Coalition to Save Our Children v. State Board of Education

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

7-24-1996

Coalition Save v. Bd Ed DE

Precedential or Non-Precedential:

Docket 95-7452

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation

"Coalition Save v. Bd Ed DE" (1996). 1996 Decisions. Paper 110.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/110

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________________

No. 95-7452

__________________

COALITION TO SAVE OUR CHILDREN,

Appellant

v.

STATE BOARD OF EDUCATION OF THE STATE DELAWARE;

BOARD OF EDUCATION OF THE CHRISTIANA SCHOOL DISTRICT;

BOARD OF EDUCATION OF THE BRANDYWINE SCHOOL DISTRICT;

BOARD OF EDUCATION OF THE COLONIAL SCHOOL DISTRICT;

THE BOARD OF EDUCATION OF THE RED CLAY SCHOOL DISTRICT;

DELAWARE HOUSE OF REPRESENTATIVES COMMITTEE ON DESEGREGATION

__________________

Appeal from the United States District Court

for the District of Delaware

(D.C. Civil No. 56-01816)

__________________

Argued: Tuesday, March 12, 1996

Before: NYGAARD, SAROKIN and ALDISERT, Circuit Judges

(Filed July 24, 1996)

__________________

Thomas D. Barr

David Boies (argued)

Sandra C. Goldstein

Katherine B. Forrest

CRAVATH, SWAINE & MOORE

Worldwide Plaza

825 Eighth Avenue

New York, New York 10019

Thomas J. Henderson (argued)

Pace J. McConkie

LAWYERS' COMMITTEE FOR CIVIL

RIGHTS UNDER LAW

1450 G Street, N.W.

Washington, D.C. 20005

Leonard L. Williams

1214 King Street

Wilmington, DE 19801

ATTORNEYS FOR APPELLANT

Andre L. Dennis

STRADLEY, RONON, STEVENS & YOUNG

2600 One Commerce Square

Philadelphia, PA 19103-7098

Mary B. Matterer

STRADLEY, RONON, STEVENS & YOUNG

One Rodney Square, 8th Floor

P.O. Box 2170

Wilmington, DE 19899-2170

ATTORNEYS FOR

AMICUS CURIAE - CITY OF

WILMINGTON, DELAWARE

Rodman Ward, Jr. (argued)

Andre G. Bouchard

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM

One Rodney Square

P.O. Box 636

Wilmington, Delaware 19899

John B. Hindman

Department of Justice

45 The Green

Sykes Building

Dover, DE 19901

ATTORNEYS FOR APPELLEE

STATE BOARD OF EDUCATION

OF THE STATE OF DELAWARE

M. Duncan Grant

PEPPER, HAMILTON & SCHEETZ

18th & Arch Streets

3000 Two Logan Square

Philadelphia, PA 19103

Alfred J. D'Angelo, Jr.

Daniel V. Folt

PEPPER, HAMILTON & SHEETZ

1201 Market Street

Suite 1401

Wilmington, DE 19801

ATTORNEYS FOR APPELLEE

RED CLAY CONSOLIDATED

SCHOOL DISTRICT

David H. Williams

Barbara D. Crowell

MORRIS, JAMES, HITCHENS &

WILLIAMS

222 Delaware Avenue

P.O. Box 2306

Wilmington, Delaware 19899

ATTORNEYS FOR APPELLEES

BRANDYWINE, CHRISTIANA

AND COLONIAL SCHOOL

DISTRICTS

Charles J. Cooper (argued)

SHAW, PITTMAN, POTTS &

TROWBRIDGE

2300 N Street, N.W.

Washington, D.C. 20037

ATTORNEYS FOR APPELLEE

DELAWARE HOUSE OF

REPRESENTATIVES COMMITTEE

ON DESEGREGATION

__________________

OPINION OF THE COURT

__________________

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . 4

II. Procedural History . . . . . . . . . . . . . . . . . . . 6

III. Scope of Review. . . . . . . . . . . . . . . . . . . . .11

IV. Unitary Status . . . . . . . . . . . . . . . . . . . . .13

V. Green Factors. . . . . . . . . . . . . . . . . . . . . .18

A. Student Assignment . . . . . . . . . . . . . . . .18

B. Faculty and Staff Assignments. . . . . . . . . . .32

C. Extracurricular Activities . . . . . . . . . . . .37

D. Remaining Green Factors. . . . . . . . . . . . . .39

VI. Ancillary Relief . . . . . . . . . . . . . . . . . . .39

A. In-service Training. . . . . . . . . . . . . . . .41

B. Reading and Communication Skills . . . . . . . . .44

C. Curriculum . . . . . . . . . . . . . . . . . . . .48

D. Counseling and Guidance. . . . . . . . . . . . . .50

E. Human Relations. . . . . . . . . . . . . . . . . .52

F. Discipline . . . . . . . . . . . . . . . . . . . .53

VII. Areas of Concern to the District Court and

Allocations of the Burden of Proof. . . . . . . . . .57

VIII. Conclusion . . . . . . . . . . . . . . . . . . . . . . .64

ALDISERT, Circuit Judge

I. Introduction

This case brings to a close our supervision of more than

four decades of litigation designed to desegregate the public

schools of Delaware.

However, we do not end our supervision hastily. After the

Delaware schools' rudimentary attempts at desegregation were

deemed insufficient by the district court in 1957, and by this

court in 1960, judges of this circuit blazed new jurisprudential

trails in 1975 by requiring an interdistrict remedy. By 1977 and

1978, the judiciary had fashioned detailed orders for primary and

ancillary relief which, together with the factors set forth by

the Supreme Court in Green v. County School Bd. of New Kent

County, Va., 391 U.S. 430 (1968), constituted the marching orders

for the school system.

Still, it was not until almost 20 years later (and 35 years

after this court announced dissatisfaction with an original plan

that called for grade-by-grade desegregation over a 12-year

period) that the district court could announce that the marching

orders had been obeyed: The school system has achieved unitary

status by complying in good faith with our detailed desegregation

decrees and by eliminating to the extent practicable the vestiges

of de jure segregation. This was the ruling of the district

court embodied in a judgment entered after a lengthy hearing.

The Coalition to Save Our Students ("Coalition"), the

representative of the plaintiff class, has appealed. We will

affirm.

It is beyond dispute that racism and bigotry continue to

tear at the fragile social fabric of our national and local

communities, and that our best efforts as citizens are needed to

address this problem at many levels. However, as the district

court observed in the case at hand, court-supervised school

desegregation alone cannot eliminate racial discrimination:

[A]s the years have passed since Brown I and II [Brown v.

Board of Educ., 347 U.S. 483 (1954) and Brown v. Board of

Educ., 349 U.S. 294 (1955)], it has become apparent that the

school desegregation process has been unable to eliminate or

overcome racial discrimination in the "myriad factors of

human existence" outside the school environment . . . .

Coalition to Save Our Children v. State Bd. of Educ. of State of

Del., 901 F. Supp. 784, 823 (1995) (quoting Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1, 22 (1971)). Or as the

Court succinctly put it in Swann: "One vehicle can carry only a

limited amount of baggage. It would not serve the important

objective of Brown I to seek to use school desegregation cases

for purposes beyond their scope . . . ." Swann, 402 U.S. at 22.

In light of this sobering truth, it is all the more

important that we write the final chapter in this long period of

supervision by the federal courts and release our provisional

grip on the administrators and educators of Northern New Castle

County, for only in so doing can we permit them to resume their

full role in the larger social and political effort to make our

nation worthy of the best ideals of its members. The length of

the discussion that follows is but one indication of the

importance and sensitivity of the task at hand.

II. Procedural History

Historically, Delaware required its public school pupils to

attend segregated schools. Del. Const. art. 10 2 (1950) and

Rev.Code 1935 2631. However, even before the landmark decision

in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I),

the Delaware courts ordered the admission of black children to

certain schools previously attended only by white children.

Belton v. Gebhart, 87 A.2d 862, aff'd 91 A.2d 137 (Del. 1952).

The Supreme Court consolidated Belton with Brown I and affirmed,

347 U.S. 483, holding that racial segregation of public school

students deprived the minority group children of equal

educational opportunities, in violation of the Equal Protection

Clause. See Brown I, 347 U.S. 483 (1954). The Court again

affirmed Belton v. Gebhart in Brown v. Board of Education, 349

U.S. 294 (1955) (Brown II), remanding to the Supreme Court of

Delaware for further proceedings to require "a prompt and

reasonable start toward full compliance" with Brown I and "to

effectuate a transition to a racially nondiscriminatory school

system . . . with all deliberate speed." Brown II, 349 U.S. at

300-01.

Yet notwithstanding the end of de jure segregation, the City

of Wilmington continued to operate many racially identifiable

schools. Accordingly, the district court fashioned an inter-

district remedy to eliminate the vestiges of segregation and,

faced with the state authorities' adamant and prolonged refusal

to discharge their responsibilities, issued a remedial decree in

1978. The 1978 Order required a 9-3 student assignment plan,

which provided that all students would attend formerly

predominantly "white" suburban school districts for a maximum of

nine years and would spend at least three years in the formerly

"black" school districts.

The 1978 Order also directed eight forms of ancillary relief

"necessary and essential to . . . overcome the vestige effects of

de jure segregation," including: (1) an in-service training

program for teachers; (2) an affirmative reading and

communication skills program; (3) new curriculum offerings; (4) a

nondiscriminatory counseling and guidance program; (5) a human

relations program; (6) codes of conduct providing for

nondiscriminatory discipline; (7) the reassignment of faculty and

staff; and (8) nondiscriminatory guidelines for construction and

maintenance of school buildings. Evans v. Buchanan, 582 F.2d

750, 770-774 (3d Cir. 1978) (in banc).

In 1981, the district court permitted the state to

reorganize the judicially-created school district into the

current four districts -- Brandywine, Christiana, Colonial and

Red Clay. Evans v. Buchanan, 512 F. Supp. 839 (D. Del. 1981).

In so doing, Judge Schwartz asserted that, notwithstanding the

continued existence of "problems that may be characterized as

vestige effects of de jure segregation, . . . [the] four-district

plan is viewed as a good faith effort to respond to repeated

judicial invitations for appropriate State authorities to come

forward with their own meaningful solutions to vexing problems."

Id. at 863, 874. However, because Judge Schwartz found the

"effort [to have] fallen short of the mark in the critical area

of pupil assignment," he deferred for 60 days any order regarding

the State Board's motion for modification of the desegregation

decree in order to encourage "curative legislation" on the

matter. Id. at 872-74.

In 1990, Judge Schwartz made a specific finding that one of

the districts (Red Clay) had failed to comply in good faith with

the 1978 order. Coalition to Save Our Children v. Buchanan, 744

F. Supp. 582, 587-93 (D. Del. 1990). Judge Schwartz stated that

"the vestiges of prior official segregation [had not] been

eradicated 'root and branch' from either the Red Clay District as

a whole or from its student assignment patterns." Id. at 587.

Indeed, Judge Schwartz found that the record was "replete . . .

with evidence of delay, obfuscation, and recalcitrance on the

part of the Red Clay Board with respect to remedying the racial

disparities" in that district. Id. at 592-93.

In 1991, Judge Schwartz stated that, notwithstanding the Red

Clay District's "technical compliance with this court's orders,"

he again had "very grave doubts concerning the [Red Clay] Board's

good faith compliance with the spirit of desegregation," and thus

could "not make a finding that the Red Clay District [was]

operating in compliance with the Equal Protection Clause . . . ."

Coalition to Save Our Children v. State Bd. of Educ., 757 F.

Supp. 328, 349-350 (D. Del.1990).

Four years later, upon motion by the Delaware State Board of

Education for a declaration of "unitary status," the district

court concluded:

that the defendants have complied in good faith with

the desegregation decrees issued in this litigation,

that the defendants are unlikely to return to the

segregative practices of their predecessors, and that

the vestiges of past discrimination have been

eliminated to the extent practicable.

Coalition, 901 F. Supp at 823-824. The opinion accompanying the

order set forth 308 factual findings, which discussed: (a)

compliance with what have become known as Green factors (as

originally suggested in Green v. County School Board, 391 U.S.

430 (1968)) -- student assignment, faculty and staff assignment,

transportation, extracurricular activities, and facilities; (b)

compliance with the ancillary relief provisions, endorsed by this

court sitting in banc, see Evans v. Buchanan, 582 F.2d at 769-74;

and (c) student achievement, special education and dropout rates,

which the district court labelled "Areas of Concern." See

Coalition, 901 F. Supp. at 818-22. Appellant conceded compliance

with two of the Green factors (transportation and facilities) and

one of the ancillary relief provisions (also concerning

facilities).

The district court had jurisdiction under 28 U.S.C. 1331

(1988). We have jurisdiction pursuant to 28 U.S.C. 1291

(1988). Appeal was timely filed under Rule 4(a), Federal Rules

of Appellate Procedure.

