Jurisdictional Statement — New Castle-Gunning Bedford School Dist. v. Evans

eS ae

FILED |

“co.; | er4 me

MICHAEL RODAK, 2, CLE

— Court of “the United States

October Term, 1976.

JURISDICTIONAL STATEMENT.

Davip F. ANDERSON,

Porren ANDERSON & CORROON,

350 Delaware Trust Building,

P. O. Box 951,

Wilmington, Delaware. 19899

Attorneys for New Castle-

Sere vn Sener

District, Appellant.

international Printing Co., 711 So. GO Gt, Phile., Pa. 19143 — Tel. (215) 727-8711

THE Questions RAIsep BY THIs APPEAL ARE SUBSTANTIAL ...

I.

Il.

Ill.

There Is No Constitutional Violation on Which to

Predicate Interdistrict Relief ..................-.

A. Wilmington Had Achieved Full Compliance With

BNET cccdnccccccvocsccosccconseccsveedins

De BE, soc kccccdnceecéccasencccccescscs

a. Use of the Compelling State Interest Test

b. Causing Interdistrict Segregation .......

c. Drawing or Redrawing School Boundaries

Inclusion of New Castle-Gunning Bedford School

District in the Desegregation Area Exceeded the

District Court’s Authority Under the Decisions of

We GE cnedndendeseseertssesedecnnssevaces

The Use of Racial Quotas and the Restructuring of

More Than Half the Educational System of Dela-

ware Exceeded the District Court's Authortiy .....

SE OEE TRE ne ete eee a Ee

Appenpix C—Notice of Appeal to the Supreme Court of the

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TABLE OF AUTHORITIES CITED.

Cases: Page

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

1058 (4th Cir., 1972), affd by equally divided court, 412

i Tee Ee CE 00 hee sed ccdbdsecudacnneweneneueans 13, 25

Bradley v. Milliken, 402 F. Supp. 1096 (E. D. Mich. S. D.

HEED bdecdindeakecddckcenavsbdseddeekeavecousienes 16

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

5, 8, 13, 15, 30

Brown v. Board of Education of Topeka, 349 U. S. 294 (1955) 5,13

Evans v. Buchanan, 152 F. Supp. 886 (D. Del. 1957) ...... 5

Evans v. Buchanan, 256 F. 2d 688 (3rd Cir. 1958) ......... 5

Evans v. Buchanan, 172 F. Supp. 508 (D. Del. 1959) ....... 6

Evans v. Buchanan, 173 F. Supp. 891 (D. Del. 1959) ....... 6

Evans v. Buchanan, 195 F. Supp. 321 (D. Del. 1961) ....... 6

Evans v. Buchanan, 207 F. Supp. 820 (D. Del. 1962) ....... 7

Evans v. Buchanan, 379 F. Supp. 1218 (D. Del. 1974) ..... 2

Evans v. Buchanan, 393 F. Supp. 428 (D. Del. 1975) . .2, 10, 11, 17,

18, 19, 21, 23, 25, 26

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) ............ 6

Gebhart v. Belton, Del. Supr., 91 A. 2d 137 (1952) ........ 5

Goss v. Board of Education of the City of Knoxville, 482 F. 2d

eee Ge EE EE Kkddeesddcnesddenusbesssesedees 15

Green v. County School Board, 391 U. S. 430 (1968) ....... 15

Hills y. Gautreaux, — U. S. —, 44 U. S. L. W. 4480 ( April 20,

SUED Uncnccdcnasedcnsidesedasuacnonneteusddeusened 27, 35

Jefferson v. Hackney, 406 U. S. 535 (1972) ............... 23

Keyes v. School District No. 1, 413 U. S. 189 (1973) ....... 23

McDaniel v. Barresi, 402 U. S. 39 (1971) ................. 5, 16

Milliken v. Bradley, 418 U. S. 717 (1974) ....... 13, 16, 17, 20, 21,

22, 25, 27, 28, 31, 35

Monroe v. Board of Commissioners, 391 U. S. 450 (1968)... 16

Raney v. Board of Education, 391 U. S. 443 (1968) ........ 15, 16

Spencer v. Kugler, 326 F. Supp. 1235 (D. N. J. 1971), affd

mem. 404 U. S. 1027 (1972) .......cccceeeeeecees 13, 25, 35

TABLE OF AUTHORITIES CITED (Continued).

