Amicus Brief — Delaware State Board of Education v. Evans

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a the Supreme Gon of the Huited States

| _Octoser Term, 1976

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~~

DuLAWwane STATE dona oF EDUCATION, eT AL.,

| ; 5? ‘APPELLANTS

ea Vv.

ne ti BRENDA EVANS, 2£T AL.

ON APPEAL FROM THE UNITED STATES DISTRICT

‘COURT FOR THE DISTRICT OF DELAWARE

MEMORANDUM FOR THE UNITEDSTATES

AS AMICUS CURIAE

mA

Ropert H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

Page

QcetaOens ORIN isa. sic cS csi cited ch en tacce ses eidissdsnscocecee I

Interest of the United States ...................:cccccseeeecceeeeeeeees 2

SURIIIITIIIEY niciccuhshsvictanieanoctaliaieatiiintatamenhiggteianvcamenhanpiiien 3

CO scastnnebeedlentnramiicadaiiaienincapheniapinsnenctnteamianats il

CITATIONS

Cases:

Alexander v. Holmes Country Board of Education,

PUNE TA A silentntinanenltaatintenlindenialtnapisepepabornctagioeste 3

Bailey v. Patterson, 369 U.S. 31 .cccccccccccecceeseeeeeeeeee 7

Board of Regents v. New Left Education

oS Se ee ee 7

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

Brown v. Board of Education, 349 U.S. 294 .......... 3

Butler v. Dexter, No. 75-623, decided April |

BD, 2G B aicpcdeccninnib- ety Rahenilp ctetsinstlerearitindeeess 2

Cooper v. Aaron, 358 U.S. .o.....cc.ccccceecceeeeeeeeeeees eS

Gonzalez v. Automatic Employees Credit Union,

GED Fh cctitinsdithcclntrtnthtinrntatihninapedtiiertampicccsese 6

Goss v. Board of Education, 373 U.S. 683 ............. 3

Green v. County School Board, 391 U.S. 430 ........ 3

Keyes v. School District No.1, Denver,

Colorado, 413 U.S. 189 .......ccccccccceeeeeee denisbbiercene 3

Liberty Mutual Insurance Co. v. Wetzel, —

ils HONS cthicccticsctnystiinttciviatiecties A EE 10

i

Page

Cases (continued):

Metropolitan School District of Lawrence

Township v. Dillin, certiorari denied,

GAZ U.S. GES cscexpi eects siahistiasiiidbiadtpiadiactiiintiinaieatas 2

Milliken v. Bradley, 418 U.S. 717 .....ccccccseseees 2, 3,8

Norton v. Mathews, No. 74-6212, decided June

29, (DPE ... .ciicsincilibcinices cittatinacniniedian aataniiciaamane 2

Norwood vy. Harrison, 413 U.S. 455 ...........cccccs00000e 3

Pasadena Board of Education v. Spangler, No.

_ 75-164, decided Jume 28, 1976 .........cccccccceeceeenenes 3

Runyon v. McCrary, No. 75-62, decided

FORD FD, VOPE svisrecntncttnailodintialeatulinntediheietias 3

School Board of City of Richmond v.

State Board of Education, 412 U.S. 92 ............... 3

Swann v. Charlotte-Mecklenburg Board

Of Education, 402 U.S.1 ......cc..cccceceeeeeceneees 3, 8,9

Taylor v. Board of Education, 288 F. 2d 600 ........ 10

United States v. Board of School Com-

missioners of City of Indianapolis, C.A. 7,

No. 75-1730, decided July 16, 1976, appeals

and petitions for a writ of certiorari

pending, Nos. 76-212, 76-458, 76-468,

76-515, 76-520 amd 76-522 2000... ccccccecessseesseeee 2, 10

United States v. Nixon, 418 U.S. 683 .................... 10

Wolff v. McDonnell, 418 U.S. 539 .........-sessceceseeeees 7

Wright v. Council of City of Emporia, 407

UB, OGD... ncastinccesussciitfisiilitninsDigipibcdeiideeneisaliaimaniesaaa 3

Statutes and rule:

Civil Rights Act of 1964, Titles IV, VI and IX,

78 Stat. 248, 252, 266:

G2 UB. FIBIOG ciccivecsssciciscccccescesccccccccsessevcess

42 U.S.C. FRBBE ...ccrrecsecscrscccccecccccssssoseseccsescoues

4B U.S.C. TIGI, wccrenccccsesesscocscvvessnsescoszscceveeees

Equal Educational Opportunities Act of 1974,

Pub. L. 93-380, 88 Stat. 514 et seq., 20

U.S.C. (Supp. V) 1701 ef $€q. ......c:ccccccceeeeeereees

BD Us: CAE chahttidecctnntivtntccenkstenemanscssesiwsines

Rules of the Supreme Court, Rule 20 ................