III. Scope of Review

The Coalition's appeal presents us with three fundamental

questions for consideration: first, whether the district court

properly concluded that the four school districts of Northern New

Castle County achieved unitary status by complying in good faith

with the desegregation decree and by eliminating to the extent

practicable the vestiges of past discrimination; second, whether

the district court properly allocated to Appellant the burden of

proving that certain racial disparities in student performance

are proximately related to de jure segregation; and third,

whether the district court properly excluded certain expert

testimony proffered by Appellant.

The appeal to this court from the order declaring unitary

status tracks a very narrow compass. Because the district

court's finding that the school districts have achieved unitary

status is factual, our review of that finding is limited to the

clearly erroneous standard. Vaughns by Vaughns v. Bd. of Educ.

of Prince George's County, 758 F.2d 983, 990 (4th Cir. 1985);

United States v. Texas Educ. Agency, 647 F.2d 504, 506 (5th Cir.

1981), cert. denied, 454 U.S. 1143 (1982); Keyes v. School Dist.

No. 1, Denver, Colo., 895 F.2d 659, 666 (10th Cir. 1990), cert.

denied, 498 U.S. 1082 (1991); Jacksonville Branch, NAACP v. Duval

County School Board, 883 F.2d 945, 952 n.3 (11th Cir. 1989). A

finding of fact is clearly erroneous only if the court has "the

definite and firm conviction that a mistake has been committed."

United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948). Further, "[i]t is the responsibility of an appellate

court to accept the ultimate factual determination of the fact-

finder unless that determination either (1) is completely devoid

of minimum evidentiary support displaying some hue of

credibility, or (2) bears no rational relationship to the

supportive evidentiary data." Krasnov v. Dinan, 465 F.2d 1298,

1302 (3d Cir. 1972).

We have plenary review of all questions of law. This

includes a district court's choice, interpretation and

application of the law to the historical facts. Louis W. Epstein

Family Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d Cir.

1994). Accordingly, this court undertakes plenary review of the

district court's allocation of the burdens of proof.

Finally, we review the district court's determination of the

admissibility of expert testimony for abuse of discretion.

United States v. Theodoropoulos, 866 F.2d 587, 590 (3d Cir.

1989).

IV. Unitary Status

The primary legal issue before us is whether the Northern

New Castle County school districts have fulfilled their

affirmative duty to eliminate the former dual school system. The

ultimate end to be brought about by a desegregation remedy is "a

unitary, nonracial system of public education." Green, 391 U.S.

at 436. A school system achieves this unitary status when it no

longer discriminates between school children on the basis of

race. See id. at 442. And a school system no longer

discriminates among school children on the basis of race when it

affirmatively has eliminated all vestiges of state-imposed

segregation. Id. at 435, 437-38 (school board charged with

affirmative duty to eliminate racial discrimination "root and

branch"); Swann, 402 U.S. at 15 ("the objective today remains to

eliminate from the public schools all vestiges of state-imposed

segregation"). Thus our task, simply put, is to determine

whether the district court clearly erred in finding that the

vestiges of de jure segregation have been eliminated in the

Brandywine, Christiana, Colonial and Red Clay school districts.

Green, 391 U.S. at 435; see also Missouri v. Jenkins, ___ U.S.

___, 115 S. Ct. 2038, 2055-56 (1995).

A critical starting point in identifying vestiges of

discrimination is the degree of racial imbalance in the school

districts. This inquiry is fundamental, because under the former

de jure regime, racial exclusion was both the means and the end

of a policy motivated by disparagement of, and hostility towards,

the disfavored race. The Court's 1968 opinion in Green squarely

addressed this issue, noting that "[t]he pattern of separate

`white' and `Negro' schools . . . established under compulsion of

state laws is precisely the pattern of segregation to which Brown

I and Brown II were particularly addressed." Green, 391 U.S. at

435. However, the Green Court also made clear that in examining

the problem of racial imbalance in our schools, we are to look

"not just to the composition of student bodies . . . but to every

facet of school operations -- faculty, staff, transportation,

extracurricular activities and facilities." Id.; see also Swann,

402 U.S. at 18 (the Green factors are "among the most important

indicia of a segregated system.") Because compliance with Greenfactors is

a condition precedent to unitary status, we will

survey each of those factors here.

Nevertheless, the Green factors, which address racial

imbalance, are not the only criteria by which we are to evaluate

whether the school districts have achieved unitary status. We

must also consider the eight programs of "ancillary remedial

relief" prescribed by this court in 1978, including: (1) an in-

service training program for teachers; (2) an affirmative reading

and communication skills program; (3) new curriculum offerings;

(4) a nondiscriminatory counseling and guidance program; (5) a

human relations program; (6) codes of conduct providing for

nondiscriminatory discipline; (7) the reassignment of faculty and

staff; and (8) nondiscriminatory guidelines for construction and

maintenance of school buildings. Evans v. Buchanan, 582 F.2d at

769-74. Thus we will survey compliance with these ancillary

relief measures as well.

By considering both the Green factors and the eight measures

of ancillary relief ordered by this court in 1978, we honor the

mandate set forth by the Supreme Court in Dowell that a school

board under federal supervision "is entitled to a rather precise

statement of its obligations." Bd. of Education of Okla. City

Public Schools, Indep. School Dist. No. 89, Oklahoma County, Okl.

v. Dowell, 498 U.S. 237, 246 (1991) (citing Pasadena City Bd. of

Educ. v. Spangler, 427 U.S. 424 (1976)). Together, the Greenfactors and

the ancillary remedial relief measures constitute

these obligations, and thus precisely frame our inquiry as we

determine whether the district court properly ordered the

withdrawal of federal supervision. The essence of that inquiry

recently was articulated by the Supreme Court:

whether the [constitutional violator] ha[s] complied in

good faith with the desegregation decree since it was

entered, and whether the vestiges of past

discrimination ha[ve] been eliminated to the extent

practicable.

Freeman v. Pitts, 503 U.S. 467, 492 (1992).

Given the Court's recent assertion that federal supervision

of local school districts "`was intended as a temporary measure

to remedy past discrimination,'" Jenkins, ___ U.S. ___, 115 S.

Ct. at 2049 (quoting Dowell, 498 U.S. at 247), we underscore that

the phrase "to the extent practicable" implies a reasonable limit

on the duration of that federal supervision. Indeed, to extend

federal court supervision indefinitely is neither practicable,

desirable, nor proper.

We are keenly aware that, for as long as we have imposed

federal supervision on local school boards, those bodies have

suffered the loss of their defining function -- control over

their own schools. Thus in the present matter the citizens of

the New Castle school districts have been denied for nearly 20

years what the Court has described as the "vital national

tradition" of "local autonomy of school districts." Freeman, 503

U.S. at 490 (quoting Dayton Bd. of Educ. v. Brinkman, 433 U.S.

406, 410 (1977)). Additionally, we appreciate the extended

social and economic burdens that continued supervision would

impose on generations of innocent school children and their

families. The reality of these burdens becomes clear when we

consider that a child who entered first grade in one of the

Northern New Castle County school districts in 1976 under federal

court supervision is now 26 years old, and possibly a parent with

a child of his or her own in the same judicially-controlled

school system.

Our concern for the autonomy of local school systems and

their members is consistent with the established jurisprudence of

desegregation: a fundamental purpose of our mandate to eliminate

the dual system has been to encourage local school districts

independently to provide high-quality educational opportunities

for all students, a state of affairs made possible only in "a

unitary, nonracial system of public education." Green, 391 U.S.

at 436. Were we to allow federal supervision to continue after a

finding that the school districts have complied with our

desegregation mandate, we would effectively preclude those school

districts from achieving that goal. In sum, we cannot reconcile

the prospect of indefinite federal supervision of local school

districts with the ultimate purpose of that supervision -- to

foster the creation of autonomous, racially balanced school

systems. Accordingly, we will remain attentive to the Supreme

Court's repeated instructions that such supervision be

"temporary" and "transitional." See, e.g., Jenkins, ___ U.S.

___, 115 S. Ct. at 2049; Dowell, 498 U.S. at 247.

With these teachings in mind, we turn now to the district

court's analysis in this case.

V. The Green Factors

The fundamental issue before the district court was whether

the desegregation measures taken by the school districts had

effectively eliminated to the extent practicable the vestiges of

the former dual school system. In addressing this issue, the

district court began by scrutinizing various educational factors

initially identified by the Court in Green: student assignments,

faculty, staff, facilities and resources, transportation, and

extra-curricular activities. Green, 391 U.S. at 435. We address

the district court's consideration of each of these factors in

turn.

A. Student Assignment

Because the crux of the original constitutional violation

was the legalized system of segregated schools, the traditional

remedy for the violation was to desegregate the schools through

student reassignment. Accordingly, we ordered the consolidation

of urban and suburban school districts. See Evans v. Buchanan,

582 F.2d at 759 n.5 (quoting Evans v. Buchanan, 435 F. Supp. 832,

838-39 (D. Del. 1977) (footnotes omitted)). The State Board and

districts not only have adhered to the requirements of our

student assignment order, but also have attempted to maintain a

racial balance by consolidating districts, redrawing attendance

zones, and instituting the busing of thousands of students.

Indeed, after the hearing below on the Appellees' motion for

unitary status, the district court found that the schools in

these districts were "among the most racially balanced schools in

the United States." Coalition, 901 F. Supp. at 799. The court's

conclusion finds ample support in the record from the testimony

of school desegregation expert Dr. Christine Rossell. Using an

"index of dissimilarity," Dr. Rossell compared the racial

balance in the four districts to a national sample of 76 similar

districts, analyzing both the percentage of students in schools

with certain variances and the percentage of schools themselves

within certain variances.

Dr. Rossell observed that, as measured against this index,

the four Northern New Castle County school districts have

achieved "close to perfect racial balance." Further, on the

basis of her full analysis, Dr. Rossell concluded that these

districts "are much less racially imbalanced than . . . [the]

national comparison group." JA 568; see also Coalition, 901 F.

Supp. at 797. Because the district court's finding of racial

balance rests on Dr. Rossell's thorough analysis, it is not

clearly erroneous. See Krasnov, 465 F.2d at 1302 (an appellate

court must "accept the ultimate factual determination of the

fact-finder unless that determination . . . is completely devoid

of minimum evidentiary support displaying some hue of credibility

. . .").

Appellant does not contest the findings of racial balance

among schools, but argues nonetheless that segregation persists

within those buildings, in classrooms and programs. More

specifically, Appellant contends that black students are over-

represented in certain classes, such as special education, and

under-represented in others, such as gifted and advanced

placement classes. However, we are mindful that in Milliken v.

Bradley, 418 U.S. 717, 740-41 (1974), the Court held that the

Constitution "does not require any particular racial balance in

each school, grade or classroom." See also Oliver v. Kalamazoo

Bd. of Educ., 640 F.2d 782, 809 (6th Cir. 1980) (rejecting notion

that school system is not unitary if black students are over- or

under-represented in various academic courses). Moreover, the

district court actually made 19 findings concerning the

circumstances of student assignments in the classrooms,

concluding that classroom balance throughout the districts was

exemplary. Coalition, 901 F. Supp. at 800 (measured against a

national sample, classroom imbalance in Northern New Castle

County was one-third to one-half that of other schools). We

review these findings for clear error.

First, although the district court's findings of classroom

racial balance exclude special education classes, there is no

clear error. In our 1978 desegregation order we expressly

excepted "students presently attending and who in the future may

attend . . . special education school facilities and such other

similar special school facilities as presently exist or may be

hereafter established . . . ." JA 128 (Evans v. Buchanan, Civil

Action Nos. 1816-1822, Order at 11 (D. Del. Jan. 9, 1978)). The

rationale for this exception is obvious and compelling: students

-- black or white -- should not be mainstreamed (i.e., denied

special education meant to address special learning needs and

problems) merely to effect a racial balance.

Appellant is also unpersuasive in asserting that students

are placed in special education programs (such as "intensive

learning centers") simply because they are black. Although in

each of the four districts the percentage of black students in

special education programs exceeds the percentage of blacks in

the overall student population, the record demonstrates that

the school districts classify students based on neutral, non-

discriminatory state and federal criteria. JA 829-34.

Additionally, the districts make periodic re-evaluations of

special education students to determine when they can return to

regular classes. Id. Placement is not mandatory, because at

several junctures, parents are empowered to reject the school's

recommendation to place their child in special education classes.

JA 830, 832-33. Moreover, we note that the Appellee State Board

has created numerous statewide special education task forces; has

authorized five comprehensive studies relating to special

education; and thoroughly has investigated intervention

strategies, mainstreaming and the application of selection

procedures. JA 1223, 1243.

The Appellees' efforts to improve racial balance within

these programs not only are commendable, but successful. Indeed,

in three of the four districts, the racial imbalances have

declined. Although we might hope -- even expect -- that this

imbalance will soon disappear, the mere fact that black

students remain over-represented in special education classes

does not make clearly erroneous the district court's finding of

unitary status. Given that Dr. Reschly, in summarizing his

comprehensive analysis, concluded that in these school districts

"special education is not used as a means to separate students by

race," Coalition, 901 F. Supp. at 821; JA 839, we will accept the

court's finding on this issue. See Krasnov, 465 F.2d at 1302

(standard of review).