Cases (Continued) Page

Steiner v. Simmons, Del. Supr., 111 A. 2d 574 (1955) ...... 6,7

Swann v. Board of Education, 402 U. S. 1 (1971) ...... 15, 16, 17,

32, 33, 34

United States v. Scotland Neck City Board of Education, 407

i Sb A ED. cc cudnessctuehbesdootenecrebiwonts 26, 31

Washington v. Davis, — U. S. —, 44 U. S. L. W. 4789 (June

ee aéuiccnmedhcdsenscevdasesnesaedives 3, 11, 23, 25, 35

Wright v. Council of the City of Emporia, 407 U. S. 451

SEED chbgkadedenanaendseneintsnsesocsedsotecsenns 26, 31

Wright v. Rockefeller, 376 U. S. 52 (1964) ......... s iealaee 23

Constitutional and Statutory Provisions:

U. S. Constitution, Amendment XIV ...................0- 2

es EE Ce ied bennduneinddebheedeweessvsseeess 2

Delaware Constitution of 1897, Article II, Section 19 ....... 8

Delaware Constitution of 1897, Article IX, Section 1 ........ 10

Delaware Constitution of 1897, Article X, Section 2 ........ 5

ee EE cclcndancneceeoneeeeeeeesesesees 1,2

ee ED cand cnckvetchessebaséosseccenes 1,2

Ft ED pcivnns décsinnesnercesiesceses 4

ne ccddsenennpeeceesuce’ 4

23 Laws of Del., Ch. 92 (1905) ..............5. i awiy 4

OB FT Tree 4

37 Laws of Del, Ch. 908 (10G1) ........ccccccccccsccees 4

ee ee is Gs EE GED Shes eccnere ccvccvscccess 4

SS Laws of Dal, Ch. GOB (BBEB) 2. cc cccccccccccccccccess 4,8

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IN THE

Supreme Court of the United States

OcroBEeR TERM, 1976.

No.

NEW CASTLE-GUNNING BEDFORD

SCHOOL DISTRICT,

Appellant,

v.

BRENDA EVANS, ET AL.,

Appellees.

JURISDICTIONAL STATEMENT.

May It PLEASE THE Court:

The intervening defendant, New Castle-Gunning

Bedford School District, appeals from the judgment en-

tered on 15 June 1976 of the three-judge District Court for

the District of Delaware ordering the State Board of

Education to establish an interdistrict desegregation plan

and enjoining the enforcement of the Educational Ad-

vancement Act of 1968, 14 Del. C. §§ 1004(c)(2) and

1004(c)(4). A copy of the judgment is set out in Ap-

pendix B to the Jurisdictional Statement filed herein by the

appellant, Newark School District.

2 Jurisdictional Statement

OPINIONS BELOW. -

The majority and dissenting and concurring opinions

in the three-judge court for the District of Delaware are

not yet reported. They are set out in Appendix A to the

Jurisdictional Statement filed herein by the appellant,

Newark School District. The opinions on the interlocutory

judgment of the District Court ordering the parties to sub-

mit proposed interdistrict and single-district desegregation

plans for the Wilmington schools are reported at 379 F.

Supp. 1218 (D. Del. 1974) and 393 F. Supp. 428 (D. Del.

1975). An appeal from the interlocutory judgment was

taken to this Court, which summarily affirmed that judg-

ment. 423 U.S. 963 (1975).

JURISDICTION.

The judgment of the three-judge court was entered

on 15 June 1976. Appellant filed a Notice of Appeal on 6

August 1976. A copy of the Notice of Appeal is set out

in Appendix C hereto. This Court has jurisdiction pur-

suant to 28 U.S. C. § 1253.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.

Fourteenth Amendment to the Constitution of the United

States:

. . No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Educational Advancement Act of 1968, 14 Del. C. §§ 1004

(c)(2), (4):

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

of Education shall meet and adopt a final plan of re-

Jurisdictional Statement 3

organization of school districts which it deems wise

and in the best interest of the educational system of -

this State, provided, that no plan of reorganization of

school districts shall be adopted which fails to meet

the following requirements: . . . ,

(2) Each proposed school district including more

than one component former school district shall have a

pupil enrollment of not less than 1900 nor more than

12,000 in grades one through twelve. “Pupil enroll-

ment” as used in this subsection means enrollment as

of September 30, 1968. Excluding vocational-tech-

nical districts there shall be no fewer than 20 nor more

than 25 reorganized school districts. . . .

