JULY 1 marked the 20th anniversary of the Armstrong Act, Illinois' vague, but strongest effort yet to desegregate its public schools. The law requires each Illinois school district to take positive steps toward eliminating racial separation within its schools, no matter what the cause.

The Armstrong Act came out of the legislature in 1963 as a well-intended, if fuzzy, exhortation for school desegregation. Over two decades, however, it has been defined by the courts; it has also been molded by state school authorities into a powerful administrative tool for cajoling many local districts into action. In October 1982, the Illinois Supreme Court gave this law its latest twist, one that may destroy whatever effectiveness it has had. The court ruled that the Illinois State Board of Education has no direct authority to enforce the Armstrong Act, or even to initiate court action against a district which refuses to act on its own. Instead, the state board's involvement is limited to "monitoring" districts for compliance and referring cases to the attorney general.

The state board responded on July 28, and adopted in principle a guideline for local districts to use in pursuing compliance with the Armstrong Act as well as guidelines for the state board to use in conducting hearings under the act.

The Supreme Court decision was in response to a five-year legal battle between the board and two suburban Chicago districts: Aurora East District 131 and Chicago Heights District 170. When they sued the board and challenged the rules it had adopted, the two districts were about one year away from being put out of business under the board's rules.

The Armstrong Act, embodied in paragraph 10-21.3 of the Illinois School Code (Illinois Revised Statutes 1981), is itself deceptively simple. It says, in part, that school districts are to "change or revise existing units or create new units in a manner which will take into consideration the prevention of segregation and the elimination of separation of children in public schools because of color, race, or nationality." And they were to do this "as soon as practicable, and from time to time thereafter."

Armstrong left mostly unanswered questions. How did the legislature intend that the act be enforced?

On closer inspection, Armstrong left mostly unanswered questions. How did a district know when it was "segregated" under the law? When all of the students in a school were black? When most were black? Should racial composition within each classroom be considered, or just within each school? Did racial separation have to be the school district's fault to be against the law? And possibly most important, how did the legislature intend that the Armstrong Act be enforced?

The first answer to any of these questions came out of the Illinois Supreme Court on May 29, 1968, nearly five years after the act went into effect. Courts throughout the country had made a careful distinction between de facto and de jure segregation. De jure segregation is that brought about by specific actions of the district or local government. In districts that did not have explicitly dual systems, de jure segregation might consist of such practices as the manipulation of attendance boundaries or the segregation of teachers.

De facto segregation is everything left over. It cannot be blamed on local officials, and it often results when children from nonintegrated neighborhoods are sent to "neighborhood schools." Even though nobody intentionally segregated the schools, they are still segregated.

Federal courts have been fighting to end de jure segregation for nearly three decades in the South, ever since Brown v. Board of Education in 1954, and for one decade in the North. But they did not attack de facto segregation. That responsibility belonged to state governments, if they chose to take it. The Illinois Supreme Court, in Tometz v. Waukegan City School District 61, came to the conclusion that Illinois had chosen to take this responsibility when the legislature passed the Armstrong Act.

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In Tometz, the parents of four school children, two white and two black, sued the district in 1965, charging an Armstrong violation. One of the district's schools, Whittier, was three-quarters black, while four nearby schools were all-white. According to the trial court, the district was not at fault, but it had also done nothing since Armstrong's passage to reduce this de facto segregation. The issue, then, was whether or not there had to be a deliberate act of segregation in order to violate the Armstrong Act. The court said there did not.

Instead, it said, de jure segregation had been struck down by Illinois courts since 1874, and by federal courts since the Brown decision in 1954. "It would be unreasonable," wrote Justice Daniel Ward, "that our legislature, in 1963, in enacting the statute here concerned would be directing its attention superfluously to de jure rather than de facto school segregation."

The Illinois court danced lightly over the other major issues surrounding Armstrong, and Justice Ward went on to explain why the law needn't have been more specific. "The Act does not designate when a school is to be considered racially segregated or imbalanced," he said; "... Terms such as 'segregation' have a common and recognized meaning."