Similarly, Appellant argues that the district court's

findings with regard to classroom assignment are clearly

erroneous because black students are under-represented in non-

special education classes. This argument relies on, inter alia,the

district court's finding 47: "[t]here is evidence that among

high school students who achieve identical testing scores, black

students were more likely to be placed in the lower level class

than were white students." Coalition, 901 F. Supp. at 801

(footnote omitted); JA 1385; JA 4249; JA 4305-07. To be sure,

this finding is potentially troubling, suggesting on its face

that black students may have been segregated from white students

of equal testing aptitude. However, we must consider this

finding in the full context in which it was examined and

presented by the district court. Thus we must consider that in

footnote 30, which accompanies this finding, the district court

noted that "[t]he comparison apparently does not include academic

achievement as measured by course performance, or whether such

placement was requested or required." Id. Because this

comparison relied on testing aptitude alone, rather than

considering as well the important factor of academic achievement

based on course performance, and because it is not clear whether

the placement at issue was requested or required, we do not

consider finding 47 to be evidence that black students have not

received equal opportunity, nor can we reasonably conclude that

the district court, upon its careful examination, clearly erred.

We observe also finding 48, which states that "[o]n the

other hand, the percentage of minorities enrolled in honors and

AP classes who scored over the 75th percentile in reading or math

in the spring of 1993 is slightly greater than that of whites in

all 4 school districts." Coalition, 901 F. Supp. at 801; JA

6259. Although this finding could, as urged by Appellant, give

rise to an inference that blacks must perform at a higher level

than whites in order to be placed in honors and AP classes, that

is not the sole inference that could be drawn from so limited,

and thus malleable, a sample. Indeed, on the basis of finding 48

alone we may just as reasonably infer something quite different:

that the school districts' good faith efforts to desegregate have

paid off in terms of the improved testing performance of black

students.

In any event, our task here is not to engage in such broad

speculation, nor to choose among possible inferences from the

data; rather, we are to inquire whether the district court's

determination of the districts' unitary status was clearly

erroneous. To accord this finding its proper value, therefore,

it must be considered in the context of other, related findings.

This the district court did. Indeed, in view of the district

court's copious research, we are assured that the court

interpreted this finding in the proper light in determining that

the districts have achieved unitary status.

At the urging of Appellant, we also have examined carefully

the district court's finding 36, which states that "[t]he extent

to which elementary and middle school students are placed in

classes according to their ability is unclear from the record."

Coalition, 901 F. Supp. at 800; JA 4214-21. This finding means

little on its own, for it represents merely that there is

uncertainty in the record about how elementary and middle school

students are placed in classes according to their ability.

Indeed, without further amplification, we are not persuaded to

conclude that this statement cuts against the court's

determination regarding the districts' good faith efforts to

eliminate de jure segregation. Again, we are required to place

this finding in context, bearing in mind that because few

elective classes or courses are available to students at the

elementary and middle school levels, the selective process for

students is far more meaningful at the high school level. Thus

we must consider finding 36 in light of findings 39, 40 and 45.

Finding 39 describes the high school class selection process

as involving "class presentations by guidance counselors,

booklets with course descriptions, application by students in

consultation with family, individual guidance from guidance

counselors, and teacher input." Coalition, 901 F. Supp. at 800;

JA 755-56, 771-72, 851-54, 863-66. Not only is high school class

selection the product of these various deliberations, but,

according to finding 40, "[t]he parents and student have the

ultimate say in the level to which the student is assigned."

Coalition, 901 F. Supp. at 800; JA 1383.

And although finding 36 indicates that the record is unclear

on how elementary and middle school students are placed in

classes according to their ability, finding 45, when considered

in its entirety, provides detailed information about the class

placement of high school students as set forth in the margin.

Accordingly, when we consider Finding 36 in the context of

these other relevant findings, we find unavailing the contention

that finding 36 provides significant evidence that minority

students have not received an equal opportunity to succeed in the

pertinent school districts. The district court's multiple

findings on this particular issue suggest that the court did

indeed consider "every facet of school operations" in determining

that the districts have achieved unitary status.

Finally, we note finding 49 of the district court's opinion,

which states that "[t]here is evidence that lower levels of

instruction may not encourage achievement and may adversely

affect the ability of a student to attend college." Coalition,

901 F. Supp. at 801; PX 2262 at 82; PX 2265. As with the

foregoing findings, although this finding may be considered

troubling on its face, alone it is neither definitive nor

substantial enough to show clear error in the district court's

determination of unitary status. The mere finding that evidence

exists "that lower levels of instruction may not encourage

achievement and may adversely affect the ability of a student to

attend college," id., does not establish anything specific about

whether that putative problem is related to disparate educational

opportunity or treatment according to race.

Of course, this finding is obvious and indisputable as far

as it goes: when students receive lower levels of instruction,

they are less likely to feel encouraged to achieve and thus will

be less likely to attend college. Yet this truism merely serves

to underscore the more fundamental question at issue here -- on

what basis are students placed in "lower levels of instruction"?

As we already have made clear, that basis was not racially

discriminatory; the record does not support the claim that

students of one race are afforded college preparation

opportunities (advanced placement classes, counseling, help in

preparing for college placement exams) that students of another

race are not.

Thus although the finding that "lower levels of instruction

may not encourage achievement" is problematic, especially when

viewed in isolation, yet when considered in relevant socio-

economic context, this statement of mere possibility cannot be

regarded as proof that the district court clearly erred in

determining that the school districts have achieved unitary

status. The district court dutifully presented this finding in

combination with many others and, after carefully analyzing these

findings in their totality, declared that "there is no credible

evidence linking any current racially identifiable conditions to

the prior violation" Id. at 823 (footnote omitted).

This, too, must be said. Although the Constitution requires

that all of its citizens have equal access to the pursuit of

education, and that they be given equal breaks while attending

school, it does not insist that they all finish even. The proper

test under the Constitution is equality of opportunity, not of

results. On this point we would do well to recall Edmund Burke's

pithy formulation: "[A]ll men have equal rights, but not to equal

things." And indeed, Appellant articulated its commitment to

this principle at oral argument: "[w]e have never suggested that

the measure here is ultimate equal outcomes."

That everyone does not finish even is tragic, of course, but

it does not amount to a constitutional violation. Nor does it

violate the school districts' mandate regarding student

assignment under Green. Accordingly, we conclude that the

district court properly determined that, as to student

assignment, the districts achieved unitary status through good

faith compliance with the requirements of the 1978 Order.

B. Faculty and Staff Assignments

Before the 1978 consolidation, the vast majority of black

administrators and teachers served two predominantly black

districts. In September 1978, the districts reassigned faculty,

administrative and other certificated staff in all eleven

districts. The evidence presented at trial demonstrated that

the districts now have balanced their faculties to a degree that

is virtually unprecedented among those school districts in this

country that operate under court orders. The district court

found that the districts closely monitor the racial composition

of their faculties and do not hesitate to block transfers and to

make reassignments, overriding seniority where necessary, to

ensure diverse racial representation at each school. Coalition,

901 F. Supp. at 802-04. The record testimony of senior

administrative officials from each of the four districts supports

these findings.

Appellant does not refute either the district court's

calculations or its conclusion of racial balance among the

faculties, but nonetheless argues that the district court's

finding that the vestiges of de jure segregation have been

eliminated to the extent practicable is clearly erroneous because

the overall percentage of minority teachers within the districts

has declined by two or three percent since 1982. Appellant's Br.

at 10. This gradual decline does not indicate clear error,

however, because the shortage of minority teachers in the four

school districts is not a vestige of de jure segregation in

Northern New Castle County, but rather a manifestation of an

unfortunate contemporary national trend. Indeed, even

Appellant's expert testified that there is a critical shortage of

black teachers in the public schools. JA 1167-68 (the number of

black students graduating from colleges in the United States with

bachelor degrees in the field of education has declined); see

also Freeman v. Pitts, 503 U.S. 467, 482-83 (1992).

The record further reveals that, notwithstanding the

shortage of available faculty, the districts hired minority

candidates at rates two to four times greater than the available

percentage of minorities in regional and national pools. JA

6566. This is attributable in part to the extensive affirmative

minority recruitment efforts of each of the four school

districts. For example, the Brandywine district has sought to

expand its pool of potential minority hires by recruiting not

only teachers who have received a degree in education from a 4-

year program, but teachers who have received their B.A. or B.S.

degrees in fields other than education and have prior teaching

experience. JA 620. The Christiana district has attempted to

recruit minority teachers by sending announcements to

predominantly and historically black universities, by attending

career days at predominantly black universities, and by hiring

minorities as paraprofessionals. JA 603. The Colonial district

has assembled a task force to address minority faculty

representation. JA 633. And in the Red Clay district,

occasionally a faculty position will be held open until a

minority candidate is found. JA 624. Based on this record, the

court did not clearly err in finding that the school districts

had demonstrated good faith efforts to integrate the faculties of

the schools.

We turn, then, to the racial balance among the "non-

professional" or "classified" staff, which includes bus drivers,

bus aides, secretarial and clerical positions, paraprofessionals,

custodial employees, and food service workers. The undisputed

evidence of record establishes that the school districts have

attempted to use the hiring process to improve racial balance on

the staff as new openings have materialized. For example,

Brandywine recruits minority staff through community channels,

focusing on community centers, neighborhood churches and

community groups in minority areas. JA 621. Similarly,

Christiana recruits through community newsletters, community

centers, and by "word of mouth." JA 603.

Appellant concedes that the districts have made such

efforts, but argues that the districts have not reassigned the

staff to maximize racial balance. The district court found

that it would be impractical for the districts to reassign these

employees in order to attain greater racial balance. We agree.

Food service workers, for example, earn approximately $3200-

$4300 per year, working approximately three hours a day. JA 605.

Generally, these employees work close to where they live.

Transferring them to a distant workplace that would require a

long commute simply is not feasible for the salary they receive.

Id. Secretarial and clerical personnel would experience a

similarly negative economic impact. Id. Even Appellant's expert

acknowledged that forced reassignment of these part-time, low-

wage employees could create hardships on these workers with

respect to child care, commuting time, distance from work and

expenses. JA 1105. Accordingly, it was not clearly erroneous

for the court to conclude that the districts have eliminated to

the extent practicable any residual racial identifiability in the

schools with respect to these employees.

We carefully have considered Appellant's contentions with

respect to faculty and staff assignment, and we conclude that

there was no clear error in the district court's findings.

C. Extracurricular Activities

Appellant contends that the districts have not eliminated

the vestiges of de jure segregation from their extracurricular

activities. It is undisputed, however, that all extracurricular

activities within the four districts are open to students of all

races. All eligibility requirements are race-neutral, and

district officials encourage all students, regardless of race, to

participate in a wide range of extracurricular activities.

Nevertheless, Appellant argues that the districts must also

eliminate any racial identifiability that exists within each of

these activities. In findings 98-100, 109-110, 118 and 125-128,

the district court indicated that, unfortunately, there exist a

substantial number of racially identifiable extracurricular

activities throughout the four districts. We cannot, however,

expect a school district to compel or deny student participation

in non-compulsory extracurricular activities merely to effect a

racial balance.

The four districts have removed financial and transportation

barriers to participation. JA 1164. Moreover, each of the

districts has demonstrated good faith efforts to reduce the

racial identifiability of their activities through experimental

programs. For example, the Brandywine district invites all

eighth graders and their parents to the high schools to meet

representatives from the activities, JA 753; Christiana announces

upcoming activities in newsletters and physical education

classes, JA 740; middle schoolers in Colonial are recruited to

participate in activities when they enter high school, JA 743;

and in Red Clay, coaches recruit students and expose them to

various sports through the physical education curriculum, JA 680.

We believe that a school district's extracurricular

activities are unitary if they "are available to all students

within the School District regardless of race." Singleton v.

Jackson Mun. Separate Sch. Dist., 541 F. Supp. 904, 908 (S.D.

Miss. 1981); see also Swann, 402 U.S. at 18 ("With respect to

such matters as . . . extracurricular activities," it may be

enough "to eliminate invidious racial distinctions."). School

districts need not "show equal participation." Lockett v. Board

of Educ. of Muscogee County, No. 991 at 55 (M.D. Ga. Nov. 18

1994) (citing Quarles v. Oxford Municipal Separate School Dist.,

868 F.2d 750, 757 (5th Cir. 1989)). Accordingly, we conclude

that the record supports the district court's finding that the

districts have eliminated to the extent practicable from their

extracurricular activities the vestiges of past de jurediscrimination.

D. Remaining Green Factors (Transportation and Facilities)

There is no dispute among the parties concerning the two

remaining factors outlined in Green. Specifically,

transportation is provided on a non-discriminatory basis.