(4) The proposed school district for the City of

Wilmington shall be the City of Wilmington with the

territory within its limits. . . .

QUESTIONS PRESENTED.

1. Does a desegregated unitary city school district

which met all constitutional standards for a period of years,

become a segregated school district in violation of constitu-

tional standards merely because changing population pat-

terns within such school district, that did not occur because

of State action, resulted in black student to white student

ratios that greatly exceeded such ratios in other unitary

school district within th same county?

2. When racial enrollments do not disclose whether

schools were formerly one-race schools, has not the school

district achieved compliance with Brown?

3. Should an interdistrict remedy imposed by the

majority opinion of a three-judge District Court which is

plainly contrary to Richmond, Detroit and W ishington v.

Davis be permitted to stand undisturbed?

4. May the majority of a three-judge District Court

abolish a local governmental entity which has not been

implicated in any constitutional violation?

A

4 Jurisdictional Siatement

STATEMENT.

A system of free public schools began in Delaware

in 1829 with the adoption of “An Act for the Establishment

of Free Schools”, 7 Laws of Del. 184, which provided for

the laying out of school districts in each of the counties.

In general, each district was to be of such size that the most

remote part thereof was not more than two miles from the

center and each district was to contain a single school-

house to be located near the center of the district.

Pursuant to the 1829 statute 72 school districts were

laid out in New Castle County, 45 in Kent County and 78

in Sussex County. By 1852 there were nine united school

districts in the City of Wilmington. In that year these

separate districts were brought under the governance of a’

newly incorporated board of education designated “The

Board of Public Education in Wilmington” (10 Laws of

Del. 644). The Board of Public Education in Wilmington

historically has supervised the largest, wealthiest and most

powerful district in the state. In 1905 the boundaries of

Wilmington School District were defined by statute as

coterminous with the boundaries of the City of Wilming-

ton, including any future additions thereto, 23 Laws of

Del., Ch. 92 (1905). This explicit statutory designation in

1905 confirmed the geographic identity of Wilmington

School District and the City of Wilmington which had

existed for the preceding 50 years. Since the 1905 statute

the boundaries of Wilmington School District have con-

tinued to be the same as the boundaries of the City of

Wilmington; and the statutory provisions relating to the

geographic designation of the Wilmington School District

have been carried forward explicitly in amendments to

the school laws; 32 Laws of Del., Ch. 163 (1921), 37 Laws

of Del., Ch. 202 (1931), 55 Laws of Del., Ch. 172 (1965),

and finally in the Educational Advancement Act, 56 Laws

of Del., Ch. 292 (1968).

Jurisdictional Statement 5

A dual system of public education was mandated in

Delaware by Article X, Section 2 of the Delaware Consti-

tution of 1897. Between that date and the decision in

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

(1954), the schools in the school districts of each county

were segregated by law. The challenge in Delaware to

the constitutionality of that system was mounted in Geb-

hart v. Belton, Del. Supr., 91 A. 2d 137 (1952), which

became one of the four cases decided in Brown.

Less than three months after Brown I and without

awaiting the guidelines concerning remedy which came

down in Brown II, 349 U. S. 294 (1955), the Board of

Public Education in Wilmington voted to abolish the dual

school system in Wilmington. A few months later the

State Board of Education directed all school districts in

Delaware to submit plans for the desegregation of their

districts. Wilmington desegregated its elementary schools

in 1954, its junior high schools in 1955 and its high schools

in 1956. The status quo, described in McDaniel v. Barresi,

402 U. S. 39, 41 (1971), as “the very target of all desegre-

gation processes’ was altered voluntarily, promptly and

substantially in Wilmington.

Likewise, the other school districts in New Castle

County moved promptly to admit black students into for-

merly white schools. In rural Kent and Sussex Counties,

however, change occurred more slowly and the present

lawsuit had its origins in an effort to accelerate desegrega-

tion in those counties. Evans v. Buchanan began in 1956

on the complaint of black residents of a rural school dis-

trict in Kent County. Subsequently, additional plaintiffs

intervened from other districts in Kent and Sussex

Counties and the case proceeded as a class action involv-

ing the entire state. Summary judgment for the plaintiff

was granted in 1957, Evans v. Buchanan, 152 F. Supp. 886

(D. Del. 1957), and was affirmed on appeal, 256 F. 2d 688

6 Jurisdictional Statement

(3rd Cir. 1958). In 1959 a proposed plan of integration

submitted by the State Board of Education was approved

with certain modifications,’ 172 F. Supp. 508; 173 F. Supp.