Yet three members of that court saw the issue differently and cited Armstrong's lack of a clear standard as a major reason. Justice Byron House wrote the dissenting opinion. "In my reading of the cases and law review articles on this subject," he said, "I have not come across this 'common and recognized meaning' and I doubt that the school authorities will find it unless the legislature or this court states it."

The problem was that neither the legislature nor the court seemed willing to set a standard, common or not. Instead, the superintendent of public instruction (and later the Illinois State Board of Education) developed a standard for determining what was and wasn't a segregated school, the guidelines to meet that standard and the penalties for districts that refused. The legislature did not give the board permission to develop these rules; on the other hand, the legislature had not prohibited it either.

In the late 1960s, after passage of the Civil Rights Act of 1964 by Congress, then superintendent of public instruction Ray Page appointed a civil rights advisory committee to recommend measures to promote desegregation. Page, a Republican, never had a chance to act on any recommendations because he was defeated in 1970 by Democrat Michael Bakalis, Illinois' last elected state school superintendent.

Bakalis' approach

Sitting in his office at Northwestern University's School of Management 12 years later, Bakalis said that when he entered office in 1971 he had never even heard of the Armstrong Act. "It was only after I got into office," he said, "when the people who were in there confronted me with the fact that there had been a task force or committee, and that the Armstrong Act did exist, and this group was trying to implement it, and what did I want to do?"

What he did was to appoint his own committee. They met in spring 1971 and presented their recommendations to Bakalis in July. These recommendations, converted into formal regulations, were filed with the Illinois secretary of state that November.

The committee looked at several alternatives when considering what standard to use. At the time, several other states were developing similar standards for desegregation. Minnesota, for instance, considers a school which has more than 30 percent minority or low-income enrollment to be segregated. In Pennsylvania, a school's minority enrollment has to be within 30 percent of the district's minority population; a district with a 30 percent minority population, for instance, would allow a minority enrollment in each school ranging from 21 to 39 percent.

Bakalis' committee ultimately chose the standard then being used in California: to bring minority representation at each school to within 15 percentage points of the district's minority population. If a district has a 40 percent minority population, for instance, each school within the district should have a minority student population between 25 and 55 percent. If the district refused, the state board could ulimately put it out of business.

"The 15 percent was a very unscientific figure," Bakalis said, "but it was not just pulled out of the air. There was nothing magic about it: It could have been 14 percent, it could have been 13, it could have been 12. But we just felt that if you were going to have guidelines to eliminate segregation, then you had to have some quantitative definition of what constitutes segregation. In other words, how do you know when a school district is in fact segregated?"

According to Bakalis, there was no way of knowing in 1971 whether or not the courts would uphold the rules. "No," he said, "we had no idea. My philosophy was, in the absence of any clarity, do what you think is right. And then if the courts say you're wrong, then you've got to stop. ... All we could base it on, as of 1971 when we were making that decision, was whether the body of case law precedent indicated that we had the right to do it. And, in our opinion, it did."

Bakalis decided to announce the rules at the Illinois Association of School Administrators in Chicago on November 21, 1971, a Sunday. "[The forum] was a natural one," he said. "All the school board members from around the state were there. If there was one place where you would get the people who actually would have the responsibility for implementing the guidelines, that was it."

Any plan to follow the announcement with an orderly, rational discussion flew out the window three days beforehand, because Bakalis was not the first to announce his regulations. On the preceding Friday, the Chicago Sun-Times printed a front page story with a large headline: "Exclusive: State to order full school integration; plan starts Monday."

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According to Bakalis, the article caused "an incredible amount of trouble, enormous trouble. The story was leaked by somebody in my office to the press before the announcement. Not only was it leaked, but it was leaked incorrectly. First of all, whoever (to this day I don't know who it was) leaked the story was using old drafts of the guidelines, which were not even in operation when we were doing it. And so the information that was leaked to the papers was incorrect and incomplete .... People had visions of thousands of yellow buses criss-crossing the state over the weekend moving kids around . . .