Additionally, the districts successfully have remedied the

distinctions between the facilities of the formerly black and

formerly white schools.

VI. Ancillary Relief

The 1978 order of this court required the implementation of

eight specific programs ancillary to the 9-3 pupil assignment

plan. The order required the districts to:

1) formulate and implement a comprehensive in-service

training program for teachers, administrators and other

staff in order to train personnel to cope with the

desegregation process;

2) institute an affirmative reading and communication

skills program, which does not resegregate the pupils,

in order to remedy the effects of the past

discrimination;

3) provide curriculum offerings and programs which

emphasize and reflect the cultural pluralism of the

students, and all instructional materials, texts and

other curriculum aids shall be free of racial bias;

4) institute an effective and nondiscriminatory counseling

and guidance program. The counseling and guidance

program must insure that students are counseled on a

racially nondiscriminatory basis concerning all

programs available in the area of work opportunities

and opportunities for a college education;

5) provide an appropriate human relations program . . .

[designed] to protect the individual dignity of

students and teachers and to prevent racial myths and

stereotypes from prevailing in schools undergoing

desegregation;

6) develop . . . a code of rights and responsibilities . .

. provid[ing] for racially nondiscriminatory discipline

and . . . contain[ing] provisions to insure each

student in the desegregation area procedural and

substantive due process required by existing law. Such

a code will help to provide equal educational

opportunity to all students by protecting them from

unreasonable, discriminatory, and arbitrary rules; and

the Board shall not administer the code on a racially

selective or otherwise biased basis;

7) reassign faculty, administrative and other staff

personnel to insure that schools do not retain their

former racial identity through racially identifiable

faculty and staff assignments; [and]

8) establish and enforce nondiscriminatory guidelines for

new construction, review of building needs and the

appropriateness of each proposed building project or

school closing.

JA 128-30; see also 447 F. Supp. at 1014; see also Evans v.

Buchanan, 582 F.2d at 771-73.

The district court offered more than 180 factual findings in

detailing the school districts' implementation of these ancillary

relief provisions. In the first four years alone, more than

$18.8 million in federal desegregation project grants were used

to pay for human relations specialists, home-school liaisons,

reading resource teachers and in-service programs. The state and

the districts maintained these programs even after the transition

to a desegregated system. And significantly, from 1978 until the

unitary status petition was filed, Appellant never complained to

the court of any failure to comply with any of the ancillary

relief provisions. Of these eight, the last is undisputed, and

the seventh we have addressed in our discussion on compliance

with the Green factors. Thus here we will review the district

court's findings on the first six of these ancillary measures.

A. In-Service Training

The district court found that all four districts offered a

rich array of in-service programs for their faculty, and that,

although the focus of these programs no longer is desegregation,

all four districts continue to offer in-service training on

desegregation, race equity and multiculturalism. Coalition, 901

F. Supp. at 809. Appellant contends that the district court's

findings are clearly erroneous because two of the Appellant's

experts testified that the in-service training was inadequate.

Appellant's Br. at 25. But a reviewing court's role is not to

pick and choose isolated snippets of evidence. Rather, we must

decide, after viewing the record as a whole, whether there is

evidentiary support for the district court's findings. Such

support is present; accordingly, there is no clear error.

In January 1978, a team from the districts drafted a

statement listing several management goals for the in-service

training of the faculty, staff and administration. The first

goal -- "[t]o orient the instructional staff to the curricular

and instructional process" -- was accomplished through the Center

for Conflict and Desegregation at the University of Pittsburgh

the following month. JA 948-49, 4373, 4376-77. In addition, the

team responsible for planning in-service training also realized

at least three other goals that year. Further, in 1978, an

Office of In-Service Activities was established and staffed by

two full-time personnel, JA 951-52, and all programs relating to

desegregation were mandatory for faculty, staff and

administrators. JA 961-62. Finally, even Appellant's expert

testified that the in-service programs offered by the state at

the time of desegregation complied with the 1978 order. JA 1140,

1170.

The record similarly supports the district court's finding

that the districts have continued in-service training programs

since the 1978 order. For example, the district court heard

evidence that from 1981 through 1994, Brandywine offered various

workshops and courses related to desegregation, race equity and

multiculturalism. Moreover, all new Brandywine teachers are

required to participate in a 12-hour induction program, which

includes a panel discussion on issues of multiculturalism. JA

931.

Similarly, in the 1980s, various human relations specialists

and administrators trained by the Race Desegregation Assistance

Center at the University of Pittsburgh worked with the Red Clay

faculty and staff in the area of cultural diversity. DI 1936 at

635-36, 642. The record further reveals that from 1992 through

1995, Red Clay also has offered in-service training on

multiculturalism. DX 79 at FL 12295, FL 12299, FL 12302, FL

12304-11, FL 12313-14, DX 80; DXC 81; DI 1939 at 1806. The

court's findings with regard to the Christiana and Colonial

districts likewise are supported by the record.

In light of the foregoing, we are satisfied that Appellant's

charges have no support in the record, and thus that the district

court properly found that the schools have met the requirements

of in-service training.

B. Reading and Communication Skills

The district court found that an affirmative and integrated

reading program was instituted in each of the four districts.

Coalition, 901 F. Supp. at 809. Appellant contends that the

finding is clearly erroneous, because the districts "failed to

show that any reading program was implemented for the purpose of

remedying the negative effects of the de jure segregation as

required by the 1978 Order, or that the reading programs that

were implemented did not resegregate students." Appellant's Br.

at 26. However, although no reading program specifically

targeted black students, we conclude from our review of the

record that the districts nevertheless met the standard of good

faith compliance with the 1978 Order.

The record indicates that a reading program was instituted

in the schools in 1978, immediately following the issuance of the

remedial order. JA 967. The program employed 110 reading

teachers, who

worked with the classroom teacher to help with testing,

interpretation of those data from the tests, selection of

materials, planning of program and strategies for students

who needed assistance and anything that [a] particular

teacher wanted, to do to help the students within that

classroom.

JA 968. Students in grades two through nine were provided

assistance under the reading program if they were one year or

more below reading level, as demonstrated by standardized test

scores. JA 968. Students in grades ten through twelve were

provided assistance if they were two years below level. Id. And

supplemental reading instruction was provided daily for 30-45

minutes, depending on grade level. JA 969. For the most part,

this instruction occurred in small groups within the classroom.

Id. The districts combined have employed between 100 and 135

reading teachers every year since the 1981-82 school year. JA

4910-11.

Further, the court heard evidence and found facts pertaining

to the reading programs in each of the four districts. With

regard to the Red Clay district, for example, the court credited

the testimony of officials from the district and found that

reading resource teachers coordinate the "HOSTS"

program (Help One Student to Succeed) for reading- and

writing-deficient students. Under the program,

volunteer tutors work with individual children for 45

minutes per week. More than 300 students participate

in the program.

[Twenty five] parent educators hired by the Parents as

Teachers program teaches [sic] first-time parents in

New Castle County the importance of language and

reading for pre-school children. The program has been

in existence since 1987. In 1993 and 1994, the focus

was on teenage parents and families with multiple

needs.

Coalition, 901 F. Supp. at 810 (footnote omitted). The court

found similar progress in the other districts.

Because these programs were meant to address the reading

problems of every student, Appellant's argument that the program

resegregated students is misguided. Although the school

districts have not excluded black (or white) students from the

remedial reading programs to effect a racial balance, the

districts do deploy several different programs such as one-on-

one, small group and pull-out remedial reading programs, in which

reading teachers either work inside the classroom or pull a given

student out of the classroom for individual attention. Thus we

cannot agree that the districts' remedial reading programs have

resegregated students; the basic requirement of good faith

efforts to remove the vestiges of de jure segregation to the

extent practicable have been met. Accordingly, the district

court did not clearly err.

Appellant further contends that the school districts have

"failed to show that any `communications skills program' was ever

implemented" in any of the districts. Appellant's Br. at 26.

However, there is no meaningful distinction between reading

skills programs and communication skills programs; indeed, the

1978 Order mandates the creation of a singular "program" to teach

reading and communication skills. JA 129. Likewise, testimony

from school officials on this point suggests that instruction for

both skills is combined. Thus "reading skills" and

"communications skills" are synonymous for purposes of our

analysis here. Accordingly, on the basis of our foregoing

discussion of reading skills and programs, we reject Appellant's

argument that the districts have not complied with the 1978

Order.

C. Curriculum

The 1978 Order required that the curriculum "emphasize and

reflect the cultural pluralism of the students," and that "all

instructional materials, texts and other curriculum aids shall be

free of racial bias." JA 129. Appellant argues that the school

districts "failed to show that [an] inclusive curriculum as

required by the 1978 Order was ever actually taught in a single

classroom or that efforts made were anything other than sporadic

or shortlived, or that the curriculum achieved any results at

all." Appellant's Br. at 27. This sweeping assertion does not

comport with the record.

The record indicates that the Delaware Department of Public

Instruction has established text selection guidelines for the

districts to use in conjunction with their own guidelines to

ensure racially unbiased texts and instructional materials. The

Department also has adopted a Comprehensive Policy for

Multicultural Education, published accompanying guidelines,

sponsored multicultural education and adopted multicultural

curriculum standards. See, e.g., DX 124 at FL 23147; DX 125 at

FL 23172. In April 1994, consistent with these guidelines, the

Department sponsored a two-day Multicultural Education Institute.

DX 52.

Further, the district court made specific findings that

acknowledged efforts in each of the four districts to offer a

multicultural curriculum. Coalition, 901 F. Supp. at 810-12.

Our review of the record reveals several exemplary programs,

including the Brandywine district's extensive black history

curriculum in the elementary schools; Christiana's inclusion of

the minority community in the textbook selection process;

Colonial's course entitled "Minorities USA"; and Red Clay's

integration of cultural pluralism into the social studies,

English language arts, art education and music education

curriculum guides.

In light of this substantial record evidence supporting the

district court's findings, we are satisfied that the court did

not clearly err when it found that the schools have complied with

the court order as to curricular reform.

D. Counseling and Guidance

The 1978 Order required the districts to "institute an

effective and nondiscriminatory counseling and guidance program .

. . [to] insure that students are counseled on a racially

nondiscriminatory basis" concerning post-secondary opportunities.

JA 129. Appellant argues that the districts "failed to show that

any effort had been made to ensure that the counseling and

guidance programs attempted to prevent resegregation of students

in the classroom as required by the 1978 Order or that, in fact,

the counseling and guidance programs did not become vehicles for

resegregation. The School System failed to show that the

counseling and guidance programs achieved any results at all."

Appellant's Br. at 26. Again, the record belies Appellant's bold

assertions.

In the spring of 1978, the New Castle district formed a

committee "to follow the directive of the Court at the time [--]

to develop a nondiscriminatory developmental guidance program for

all students." JA 770. The committee drafted guidelines, which

the district adopted in the Handbook for Certified Guidance

Counselors. JA 770-71. In 1981, the Department modified the

guidelines for district and statewide use in the Delaware

Guidance Handbook, K-12, which was itself revised in 1990 as

Appendix B to the Handbook for K-12 Education. JA 770-71.

The record further establishes that, from 1981 to 1991,

these Department guidelines governed counseling programs within

the districts. For example, in 1990, the state directed each

district to prepare "a written plan describing the guidance

program for the district which is reviewed periodically and

updated at least every five years." DX 230 at D 1464. Plans for

each district subsequently were drafted and approved. JA 755,

769-70, 852, 864, DX 230, DX 231, DX 232, DX 233, DX 234. The

district programs described in the plans include academic,

personal, social, career and life-planning counseling. JA 1137.

The court's detailed description of the programs established

in each of the districts also is supported by the record.

Coalition, 901 F. Supp. at 813-814. Especially mindful of

alleged disparities in the Red Clay school district, we emphasize

that the record clearly supports the district court's

determination that that district administers aptitude tests,

provides speakers, supplies ample resource material, offers

participation in various achievement programs, and facilitates an

extensive college visitation program. JA 772-74.

In sum, it is clear that the State Board has adopted

nondiscriminatory counseling guidelines; that all the districts

have provided comprehensive post-secondary career, educational

and vocational assistance; and that the districts support

numerous supplementary counseling programs which encourage

minorities to pursue post-secondary education. Moreover,

Appellant fails to cite any instance of discriminatory

counseling. Accordingly, we conclude that the court did not err

in determining that this aspect of the remedial order was

fulfilled.

E. Human Relations

The 1978 Order required the districts to "provide an

appropriate human relations program" for "schools undergoing

desegregation." JA 130. The provision was intended to be

transitional, designed to address "the various pressures which

arise as a result of desegregation." Evans, 582 F.2d at 769.

Appellant argues that "[t]he School System failed to show that

any human relations program was actually implemented as written .

. . or that any human relations program lasted for more than a

brief duration or achieved any results at all." Appellant's Br.

at 24-25. Nevertheless, the record supports the district court's

findings.