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In the Supreme Court of the Hnited States

Octoper Term, 1976

No. 76-416

DELAWARE STATE BOARD oF EDUCATION, ET AL.,

APPELLANTS

v.

BRENDA EVANS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF DELAWARE

MEMORANDUM FOR THE UNITED STATES

AS AMICUS CURIAE

- QUESTIC

The United States will discuss the following questions:

1. Whether this Court has jurisdiction of the appeal

from the judgment entered by the three-judge district

court, and

2. Whether the district court erred by requiring a

all of the effects of that discrimination. '

'This question is fairly comprised within questions two and

three presented by the jurisdictional statement (J.S. 3). We take

no position with respect to the first question presented by appel-

lants, believing that it is foreclosed in substantial measure by this

Court’s summary affirmance of the judgment on the liability

question. See 423 U.S. 963, affirming 393 F. Supp. 428.

The jurisdictional statements in No. 76-474, Newark School

District v. Evans; No. 76-475, New Castle-Gunning Bedford

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INTEREST OF THE UNITED STATES

The United States has an immediate interest in this

case because the Court's resolution of the jurisdictional

issues involved may affect the jurisdiction of this Court

in United States v. Board of School Commissioners of

City of Indianapolis, C.A. 7, No. 75-1730, decided July

16, 1976, appeals and petitions for a writ of certiorari

pending, Nos. 76-212, 76-458, 76-468, 76-515, 76-520,

and 76-522. In Indianapolis a single-judge district court

ordered substantial inter-district reassignments of students.

Similarly, in Milliken v. Bradley, 418 U.S. 717, a single

judge ordered the consolidation of school districts. If

the order here consolidating school districts and re-

quiring the inter-district transportation of students could

be entered only by a three-judge court, then the district

court in Indianapolis (which declared unconstitutional

a State statute’s exclusion of metropolitan school

districts from governmental consolidation) may have acted

without jurisdiction, with the consequence that that case

must begin again.? If, on the other hand, three judges

were not required in either case, the appeal here prop-

erly lies to the court of appeals rather than this Court.

Butler v. Dexter, No. 75-623, decided April 19, 1976;

Norton v. Mathews, No. 74-6212, decided June 29, 1976.

School District v. Evans; No. 76-499, Mount Pleasant School

District v. Evans; No. 76-500, Marshallion-McKean School Dis-

trict v. Evans; and No. 76-501, Claymont School District v. Evans,

appear to present related questions concerning the district court's

judgment, and we do not separately discuss them. Because of

this relationship and the fact that the jurisdictional problems

in the case pertain to all of the appeals, we believe that this

Court's disposition of them should be governed by its disposition

of No. 76-416.

?We have previously argued that the single judge had juris-

diction in that case. See Metropolitan School District of Lawrence

Township v. Dillin, certiorari denied, 412 U.S. 953.

i District No. 1, Denver, Colorado, 413 U.S.

89: Norwood v. Harrison, 413 U.S. 455; Milliken v.

Bradley, 418 U.S. 717; Runyon v. McCrary, No. 75-62,

decided June 25, 1976; and Pasadena Board of Educa-

tion v. Spangler, No. 75-164, decided June 28, 1976.

1. In March 1975 the three-judge district court in

this case concluded that appellants had discriminated

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Act of 1968, a Delaware statute, was racially discrimina-

tory to the extent that it forbade appellant State Board

of Education from consolidating school districts after 1969

or including the Wilmington and Newark school systems

in any consolidated district (id. at 438-446). The court

entered a judgment directing the parties to submit

alternative inter- and intra-district student assignment

plans (id. at 447). It also enjoined appellants from re-

lying in the future on those provisions of the 1968

Act that had been found unconstitutional by the court.

423 U.S. 963, 963 n. | (Rehnquist, J., dissenting). This

Court summarily affirmed. 423 U.S. 963.

The district court then received the plans submitted

by the parties and concluded that, in light of the inter-

district violations discussed in its previous opinions,

only an inter-district desegregation plan would be suf-

ficient (J.S. App. A1l5-A34). It held that the 11 school

districts in northern New Castle County must be con-

solidated into a single school district, which will assume

all of the educational and administrative functions of

the schools. It did not select all of the districts to be

included in this consolidated system on the basis of

their participation in the inter-district violations; it

relied, in addition, on information concerning the racial

composition of the districts to be included, and it

apparently chose some of the districts to be included

with a view to producing a consolidated district with

racial proportions that would, the court thought, enable

desegregation to be “successful.”