"So it was a terrible thing, because it meant that everything after that had to be correction, on a defensive posture, and just defending what we were doing, rather than having the opportunity to fully explain what we were doing." From the beginning, the rules affected only a small portion of the state's school districts. Most either did not have a minority population or were already integrated. Bakalis' guidelines applied to 44 school districts out of more than 1,100 in the state.

Bakalis' role ended in 1975 when the Office of Superintendent of Public Instruction was replaced by the Illinois State Board of Education and its appointed superintendent, Joseph Cronin. "The first act of the state board," said Ginger Geiss, assistant to Deputy State Supt. Robert Lyons, "was to affirm the regulations, changing them in terms of nomenclature and a few little procedures. And they started out to enforce these regulations with a vengeance."

According to the rules adopted by the board, the first action to take when a district had schools that fell outside of the 15 percent range was to send the district officials a letter. The letter told them that they were in "non-conformance" with the rules.

This put the ball in the local district's court. They had 90 days to come up with a suitable plan to bring them within the 15 percent guidelines; they might also be granted a 90-day extension. If they wanted it, they were entitled to the help of technical experts provided by the state.

The district then sent its plan back to the state superintendent, who could approve it or not. The superintendent could also at this point grant a waiver exempting the district from strict adherence to the 15 percent rule if he felt that "educational, physical or economic constraints would place an unreasonable burden upon the school authority." If the plan was just not good enough, the superintendent would send it back and give the district 60 days to come up with a better one.

If a district did not come up with a plan within the 90 days, or a revision within the 60 days, the state board sent it a letter saying it was in "non-compliance" with the rules. Within 30 days after finding the district in non-compliance, the superintendent put the district on "probationary recognition." It was at this stage that Aurora East and Chicago Heights took the State Board of Education to court and challenged the rules.

According to the rules, if a district were to stay on probationary recognition for a full year, it would get another letter. The letter would tell the district it had 30 days to ask for a hearing. If the district did not ask for a hearing, or if it lost the hearing, it would then be put on "non-recognition." Non-recognition is the end of the line for a school district, because the state board would then cut off state funds, plus any federal funds it controlled, thereby putting the local district out of business.

"That's a sanction that is not invoked by the state except in the most extreme instances," said Geiss. "There are literally only two or three times in history when a district has been fully non-recognized, and that's when the district was actually taken over and run by the state."

Aurora East Public School District 131 was scheduled to go on probation on July 8, 1977, which would have put it one year from doomsday. On July 5, it took the state board to court instead. The complaint, filed by the school district's attorney, Lambert M. Ochsenschlager, asked that the court prohibit the state board from enforcing its rules.

The battle between Aurora East and the state board, which lasted more than five years, was particularly bitter. The state board, according to the local district, was high-handed. "They would intimidate you," said Ochsenschlager, a portly, white-haired man whose law office is several blocks from District 131 headquarters. "That was the way they lived: on a fright and fear basis," he said in an interview last summer.

His wood-panneled office is filled with folders and mementos. From behind his desk, he railed against the state board, accusing it of everything from intimidation to lying to just plain butting into the local district's business. He also said that Aurora East had for years done everything it could to desegregate its schools. "The school district, without regard for whether they had to or not, made every effort it could [to come within the state board's guidelines]," he said. "They had tried in many ways, such as open enrollment. They had changed boundary lines. They had done many different things to bring about a better racial mix."

The busing issue

To East Aurora's officials, the main issue involved in the case was busing. To comply with the 15 percent guidelines, they said, they would have to bus children. They do not want to bus children, and the Illinois State Board of Education, because of the Moore amendment, could not make them bus children.

The "Moore amendment" (P.A. 81-1508, paragraphs 10-22.5 in the Illinois School Code) is the only restriction the legislature has specifically placed on the state board's desegregation enforcement efforts. It was introduced by suburban state Sen. Donald Moore (R., Midlothian) after the state board began pursuing its desegregation rules. The 1973 amendment as passed prohibited the state from requiring a local board to bus children to achieve racial balance. The local districts are free to bus children voluntarily as part of their desegregation plans, but they do not have to. So, if a local district can show that it cannot meet the state board's rules without busing, it supposedly would be exempted from the 15 percent rule.

