Motion to Dismiss — Madeline Buchanan v. Brenda Evans

Supreme Court of the United States

OctoBeR TERM, 1974

No. 74-1418

MapELINE BUCHANAN, ET AL., Appellants

v.

BRENDA Evans, ET AL., Appellees

On Appeal from the United States District Court

for the District of Delaware

MOTION TO DISMISS OR AFFIRM

Lovuts L. REDDING

1200 Farmers Bank Building

Wilmington, Delaware 19801

Irvine Morris

JOsEPH A. RosENTHAL

Morris & RosENTHAL

301 Market Tower Building

Wilmington, Delaware 19899

RicHARD ALLEN PAUL

Pau & LUKoFF

1700 Wilmington Tower

Wilmington, Delaware 19801

Louis R. Lucas

Ratner, SuGaRMON, Lucas

& SALKY

525 Commerce Title Building

Memphis, Tennessee 38101

WuuiM L. TAYLor

Catholic University Law School

Washington, D.C. 20064

Counsel for Appellees

Peess or Brnow S. Apams Parvrrine, Inc., Wasumveton, D. C.

TABLE OF CONTENTS

Page

Morton To Dismiss oR AFFIRM ...........0..000000e 1

GY MY Bb oa asd vo Ri cc acecivee qetebdececes 2

ConstiTuTIonAL aNp Statutory Provisions Invotvep.. 2

RS EE ee Pap ey Py OPP Pe Pee 3

RROD «vo bis ive Swid owen 60 U6b.cb cable vemcetoe se 8

I. Tats Appgat SHoutp Be Dismissep as Prema-

ture Since No Insuncrion Has Issvuep InTeER-

FERING WITH THE OPERATION OF THE CHALLENGED

i Se RE ee ks SR SE nea &

II. ArrrrMaNce oF THE Decision Betow Is Dictarep

Boru sy THE Princretes or MImuikEN AND Ar-

LigeD Cases AND BY EsTaBLIsHED Equa. Prorec-

tion Doctrine Reguratine Invatrmation or Un-

JUSTIFIED Ractat CLASSIFICATIONS ............. 12

A. The Decision Below Is Consistent with Prin-

ciples Enunciated by This Court in Milliken

v. Br and with Decisions of Courts of

kn Sows in ee bade ce ove 14

2. The Interdistrict Segregative Effect of the

EW ace eke stancecet 17

3. Racial Containment Through State Hous-

REE COT EE 19

B. Invalidation of the Delaware Educational

Advancement Act Was Required by the Well

Established Equal Protection Doctrine That

Racial Classifications Must Fall Unless Sup-

ported by a Compelling Justification ...... 23

+

TABLE OF CASES AND OTHER CITATIONS

Page

CasEs:

Bradley v. School Board of the City of Richmond, 338

F. Supp. 67 (E.D. Va. 1970), rev’d, 462 F.2d 1058

(4th Cir. 1972), aff’d by an equally divided Court,

438 UE. GB Gian 6 00bshvenshentednacel 14, 15, 20, 21

Brown v. Board of Education, 347 U.S. 483 (1954) ... 3

Crow v. Brown, 332 F. Supp. 382 (N.D. Ga. 1971), aff’d

per curiam, 457 F.2d 788 (5th Cir. 1972) ........

Evans v. Buchanan, 152 F. Supp. 886 (D. Del. 1957),

aff’d, 256 F.2d 688 (3d Cir. 1958) ..............

Evans v. Buchanan, 379 F. Supp. 1218 (D. Del. 1974)

4, 5, 8, 25

Evans v. Buchanan, — F.Supp. —, No. 74-1418 (D.

Dak. Mine BE, FEUER <nccccncsecssscnsccess ces passim

Evans v. Ennis, 281 F.2d 385 (3d Cir. 1960) ......... 4

Evans v. Ennis, 195 F. Supp. 321 (D. Del. 1961) ..... 4

Gaffney v. Cummings, 412 U.S. 735 (1973) .......... 25

Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971) .. 22

Gerstein v. Coe, 419 U.S. 98 (1974) ................. 9,11

Goldstein v. Fox, 396 U.S. 471 (1970) ............... 10

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ......... 25, 26

Gunn v. Committee to End the War in Vietnam, 399

ee BR ee er en ry eee 9,11

Haney v. County Board of Education of Sevier County,

410 F.2d 920 (8th Cir. 1969); 429 F.2d 364 (8th

Oe. BOGED ccc ccccccnsccchcbodsdeninansbessaare 17

Higgins v. Grand Rapids Board of Education, 508 F.2d

TTD (Gia Cle. TBFE) 2... 0. cca dibdovaseviasassses 16

Hoots v. Commonwealth of Pennsylvania, 359 F. Supp.

807 (W.D. Pa. 1973), appeal dismissed, 495 F.2d

1095 (3d Cir. 1974), cert. denied, 419 U.S. 884

terror ee ees 16

Hunter v. Erickson, 393 U.S. 385 (1969) ............ 24, 25

James v. Valtierra, 402 U.S. 137 (1971) ............ 25

Jefferson v. Hackney, 406 U.S. 535 (1972) .......... 25

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) .. 12

Keyes v. School District No. 1, Denver, 445 F.2d 990

(10th Cir. 1971), modified, 413 U.S. 189 (1973) .. 12

Page

Lee v. Nyquist, 318 F.Supp. 710 (W.D.N.Y. 1970),

oe & Rit S Ft eee ere

Loving v. Virginia, 368 U.S. 1 (1967) ............... 26

McLaughlin v. Florida, 379 U.S. 184 (1964) ......... 26

Milliken v. Bradley, 338 F. Supp. 582 (E.D. Mich. 1971),

aff’d im part, vacated in part, 484 F.2d 215 (6th

Cir. 1972), rev’d, 418 U.S. 717 (1974) ........ passim

Newburg Area Council v. Board of Education of Jef-

ferson County, Kentucky, Nos. 73-1403, 73-1408

(6th Cir., Dee. 17, 1974), cert. denied, 43 U.S.L.W.