Within the new consolidated district students must be

reassigned. The court stated that it “will consider that

any school whose enrollments in each grade range between

10 and 35% black to be a [sic] prima facie desegre-

gated” (J.S. App. A43, footnote omitted). The range of

10 to 35 percent black students for each grade in each

5

school (subject to variation in certain circumstances)?

was chosen to represent a range above and below a

target of 21.5 percent, the percentage of students in

the consolidated school district who are black. The court

chose 10 percent as the lower bound for each grade in

each school because it’ believed that a lower percentage

“presents severe difficulties in the ‘identity’ of minority

youngsters, who would not see fellow minority students

in positions of leadership in the school” (J.S. A43,

footnote omitted). The cour. chose 35 percent as the

upper bound because a uigher proportion of black

students “is said to produce a substantial likelihood of

white flight” (ibid., footnote omitted). The court did not

identify with any particularity the effects of the racial

discrimination to be remedied, and the remedial standards

it adopted are not constructed to produce the state of

affairs that would have existed but for the racial dis-

crimination in the operation of the schools.

The court entered a judgment (J.S. App. A72-A75)

declaring that all of the school districts in northern

New Castle County shall be reorganized into a single

district and requiring the State Board of Education to

design a student assignment plan consistent with the

opinion of the court. It directed the State Board to

appoint a five-member school board to oversee the

consolidated district, and the court made certain other

orders necessary to effectuate its plan. It then dis-

solved itself; jurisdiction over future proceedings was

passed to a single-judge district court.

2. When this case was last before this Court, Mr.

Justice Rehnquist wrote that it “veritably bristles with

jurisdictional problems” (423 U.S. at 964). The Court’s

summary affirmance indicates that five Justices did not

‘See J.S. App. A36, A43 n. 148,

6

share the doubts Mr. Justice Rehnquist expressed. W’e

accept, as law of the case, the Court's resolution of the

points Mr. Justice Rehnquist raised. But two other

jurisdictional problems now affect the case. For the

reasons discussed below, we believe that the judgment

of the district court could have been entered by. a

single judge. Because the judgment here was not one

required to be entered by a three-judge court alone,

an appeal properly lies only to the court of appeals.

The injunction that was affirmed by this Court last

fall forbade the appellants to rely in the future upon

the 1968 Act, a state statute of statewide applicability.

Whether or not that statute was functus officio at

the time the injunction was entered was a question of

state law; the district court has resolved that question

in favor of the vitality of the statute. But the statute,

so far as this case is concerned, expired when this

Court affirmed the injunction against reliance upon it.

The district court has not entered a further injunction

against the operation of the state statute. None was

necessary; its operation already had been enjoined, ‘and

that injunction had been affirmed by this Court. The

three-judge district court therefore could have dissolved

itself immediately upon the affirmance of its injunction.

Three judges were not thereafter necessary to order the

consolidation of the school districts in northern New

Castle County.

Moreover, once this Court affirmed the issuance of the

injunction barring reliance on the statute, the rationale

for the requirement of three judges was satisifed. “Con-

gress established the three-judge-court apparatus for one

reason: to save state and federal statutes from improvident

doom, on constitutional grounds, at the hands of a single

federal district judge.” Gonzalez v. Automatic Employees

Credit Union, 419 U.S. 90, 97, footnote omitted. The

then ,

Surely there was no need for three judges thereafter

simply to see to the interment. Indeed, once this Court

affirmed the district court's injunction against reliance

statute where there is no doubt that it is unconstitu-

tional. Bailey v. Patterson, 369 US. 31.

There is another reason why three judges became

unnecessary after this Court’s affirmance of the first

injunction. The first injunction ran statewide; it forbade

appellants to rely upon the statute to resist consolida-

tion of school districts where that might be necessary

as part of a desegregation plan. The injunction involved

on this appeal, however, pertains only to northern New

Castle County. It directs the State Board of Education

to abolish |! particular school districts and to create

another in their stead (J.S. App. A73-A74). The judgment,

by its terms, affects only part of the State of Delaware.

Three judges are unnecessary to issue an injunction

affecting only part of a state or of a state program.

Board of Regents v. New Left Education Project, 404

U.S. 541; Wolff v. McDonnell, 418 U.S. 539, 542 n. 1.

3. We therefore conclude that this Court lacks jurisdic-

tion of the appeal in this case. We believe, however,

that this case is an important one in the evolution of the

constitutional principles pertaining to racial discrimination

in the schools, and that it should receive the attention

either of this Court or of the Third Circuit as expeditiously

as possible.

We believe that the remedial standards adopted by

the district court in this case differ significantly from those

that, under this Court’s decisions,‘ properly govern school

desegregation relief. The district court’s order is appar-

ently founded on the assumption that the obligation to

desegregate, triggered by the constitutional violation on

the part of the school districts, means that the school dis-

tricts must seek to achieve a racial balance in each

school approximately equivalent to that in the district as

a whole. Beginning with this premise the district court

would allow adjustments, but these adjustments would in

most cases be limited by the need for a “viable minority”

on the one side, and, on the other, by the need to avoid

“tipping points” that might lead to “white flight.”

