds.

A brief history

This lawsuit originally was filed by nine Hispanic students and their parents in February 2005. And the trial has been off and on since March 2011.

Plaintiffs’ attorneys Futterman Howard Ashley and Weltman, based in Chicago, have pointed to the use of mobile classrooms as an indicator of overcrowding.

Plaintiffs’ expert witness Edward Kazanjian testified in March that a number of the mobiles he visited at U46 elementary schools were not viable and should not be used — and the rest wouldn’t be viable much longer. The consultant had made his evaluations in 2008 by walking around the mobiles, checking their temperatures and manufacturers’ dates, taking pictures and looking for safety issues, he said at the time.

But Sam Wilson, an expert witness for U46, said the average age of a mobile in the district in 2008 was well below the manufacturer’s standard.

And another expert witness for U46, Milan Mueller, pointed to the objective measure he had used to determine overcrowding in district schools — numbers used by the National Center for Education Statistics, he said. And those numbers — which determine a school is overcrowded if it is at 106 percent or more of its capacity — would have made schools overcrowded before boundary changes, but not after.

Former District U46 Director of Bilingual Education Dionnes Rivera also had testified in October that former U46 Superintendent Connie Neale had directed her during the 2002-03 school year to remove all U46 students from the English Language Learners program after they had spent three years in it.

Testimony by Neale and past school board members characterized that as a strategy, rather than a policy, guided by the federal No Child Left Behind Act requirement that all students be tested in English after three years of special programming.

And experts for both sides have clashed over whether the district’s Spanish English Transition School Within A School, a gifted program for students who receive English Language Learner services, is an exemplary program — or an example of segregation.

The district is represented by both Franczek Radelet in Chicago and Hogan Lovells, which has offices worldwide.

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