The school districts responded to the order by implementing

a program involving more than 100 specially trained and certified

specialists who were assigned to schools in "biracial teams." JA

763-64. Each high school and junior high school had at least one

team, and these teams were also directed to serve a number of

elementary schools. Id. These specialists provided crisis

intervention assistance and implemented student support programs,

such as peer tutoring and counseling. JA 764-66. Because the

desegregation went smoothly, the focus of the program soon

shifted to multicultural awareness, problem-solving and other

student support functions. JA 764. The districts continued

these services by retaining human relations personnel and hiring

elementary guidance counselors, social workers, community

outreach personnel, visiting teachers, student advisors, student

relations specialists and other student support personnel. SeeCoalition,

901 F. Supp. at 815-16.

Moreover, the district court described in detail the

progress in each of the four districts. Again directing our

focus to the Red Clay district, we note that "Red Clay employed

16 human relations specialists and home/school advisors in 1981-

82 and 18 in 1982-83" and "five human relations specialists and

home/school advisors" as recently as 1993-94. Coalition, 901 F.

Supp. at 816 (crediting Defendant's Exhibit 111).

Notwithstanding the necessary (and welcome) shift in the

focus of the human relations program, it clearly has lasted

beyond "a brief duration" and has yielded significant results.

Accordingly, these findings support the district court's

determination that the school districts complied with the court

order as to human relations programs.

F. Discipline

The 1978 Order required the development of a code to provide

"racially nondiscriminatory discipline" and to ensure "procedural

and substantive due process." JA 130. In July 1978, the New

Castle district adopted a code of conduct drafted by a "committee

[which had] gathered similar documents from Delaware and large

desegregated school districts for review." JA 4436. Prior to

adoption, drafts of the code were reviewed by citizen groups,

student council leaders, the Teachers' Association, and

administrators. JA 4435-36. The districts adopted the New

Castle code in 1981, and each district has revised the code

periodically since then, through a "process of development and

continual revision that includes [the] involvement of others,

that includes teachers, includes administrators, and there are

processes for the codes to be reviewed by external sources and

have input." JA 719.

Appellant's discipline expert concedes that the districts'

codes are not "discriminatory on their face." JA 1157. And the

district court found that the codes "are not applied in a

discriminatory fashion." Coalition, 901 F. Supp. at 817.

Appellant argues, however, that the school districts have failed

to reduce racial disparities in discipline rates among students,

and that Appellant was denied the opportunity to admit expert

testimony in support of this claim. However, on this matter the

record supports the district court's findings, as well as its

exercise of discretion.

The district court's finding that discipline is not

administered in a discriminatory fashion is supported by the

testimony of Dr. Charles Achilles, the school districts' expert.

Dr. Achilles calculated indices by dividing the percentage of

black student suspensions by the black enrollment percentage.

Based on these data, Dr. Achilles determined that the districts'

suspension indices reflected less racial imbalance than indices

calculated from national suspension data compiled by the Office

of Civil Rights and Delaware arrest data. JA 722-23. Dr.

Achilles further illustrated that the indices were essentially

consistent across the four districts -- "a result difficult to

achieve if equitable nondiscriminatory codes were not being used

and applied in an equitable, nondiscriminatory manner."

Coalition, 901 F. Supp. at 817; see JA 724. And finally, Dr.

Achilles demonstrated "consistency in how the codes were applied

by administrators, regardless of the administrators' race."

Coalition, 901 F. Supp. at 817; see JA 725. In light of this

compelling testimony, we conclude that the district court did not

clearly err in determining that, as to discipline, the school

districts have complied with the 1978 Order. See Krasnov, 465

F.2d at 1302 (standard of review).

Nor did the district court err in rejecting the testimony of

Appellant's discipline expert, Dr. William Gordon. He could cite

no study or authoritative literature to support his assumption

"that 'undiscipline' or misbehavior is a randomly distributed

characteristic among racial groups . . . ." JA 1161. And in

fact, statistical data demonstrate a comparable or greater racial

disproportion for those offenses for which Delaware law mandates

suspension, which Gordon called "very objective" offenses, than

for those offenses he viewed as less objective. JA 726.

Accordingly, we reject Appellant's argument that the schools have

failed to reduce racial disparities in discipline rates.

We likewise reject Appellant's contention that expert

testimony on this matter was improperly rejected by the district

court. A trial judge's exclusion of testimony cannot be

disturbed on appeal "absent a clear abuse of discretion." Semper

v. Santos, 845 F.2d 1233, 1238 (3d Cir. 1988); Fashauer v. New

Jersey Transit Rail Operations, 57 F.3d 1269, 1287 (3d Cir.

1995). In both Semper and Fashauer, the court upheld the

exclusion of rebuttal testimony because of counsel's failure to

adhere to a pretrial order. Semper, 845 F.2d at 1238; Fashauer,

57 F.3d at 1287.

Here, Appellant disregarded two pretrial orders requiring

the disclosure of the "specific subject matter as to which each

expert will testify" and the provision of expert reports

complying with Rule 26, Federal Rules of Civil Procedure.

Denying Appellant's motion to delay disclosure of the identity of

its experts, the district court stressed, more than three months

before trial, that "[t]his is a case where the interests of

justice dictate public disclosure of the parties' experts and

early resolution of any potential disputes regarding any experts'

qualifications." JA 203, 208.

Rule 26 states that "[t]he report shall contain a complete

statement of all opinions to be expressed and the basis and

reasons therefor" and obligates a party to supplement the report

if it "learns that in some material respect the information

disclosed is incomplete or incorrect . . . ." Fed. R. Civ. P.

26(a)(2)(B) & (e)(1). Supplementation must be made "with special

promptness as the trial date approaches." Fed. R. Civ. P. 26(e).

Exclusion of testimony is an appropriate sanction for failure to

supplement in a timely manner. See Freund v. Fleetwood

Enterprises, Inc., 956 F.2d 354, 358 (1st Cir. 1992).

As of November 30, Appellant knew all of the State Board's

experts' topics and methodologies. Appellant could have, but

declined to, file a supplemental report for expert witness de

Leeuw on December 9, as it did for three of its other experts.

Appellant also could have disclosed its intent as a result of

counsel's comments at the deposition on December 15. Instead,

Appellant chose the tactical route of surprise. In light of the

foregoing discussion, we conclude that the district court did not

abuse its discretion in excluding this surprise testimony.

VII. Areas of Concern to the District Court

and Allocations of the Burden of Proof

Aside from its examination of the four school

districts' compliance with the Green factors and the ancillary

relief measures, the district court also acknowledged that

certain performance disparities persist in the New Castle County

schools -- most notably in the Red Clay district. These

performance disparities include student achievement, special

education, and dropout rates, and are not disputed here.

However, because these disparities are not among the vestiges

enumerated either in Green or in the ancillary relief order, we

must determine, first, whether these disparities actually are

vestiges of de jure segregation, and if so, whether the school

districts have in good faith eliminated them to the extent

practicable. Having considered the taxonomy of disparities

proffered by Appellant and reviewed the record and pertinent

legal precepts, we hold that Appellant properly was allocated the

burden to prove that the disparities were vestiges, and that the

Appellant failed to meet this burden.

The Court has made plain that certain disparities

necessarily are vestiges of de jure segregation. Identifying

what would become known as the Green factors, the Court directed

school boards to propose plans designed to disestablish state-

imposed segregation in "every facet of school operations --

faculty, staff, transportation, extracurricular activities and

facilities." Green, 391 U.S. at 435. Accordingly, and as the

relevant cases cited by Appellant demonstrate, the Court

consistently has turned to the Green factors to "determin[e]

whether a dual school system has been disestablished." Columbus,

443 U.S. at 458-61 (Green factors). See also Davis v. Board of

Sch. Comm'rs of Mobile County, 402 U.S. 33, 37 (1971) (pupil

assignment); Dayton Bd. of Educ. v. Brinkman, 443 U.S. at 538

(pupil assignment and school construction). Indeed, the Greenfactors have

become per se vestiges of de jure segregation -- and

therefore the focal point for determining unitary status.

Nevertheless, the performance disparities enumerated by Appellant

are not among these factors.

Still, the Green factors are not the only disparities

that may be classified as vestiges of de jure segregation.

Depending on the circumstances of a particular case, the trial

court still may exercise discretion to consider other factors.

Freeman, 503 U.S. at 492-93. The circumstances of the instant

case prompted the district court, in 1978, to order eight

ancillary remedial measures. As with the Green factors, we have

reviewed the districts' compliance with that order and conclude

that there was a good faith effort to eliminate the vestiges

identified therein to the extent practicable. Again, however,

the performance disparities urged here were not identified among

these vestiges of de jure segregation.

We emphasize that here we are not discussing the burden

of proving compliance with the Green factors or the 1978 Order,

as to which the school districts acknowledge bearing the

evidentiary burden. Our discussion here, and our allocation of

the burden of proof to Appellant, is limited to the issue of

proving that the identified performance disparities are vestiges

of de jure segregation.

Because the performance disparities claimed by

Appellant are not among (or even similar to) the Green factors or

the vestiges identified in the 1978 Order, we will not simply

presume -- as Appellant urges us to do -- that these are vestiges

of de jure segregation. Appellant offers no persuasive authority

for establishing a causal link between present achievement

disparities and past de jure segregation. In fact, all but one

of the cases relied on by Appellant on this point are irrelevant,

because they address only Green-type factors; the State Board

does not dispute that it carried the burden of proving good faith

efforts to eliminate (to the extent practicable) such vestiges of

de jure segregation.

Appellant thus can rely solely on Vaughns by Vaughns v.

Bd. of Educ. of Prince George's County, 758 F.2d 983, 990-91 (4th

Cir. 1985), which, upon our review, supports the district court.

In Vaughns, because the school district was not unitary with

respect to the Green factor of student assignment, id. at 990-91,

the Court of Appeals for the Fourth Circuit held that the

plaintiffs were entitled to a presumption that disparities in

special education and gifted and talented programs arose from

prior segregation. More important, the Vaughns court

distinguished a decision from a sister circuit because "the

burden shifted to [Appellants] in that case only because the

school system had achieved unitary status with regard to student

assignment." Vaughns, 758 F.2d at 991.

Here, however, the districts have been unitary as to

school assignments since the 1978 order. Had the Vaughns school

district satisfied the Green factors as have the Delaware

districts before us, the Vaughns plaintiffs would have had to

prove that performance disparities resulted from de juresegregation. The

Court of Appeals for the Fourth Circuit so held

in two subsequent cases. See Riddick by Riddick v. School Bd. of

City of Norfolk, 784 F.2d 521, 534 (4th Cir.), cert. denied, 479

U.S. 938 (1986); School Bd. of the City of Richmond, Va. v.

Baliles, 829 F.2d 1308, 1312 (4th Cir. 1987). The same result

should obtain here.

Further, we must respect the Court's teaching that "a

school board is entitled to a rather precise statement of its

obligations under a desegregation decree" and to "a like

statement from the court" for when "such a decree is to be

terminated or dissolved." Dowell, 498 U.S. at 246 (citing

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976)).

Because we are reluctant to impose any unstated obligation on the

school boards, we allocate the burden to prove any additional

violation to the Appellant. See Jenkins, 115 S. Ct. at 2055-56

(to require a remedy, inferior student achievement must be proven

to have resulted from de jure segregation); see also Keyes v.

School Dist. No. 1, C.A. Nos. C-1499, 69-M-1499 (D. Colo. Sept.

12, 1995), slip op. at 14 ("The Court's opinion in . . . Jenkins. . .

defeats the plaintiffs' call for compelling additional

action to investigate and redress racial disparities in student

achievement . . . [when the] court has never made any findings

that such differences are the result of discrimination by the

District").

In light of the foregoing discussion, we conclude that

Appellant failed to carry its burden. The district court's

finding that persistent student performance disparities were

caused by socioeconomic factors is supported by the record.

Coalition, 901 F. Supp. at 818-19. The district court cited

various demographic data from the 1990 U.S. Census and the 1992

Vital Statistics Report of Delaware that illustrate a

"black/white gap" in the geographic area contained in the four

school districts, and in New Castle County generally, as to

socioeconomic conditions. The record establishes that "Blacks

in the desegregation area are in an inferior position

economically to whites, and [that] that gap is wider in New

Castle County than it is in the nation as a whole." Coalition,

901 F. Supp. at 818.

Further, the record supports a causal link between

these socioeconomic factors and student achievement across the

four districts: "There is consistency between the gap in

socioeconomic status with the gap in achievement, with Brandywine

statistics demonstrating the greatest disparity in both areas,

Colonial the least disparity." Id. With such support in the

record, these findings cannot be clearly erroneous. Anchoring

its determination on these unfortunate, but uncontroverted,

socioeconomic factors, the court found, inter alia, that

"[b]ecause the environment outside school is so strong,

cumulative, and varied, schools cannot overcome such

environmental/differences [sic] among children." Id. at 819. We

agree.