891. Plaintiffs appealed and the Court of Appeals found

that the approved plan did not effect desegregation with

sufficient speed,? Evans v. Ennis, 281 F. 2d 385 (3rd Cir.

1960). The mandate of the Court of Appeals ordered the

State Board of Education to submit a plan of approval of

the District Court which would provide:

“(A) for the integration at all grades of the

public school system at the fall term 1961, and at all

subsequent school terms, of all Negro school children

who desire integration subject to the usual processing

of the school system; and

“(B) for a ‘wholly integrated’ school system,

whereby adequate school facilities at all grades will

be provided on a racially nondiscriminatory basis.”

Pursuant to that mandate the State Board of Educa-

tion prepared a plan which was modified and approved by

the District Court in June 1961, Evans v. Buchanan, 195

F. Supp. 321 (D. Del. 1961). Part A of the approved plan

provided, beginning with the 1961 fall term, for admission

on a racially nondiscriminatory basis of all Negro children

who desired to attend white schools. This short-term

remedy, however, did not provide for dismantling the dual

systems which had earlier been described by the Delaware

Supreme Court as a “maze” of overlapping white and

colored school district boundaries, Steiner v. Simmons, Del.

1. The plan > oe by the District Court did not affect

er School District which had already integrated its

2. The Court noted, however, that Delaware “already has inte-

grated many of its schools, particularly in the Wilmington metro-

politan area.” 281 F. 2d at p. 393.

Jurisdictional Statement 7

Supr., 111 A. 2d 574, 580 (1955). Part B of the plan was

addressed to the elimination of those systems.

Part B consisted of a proposed new school code which

would eliminate Delaware’s separate colored school dis-

tricts* and establish 30 unitary districts. Significantly,

there was to be no change in the Wilmington School Dis-

trict; its boundaries were to remain coterminous with the

boundaries of the City of Wilmington just as they had for

the preceding 100 years. It was originally thought that

the consolidation of schoul districts envisaged in Part B

required legislative action; and it was stated in the plan

that the State Board of Education expected it to become

effective at or before the fall term of 1970.

The District Court approved Part B without modifica-

tion in its opinion of June 26, 1961, and in the order

entered on July 24, 1961. No parties to this suit raised

any objection to the District Court’s approval of a long-

range plan for Delaware which included the continuance

of Wilmington’s historic school boundaries.

Except for a dispute about the attendance areas in

one rural New Castle school district in 1962, Evans v.

Buchanan, 207 F. Supp. 820 (D. Del. 1962), this case

was dormant from July 24, 1961 when the District Court

approved a plan for total integration throughout the state

(including retention of Wilmington School District's his-

torical boundaries) until July 27, 1971 when the current

plaintiffs filed a petition for a supplemental order claim-

ing violation of the constitutional rights of black students

in Wilmington School District.

Although the State Board of Education had thought

legislative action was necessary to eliminate colored school

districts, it later determined that it would be feasible to

3. There were no separate colored school districts in Wilming-

ton; all schools there were under the supervision of the Board of

Public Education in Wilmington.

8 Jurisdictional Statement

achieve this result by vigorous administrative measures;

and it proceeded to do so. In the process all black stu-

dents and teachers were absorbed into the unitary districts

and by the spring of 1967 the last vestiges of the dual sys-

tem had been eliminated. At that point everyone be-

lieved that Delaware had fully complied with the require-

ments of Brown. In fact, officials of the Department of

Health, Education and Welfare singled out Delaware as

the first southern or border state which had completely

eradicated the dual system of public education.

Long before Brown I it had been recognized that

there were too many small, inefficient districts in Dela-

ware, particularly in Kent and Sussex Counties, and that

consolidation of such districts would improve the quality

of education. Bills to accomplish this were submitted to

the Delaware General Assembly in 1955, 1961 and 1963

but none were acted upon favorably. None of these bills

proposed any change in the Wilmington School District

which was then the largest district in the State.

Beginning in 1965 a serious effort was begun to pub-

licize the need for reform and to obtain the support which

was required to achieve passage of the necessary legisla-

tion. This effort culminated in passage of the Educational

Advancement Act, 56 Laws of Del., Ch. 292 (1968).