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Aurora East officials believe that the state board was trying to make them bus school children. "As far as this district is concerned, what it meant was that if the Illinois State Board of Education was going to enforce the guidelines, if it meant busing, they would harass the local district until it said it would bus," said Roy O'Neil, Aurora East's director of research and federal programs.

According to Aurora East, the district does not even own a busing system. Aurora East is one of a few school districts which predate the state school system, they say. Because of this, they are exempt from an Illinois statute which requires that districts provide transportation to students who live more than one-and-a-half miles from their school. The few students who are bused, including handicapped children, are transported by private carriers under contract with the district.

District 131 conducted a study to determine what a busing system would cost it. The study came to the conclusion that a busing system sufficient to bring Aurora East within the state board's rules would cost $2 million in the first year, and $1 million every year thereafter.

"They would always imply: 'You can bus, we can't tell you to, but you can,' " said Ochsenschlager. "The state board was determined to do it without paying attention to practical aspects."

But the state board, along with most civil rights groups, tends to view busing as a false issue. "Busing, outside of Chicago, is the commonest way for children to get to school," said Tom Pugh, chairman of the Illinois Advisory Committee to the U.S. Civil Rights Commission. "The great majority of busing in Illinois is non-race connected; it's just a way to get to school. So we're going to have all kinds of buses. The only question is whether we're going to have school transfer plans."

Bakalis agrees emphatically. "Kids are bused every day all over the place," he said. "So busing itself is not the issue: the issue is who's on the bus. [Busing] has always been a false issue. Always."

'Busing itself is not the issue: the issue is who's on the bus. [Busing] has always been a false issue. Always' — Bakalis

Instead of attacking the Moore amendment, the state board ignored it. The feeling was that the amendment contained enough loopholes to get around it. It was less important exactly how a school district met the guidelines; it was more important that the guidelines be met. "We have invoked the language of a judge in Pasadena, Calif.," said Geiss, "that it really wasn't our concern how the kids got to school: They were simply assigned to a school. If their parents wanted them to walk 10 miles, they could walk 10 miles. If the district chose to bus them, they could bus them. But the real key was in the assignment of students, not whether they were transported. . . . And a lot of districts did choose to transport students. The Moore amendment didn't in any way infringe on local authority; it couldn't."

Busing or no busing, the state board said, Aurora East violated the Armstrong Act. To help prove it, the state board hired one of the largest law firms in Chicago, Sidley and Austin. According to a court brief submitted by Sidley and Austin and the state board's own attorneys, Aurora East's positive efforts to eliminate de facto segregation in its schools were miniscule at best. In 1971, it shifted 12 blocks of East Aurora assigned to predominantly black Beaupre School to another school, in an effort to reduce crowding. This move, the brief said, had the "incidental" effect of slightly reducing the minority population at Beaupre. Also in 1971, the brief said, the district bused students from two other schools into Beaupre; most of the students bused were minority.

Finally, the brief said, "In 1977, as part of [Aurora East's] alleged plan to comply with the rules, 29 minority and 33 white students out of a total of 5,000 elementary school pupils where to be reassigned. In connection with this reassignment, white students, but not minority students, could decline to transfer to other schools if they felt adversely affected by the change."

When the case reached the Illinois Supreme Court, it was combined with the Chicago Heights case. It was this decision in October 1982 that invalidated the board's rules, including the 15 percent guideline, and knocked the wind out of the board's desegregation efforts.

According to Justice Thomas Moran, who wrote the court's opinion, any authority exercised by the State Board of Education must be specifically outlined in the law. And because specific authorization is not found in this case, the state board has no authority to create rules, good or bad, under the Armstrong Act. Instead, the responsibility for enforcement lies with the local districts themselves. If the state board wants to pursue a local district which it feels is not complying with the law, it can refer the case to the attorney general. If it wants authority to make and enforce rules for implementing the Armstrong Act, it will have to ask the legislature for specific authority.

The state board did go to the legislature for the authority to make rules. But Illinois' political climate in 1983 did not promote vigorous action to integrate schools. The bill never had a chance.