I Ss i re cee ecens 19

Palmer v. Thompson, 403 U.S. 217 (1971) ........... 25

Reitman v. Mulkey, 387 U.S. 369 (1961) ............. 25

San Antonio Independent School District v. Rodriguez,

BT LE ee ee

Shannon v. HUD, 436 F.2d 809 (3d Cir. 1970) ....... 22

Swann v. Charlotte-Mecklenburg Board of Education,

431 F.2d 138 (4th Cir. 1970), rev’d, 402 U.S. 1

CUE Cumduvbsep see beans ahd &6eubsceweecadues 10, 12

Taylor v. Board of Education of New Rochelle, 191 F.

Supp. 181 (S.D.N.Y. 1961), appeal dismissed, 288

F.2d 600 (2d Cir. 1961); 195 F. Supp. 231 (S8.D.

N.Y. 1961), aff’d, 294 F.2d 36 (2d Cir. 1961), cert.

demted, 368 U.S. 940 (1061) 2... cc ccccccccccess 12

United States v. Black Jack, 508 F.2d 1179 (8th Civ.

1974), cert. denied, 43 U.S.L.W. 3671 (June 24,

EE: bnsskcbedsaldeled denice vGunddnVacenedese 22

United States v. Board of Commissioners of the City

of Indianapolis, Indiana, 503 F.2d 68 (7th Cir.

1974), cert. denied, 43 U.S.L.W. 3569 (Apr. 21,

ST Ratiec Act eedaadicGnevidegeannete sheds os 16

United States v. Missouri, — F.2d —, No. 75-1051 (8th

SS ls SPU eke hd Ac cadbcliiievesevcs 17

United States v. State of Texas, 321 F. Supp. 1043

(E.D. Tex. 1970), modified and aff’d, 447 F.2d 421

(5th Cir. 1971), cert. denied sub nom. Edgar v.

United States, 404 U.S. 1016 (1972) ............ 17

White v. Regester, 412 U.S. 755 (1973) ............. 25

Wright v. Council of the City of Emporia, 407 U.S. 45

SED Cddhucndbbuchsted capers eaecesgécoses 25, 26

iv

OrueEr CrraTIons:

Va, Conse. atin. B, 66.2, GO) 2 cccccciscccdedcedéodvos 15

Sh UBD. 6 We .cccdcivddvicdeae cov aneseeetneseae 9

Education Advancement Act of 1968, 14 Delaware Code

GR WEEE 66 -GOES. 60 apne ceccie 4 coownshngaas 8, 9, 10, 14

Va. Code Ann. § 22-30 (1973) .......cccccccccsccces 15

IN THE

Supreme Court of the United States

OctoBEeR TERM, 1974

No. 74-1418

MADELINE BUCHANAN, ET AL., Appellants

v.

BRENDA EVANS, ET AL., Appellees

On Appeal from the United States District Court

for the District of Delaware

MOTION TO DISMISS OR AFFIRM

The Appellees move the Court to dismiss the appeal

herein or, in the alternative, to affirm the judgment of

the United States District Court for the District of

Delaware entered on April 16, 1975 on the grounds that

the appeal is not within the jurisdiction of this Court,

and that it is manifest that the questions on which the

decision of the cause depends are so unsubstantial as

not to need further argument.

2

OPINION BELOW

The recent opinion of the United States District

Court for the District of Delaware, Civil Action Nos.

1816-1822, Mareh 27, 1975, is not yet reported. That

opinion is set out in Appendix A of Appellants’ Juris-

dictional Statement. The earlier opinion in this case

is reported at 379 F. Supp. 1218.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

U.S. Const. AMEND. XIV, SEC. 1:.... ; nor shall

any State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of the

laws.

Educational Advancement Act of 1968

14 Del. C. § 1001 et seq., §§ 1004(c) (2)-(4).

(ec) On or before March 1, 1969, the State Board

of Education shall meet and adopt a final plan of

reorganization of school districts which it deems

wise and in the best interests of the educational

system of this State; provided, that no plan of re-

organization of school districts shall be adopted

which fails to meet the following requirements:

@) Each proposed school district including

more than one component former schovl district

shall have a pupil enrollment of not less than

1900 nor more than 12,000 in grades 1 through

12. ‘*Pupil enrollment’’ as used in this subsec-

tion means enrollment as of September 30, 1968.

Excluding vocational-technical districts there

shall be no fewer than 20 nor more than 25 reor-

ganized school districts.

(3) Each proposed school district which is

composed of more than one existing school dis-

trict shall be composed of only whole existing

school districts except as herein defined and only

to the extent that those whole existing school

districts are contiguous as reorganized. No

existing school district shall be subdivided in

order to form any proposed school district ex-

cept a superim high school district, which

may be subdivided.

(4) The proposed school district for the City

of Wilmington shall be the City of Wilmington

with the territory within its limits. ....

STATEMENT

In Milliken v. Bradley, 418 U.S. 717 (1974), this

Court foresaw that circumstances might arise in public

school segregation cases where the character of the vio-

lation would warrant a remedy that encompassed more

than one school district. Such a violation of constitu-

tional rights has occurred in school districts in New

Castle County, Delaware, an area of some 435 square

miles with approximately 87,000 public school students

(A. 6, 32).*

The history of the proceedings giving rise to this

issue is in some respects all too familiar to this Court.

More than twenty-one years after this Court’s decision

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

public schools in Wilmington, the core district in New

Castle County, remain racially identifiable’ and, as

* All references to the Appendix are made to the Appendix in

Appellants’ Jurisdictional Statement.

1 Five public schools in Wilmington (three elementary, one

junior high and one high school) that were designated as black

schools before Brown and that were 90 to 100% black in 1956 re-

4

the court below held unanimously, previous school de-

segregation plans have never proved effective and a

unitury school system for Wilmington has never been

established. 379 F. Supp. 1218, 1223.

In one respect, even this history is unusal, for from

the very outset of this case the appellant State Board

of Education, because of the uniquely broad control it

exercises over public education in Delaware has been

the primary defendant and has been held directly re-

sponsible for the defaults that have occurred at several

stages of these proceedings. Thus, when in 1957 the

lower court found that no appreciable steps had been

taken to effectuate compliance with the mandate of

Brown in several Delaware districts, it was the appel-

lant state board, which had been a party defendant in

the original consolidated Brown case, that was culpable

for this dereliction of constitutional duty. Evans v.