The central point, however, is that, to the extent feasi-

ble, each school should have what the district court con-

sidered a desirable racial mix and, indeed, school dis-

tricts were included in or excluded from the “desegrega-

tion area” on this basis.

In our view, this is not the right way to formulate a

desegregation order. Instead, the proper task of a desegre-

gation plan should be nothing more or less than the elimina-

tion, “root and branch,” of all of the effects of official racial

discrimination intended to affect the operation of the

schools. The “desegregation” that courts are both empow-

ered and obligated to accomplish is not, as the district

court apparently thought, a degree of racial mixture thought

socially desirable and hence ordered without reference

to the actual amount of separation caused by the consti-

tutional violation. The existence of schools predominantly

attended by members of one race does not in itself amount

to :acial discrimination. A properly formulated desegre-

“See, e.g., Milliken v. Bradley, supra, 418 U.S. at 746; Swann, supra,

402 U.S. at 15-16.

gation decree should not, therefore, be based on a court’s

belief that such schools are undesirable, or that each

school should have a racial mixture or balance.

The proper approach requires a court to seek to deter-

mine, as precisely as possible, the consequences of the

acts constituting the illegal discrimination and to elimi-

nate their continuing effects.’ That is the way fully to

satisfy the constitutional command, in a manner consist-

ent with the proper role of the judicial branch in rectify-

ing constitutional wrongs. It is only in this context and for

the purpose of achieving these objectives, that practicali-

ties are properly taken into account in formulating a

school desegregation remedy. For these reasons, which we

have explained in greater detail at pages 14-18 of our

brief in Texas Education Agency (Austin Independent

School District) v. United States, petition for a writ of

certiorari pending, Nu. 76-200, we submit that the dis-

_trict court here has erred in articulating the remedial

_ standards to govern this case. Its judgment, which was

based substantially on these remedial standards, there-

fore should not stand.

The principles we have articulated would, we believe,

require a substantial amount of student reassignment in

New Castle County. The district court concluded (393 F.

Supp. at 433-438) that there have been significant and

continuing inter-district acts of racial discrimination. In

our view, these acts would require a significant inter-

district remedy. Because no plan for student assignments

under the district court’s approach has yet been formulated,

however, it is impossible to say how a plan designed under

the principles we have set out would differ from a plan

SSee, Swann, supra, 402 U.S. at 15-16.

*We are furnishng copies of that brief to counsel for the parties

in this case.

10

complying with the remedial guidelines established by

the district court. It seems safe to say, however, that it is

highly implausible that, but for the acts of racial discrimina-

tion, every grade in every school in northern New Castle

County would have been between 10 and 35 percent black.

4. Because the Court does not have jurisdiction of this

appeal, the appropriate disposition of the case is to dismiss

the appeal. Appellants already have filed a protective no-

tice of appeal in the court of appeals (J.S.7n. * * *),and the

case therefore could proceed there without further delay.’

If the Court dismisses the appeal, we will present our views

as amicus curiae in the court of appeals.

Appellants have suggested, however, that if the Court

dismisses the appeal it should grant a writ of certiorari

before judgment to the court of appeals (J.S. 7 n. * * *).

We cannot say that this case “is of such imperative public

importance as to justify * * * deviation from normal

appellate processes” (Rule 20 of the Rules of this Court).

Cf. United States v. Nixon, 418 U.S. 683, 686 n. | (collect-

ing cases). It may be, however, that in light of the pendency

of the Indianapolis case, which presents similar issues

concerning the appropriate principles for devising a remedy

in school cases, the Court may think it best to hear both the

instant case and /ndianapolis together (if it should grant

review in Indianapolis), in order to explore more fully

the questions of remedy. We think that in these circum-

stances it would not be inappropriate to issue a writ of

certiorari before judgment in the instant case

’An order of a district court finding liability and requiring submission

of a plan and consideration of a remedy ordinarily is an unreviewable

interlocutory order (see Liberty Mutual Insurance Co. v. Wetzel,

424 U.S. 737), and this is so in school cases no less than in others. Taylor

v. Board of Education, 288 F.2d 600(C.A. 2). But where, as here, the dis-

trict court has required school officials to take present action in response

to its order, the order is injunctive in nature, and the granting of an

injunction may be appealed even if the injunction is interlocutory.

28 U.S.C. 1292(a).

The appeal should be dismissed for want of jurisdiction.

The Court may, however, wish to consider issuing a

CO ee ee

Respectfully submitted.

é Rosert H. Bork,

Octoser 1976

DOJ-1976-10