The court left two issues hanging: whether the rules themselves were valid, and whether Aurora East has violated the Armstrong Act. In the Chicago Heights case, both the trial and appellate courts ruled that the 15 percent guideline was "arbitrary, capricious and illegal." Because the state board's authority to make the rules was struck down, the Supreme Court would not rule on whether the use of a mathematical formula for school desegregation is legal in Illinois.

The state board still contended that Aurora East had violated the Armstrong Act, but the state board, under the ruling, has no authority to pursue the Armstrong Act with local school districts. To get Aurora East into court, a lawsuit will have to be filed either by students within the district, or by the attorney general.

Desegregation today

Public response to the decision was underwhelming. After 11 years, the rules were gone. The Chicago Sun-Times, for example, gave their birth an entire front page plus several inside articles. It gave their death 14 paragraphs. Public concern for desegregating the nation's schools seems to have declined substantially since 1971, certainly since 1963.

"The black community's not enthusiastic about desegregating schools any more than the white community is," Bakalis said. "Now that was very different in 1971, when we put the guidelines in. You can't get black groups today to break their back for desegregating schools. What they want is a good school; they don't care where it is.

"If I were superintendent today, desegregation would not be a top priority for me at all. I mean, it would be there, and I'd try to do what I could, but it would not be a top priority. I think the quality of schooling, the quality of teaching, these are the major issues that I would deal with."

According to Howard Veal, president of the Springfield Urban League, the issue of school desegregation will not go away, but it is not as high a priority for civil rights groups as it once was. "I think there are some issues before black and poor people that are not necessarily more important," he said, "but are equally important. I see the issues civil rights groups are focusing on as dealing with economic and political issues. The extent to which we are successful will affect the success on desegregation."

Because it took 11 years to invalidate the rules, most of the affected districts have already complied with them, and state officials are quick to point out that an overwhelming majority of the school districts in Illinois have either complied with the state board's regulations, or are in the process of complying. Pat Wofford, director of the state board's equal educational opportunity section, which provides technical assistance to local districts' plans, said that her office has more than 100 client districts which are operating desegregation plans.

"With a few exceptions, Illinois districts have all done something positive to respond to the rules," Wofford said. "Generally, it's been to, in fact, desegregate their school districts. So what you see in the press, and I think what the public generally reacts to, are those recalcitrant districts, which, for one reason or another, have not moved forward to desegregate their schools."

Nevertheless, the Supreme Court ruling has disarmed the state board in any direct attempt to enforce the rules. Will districts who complied under threat pull back now from desegregation plans already in operation?

Tom Pugh thinks not. "I don't think any school districts are going to unwind what they're doing," he said. "I think they've moved so slowly to compliance with these guidelines that when they finally did 'comply,' they were only doing what they would have done anyway, without the law. However, they're going to pay less reference — probably they're not going to pay any reference, some districts — to racial balance when it comes to redistricting normally."

So far the state board has seen no sign of any retreat from recent desegregation efforts. "The districts that were implementing desegregation plans prior to the Illinois Supreme Court decision continue to implement those plans," said Wofford. ". . . One reason you won't see a halt in desegregation in Illinois is because our districts are very sophisticated, not only in terms of their having to demonstrate their commitment to maintaining desegregated schools, but they know that to rescind the plan could be construed as an act of de jure segregation. So they decide: 'Well now, we've got this beautiful plan to desegregate, and we're going to abandon it because we're not required.' The federal courts as well as the state courts could come in and call it a deliberate act to go back to a segregated system. You cannot do that without putting yourself in jeopardy."

David Thompson, first assistant legal adviser to the state board, thinks that there may be nothing that the board could do. "Concerning de facto and backing off from plans," he said, "there's probably very little [that we could do] unless we had a complaint that the result is intentional discrimination, because they're deliberately choosing not to send X percent or X number of kids from here to there, and the result is to isolate them in these schools over here. It would have to be case by case, depending on the circumstances."

If all but a few of Illinois school districts have complied with the state board's rules, this should mean that schools in Illinois are essentially integrated. But according to Gary Orfield, a political scientist at the University of Chicago, Illinois has the most segregated schools in the country. Orfield made his observations in a report to the U.S. House Subcommittee on Civil and Constitutional Rights, entitled "Desegregation of Black and Hispanic Students from 1968 to 1980."