Buchanan, 152 F. Supp. 886, 887 (D. Del. 1957), aff’d,

256 F.2d 688, 693-694 (1958). It was appellant’s plan

that was adjudged unsatisfactory by the court below

in 1960 and the new desegregation order ran against the

appellant. Hvans v. Ennis, 281 F.2d 385, 390-391 (3d

Cir. 1960). When a new plan was approved in 1961, it

was appellant state board over whom the court retained

jurisdiction to determine the effectiveness of the man-

ner in which the plan was implemented. 195 F. Supp.

321, 325. And it was the appellant state board that was

primarily responsible for the fact that despite the 1961

plan de jure violations in Wilmington persisted. 379

mained 90 to 100% black in 1973. 379 F. Supp. at 1223 n8.

Correspondingly, schools in other districts in New Castle County

that were historically white remained 90% or more white in 1973,

a fact that led one judge below to conclude that ‘‘it is not only

in Wilmington that vestiges remain.”” Id. at 1229-1230 (Gibbons,

J.).

F. Supp. at 1222-24. In 1971, a group of intervening

plaintiffs filed an amended complaint alleging that a

1968 state statute reorganizing Delaware school dis-

tricts had segregated black children in New Castle

County within the Wilmington school district. Plain-

tiffs further alleged that the state-imposed dual school

system had never been eliminated in Wilmington and

New Castle County.

As the court below succinctly stated, ‘‘it is well estab-

lished that to the extent that any schools in the state are

in violation of Brown and its progeny or of this Court’s

orders, the State Board must bear primary responsi-

bility.’ 379 F. Supp. 1218, 1222 (see also A. 2).

What makes this case materially different in its

facts, however, from any this Court has previously con-

sidered is that not only did the appellant state board

and other state officials participate in the perpetuation

of segregation in the public schools of Wilmington, but

they also contributed substantially to the creation and

maintenance of a de jure segregated situation as be- —

tween Wilmington and the surrounding school districts

of New Castle County.

First, during the entire 21-year period when Wil-

mington schools have been out of compliance with the

Brown mandate, Delaware state officials have pursued

policies that have fostered racial segregation by provid-

ing new housing opportunities for whites in the

suburbs of Wilmington while keeping black citizens

largely contained within the Wilmington district (A.

10-11).

While the initial policies in which the Federal Hous-

ing Administration participated, by calling for the

development of racially and economically homogeneous

6

neighborhoods as a condition for underwriting subur-

ban mortgages, were formally terminated before the

advent of the Brown decision, they contributed sig-

nificantly to the initial establishment of segregated

communities in New Castle County (A. 10). And overt

state encouragement of racial discrimination in housing

continued throughout the 1950s and 1960s in various

forms: through the continued recordation of racially

restrictive covenants (A. 10); through the Delaware

Real Estate Commission’s publication and sanction of

the realtors’ code of racial exclusivity (A. 10) ; through

operation of a multi-iist system by the Greater Wil-

mington Board of Realtors under which in the years

1965-67 only 7% of all new listings in the Wilmington

suburbs were open to minority buyers (A. 11).

Delaware’s policies of racial containment in housing

were implemented not simply by encouragement and

toleration of discrimination by the private housing

industry but by practices of discrimination in housing

provided directly by state officials. Thus, although the

Wilmington Housing Authority until 1972 had juris-

diction to establish public housing units (whose eligible

occupants are predominantly black (A. 12 n.13)), out-

side the city limits it was almost entirely unsuccessful

in securing such sites (A. 11). And the New Castle

County Housing Authority, established in 1972, was

thwarted by the actions of the New Castle County

Council and failed to build any new public housing

units.

During the period from 1954 to 1973, the public

school enrollment of New Castle County expanded from

21,543 children (of whom 4% were black) to 73,008 (of

whom 6% were black) (A. 7). This large county popu-

7

lation growth corresponded with the growth of identifi-

ably black schools in Wilmington which went from a

28% black system in student enrollment (with a total

enrollment of 12,875) to an 83% black system (with a

total enrollment of 14,688) (A. 7). As the court below

found, these changes resulted ‘‘not exclusively from

individual residentia! choice and economics, but also

from assistance, encouragement and authorization by

governmental policies’’ (A. 10).

Second, actions by Delaware school officials also con-

tributed to the growth of segregated schools in New

Castle County. Prior to 1954 and for a period there-

after, children in New Castle County were assigned

across district lines on a segregated basis, leading the

court below to find ‘‘a historic arrangement for inter-

district segregation within New Castle County”’ (A.

33). More recently, optional attendance zones estab-

lished in the Wilmington school district allowed white

students to attend schools in attendance areas other

than those in which they resided (A. 12). The result-

ant increase in the proportionate black school popula-

tion in the transferor schools, the court below found,

may have encouraged an exodus of white families and

‘“‘discouraged white families from moving in,’’ the

impact being felt in the racial composition of housing

and schools in the suburbs as well as the city (A. 12-13).

In addition, beginning in 1968 the state board imple-

mented a substantial program of transportation sub-

sidies for children attending private schools which in-

cluded subsidies for travel across district lines (A. 13-

14). While the interdistrict aspect of the program vio-

lated the provisions of the authorizing state statute, the

Delaware legislature’s response was to amend the

statute in 1973 to authorize the previously illegal sub-

sidies. Noting that such non-public schools were 94%

white, the court below concluded that the subsidy aug-

mented the racial disparity between Wilmington and

county school populations (A. 14).

The third major action contributing to the mainten-

ance and perpetuation of segregated schools in the New

Castle County area was the separate and disparate

treatment given Wilmington by the Delaware legisla-

ture in a general reorganization of all Delaware school

districts accomplished through the Educational Ad-

vancement Act of 1968. 14 Del. C. § 1001 et seq.? When

the legislature acted in 1968 the Wilmington district

was 66% black in its enrollment, well along in the proc-

ess of becoming a separate black island in a predom-

inantly white metropolitan area (A. 18). Neverthe-

less, Wilmington was specifically exempted by name

from the grant of authority contained in the Act which

constituted all districts in the state as ‘reorganized

school districts’? and established an expeditious pro-

cedure enabling the State Board of Education to con-

solidate contiguous districts (A. 18). The Act not

only exempted Wilmington from these procedures but

fixed the boundaries of the district to encompass only

the territory within the City of Wilmington. 14 Del.