The drafters of this landmark school legislation faced

a constitutional problem by reason of the provisions of

Article II, Section 19 of the Delaware Constitution which

prohibited the General Assembly from passing any local

or special law relating to the creation or change of school

district boundaries. If the legislation were to create new

school districts and define new boundaries it was feared

that such legislation would be viewed as a collection of

local or special laws relating to the creation or change of

school district boundaries, and thus vulnerable to attack

Jurisdictional Statement i)

from the substantial portion of the populace which op-

posed the elimination of small, closely-controlled districts.

Furthermore, the actual consolidation of the districts was

primarily an administrative rather than a legislative prob-

lem. Accordingly, the format of the Educational Advance-

ment Act was to prescribe general criteria for the con-

solidation of school districts and to empower the State

Board of Education for a period of one year to consolidate

existing districts pursuant to such criteria. The statutory

criteria included requirements that existing districts not

be subdivided, that only contiguous districts be consoli-

dated, that there be not less than 20 nor more than 25

reorganized districts, that each district offer complete in-

structional programs for grades 1 through 12, and that

consolidated districts contain not less than 1,900 nor more

than 12,000 pupils in grades 1 through 12.

The act also provided that the Wilmington School

District shall be the City of Wilmington with the territory

within its limits.

The upper limit of 12,000 pupils meant that three

districts in New Castle County could not be consolidated

with contiguous districts by the State Board of Education.‘

Wilmington School District and Newark School District

each had more than 12,000 pupils and Alfred I. duPont

School District, if consolidated with any of the four dis-

tricts contiguous to it, would have exceeded the 12,000-

pupil limitation in the reorganized district.

The specific statutory reference to retention of Wil-

mington School District boundaries was consistent with

4. Other provisions in Delaware law permitted, and still permit,

consolidation of school districts, including Wilmington School Dis-

trict, by affirmative act of the districts themselves based on ref-

erenda in the involved districts. The distinctive feature of reor-

ganization under the Educational Advancement Act was that for

a period of one year districts could be consolidated by the State

Board of Education without referenda.

10 Jurisdictional Statement

all prior school legislation in Delaware since 1905. Al-

though arguably surplusage because of the 12,000-pupil

limitation the specific reference to Wilmington stemmed

from another constitutional provision which was consid-

ered by the proponents of the Educational Advancement

Act to be a problem. The provision for the Wilmington

School District boundaries was a part of the Wilmington

City Charter. Article IX, Section 1 of the Delaware

Constitution required a two-thirds vote of the General

Assembly in order to amend a municipal charter. The

drafters of the Educational Advancement Act believed

that under the Delaware Constitution no statute could

alter the Wilmington School District boundaries unless

passed by a two-thirds majority of each house of the Gen-

eral Assembly. This was an important concern because

the State Board of Education believed that a two-thirds

vote in favor of the Educational Adancement Act could

not be obtained.

The District Court conceded in its opinion of March

27, 1975 (393 F. Supp. at 443) that the drafters of the

Educational Advancement Act were concerned about this

constitutional problem but it concluded that such concern

was based on an erroneous view of the law. The District

Court held that such erroneous belief was not a compelling

state interest which would validate the statutory continua-

tion of Wilmington School District’s historic boundary

lines during the one-year period in which the State Board

of Education was authorized to consolidate school districts

in accordance with prescribed criteria. The District Court

then used the compelling state interest test to find that it

was unconstitutional for the Delaware General Assembly

to retain by statute the historic boundaries of Wilming-

ton School District because of the racial impact of such

retention, despite the fact that the District Court expressly

Jurisdictional Statement 11

found that it could not conclude that such provisions were

purposefully racially discriminatory (393 F. Supp. at 439).

The District Court held that the Educational Advance-

ment Act, neutral on its face, without a racially discrim-

inatory purpose, and serving legitimate and important

governmental purposes, was invalid under the Equal Pro-

tection Clause simply because of the racial consequences

of retaining school district boundaries which had existed

for more than 100 years. This holding is directly con-

trary to Washington v. Davis, — U. S. —, 44 U. S. L. W.

4789 (June 7, 1976), and the earlier cases discussed

therein; and will be viewed in Delaware as a tragic break-

down of the judicial system if it is not subjected to full

appellate review.

12 Jurisdictional Statement

THE QUESTIONS RAISED BY THIS APPEAL

ARE SUBSTANTIAL.