Accordingly, we affirm the district court's allocation

of the burden of proof and its determination that persistent

performance disparities are not vestiges of de jure segregation.

VIII. Conclusion

The task of setting forth reasons for affirming the

district court's judgment would have been lightened considerably

-- and this opinion made benevolently more brief -- had the

Coalition not chosen to mount a scatter-gun attack on virtually

every aspect of the district court's comprehensive opinion.

Indeed, the Coalition portrays nearly 20 years of federal court

supervision of Delaware public education as a cheerless and

sorrowful failure. As our discussion has shown, however, the

Coalition's contentions, in the main, have been expressed in

conclusory language that neglects to demonstrate where the

district court erred and fails to appreciate the narrow standard

of review by which we are constrained.

Moreover, the Coalition repeatedly has failed properly

to acknowledge the importance of pervasive socioeconomic

conditions that account for discrepancies among the races in

educational performance. Indeed, the Coalition avoids the

responsibility of carefully examining the roots of the continuing

black/white achievement gap, a brutal national phenomenon first

documented in the 1960s and substantiated in various recent

studies that "demonstrate that if socioeconomic characteristics

are more equalized, achievement levels are more equalized."

Coalition, 901 F. Supp. at 819. These studies conclude that

"[i]t is difficult for children to take equal advantage of

learning opportunities absent the initial and cumulative

advantages of a stimulating home curriculum," and that "[b]ecause

the environment outside school is so strong, cumulative, and

varied, schools cannot overcome such environmental/differences

among children." Id.

These conclusions support our belief, presented in the

foregoing discussion, that none of the Coalition's arguments

concerning special education, discipline and dropout rates,

student achievement, extra-curricular activities or disparities

in college matriculation can seriously be considered without

weighing the impact of critical demographic data. This the

Coalition has failed to do, choosing instead to focus its primary

energies on arguing for continued federal court supervision of

the schools -- as if a federal judge's order could eliminate,

with the stroke of a pen, broad social problems.

As humans, we acknowledge with melancholy the fact that

many socioeconomic factors militate against a completely level

playing field in our society. As judges, however, we are

powerless to alter formidable social, economic and demographic

forces and conditions over which no legal precept has control.

Moreover, we are constrained to fulfill an obligation to address

only those constitutional questions properly presented to us, and

to show fealty to appropriate standards of review, lest we

abandon the limits on judicial power that give coherence to our

political system. The district court articulated the meaning of

these institutional limits for this case:

[t]he continued existence of racial discrimination in

our society as a whole, and the effect of that

discrimination on the ability of a black child to enter

school on an equal footing with more privileged white

schoolmates, are not matters in dispute in this

litigation.

Coalition, 901 F. Supp. at 823. Unfortunately, in its

presentation the Coalition repeatedly has refused to accept the

fundamental concept that this court's scope of review is limited

to determining whether the district court clearly erred in

concluding that the school districts have achieved unitary

status.

The history of our jurisprudence contains no true

precedent for the micromanagement of school systems by the

federal courts. Indeed, our authority to supervise these school

districts does not stem from the Anglo-American common law

tradition, in which the law evolves through judicial reasoning

based on legal principle; instead, our legitimacy here derives

exclusively from the powers that inhere in equity jurisdiction,

"another stream that flowed alongside the common law, whose

headwaters were in the discretionary royal prerogative. Equity

was a more flexible process, more unprincipled, initially quite

ad hoc." Thus the jurisprudential basis for 20 years of

detailed management of the Northern New Castle County school

system has been, simply, a remedy framed in equity to enforce a

desegregation decree.

This equitable remedy and, by definition, its

jurisprudential legitimacy, were meant to have a limited

lifespan. The remedy was designed to serve only as an implement

for monitoring and guidance, not as a permanent substitute for

state and local school boards, or indeed, for the state

legislature. Thus in our zeal to insure maximum educational

opportunities for all Delaware school students, the federal

courts must bear in mind that the responsibility for

administering the schools ultimately belongs to locally elected

officials. Indeed, we must acknowledge that although it has been

proper for us to supervise multiple generations of students in

the service of unassailable ideals, in the process we have also

denied multiple generations of elected officials the freedom to

participate fully in representative government. For 20 years

there has been a constant colloquy between federal judges and

officers of these political institutions, a score of years in

which to achieve desegregation "with all deliberate speed," as

ordered in Brown II, 349 U.S. 294, 301 (1955).

In ruling that the school districts of Northern New

Castle County have at long last truly respected our specific

orders of desegregation, the district court has cut the umbilical

cord extending from the courtroom to the classroom. Institutions

that normally are free to exercise powers traditionally granted

them (and them alone) in the American political process now are

free to assume those powers. The time has come for the courts to

step back. What Roscoe Pound said almost a century ago still is

most appropriate: "[W]hen men demand too much of law, when they

seek to devolve upon it the whole burden of social control, when

they seek to make it do the work of the [school,] home and . . .

church, enforcement of law comes to involve many difficulties."

The judgment of the district court declaring unitary

status will be affirmed.

Coalition to Save our Children v. State Board of Education of the

State of Delaware et al., No. 95-7452

_________________________________________________________________

SAROKIN, J., dissenting:

One hundred years ago, the United States Supreme Court

turned its back on the constitutional promise of equal protection

of the law that this country made to its African-American

citizens in the aftermath of the Civil War. In Plessy v.

Ferguson, 163 U.S. 537 (1896), the Court upheld the

constitutionality of laws requiring the racial segregation of

public facilities, including public schools, as "within the

competency of the state legislatures," id. at 544, and validated

the infamous doctrine of "separate but equal." See id. at 552

(Harlan, J., dissenting).

No one at the time could have truly believed for one

instant that there was a shred of equality between the systems

serving the white children and black children of the dual school

systems. Yet it took close to sixty years for the Supreme Court

to acknowledge the reality of segregation. In one of the most

glorious moments of the history of the federal judiciary, the

Court, speaking in a unanimous voice, effectively repealed the

"separate but equal" doctrine by holding, in Brown v. Board of

Education, 347 U.S. 483, 495 (1954), that "in the field of public

education the doctrine of 'separate but equal' has no place."

Along with Topeka, Kansas, the Supreme Court in Brownwas

considering the fates of three additional school systems:

South Carolina, Virginia, and Delaware. Delaware became a part

of this historic decision after the state's Supreme Court ordered

two districts to admit black children into de jure all-white

schools. Gebhart v. Belton, 91 A.2d 137 (Del. 1952). It was the

appeal from that decision that was consolidated with the Topeka

case.

There was no straight and unwavering march toward a

color-blind school system in the aftermath of Brown, however.

Rather, desegregation in Delaware and elsewhere has had a "long,

tortured history," Evans v. Buchanan, 447 F. Supp. 982, 1000 (D.

Del.), aff'd, 582 F.2d 750 (3d Cir. 1978), cert. denied, 446 U.S.

923 (1980). Resistance to the mandate of Brown was fierce, and

at times violent. Then-Governor George Wallace of Alabama spoke

for many when, standing on the front steps of the University of

Alabama in Tuscaloosa, he denounced the "illegal usurpation of

[state] power by the Central Government" and tried to block

admission of African-American youngsters into the state

university system.

Delaware officials, as well, proved less than

responsive to the constitutional mandate to desegregate the

state's public schools and, as a result, the federal courts were

compelled to enforce the mandate one ruling at a time,

culminating with this Court's desegregation order in 1978. Evans

v. Buchanan, 582 F.2d 750 (3d Cir. 1978) (in banc), cert. denied,

446 U.S. 923 (1980). Today we are asked to lift this order.

The Majority accurately reflects the tortured

history of this matter. The elapse of four decades of litigation

and court supervision clearly militates against its continuance,

but it is also evidence of begrudging compliance with repeated

court orders to desegregate. I find it ironic that the delay in

implementing the orders of this court to end segregation is now

being utilized to justify the end of court intervention.

Although it is very tempting to end judicial supervision in the

face of substantial progress, it would be unfortunate to abandon

it just short of success. I dissent, not because I conclude that

any of the findings of the district court are erroneous, but

rather because accepting them causes me to conclude that some

vestiges of past discrimination may remain, although I concede

that many have been eliminated.

I concur with the majority's recognition of the

need to return control of schools to local communities, but only

if and when we are satisfied that the goals established some 18

years ago have been substantially met. I challenge the

majority's suggestion that the court's role in these matters has

"denied multiple generations of elected officials the freedom to

participate fully in representative government." Majority at

68. The denial of that participation, if it occurred, was not

due to judicial usurpation but rather arose from the

discriminatory and unconstitutional conduct of many of those

elected officials. It is not the courts who have delayed the

return to local power, but it is those elected officials who

failed to act "with all deliberate speed." Brown v. Board of

Education [Brown II], 349 U.S. 294, 301 (1955). Even if we are

to withdraw our supervision at this juncture, I see little need

to apologize for the court's intervention in these matters.

Without such intervention our schools would have remained

separate and unequal and a segment of our nation would have been

denied rights and opportunities to which all are entitled.

I. Shared principles

Before I articulate the reasons for my dissent, I want

to underscore the shared premises under which the majority and I

operate.

There is, first of all, no disagreement that "to extend

federal court supervision indefinitely is neither practicable,

desirable, nor proper," Majority at 16, and this is not what I

advocate today. At the same time, the Supreme Court has held

that supervision by the courts should continue until "the

vestiges of past discrimination ha[ve] been eliminated to the

extent practicable." Freeman v. Pitts, 503 U.S. 467, 492 (1992).

Because the Appellees have not met this requirement, I believe

that withdrawal of supervision is premature at this point.

Nor is there any disagreement between the Majority and

the Dissent that "[t]he proper test under the Constitution is

equality of opportunity, not of results." Majority at 31. To

the extent that the principal issue in this Dissent is the

placement of African-American children in lower-level classes,

and to the extent that the district court itself found that

"lower levels of instruction may not encourage achievement and

may adversely affect the ability of a student to attend college,"

Coalition to Save our Children v. State Bd. of Educ., 901 F.

Supp. 784, 801, 49 (D. Del. 1995), it is their opportunity to

succeed academically that is at stake.

Finally, I share the Majority's "reluctan[ce] to impose

any unstated obligation on the school boards." Majority at 61.

At the same time, we should not impose or tolerate any

limitations on the opportunity of young black students to

participate equally in the educational process and derive all of

the benefits therefrom.

II. Factual findings

I now turn to the substantive review of the district

court's ruling. First, I agree with the Majority's conclusion

that the vestiges of segregation have been eliminated with

respect to the following areas: intra-district student racial

balance, Majority at 18-20; special education student assignment,

id. at 21-24; faculty and clerical staff assignment, id. at 32-

36; extracurricular activities, id. at 37-38; transportation, id.at 39;

facilities, id.; in-service training, id. at 41-44;

reading skills, id. at 44-47; curriculum, id. at 48-50;

counseling and guidance, id. at 50-52; human relations, id. at

52-53; and discipline, id. at 53-57.

However, I cannot agree with the Majority that the

Appellees demonstrated, or that the district court correctly

concluded, that the vestiges of segregation have been eliminated

with respect to the following facets of school operations:

student classroom assignment; certified staff assignment; and

communications skills programs. I therefore would remand to the

district court for further findings regarding these three areas.

In addition, because classroom assignment affects student

achievement, I would remand for further findings regarding the

so-called "areas of concern." Finally, because the district

court did not apply the correct legal standard regarding the

exclusion of the testimony of one of the Coalition's experts, I

would remand for further findings on this issue as well.

A. Student classroom assignment

I note, first of all, that "the school districts

acknowledge bearing the evidentiary burden" of proving compliance

with this issue, other Green factors and the 1978 Order. SeeMajority at

59.

1. The district court's findings and conclusions

Findings 30 to 49 of the district court's opinion

concern student classroom assignments. Coalition, 901 F. Supp.

at 799-401. Findings 34 through 49 focus more specifically on

"tracking" or "ability grouping," i.e., the assignment of

students "to various instructional groups on the basis of

ability." Id. at 800-01. Among the court's findings are the

following:

36. The extent to which elementary and

middle school students are placed in classes

according to their ability is unclear from

the record.

* * *

38. In 1993, the percentage of

minorities in the self-contained honors and

gifted student program at Burnett Elementary

School [the only self-contained "gifted"

student program in the 4 districts, id. at

800 n. 27], who scored above 85% on exams is

slightly greater than that for the other

groups.

* * *

46. A review of the percentages of the

racial groups who were taking college and

non-college prep classes illustrates that: a)

a little over 50% of Brandywine's black

students in grades 9-12 were taking non-

college prep English, whereas a little less

than 20% of Brandywine's white students were

taking that level of English; b) a little

over 60% of Christiana's black students in

grades 9-12 were taking non-college prep

English, whereas a little less than 25% of

Christiana's white students were taking that

level of English; c) a little over 50% of

Colonial's black students in grades 9-12 were

taking non-college prep English, whereas a

little less than 35% of Colonial's white

students were taking that level of English;

d) a little over 40% of Red Clay's black

students in grades 9-12 were taking non-

college prep English, whereas a little less

than 17% of Red Clay's white students were

taking that level of English. Less than 5%

of black students were enrolled in advanced

English in the high schools of the 4

districts; however, over 20% of white

students were at that level.