©. § 1004(c) (4). Thus, the Wilmington lines were fro-

2In part, this statute was a response to the 1961 decree of the

court below which called upon the state defendants to submit a

new school code to the Delaware General Assembly, including pro-

visions for consolidating districts to eliminate all distinctions based

on race. At least two previous attempts by the State Board to do

what in 1961 it told the court was necessary to eliminate a state-

imposed, state-wide dual system had been rejected by the legisla-

ture. After those rejections no action was taken until 1968. 379

F. Supp. at 1221, 1232.

zen when virtually all other Delaware districts were

made freely subject to change at a time when the ac-

tual, probable ana foreseeable effect of the action was

to foster racial segregation.

On the basis of such actions by the state legislature

and by state officials having jurisdiction over schools

and housing, the court below concluded that ‘‘govern-

mental authorities are responsible to a significant de-

gree for the increasing disparity in residential and

‘school populations between Wilmington and its sub-

urbs in the past two decades’’ (A. 17); that several

interdistrict violations of the kind contemplated by

Milliken had oceurred (A. 31, 33); and that there was

ample basis for requiring the preparation of a plan for

interdistrict relief to be considered along with intradis-

trict plans in determining a feasible remedy that would

redress the denial of appellees’ constitutional rights.

ARGUMENT

I. THIS APPEAL SHOULD BE DISMISSED AS PREMA-

TURE SINCE NO INJUNCTION HAS ISSUED INTER-

FERING WITH THE OPERATION OF THE CHAL-

LENGED STATE STATUTE.

Appellants’ effort to obtain review of this case is

premature because no injunctive relief has been granted

from which an appeal will lie under 28 U.S.C. § 1253.

The unambiguous language of § 1253 and a consistent

line of decisions by this Court make it clear that the in-

dispensable predicate of an appeal is an injunction,

either interlocutory or permanent, interfering with the

operation of the challenged statute. Gerstein v. Coe,

419 U.S. 98 (1974) ; Gunn v. Committee to End the War

10

in Vietnam, 399 U.S. 383 (1970) ; Goldstein v. Cox, 396

U.S. 471 (1970).

No such injunction has issued in this case. What the

court below did was to declare that provisions of Dela-

ware’s Educational Advai cement Act of 1968, 14 Del.

C. § 1001 et seq., were unconstitutional insofar as they

excluded the Wilmington School District fom eligibil-

ity for reorganization with other districts (A. 33). At

this stage of the proceedings the only effect of this dec-

laration is to assure that the court will consider plans

for interdistrict relief along with plans for intradis-

trict relief in determining what remedy to afford to in-

dividual appellees, whose constitutional rights, as all

parties acknowledge in this Court, have been violated.

The court below has yet to make findings that will be

critical in determining whether the ultimate form of

relief to be granted will involve other districts or will

be wholly within the district of Wilmington. The opin-

ion recognizes that before ordering any form of inter-

district relief, the court must examine whether such a

remedy is necessary ‘‘to restore the victims of discrim-

inatory conduct to the position they would have occu-

pied in the absence of such conduct” (A. 31, citing

Millken v. Bradley, 418 U.S. 717, 746 (1974) ), and the

court indicates that it must determine if such relief is

feasible under the principles set down by this Court in

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 22-26 (1971) (A. 31-33).

The court below prudently decided that these critical

determinations could best be made in the light of con-

erete alternative plans for intradistrict and interdis-

trict relief proposed by the parties. Lacking these

plans, which are to be considered in the Fall of 1975,

11

the court said that it ‘‘cannot speculate on the scope of

the proper remedy”’ (A. 31).*

Thus, the constitutional issues on which appellants

would have this Court rush to judgment may never

arise. Should the court below conclude in further pro-

ceedings that on any of the grounds left open by its

opinion of March 27, 1975, relief must be confined to

the Wilmington school district, an order for interdis-

trict relief will never issue. In the interim, the court’s

declaratory judgment that the Educational Advance-

ment Act is unconstitutional has no prejudicial effect

upon any of the parties. It does not command or inhibit

action by the State Board of Education with respect to

any other area of the state, and indeed the reorganiza-

tion powers granted by the Act have long since lapsed

(A. 33). The only consequence of the declaratory judg-

ment is that appellants may not rely upon the Act in

preparing plans for the court to consider in deciding

what type of injunctive relief it will ultimately issue.

This may seem an inconvenience to appellants but it

no more constitutes interference with the operation or

enforcement of a state statute than the lower court de-

cisions in Gunn and Gerstein, supra, which this Court

appropriately declined to review. Nor does it remotely

approach action which ‘‘paralyze[s] totally the oper-

ation of an entire regulatory scheme . . . by issuance of

a broad injunctive order,” justifying direct and rapid

* While the court would not speculate about the ultimate scope

of remedy, appellants apparently feel free to do so in implying

throughout their statement that the court has already undertaken

to impose an interdistrict remedy (see, e.g., Appellants’ Juris-

dictional Statement at 5, 12). Yet such speculation will not

prevent appellants from arguing forcefully in further proceed-

ings that interdistrict remedy is not feasible.

12

review by this Court of a lower court decision. Kennedy

v. Mendoza-Martinez, 372 U.S. 144, 154 (1963). Lack-

ing such action by the court below, there is every reason

for this Court to dismiss the appeal in light of appel-

lants’ failure to meet jurisdictional requirements and in

view of sound considerations of judicial economy.* Ap-

pellants will have time enough to obtain a full review

of their claims if the injunctive order they now appre-

hend looming on the horizon actually materializes.*

Il. AFFIRMANCE OF THE DECISION BELOW IS DIC-

TATED BOTH BY THE PRINCIPLES OF MILLIKEN

AND ALLIED CASES AND BY ESTABLISHED EQUAL

PROTECTION DOCTRINE REQUIRING INVALIDATION

OF UNJUSTIFIED RACIAL CLASSIFICATIONS.

A. The Decision Below Is Consistent With Principles Enun-

ciated by This Court in Milliken v. Bradley and With

Decisions of Courts of Appeals Rendered Both Before and

After Milliken.