The majority of the District Court has ignored the

precepts of this Court to impose upon the people of Dela-

ware its conception of what is socially desirable. The un-

articulated premise on which the District Court acted was

the decision to make the racial balance in every school in

New Castle County, Delaware, approximately the same

as the racial balance throughout the county, despite the

fact that in New Castle County, Delaware, there are twelve

separate, autonomous districts—only one of which was

found to contain vestiges of the pre-Brown segregation

which was once mandated by the Delaware constitution.

On the basis of specious attempts to show an interdistrict

constitutional violation the District Court has uprooted the

historical pattern of education in New Castle County, Del-

aware, has drastically reduced school board representa-

tion, has set aside neutrally established boundaries of

eleven autonomous school districts, has forced new financ-

ing patterns and taxes on the citizens of Delaware, has in-

creased the costs of education in New Castle County, Dela-

ware, by approximately $20,000,000 per year, and has

changed the educational patterns of 60 percent of the pub-

lic school students in the entire State of Delaware.

The central theory to support this interference with

the internal governance of Delaware is the District Court’s

unwarranted conception of Brown’s command to dismantle

the dual system of education. After Brown, racial mi-

nority pupils were freely admitted into the schools in the

district in which they resided and no school district

boundaries were altered to discriminate against any pupil

of a racial minority. After Brown, there were twelve

unitary school districts in New Castle County, Delaware,

and no pupil in any of these districts was excluded be-

Jurisdictional Statement . 13

cause of race from any school in the district in which he

resided. This was full compliance with Brown’s command

to achieve desegregation “within the limits set by normal

geographic school districting.” 347 U. S. at 495-6, 349

U. S. at 298.

The District Court says that Delaware was obligated

to do more, that it was required to achieve racial balance

among the twelve unitary school districts in New Castle

County. Delaware's failure to do this in 1968 as part of

the Educational Advancement Act is said to violate its

continuing duty under Brown to desegregate the schools

of Delaware. This is in direct conflict with Bradley v.

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

1069 (4th Cir. 1972), affd by equally divided court, 412

U. S. 92 (1973); and is contrary to Milliken v. Bradley,

418 U. S. 717 (1974); and is exactly the contention which

was dismissed in Spencer v. Kugler, 326 F. Supp. 1235,

1238 (D. N. J., 1971), aff'd memo 404 U. S. 1027 (1972):

“Plaintiffs’ substantive claim rests wholly on the as-

sertion that there is an affirmative constitutional duty

to achieve racial balance among the several districts

of a state system of public schools; and that a failure

to do so is in violation of Fourteenth Amendment

rights.”

The refusal of the District Court to follow this Court's

prior decisions requires a further authoritative statement to

put such issues to rest. While this is of paramount im-

portance to the citizens of Delaware, it has nationwide

implications which commend it to full-scale review and

reversal by this Court.

14 Jurisdictional Statement

I. There Is No Constitutional Violation on Which to

Predicate Interdistrict Relief.

A. Wilmington Had Achieved Full Compliance With

Brown.

The District Court’s opinion of July 12, 1974 (379 F.

Supp. 1218) ° acknowledged that desegregation had begun

twenty years earlier when Wilmington began to desegre-

gate voluntarily for the 1954-55 school year; that the bulk

of the desegregation process was complete by the 1956-57

school year, that Wilmington was one of the first, if not

the first school district in Delaware to desegregate, and

that many school officials assumed that the dual system

had been abolished.

Nevertheless, the District Court held that segregated

schooling was never eliminated in Wilmington only because

the formerly black schools remained identifiably black.

The District Court listed the following statistics concern-

ing formerly black schools which were in existence in

1956 through 1973:

% Of Black Pupils In Formerly Black Schools

Range

School 1956 1973 1956-73

Elbert Elementary ....... 91% 100% 91-100%

Stubbs Elementary ....... 100% 98% 95-100%

Drew Elementary ........ 99% 99% 93-99%

Bancroft Junior High ..... 98% 95% 95-99%

Howard High ........... 100% 97% 95-100%

However, the Court neglected to consider the form-

erly white schools which existed in 1956 through 1973.

Had it done so it would have seen the following statistics:

5. It should be noted that this opinion finding unconstitutional

segregation in the Wilmington School District was rendered before

this appellant was made a party in this case.