In the study, Orfield says that black students are significantly less segregated than they were 15 years ago, but that this gain was made primarily in the South, where the federal courts have concentrated their efforts. "The most segregated state in the United States for black students in 1980 was Illinois," Orfield went on to write. "Some 68 percent of Illinois' black students were in schools that were 90-100 percent minority. . . . The typical black student in Alabama was in a school with more than twice as high a proportion of white students than his counterpart in Illinois."

Orfield's report made such an impact that state board staff did an analysis of it and presented their findings to the board. According to the staff analysis, there is one key reason for Orfield's finding: Chicago. If you take Chicago out, they said, only 26 percent of black students in Illinois would be left in 90-100 percent minority schools. If you went further and took out East St. Louis, 13 percent of black students would be in such schools.

Of course, you cannot take Chicago out. Chicago has the bulk of Illinois' minority students, and it is hopelessly segregated. More than 80 percent of the students in the Chicago school system are minority. On the other hand, there are nearly 70 suburban districts within 20 miles of downtown Chicago which have less than 1 percent black enrollment.

The state board pursued desegregation efforts in Chicago under the Armstrong Act, but backed away from them when the U.S. Justice Department got involved. The Justice Department and the Chicago School Board signed a consent decree in 1980, approved by the court, which involved magnet schools (schools with special programs designed to attract students from a wide area) and some pupil reassignment. "The plan also permits racially identifiable schools to remain," said Thompson of the state board. "There were some 300 schools allowed to be predominantly racially identifiable, simply because there aren't enough whites in the Chicago system anymore to sprinkle them throughout every school building in the Chicago system."

Future compliance

On July 28, 1983, the state board voted unanimously to adopt in principle the recommendations of its administrative committee on guidelines for local districts to use in complying with the Armstrong Act, and on guidelines for the state board to use in conducting compliance hearings. The new compliance guidelines represent a detailed approach that a school district might take in pursuing Armstrong, but do not contain a mathematical standard for determining when a school is segregated. Instead, it defines segregation as "a public school whose proportion of White, Black, Spanish-speaking, American Indian, and Oriental pupils or administrative, faculty, and staff personnel, fails to reflect the proportions of such pupils and personnel in the district as a whole at the attendance centers maintained."

The hearing procedure is the most direct route the board has left to pursue enforcement of the Armstrong Act, Section 22-19 of the Illinois School Code allows the state board to hold hearings if it has reason to believe that a local district has violated the Armstrong Act. If the hearing officer believes after the evidence is in that a violation has taken place, the board can refer the case to the attorney general for prosecution. According to Julia Dempsey, the board's chief legal adviser, the Attorney General's Office has not yet developed guidelines for handling cases under the Armstrong Act, but will work out a procedure as these cases are referred to it.

This procedure is obviously more cumbersome for the board than the rules that were eliminated. The objective standard of 15 percent seems to be gone, at least for now, and the effetiveness of any enforcement is now up to the attorney general and the courts, as well as the board.

The Armstrong Act is 20 years old. It took almost five years from its effective date before the Supreme Court came to the conclusion that it applied to de facto segregation. It took eight years before any rules were instituted. Twelve years after that, the second generation of rules was overturned.

Whether the Armstrong Act for all practical purposes is dead remains to be seen. Bakalis believes that it is. The State Board of Education obviously disagrees, and appears to be willing to do whatever it can to keep the act alive and well. In a statement prefacing the guidelines adopted in July, the state board's chairman, Edward Copeland, wrote: "Conditions vary in each school district, therefore, the course of action will vary. One thing is clear, however, and that is that it is the duty of each school board to adopt procedures to ensure compliance with the Armstrong Act." Ultimately, the answer may lie with the attorney general; more likely, it will again come from the Illinois Supreme Court.

John L. Williams wrote this article last summer as his master's project in journalism at the University of Illinois, Urbana-Champaign. He received his M.S. degree in December.

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