While appellants understandably prefer to focus

upon only those portions of Milliken which state the

4 While the statutory considerations are somewhat different it

is relevant to note that school desegregation cases ordinarily reach

this Court for discretionary review only after lower courts have

ruled both on questions of liability and appropriate remedy to-

gether. See, e.g., Keyes v. School Dist. No. 1, Denver, 445 F.2d

990 (10th Cir. 1971) modified 413 U.S. 189 (1973); Swann v.

Charlotte-Mecklenburg Bd. of Educ., 431 F.2d 138 (4th Cir. 1970),

rev’d, 402 U.S. 1 (1971) ; Taylor v. Bd. of Educ. of New Rochelle,

191 F. Supp. 181 (S.D.N.Y. 1961), appeal dismissed, 288 F.2d 600

(2nd Cir. 1961); 195 F. Supp. 231 (S.D.N.Y. 1961), aff'd, 294

F.2d 36 (2nd Cir. 1961), cert. denied, 368 U.S. 940 (1961). In

the rare case where this Court has reviewed a school desegregation

case in the absence of an approved plan for remedy, the courts be-

low have at least determined specifically the type of relief to be

afforded. See Milliken v. Bradley, 418 U.S. 717 (1974).

5 Hearings in the court below on proposed interdistrict and

intradistrict plans are not scheduled to begin until October 20,

1975. No plans for pupil reassignment for the 1975-76 school term

have been proposed by any of the parties.

13

basis for denying relief, this Court quite carefully

limited that decision to the factual record before it and

took pains to delineate circumstances in which it wo |

be appropriate to find a violation leading to interdis-

trict relief. In the view of the Justices in the Milliken

majority, a ‘‘cross district remedy’’ may be justified if:

1. “‘[D]istrict lines have been deliberately drawn

on the basis of race,’’ 418 U.S. at 745, or state offi-

cials ‘‘contributed to the separation of the races by

drawing or redrawing school district lines,’’ id. at

755 (Stewart, J. concurring) ; or

2. There has been a constitutional violation within

one district that produces a significant segregative

effect in another district, id. at 745; or

3. State officials ‘‘had contributed to the separation

of the races .. . by purposeful racially discrimina-

tory use of state housing or zoning laws,”’ id. at 755

(Stewart, J. concurring).

With this decision before it, the court below carefully

examined all of the evidence before finding that such

violations had occurred in each of the categories enum-

erated. Appellants’ entire argument rests upon a

procrustean effort to stretch, bend and twist the facts

of this case to make them fit those of Milliken and other

decisions in an attempt to convince this Court that the

issues have already been decided. But, as will be shown,

Wilmington presents new facts, materially different

from those in Milliken. Indeed, the lower court’s con-

clusions here were entirely consistent with the opinion

in Milliken and with numerous courts of appeals de-

cisions rendered both before and after the Milliken de-

cision.

14

1. Delaware's Redrawing of School District Lines

Under the Educational Advancement Act of 1968 all

districts in the State of Delaware became ‘‘reorganized

school districts’’ and an expeditious procedure was es-

tablished to enable the State Board of Education to con-

solidate contiguous districts (A. 18). The only named

exception in the Act was the Wilmington School Dis-

trict, which at the time of enactment was 66% black in

student enrollment and contained 44% of all black pu-

pils in Delaware public schools.® As to the reorganized

Wilmington district, the Act flatly stated that the

boundaries were fixed to encompass only the territory

within the City of Wilmington. 14 Del. C. § 1004(c)

(4).

We demonstrate infra that principles of equal protec-

tion firmly established by this Court require that such

a statute be invalidated as a prohibited racial classifi-

cation absent a showing of a compelling state interest

that was not forthcoming in the court below. Here it

suffices to note that facially the statute fits the first

standard for an interdistrict violation enunciated in

Milliken and that neither Milliken nor any other case

suggests otherwise.

Appellants’ efforts to avoid this conclusion by claim-

ing that virtually identical statutes were held not to

constitute violations in Milliken and in Bradley v.

School Board of the City of Richmond, 462 F.2d 1058

(4th Cir. 1972), aff’d by an equally divided Court, 412

U.S. 92 (1973), simply do not stand serutiny. Unlike

* Wilmington and one other district also were inferentially ex-

cluded from reorganization by provisions limiting total district en-

rollment to 12,000 pupils and barring the subdivision of existing

districts in the formation of new districts. 14 Del. C. § 1004(c)

(2), (3).

15

the Delaware statute, Michigan’s ‘‘ Act 48”’ dealt only

with the assignment of children within the Detroit

school district. Indeed as this Court noted, Act 48

rescinded a desegregation plan that ‘‘affected only 12

of 21 Detroit high schools and had no causal connection

with the distribution of pupils by race between Detroit

and the other school districts within the tri-county

area.’’ 418 U.S. at 750. Whatever else one may con-

clude about the Delaware Act, its impact was certainly

not limited to the distribution of students within the

City of Wilmington and the Wilmington exception

certainly was causally connected with the distribution

of students in the Wilmington metropolitan area.

In Richmond, the 1971 provisions of the Virginia

Constitution did deal with the subject of consolidation.

But unlike the Delaware statute, the new Virginia Con-

stitution and statutes’ did not single out Richmond or

any jurisdiction having large black student enrollments

for separate and disparate treatment. Nor did they

freeze the boundaries of Richmond or constitute it a

reorganized district as the Delaware Act did with re-

spect to Wilmington. Rather Virginia, as noted in the

Fourth Circuit opinion, simply prevented the State

Board of Education from ‘‘acting alone”’ to effect a

consolidation of Richmond and surrounding systems

under the control of a single school board. 462 F.2d at

1067. And this, as the court pointed ou‘, did not ma-

terially change the situation that existed under the

old constitution and statutes. Accordingly, there was

no colorable claim that the 1971 Virginia provisions

constituted an interdistrict violation.