47. There is evidence that among high

school students who achieve identical testing

scores ["The comparison apparently does not

include academic achievement as measured by

course performance, or whether such placement

was requested or required." Id. at 801

n.30.], black students were more likely to be

placed in the lower level class than were

white students.

48. On the other hand, the percentage of

minorities enrolled in honors and AP classes

who scored over the 75th percentile in

reading or math in the spring of 1993 is

slightly greater than that of whites in all 4

school districts.

49. There is evidence that lower levels

of instruction may not encourage achievement

and may adversely affect the ability of a

student to attend college.

Id. at 800-01 (citations omitted).

Taken together, these findings demonstrate that: (1)

African-American students are less likely to be assigned to high-

level classes than their white counterparts, and more likely to

be placed in low-level classes [ 46]; and (2) these disparate

assignments are made at least in part for reasons other than

academic merit, since black students who perform as well as white

students are "more likely to be placed on the lower level class

than [are] white students" [ 47; see also 38, 48]. In the

absence of alternative explanations, these findings permit the

inference that the four districts' tracking practices may be

based, at least in part, on racial considerations. Furthermore,

the court's findings demonstrate that these disparate tracking

assignments may deprive African-American students of the

opportunity to achieve the same level of academic success,

including college admission, as their white counterparts [ 49].

The district court made no additional finding of fact

regarding alternate explanations for these "potentially

troubling" findings, see Majority at 24. Furthermore, whereas it

was able to conclude, with regard to school-based student

assignments, that "[t]he 4 districts are among the most racially

balanced schools in the United States," see Coalition, 901 F.

Supp. at 799, 29, it reached no such conclusion regarding

tracking-based assignments.

The court did conclude as a legal matter that "there is

no credible evidence linking any current racially identifiable

conditions to the prior violation," id. at 823, and that "the

vestiges of past discrimination have been eliminated to the

extent practicable." Id. at 823-24. I believe that the evidence

discussed supra does not support this conclusion.

First of all, the court's own findings constitute

"credible evidence" potentially linking one racially identifiable

condition -- i.e., the racial disparities in assignment to high-

level and low-level classes -- to "the prior violation."

Second, while the findings regarding student tracking

do not prove conclusively that the school districts discriminate

in their tracking practices on the basis of race, they certainly

do not support the opposite conclusion -- i.e., that the

districts do not discriminate on the basis of race. If anything,

the court's findings create a presumption that race might be a

factor in New Castle County's tracking practices. Since the

burden with regard to the Green factors -- including student

assignments -- is on the Appellees to prove that the vestiges of

segregation have been eliminated, and since the Appellees offered

no explanation for the disparities in tracking, the uncertainty

as to the cause of the disparities should be resolved in favor of

the Coalition, and therefore the district court's conclusion that

the vestiges have been eliminated, at least with regards to

student classroom assignment, was unsupported and premature.

2. The Majority's analysis

Despite the disparity between the court's own findings

of fact and its conclusions of law, the Majority affirms the

court's conclusion. I believe that the Majority's position is

based on the wrong standard of review, the wrong allocation of

burdens and an unsustainable reading of the evidentiary record.

(a)

First, the Majority defines "our task" as "to inquire

whether the district court's determination of the districts'

unitary status was clearly erroneous." Majority at 26. The

district court's determination as to unitary status, however, is

one not of fact, which we would review for clear error, but of

law, see Coalition, 901 F. Supp. at 822-23, which as is customary

we subject to plenary review.

(b)

Second, time and again the Majority dismisses the

import of the district court's factual findings by resolving gaps

in the evidentiary record and ambiguities as to those factual

findings in favor of the Appellees, despite the fact that by its

own acknowledgment, and that of Appellees, Appellees bear the

burden of showing that the vestiges of discrimination have been

eliminated.

(i) The Majority dismisses the district court's finding

that "among high school students who achieve identical testing

scores, black students were more likely to be placed in the lower

level class than were white students," Coalition, 901 F. Supp. at

801, 47, as "no[] . . . evidence that black students have not

received equal opportunity." Majority at 25. While the Majority

concedes that this "potentially troubling" finding might

"suggest[] on its face that black students may have been

segregated from white students of equal testing aptitude," id. at

24, it rejects this conclusion on the ground that the comparison

did not "consider[] as well the important factor of academic

achievement based on course performance," and that "it is not

clear whether the placement at issue was requested or required."

Id. at 25.

Of course, the evidentiary gaps that the Majority

identifies do not nullify the import of the district court's

finding as to potential disparate treatment of equally qualified

students based on race. Furthermore, these gaps should not serve

to exonerate the party that bears the burden of proof;

uncertainty as to the significance of the district court's

factual finding should not be resolved in favor of the party that

bears the burden.

(ii) The Majority dismisses the district court's

finding that "the percentage of minorities enrolled in honors and

AP classes who scored over the 75th percentile in reading or math

in the spring of 1993 is slightly greater than that of whites in

all 4 school districts," Coalition, 901 F. Supp. at 801, 48, as

"so limited, and thus malleable, a sample," Majority at 25, as to

allow any number of inferences. Specifically, while the Majority

acknowledges that "this finding could . . . give rise to an

inference that blacks must perform at a higher level than whites

in order to be placed in honors and AP classes," it suggests that

"we may just as reasonably infer something quite different: that

the school districts' good faith efforts to desegregate have paid

off in terms of the improved testing performance of black

students." Id. at 25-26.

The Majority's inference, even assuming that it is one

an appellate court could draw, is unconvincing at best: the issue

is not whether some black students perform well, but rather

whether black students must perform better than whites to be

placed in honors and AP classes, which the district court's

finding clearly suggests. In any case, once again it is

inappropriate -- and legally erroneous -- to dismiss the

Coalition's interpretation because another interpretation, more

favorable to Appellees, is possible when the burden lies with

Appellees.

(iii) The Majority dismisses the district court's

finding that "[t]he extent to which elementary and middle school

students are placed in classes according to their ability is

unclear from the record," Coalition, 901 F. Supp. at 800, 36,

as "mean[ing] little on its own, for it represents merely that

there is uncertainty in the record about how elementary and

middle school students are placed in classes according to their

ability." Majority at 26.

True enough. However, uncertainty about student

placement merely demonstrates that Appellees have failed to meet

their burden of showing that the vestiges of discrimination have

been eliminated. To suggest otherwise is to misallocate the

evidentiary burden.

(iv) The Majority dismisses the district court's

finding of "[e]vidence that lower levels of instruction may not

encourage achievement and may adversely affect the ability of a

student to attend college," Coalition, 901 F. Supp. at 801, 49,

as "not establish[ing] anything specific about whether that

putative problem is related to disparate educational opportunity

or treatment according to race." Majority at 29.

The significance of this finding, however, is not to

demonstrate that black students are channeled to lower-level

classes, but that if they are, this would have a deleterious

effect on their level of academic achievement. This finding,

when read in the context of the district court's other findings

suggesting that students are assigned to different levels of

instruction based on race, is ominous and suggests that the poor

performance of black students in a number of areas might not be

related solely to socioeconomic factors.

(c)

At the end of its analysis, the Majority proclaims that

"[a]s we already have made clear, [the basis on which students

are placed in lower levels of instruction] was not racially

discriminatory." Majority at 29. In fact, neither the district

court's findings nor even the Majority's analysis supports such a

conclusion. At best, they suggest that the record is

indeterminate regarding whether students are assigned to certain

levels of instruction on the basis of race -- i.e., that

Appellees have failed to establish that in the area of student

assignment, the vestiges of discrimination have been eliminated

to the extent practicable.

3. Conclusion

For the foregoing reasons, I would remand to the

district court for further findings regarding the racial

disparities in tracking.

B. Certified staff

Regarding the issue of staff assignment, the district

court noted that "[t]he staff is divided into three subsections:

administrative staff, certified staff, and classified staff."

Coalition, 901 F. Supp. at 802, 50. As the court explained,

"'[c]ertified staff' includes nonadministrative certified

personnel such as teachers, psychologists, speech and hearing

therapists, educational diagnosticians and other 'instructional

and pupil support personnel.'" Id., 52.

Except for teachers, the court made no finding

regarding the racial identifiability of the schools with respect

to the certified staff. Similarly, the Majority discusses the

districts' efforts regarding the faculties, Majority at 33-35,

and the "non-professional" or "classified" staff only, id. at 35-

36, but in no way discusses the districts' efforts regarding

certified staff.

No one disputes that these professionals were included

in the 1978 Order, and I see no reason for the district court's

omission. Therefore, I would remand to the court for further

findings regarding whether vestiges with regard to certified

staff have been eliminated.

C. Communication skills

The 1978 Order required the districts (which at the

time were consolidated into a single district) "to institute an

affirmative reading and communication skills program which does

not resegregate pupils." Evans, 447 F. Supp. at 1015-16. I do

not dispute the Majority's conclusion that "the districts . . .

met the standard of good faith compliance with" the Order

regarding reading skills. See Majority at 45. However, the

district court made not a single finding regarding the

implementation of a communication skills program. See Coalition,

901 F. Supp. at 809-10, 168-185.

The Majority contends that this oversight is

inconsequential because "there is no meaningful distinction

between reading skills programs and communication skills

programs," Majority at 47, and that "'reading skills' and

'communications skills' are synonymous for purposes of our

analysis here." Id. at 48. However, there is no support in the

record to read the "communication skills" requirement as mere

surplusage. I cannot agree with the Majority's suggestion,

eighteen years after the fact, that the language of the 1978

Order was merely sloppy or redundant. This suggestion is not

only in contradiction with the careful analysis of the district

court at the time, but also with the plain meaning of the words.

Reading and communication are different forms of human activity,

and they involve different skills. Therefore, I would remand to

the district court for further findings in this area.

D. Areas of concern

In addition to the so-called Green factors and the

ancillary relief measures outlined by the district court in 1978,

the district court considered several "areas of concern" for

possible discriminatory practices: student achievement; special

education; and dropout rates. Coalition, 901 F. Supp. at 818-22.

As the Majority acknowledges, there is no dispute that

significant disparities along racial lines remain in these

various areas. See Majority at 57. The issue is whether these

disparities are legally cognizable vestiges of de juresegregation. The

district court concluded that "[t]here is no

credible evidence demonstrating that the differences between

black and white children's success in school can be attributed to

the former de jure segregated school system." Coalition, 901 F.

Supp. at 823.

In a very real sense, there can be no doubt that the

condition of many African-Americans in our society is a lasting

legacy of a time when people of color as a matter of law were

denied equality of opportunity. However, the Supreme Court has

made it clear that not all vestiges of de jure segregation are

"the concern of the law," but only those that "have a causal link

to the de jure violation being remedied." Freeman v. Pitts, 503

U.S. 467, 496 (1992).

With regard to the Green factors, causality is

presumed. As the Majority explains, "the Green factors have

become per se vestiges of de jure segregation." Majority at 58.

Causality is also presumed for the ancillary relief measures

contained in the 1978 Order. But the issue of establishing

causality is a more difficult one in the case of the identified

performance disparities.

I agree with the Majority that under the typical

scenario, "[b]ecause the performance disparities claimed by

Appellant are not among (or even similar to) the Green factors or

the vestiges identified in the 1978 Order, we will not simply

presume . . . that these are vestiges of de jure segregation."

Majority at 59. I also agree with the Majority, however, that if

the district court ultimately were to find that the school

district has not achieved unitary status, the burden would shift

and the plaintiffs would be entitled to a presumption of

causality. See id. at 60 (citing Vaughns by Vaughns v. Bd. of

Educ. of Prince George's County, 758 F.2d 983, 990-91 (4th Cir.

1985)).

As I explain supra, I believe that remand is

appropriate in the instant matter for further findings regarding

classroom assignment. If the district court were to conclude on

remand that students are assigned to different levels of

education based on race, under Vaughns v. Vaughns such a finding

would create a presumption of causal relationship between the dejure

violation and the disparities in achievement, and the

evidentiary burden would shift to Appellees. We note, too, that

this presumption would be entirely consistent with the district

court's own finding that "lower levels of instruction may not

encourage achievement and may adversely affect the ability of a

student to attend college." Coalition, 901 F. Supp. at 801,

49.

Because any conclusion the court draws regarding class

placement may affect its conclusion that "[t]here is no credible

evidence demonstrating that the differences between black and

white children's success in school can be attributed to the

former de jure segregated school system," id. at 823, I would

vacate the court's conclusion regarding the so-called areas of

concern and remand for reconsideration in light of the above.