What solace appellants derive from other circuit

opinions they cite is even more puzzling. In United

7 Va. Const. art. 8, §§ 2, 5(¢) ; Va. Code Ann. § 22-30 (1973).

16

States v. Board of Commissioners of the City of Indi-

anapolis, Indiana, 503 F.2d 68 (7th Cir. 1974), the issue

is whether an extension of the political boundaries of

Indianapolis without a like reestablishment of school

district boundaries constitutes an interdistrict viola-

tion. The court of appeals remanded the case to the dis-

trict court for a determination of this issue in accord-

ance with Milliken, this Court denied certiorari, 43

U.S8.L.W. 3569 (April 21, 1975), and the United States

is urging in the district court that such an interdistrict

violation has occurred. In Higgins v. Grand Rapids

Board of Education, 508 F2.d 779, 796 (6th Cir: 1974),

the statute discussed merely imposed a requirement of

local consent when schoo! district boundaries were to be

extended to include politically annexed territory; it

bore a remote resemblance to the Virginia constitu-

tional provision but has not the faintest connection

with the Delaware statute at issue here.

Far more relevant (although unmentioned by appel-

lants) was the decision in Hoots v. Commonwealth of

Pennsylvania, 359 F. Supp. 807 (W.D. Pa. 1973), ap-

peal dismissed, 495 F.2d 1095 (3rd Cir. 1974), cert.

demed, 419 U.S. 884 (1974), where the district court

found that actions under a Pennsylvania statute provid-

ing for the reorganization of school districts which re-

sulted in the concentration of black children in partic-

ular districts contravened the Fourteenth Amendment.

There was no evidence that black children were less

segregated under the previous form of organization

or even that previous segregation was caused by de jure

acts; yet the court held that when the state engaged in

a general reorganization of school districts it could not

intentionally establish or maintain segregated school

districts. 359 F. Supp. at 823. So too the Eighth Cir-

cuit sitting en banc has recently unanimously held that

17

the continuation of a segregated black school district

over a period of time when other districts were being

reorganized through annexation gave rise to a duty to

merge for purposes of integration. United States v.

State of Missouri, No. 75-1051 (8th Oir., May 14, 1975).

While agreeing that the Ferguson district, sought to be

included in the merger, had not actively participated in

the creation of the segregated Kinloch district, the

court said that intentional segregation in the past could

‘*not be ignored in assessing the impact of present in-

action which has the effect of maintaining segregation.”’

Slip op. at 9-10. Cf. United States v. State of Tezas,

321 F. Supp. 1043 (.D. Tex. 1970), modified and aff’d,

447 F.2d 421 (5th Cir. 1971), cert. denied sub nom., Ed-

gar v. United States, 404 U.S. 1016 (1972); Haney v.

County Board of Education of Sevier Conty, 410 F.2d

920 (8th Cir. 1969) ; 429 F.2d 364 (1970).

In sum, the Delaware statute on its face is an enact-

ment that redraws district lines in a manner contribut-

ing to the separation of the races. Neither in Milliken

nor in any other case has this Court or any other court

sustained such a statute. To the contrary, similar en-

actments have been invalidated by lower courts in sev-

eral cases.

2. The Interdistrict Segregative Effect of the

School Violations

In their zeal to treat Milliken as having closed the

door on interdistrict remedy, appellants have distorted

both the holding and the factual findings of that case.

Milliken did not hold that for an interdistrict violation

to have occurred suburban districts must have partici-

pated in the violation (see Appellants’ Jurisdictional

Statement at 21) ; rather, this Court made clear that the

discriminatory actions of a single district would suffice

18

if it were demonstrated that these actions affected the

schools of other districts. 418 U.S. at 725.

Accordingly, under Milliken if a showing is made

that de jure practices of the central city district had a

segregative impact upon the racial composition of sub-

urban schools, the elements of an interdistrict violation

are established. Contrary to appellants’ assertion, the

lower courts in Milliken did not weigh the interdistrict

effects of central district violations such as the use of

optional attendance zones. The court below in this

case did conscientiously seek to determine if there were

such effects and concluded, reasonably, that the use of

optional zones in Wilmington may have affected the

composition of suburban schools by encouraging white

families to move out of school areas where this de jure

practice increased segregation and by discouraging

white families from moving in.

Appellants have similarly mischaracterized the state

transportation subsidy issue in Milliken. There, the

lower courts were concerned only with the differential

nature of Michigan’s treatment of intradistrict trans-

portation in Detroit and its suburbs. 338 F. Supp. at

589. Here, the court below dealt with a state scheme

subsidizing the attendance of children who reside in

Wilmington in private schools outside the district

which, given the virtually all-white composition of

private schools, augmented racial disparities between

the Wilmington and suburban school district popula-

tions (A. 13-14). Whether considered as state action

having an interdistrict effect or simply as an illustra-

tion of the permeability of district lines in New Castle

County which illuminated the character of other gov-

ernmental acts, Delaware’s interdistrict transportation

subsidy was far more relevant than the transportation

subsidies considered in Milliken.

19

Lastly, the single ‘‘isolated instance’ of suburban

black children attending black public schools in Detroit,

which this Court noted in Milliken involved only two of

the 52 affected districts (418 U.S. at 750), stands in

stark contrast to the situation that existed in the Wil-

mington metropolitan area. In Wilmington during the

1950s black students from seven New Castle County dis-

tricts not only attended a black high school in the Wil-

mington district but several black elementary and jun-

ior high schools as well (A. 8). Moreover, white students

from ‘‘virtually all suburban districts’’ attended white

schools in Wilmington, and with respect to one school,

attendance of children across district lines continued

until the late 1960s (A. 9 n.8). While the court below

did not treat withdrawal of the children as an inde-

pendent violation, it did have a solid basis for conclud-

ing that unlike the situations in Milliken and Richmond,

‘de jure segregation in New Castle County was a co-

operative venture involving both city and suburbs”’

(A. 16). At minimum, this “historic arrangement for

interdistrict segregation’’ (A. 33) was a proper context

in which to view subsequent governmental actions con-

tributing to the racial isolation of city from suburbs.

On very similar facts involving Louisville and Jefferson

County, Kentucky, the Sixth Circuit reinstated after

Milliken an order for interdistrict remedy. Newburg

Area Council v. Board of Education of Jefferson

County, Kentucky, Nos. 73-1403, 1408 (6th Cir., Dee.

11, 1974), cert. denied, 43 U.S.L.W. 3571 (April 21,

1975). !

3. Racial Containment Through State Housing Policies

This Court’s opinion in Milliken, joined in by all five

members of the majority, explicitly stated that ‘‘in its

present posture, the case does not present any question

’ eoncerning possible state housing violations,’’ 418 U.S.

at 728 n.7, noting that the issue had not been considered

in the court of appeals. Accordingly, the Court had no

occasion to judge the adequacy of the record on hous-

ing discrimination made in the trial court.

Milliken does, however, contain important guidance

on the relevance of proof of housing discrimination to

the quest for an interdistrict school remedy. In stating

that a cross district remedy may be warranted if state

officials ‘‘had contributed to the separation of the races

... by purposeful racially discriminatory use of state

housing or zoning laws,’’ 418 U.S. at 755, Mr. Justice

Stewart’s concurring opinion delineated an appropriate

standard for future cases. The fact that Mr. Justice

Stewart did not find the Detroit record sufficient to

meet this standard is neither surprising nor prejudicial

to appellees in the instant case. For the trial court in

Milliken (and in Richmond as well)* simply catalogued

a variety of discriminatory housing practices without

carefully assessing whether such practices effectively

excluded blacks from the suburbs and concentrated

them in the city or merely resulted in racially segre-

gated housing patterns within each district. 388 F.

Supp. at 587.°

Here, in contrast, the court below specifically gauged

the interdistrict effects of state housing discrimination,

*In Richmond for example, the court of appeals could not con-

clude from the record whether Richmond’s use of discriminatory

housing tools was greater or lesser than that of the suburban coun-

ties. Thus the court felt unable to determine whether such dis-

crimination had an impact on interdistrict movement. 462 F.2d

at 1066.

® And, as noted in Milliken, the court of appeals expressly stated

that it had not considered evidence of housing discrimination or

in its effects. 484 F.2d 215, 242 (6th Cir. 1973).

21 .

noting for example that the impact of state toleration

of real estate discrimination was to deny almost all new

housing opportunities to blacks in the suburbs while

having a much more marginal impact in the city (A.

11). Similarly, because of the extraterritorial juris-

diction of the Wilmington Housing Authority, it was

clear here that suburban county discrimination denied

central city black residents the opportunity to occupy

public housing in the suburbs (A. 11), whereas in Rich-

mond the court of appeals opined that the lack of

public housing in the suburbs might only have affected

low-income white suburbanites. 462 F.2d at 1066. Thus

in this case governmental discrimination in housing

clearly had interdistrict effects and clearly helped ex-

plain why over a twenty-year period the percentage of

black residents living in the suburbs actually declined

while the total suburban population increased fivefold

(A. 7).

Appellants apparently recognize the damaging im-

pact of these findings to their case for they seek to of-

fer noninvidious explanations for Delaware’s dis-

eriminatory housing practices. Thus in appellants’

view, state sanction for the racially exclusionary code

of the real estate board becomes merely an effort to

‘avoid upsetting established neighborhoods—an ad-

monition in part against ‘block-busting’ ’’ and racially

discriminatory site selection in public housing becomes

merely ‘‘the erection of public housing where there was

a demand for it, t.e., in the city rather than the sub-

urbs’”’ (Appellants’ Jurisdictional Statement at 8). No

basis for these fanciful interpretations appears either

in the record or in fact. Indeed, in characterizing state

housing policies as racially discriminatory, the court

below did not cut any new ground but simply applied

settled doctrine that state sanction of exclusionary real

estate practices and discriminatory site selection in

public housing transgresses the Constitution and laws

of the United States. See, e.g., Crow v. Brown, 332 F.

Supp. 382 (N.D. Ga. 1971), aff’d per curiam, 457 I".2d

788 (5th Cir. 1972); Gautreaur v. Romney, 488 #'.2d

731 (7th Cir. 1971); Shannon v. HUD, 436 F.2d 809

(3rd Cir. 1970). Cf. United States v. Black Jack, 508

F.2d 1179 (8th Cir. 1974), cort. denied, 43 U.S.L.W.

3671 (June 24, 1975). The only ‘‘new”’ element in this

ease is that the court below conscientiously sought to

determine whether these indisputably illegal housing

practices had the effect of containing black people with-

in the City of Wilmington and contributing to the crea-

tion of racially segregated schoo) districts in the Wil-

mington metropolitan area. Its affirmative conclusion

is well supported by the record and consistent with the

criteria set forth in Milliken.

On each count where appellants have attempted to

concoct a conflict between the decision of the court

below and the ruling in Milliken, they have failed to

point to any specifics to substantiate their claims.”* To

the contrary, the lower court’s conclusion that the rec-

ord in this case made it necessary te consider interdis-

trict school desegregation remedies was based upon

factual determinations materially different in every

respect from those in Milliken and upon a precise appli-

cation of the principles enunciated in that case. In so

In light of this failure, appellants’ further gratuitous charge

that the trial court found this Court’s judgment in Milliken ‘‘dis-

tasteful’’ and therefore engaged in a ‘‘flagrant rejection’’ of its

duty to follow Supreme Court judgments is unworthy of comment

( Appellants’ Jurisdictional Statement at 12).

concluding, the trial court also acted consistently with

decisions of courts of appeals and district courts rend-

ered both before and after Milliken.

B. Invalidation of the Delaware Educational Advancement Act

Was Required by the Well Established Equal Protection

Doctrine That Racial Classifications Must Fall Unless Sup-

ported by a Compelling Justification.

In the previous section it was shown that the decision

below is consistent with Milliken v. Bradley and other

decisions dealing with the use of racial considerations

in the drawing or redrawing of school district lines.

Here we demonstrate that invalidation of Delaware’s

Educational Advancement Act was consistent with, and

indeed dictated by, a larger body of equal protection

doctrine holding that state imposed racial classifica-

tions must be invalidated where they are not supported

by a compelling state interest.

There can be little question that in freezing the

school district lines of Wilmington while authorizing

boundary changes in virtually all other districts the

Delaware legislature placed special burdens within the

government process on minorities seeking to end racial

segregation in public schools, burdens that were not

placed on groups seeking other ends through school

district reorganization. The impact of this disparate

treatment, which came at a time when the state’s dual

system still had not been disestablished, was upon the

most heavily black district in the state in public school

composition, a district containing nearly one half of the

total black population of the state. Where a statute

so treats racial problems differently from related gov-

ernmenta! interests, it clearly constitutes a suspect ra-

cial classification. Lee v. Nyquist, 318 F. Supp. 710

24

(W.D. N.Y. 1970), aff’d, 402 U.S. 935 (1971) ; Hunter

v. Erickson, 393 U.S. 385 (1969).