E. Exclusion of Jan de Leeuw's testimony

The Coalition argued on appeal that the district court

improperly excluded expert testimony it sought to present to

rebut the defendant' own experts, and that it was prejudiced by

the exclusion. The Majority correctly notes that "[a] trial

judge's exclusion of testimony cannot be disturbed on appeal

'absent a clear abuse of discretion.'" Majority at 56 (citing

Semper v. Santos, 845 F.2d 1233, 1238 (3d Cir. 1988); Fashauer v.

New Jersey Transit Rail Operations, 57 F.3d 1269, 1287 (3d Cir.

1995)). However, review is plenary when the district court's

evidentiary ruling "implicates 'the application of a legally set

standard.'" Lippay v. Christos, 996 F.2d 1490, 1496 (3d Cir.

1993) (quoting Savarese v. Agriss, 883 F.2d 1194, 1200 (3d Cir.

1989)).

1. Factual findings

On November 2, 1994, the district court issued an order

setting up, inter alia, the framework for pre-trial discovery.

In particular, the court ordered that by November 9, 1994, "each

party [should] designate which of its experts [would] testify at

trial and the specific subject matter as to which each expert

[would] testify." Coalition to Save our Children v. Delaware

Board of Education, Nos. 1816-1822-SLR, slip op. at 4 (D. Del.

Nov. 2, 1994) (Order) (JA 318). The court further ordered the

parties to "exchange expert reports, the content of which will

comply with Fed. R. Civ. P. 26(a)(2)(B)" by November 23. Id.,

slip op. at 5 (JA 319).

The Coalition submitted its list of experts on November

17. Among those listed was Dr. Jan de Leeuw, Director of the

UCLA Statistical Consulting Center. Redesignation of Expert

Witnesses, Coalition to Save our Children v. State Board of

Education, C.A. No. 1816-1822 SLR, slip op. at 2 (D. Del. Nov.

17, 1994) (JA 346). Dr. de Leeuw was to "be called as an expert

witness in the fields of statistical consultation, data analysis,

and related matters." Id.

Dr. de Leeuw submitted his Report on Creation and Use

of Database (hereinafter the "de Leeuw Report") on November 29,

1994. JA 4041. The report deals exclusively with the

preparation and construction of the database. One section,

entitled "Goal of Analysis," explains:

The analysis consists of providing expert

witnesses with tables. The tables depicted

the racial composition of districts and

schools with regard to outcomes of interest.

These tables provide the actual number and

percentages of students who fall within each

of these categories. In addition, the tables

include marginal (or conditional)

percentages.

De Leeuw Report at 14 (JA 4055).

An attorney for the school system wrote to the court on

December 1 protesting that "the expert reports provided by

Plaintiff were incomplete," Letter from Rodman Ward, Jr. to Judge

Sue L. Robinson (Dec. 1, 1994) (JA 362), and asking that the

Coalition provide "expert reports that comply fully with Rule

26(a)(2)(B)" by December 9. Id.; see also Letter from Rodman

Ward, Jr. to Thomas D. Barr (Dec. 2, 1995) (JA 384). The

Coalition apparently did not supplement Dr. de Leeuw's report by

that date. Board's Brief at 55.

Dr. de Leeuw was deposed on December 15. After being

initially asked if he would be "offering any opinions in this

matter," he responded, "Opinions, no. I have to describe the

database construction, and I don't think that involves any

opinions." Deposition of Jan de Leeuw, Dec. 15, 1994

(hereinafter the "de Leeuw Deposition") (JA 1562). However,

Thomas Henderson, a counsel for the Coalition, intervened later

during the deposition to "give [the Board's counsel] notice that

[Dr. de Leeuw] may testify as to materials and analyses, data . .

. in the defendants [sic] reports." Id. (JA 1563). Describing

this intervention as "a real problem," Andre G. Bouchard, the

school system's counsel, requested that he be given notice if the

Coalition intended to call Dr. de Leeuw to testify about

"anything outside of his report." Id. Mr. Henderson responded,

"Well, I heard your request and it's on the record, and I will

consider that." Id.

The same day, the Coalition informed the defendants of

its intention to call three new rebuttal experts. One of these

witnesses was Dr. Franklin Fisher, a professor of economics at

M.I.T., who was to testify on the statistical analysis methods

used in the reports by Dr. Rossell, Dr. Armor and Dr. Walberg,

three of the Board's witnesses. JA 858. The defense objected

during a hearing held on December 27, on the ground that Dr.

Fisher's testimony would simply "duplicate what [it] thought Mr.

Deleeuw [sic] was supposed to do." JA 860. The next day, the

court sustained the objection and excluded the new experts'

testimony:

The deadline for naming experts is long past.

The general context of defendants' experts'

testimony and methodology used by these

experts should have been of no surprise to

the plaintiff. Defendants would be

prejudiced if these experts were allowed to

testify. And plaintiff has not claimed

prejudice in the absence of their testimony.

Tr. 1572 (JA 863). The Coalition did not appeal the court's

ruling.

On January 3, 1995, the day of Dr. de Leeuw's

testimony, the Coalition's counsel handed to the defendants what

defendants describe as "91 pages of charts and statistical data,"

Board's Brief at 56, and signaled that it intended to call Dr. de

Leeuw to offer rebuttal testimony regarding the analyses of three

experts for the defendants, Drs. Armor, Achilles and Reschly.

Boards' Brief at 56. The new testimony sought from Dr. de Leeuw

was to be the same as that which the Coalition expected to elicit

from Dr. Fisher, and that the court excluded on December 28. JA

1229. This time again, however, the court excluded the testimony

on the ground that the Coalition's effort failed to comply with

the court's previous orders and with Rule 26.

2. Legal analysis

The Coalition argues that the court's exclusion of Dr.

de Leeuw's rebuttal testimony is contrary to Rule 703 of the

Federal Rules of Evidence, as well as "normal practice and the

common usage of expert witnesses." Appellant's Brief at 47. The

Coalition further argues that exclusion of Dr. de Leeuw's

testimony "does not make sense since Dr. de Leeuw's testimony was

fashioned, and could only have been fashioned, after the cross-

examination of the School System's witnesses and the production

of data bases and disk files that were made during trial." Id.at 47-48.

Finally, the Coalition argues that the excluded

testimony "would have demonstrated a series of methodological and

analytical flaws fatally undermining [the Coalition's]

testimony." Id. at 47. Because the district court failed to

consider the importance of Dr. de Leeuw's proffered testimony, I

would remand.

(a)

I note, first, that Rule 703 of the Federal Rules of

Evidence is inapposite to the dispute at hand. Rule 703 states,

inter alia: "The facts or data in the particular case upon which

an expert bases an opinion or inference may be those perceived by

or made known to the expert at or before the hearing." The

subject of the dispute over Dr. de Leeuw's testimony, and the

reason for his exclusion, is the scope of his expertise as

defined in the Coalition's November 30 report, and more

specifically "whether at this late stage in the proceeding the

plaintiff should be given the opportunity to present affirmative

evidence by an expert never before qualified in" the area of

student achievement. JA 1230 (statement by The Court).

Similarly, the cases cited by the Coalition as

evidencing "normal practice and the common usage of expert

witnesses" are of no relevance in the instant case. The issue in

the first two cases was whether an expert should be allowed to

testify after attending the testimony of other witnesses,

allegedly in violation of an order by the court excluding all

witnesses from the courtroom during trial. United States v.

Crabtree, 979 F.2d 1261, 1270 (7th Cir. 1992), cert. denied, 114

S. Ct. 216 (1993); United States v. Bramlet, 820 F.2d 851, 855

(7th Cir.), cert. denied, 484 U.S. 861 (1987). Nor does the

third case cited by the Coalition, an unreported district court

opinion, offer any support for its argument. Laysears v.

Schindler Elevator Corp., No. Civ. A. 94-3152 (E.D. Penn. Sept.

27, 1995).

(b)

The Coalition next argues that Dr. de Leeuw's testimony

could only have been fashioned after cross-examination of the

Board's witnesses and the production of databases and disk files

during trial. There are two problems with this argument. The

first is that regardless of when specific data was given to the

Coalition, the Coalition was aware all along that the school

system would present statistical analyses as part of its

argument, and it was aware by late November of the areas for

which statistical analysis would be presented. The second

problem has to do with the chronology of what information was

available and when. As just noted, as of November 30, the

Coalition knew the subjects on which the school system's various

experts would testify, and the extent to which they relied on

statistical analysis. JA 1289. As to specific experts,

"anything that Dr. Achilles relied on in his testimony was

entirely in the appendix to the report on the 30th in terms of

all the backup data for his tables." JA 1290. Regarding Dr.

Reschly's testimony, "the backup tables for all of that data [the

data on which Dr. Reschly relied] were all contained in the

appendix that [the school system] delivered on November 30th."

Id. Finally, as to Dr. Armor, it appears from the school

system's uncontroverted testimony that "[h]is methodology is

described in his report. The statistical analysis is described

in his report. The assumptions that he made in his regression

methodology is described carefully and fully in his report." Id.

Therefore, the only data that was missing as of December 1 was

specific census data used by Dr. Armor in his work -- but again,

while the Coalition may not have had all the data as of November

30, it knew the scope and methodology of the testimony to be

presented by the school system. Therefore, the district court

was certainly acting within its discretion when it found that the

Coalition failed to comply with its orders regarding Dr. de

Leeuw's belated testimony.

(c)

Our analysis does not end with the district court's

finding, however. It has been the "consistent position" of the

Third Circuit that "'the importance of the excluded testimony is

one of the factors to be considered in deciding whether the trial

court abused its discretion in excluding a witness.'" Sowell v.

Butcher & Singer, Inc., 926 F.2d 289, 302 (3d Cir. 1991) (quoting

Meyers v. Pennypack Woods Home Ownership Assn., 559 F.2d 894, 904

(3d Cir. 1977), overruled on other grounds, Goodman v. Lukens

Steel, 777 F.2d 113 (3d Cir. 1985), aff'd, 482 U.S. 656

(1987)). Other factors include: "bad faith on the part of the

party seeking to call witnesses not listed in his pretrial

memorandum," Meyers, 559 F.2d at 904; "ability of the party to

have discovered the witnesses earlier," id.; "validity of the

excuse offered by the party," id.; "willfulness of the party's

failure to comply with the court's order," id.; and "the parties'

intent to confuse or mislead his [sic] adversary." Id.. As the

court in Meyers explained, the following "basic considerations"

should guide the court's decision:

(1) the prejudice or surprise in fact of the

party against whom the excluded witnesses

would have testified, (2) the ability of that

party to cure the prejudice, (3) the extent

to which waiver of the rule against calling

unlisted witnesses would disrupt the orderly

and efficient trial of the case or of other

cases in the court, and (4) bad faith or

willfulness in failing to comply with the

court's order.

Id.at 904-05; see also DeMarines v. KLM Royal Dutch Airlines, 580

F.2d 1193, 1201-02 (3d Cir. 1978).

Furthermore, "the likelihood of finding an abuse of

discretion is affected by the importance of the district court's

decision to the outcome of the case and the effect it will have

on important rights." In re Paoli Railroad Yard PCB Litigation,

35 F.3d 717, 750 (3d Cir. 1994) (citation omitted), cert. deniedsub nom.

General Electric Co. v. Ingram, 115 S. Ct. 1253 (1995).

There is no evidence in the record that the district

court considered the importance of Dr. de Leeuw's proffered

testimony or several of the other factors outlined in Meyers.

Therefore, I believe that we should vacate the district court's

decision to exclude Dr. de Leeuw's belated testimony and remand

to the district court for the more complete consideration of Dr.

de Leeuw's testimony that the law of this Circuit demands.

III. Conclusion

The presence of a number of young black students at the

argument of this matter should serve as a compelling reminder to

us that while we struggle over the sufficiency of proof and

allocation of burdens, our decision today directly affects the

education and future of many of these young people.

As I cannot join the opinion of the Majority on the

legal grounds outlined above, neither can I join the condemnation

of Coalition's counsel. Without the zealous advocacy

demonstrated throughout this case's history, much of what has

been accomplished in the past two decades would not have been.

Nor can I join in the Majority's criticism of "the

micromanagement of [segregated] school systems by the federal

courts." Majority at 67. The courts assumed their role in these

matters not out of an unquenchable thirst for power or a desire

to intrude upon the province of others, but because of the

failure of those charged with the responsibility of ending

segregation to fulfill the duties imposed upon them and respond

voluntarily to the commands of Brown. The courts' authority in

these matters does not spring from arrogance, nor does it merely

"inhere in equity jurisdiction." Id. It is rooted in the Equal

Protection Clause of the Fourteenth Amendment to the United

States Constitution.

Much time has elapsed since the State of Delaware was

first ordered to desegregate its schools and, admittedly, much

has been accomplished. But unless and until we can be certain

that all of the vestiges of past discrimination have been

eliminated to the extent practicable, supervision should not be

abandoned. Considering that we are dealing here with the

education and future of a large number of tomorrow's leaders, to

trade additional time for greater equality is not a bad bargain.

Accordingly, I would remand for further consideration

and findings consistent with this opinion.