While it is true that the determination that a racial

classification exists does not end the inquiry, the state

bears a heavy burden in seeking to provide compelling

justification for its actions. The court below painsiak-

ingly analyzed all proferred justifications for the Wil-

mington exception and found them wanting. The

assertion that the Delaware Constitution requested the

legislature to muster a two-thirds vote to alter Wil-

mington boundaries was simply erroneous under Dela-

ware law (A. 25-27). The claim that historic consider-

ations gave greater sanctity to the Wilmington district

lines than to other district boundaries could not be

supported, particularly in light of the great variety of

state actions demonstrating the permeability of Wil-

mington’s school boundaries and the fact that no other

Delaware city was treated in a similar fashion (A. 2T-

28). Nor was any educational basis established for

imposing a maximum enrollment of 12,000 for each dis-

trict; indeed the weight of testimony by educators was

that districts having substantially larger enrollments

are sound educational and administrative units (A. 28-

30).

Enactments which without any compelling justifica-

tion treat racial minorities differently from others are

no less violative of the equal protection clause when the

classification is implicitly racial rather than explicit.

11 The equal protection claims of plaintiffs in such cases are not

impaired by the fact that they may not have had a pre-existing

constitutional right to the objective that the state enactment

impeded, although this may be deemed a moot point in the instant

ease where so much independent evidence of interdistrict violations

has been adduced. (See pp. 17-22, supra.)

Gaffney v. Cummings, 412 U.S. 735 (1973); White v.

Regester, 412 U.S. 755 (1973) ; Reitman v. Mulkey, 387

U.S. 369 (1961). Cf. Gomillion v. Lightfoot, 364 U.S.

339 (1960). Nor is evidence of racial intent a pre-

requisite to finding such a violation. Wright v. Council

of the City of Emporia, 407 U.S. 45 (1972).”

Cases cited by appellants as evidence that the court

below rejected the opinions of this Court are simply

inapposite. They involved classifications that were

based, if anything, on wealth or class but certainly not

race, San Antonio Independent School District v. Rod-

riguez, 411 U.S. 1 (1973) ; James v. Valtierra, 402 U.S.

137 (1971) ; cases where the racial impact was extremely

remote, e.g., Jefferson v. Hackney, 406 U.S. 535 (1972) ;

and cases where there was no classification at all and the

impact of the challenged action fell upon all racial

groups alike, e.g., Palmer v. Thompson, 403 U.S. 217

(1971). Decisions such as those cited simply illustrate

that where the impact of an enactment is not racial,

parties claiming to be aggrieved may have difficulty in

invoking strict scrutiny of the enactment by this Court.

In contrast, where state action however couched has

materially disadvantaged racial minorities this Court,

remembering the original thrust of the Fourteenth

Amendment, has required the highest burden of justi-

fication. Hunter v. Erickson, supra; Reitman v.

12The court below prudently withheld any judgment that the

Wilmington exclusion was racially motivated (A. 19-20), although

state officials admitted that the exception was included in part

because of racial hostility to desegregation in white New Castle

County (Tr. 1010, 1077). See also, 379 ¥. Supp. at 1227-1228

(Gibbons, J.). The court had no doubt, however, that in terms of

its historical context and immediate objective as well as ultimate

effect, the Wilmington exception was racially discriminatory (A.

22).

Mulkey, supra; Wright v. Council of the City of Em-

poria, supra; Gomillion v. Lightfoot, supra; Loving v.

Virginia, 368 U.S. 1 (1967); McLaughlin v. Florida,

379 U.S. 184 (1964). In finding that appellants failed

to justify their actions in singling out black children of

Wilmington for separate and disparate treatment the

court below was true both to this line of decisions and

to the Fourteenth Amendment.

CONCLUSION

This appeal should be dismissed as premature since

no injunctive order requiring interdistrict relief has

yet issued and determinations stiil to be made in the

court below may make it unnecessary for this Court

ever to reach the questions pressed by appellants.

If this Court should reach the merits, the decision

below should be summarily affirmed as clearly correct.

The opinions and record in this case demonstrate that

the State of Delaware in several of its manifestations

contributed to the maintenance and perpetuation of a

system of racially segregated public schools in Wil-

mington and New Castle County. The standards set

for interdistrict relief in Milliken v. Bradley were

plainly met. And the court below faithfully followed

the dictates of the Fourteenth Amendment to the Con-

stitution and opinions of this Court in holding that

Delaware’s reorganization statute could not stand strict

27

scrutiny and constituted a prohibited racial classifica-

tion.

Respectfully submitted,

Louis L. REppina

1200 Farmers Bank Building

Wilmington, Delaware 19801

Irnvina Morris

JOSEPH A. RosENTHAL

Morris & RosENTHAL

301 Market Tower Building

Wilmington, Delaware 19899

RIcHARD ALLEN PAvL

Pau. & LuKorr

1700 Wilmington Tower

Wilmington, Delaware 19801

Louis R. Lucas

RatTNeER, Suaarmon, Lucas

& SaLKy

525 Commerce Title Building

Memphis, Tennessee 38101

Wu L. Taytor

Catholic University Law School

Washington, D.C. 20064

Counsel for Appellees

28

Certificate of Service

It is hereby certified that in compliance with Rule

33(1) of this Court three copies each of this Motion to

Dismiss or Affirm have been forwarced by depositing

same in a United States mail box, first class or air mail

postage prepaid, to the following:

Richard R. Wier, Jr.

Attorney General of the

State of Delaware

Regina M. Small

Deputy Attorney General of the

State of Delaware

Market Tower Building

Wilmington, Delaware 19899

William Prickett

Mason E. Turner

Prickett, Ward, Burt & Sanders

1310 King Street

Wilmington, Delaware 19899

John P. Sinclair

Potter, Anderson & Corroon

Delaware Trust Building

Wilmington, Delaware 19899

Philip B. Kurland

Alan L. Unikel

Rothschild, Barry & Myers

Two First National Plaza

Chicago, Illinois 60603

/s/ Wiu1AM L, TAYLOR

William L. Taylor

July 11, 1975 Counsel for Appellees