Jurisdictional Statement 15

% Of Black Pupils In Formerly® White Schools

Range

School * 1956 1973 1956-73

Gray Elementary ......... 24.9 98.5 24.9-98.5

Harlan Elementary ....... 0 88.1 0 -88.1

Highlands Elementary .... 9 26.3 9-26.3

Lore Elementary ......... 20.2 81.1 20.2-83.4

Palmer Elementary ....... 31.9 98.5 31.9-98.5

Pyle Elementary ......... 65 100 65 -100

Shortledge Elementary .... 0 82 0 -82

Williams Elementary ..... 3.19 80.6 13.1-80.8

Bayard Jr. High .......... 144 639 144-639

Warner Jr. High ......... 45 86.5 4.5-86.5

P. S. duPont High ....... 31 936 31-936

Wilmington High ........ 22 714 22-714

These statistics demonstrate that in Wilmingion there

was no “foot dragging” by a “reluctant” school board such

as engaged the attention of this Court in Green v. County

School Board, 391 U. S. 430 (1968); Raney v. Board of

6. Because Wilmington started to dismantle its dual system

promptly after Brown I there were black students in most formerly

white schools by 1956. No racial statistics are available for years

prior to 1956.

7. Neither the Court’s list of formerly black schools nor the

above list of formerly white schools includes schools which opened

or closed between 1956 and 1973. One such school, Cedar Hill

Elementary, opened in 1959 with a black enrollment of 3.3% and

by 1973 had a black enrollment of 9.9%. Except for Cedar Hill

Elementary, all the relatively few schools which opened or closed

between 1956 and 1973 had black enrollments consistent with the

overall pattern of the other schools as shown above. The racial

ratios at Cedar Hill Elementary and Highlands Elementary were

not necessarily a sign that a dual system existed. Swann v. Board

of Education, 402 U. S. 1, 26 (1971); Goss v. Board of Education

of the City of Knoxville, 482 F. 2d 1044, 1046 (6th Cir. 1973).

16 Jurisdictional Statement

Education, 391 U. S. 443 (1968); Monroe v. Board of

Commissioners, 391 U. S. 450 (1968); Swann v. Board of

Education, 402 U. S. 1 (1971); McDaniel v. Barresi, 402

U. S. 39 (1971).

The District Court was wrong in holding that prompt

elimination of racially identifiable white schools in Wil-

mington was not enough to meet constitutional standards

simply because formerly black schools continued to be

black. Another District Court expressed the correct view

in Bradley v. Milliken, 402 F. Supp. 1096, 1126 (E. D.

Mich. S. D. 1975):

“Having considered the alternatives in light of

all the ‘practicalities’ at hand, we conclude that the

Board’s goal of desegregating by eliminating racially

identifiable white schools meets constitutional stand-

ards for desegregating the Detroit School System.”

In Swann the Court said that in school districts where

segregated education was formerly mandated by law the

continued existence of identifiably white and identifiably

black schools establishes a prima facie case of constitu-

tional violation. But here the District Court ignored the

fact that in Wilmington the formerly white schools were

promptly opened to blacks and soon ceased to be identi-

fiably white; by 1973 a person unfamiliar with the history

of Wilmington schools could not tell from the racial en-

rollments which schools were formerly white. By 1973,

Wilmington, which was desegregated by 1956, had long

since reached the point where instead of black schools

and white schools there were simply schools.* At that

point Wilmington had achieved full compliance with

8. The fact that such schools were predominantly black does

not mean that they were not desegregated. Milliken v. Bradley,

418 U. S. at 740.

Jurisdictional Statement 17

Brown and further intervention by the District Court was

uncalled for absent any showing (and the District Court

found none in its July 12 opinion) that school authorities

or other State agencies had “deliberately” attempted to

alter demographic patterns to affect racial composition of

the schools, Swann, 402 U. S. at 32; Milliken, 418 U. S. at

745.

B. There Was No Interdistrict Violation.

The District Court’s opinion of July 12, 1974 (379 F.

Supp. 1218) concluded with a direction to the State Board

of Education to submit alternate plans for the desegrega-

tion of Wilmington School District—first, an intra-district

plan—and second, a plan incorporating other undesignated

school districts in New Castle County. Before such sub-

mission this Court’s opinion in Milliken v. Bradley, 418

U. S. 717 (1974), came down. At that point the District

Court invited the New Castle County school districts out-

side Wilmington ® to intervene as parties defendant and

asked all parties to brief the effect of Milliken on the

propriety of an interdistrict remedy in this case. After

briefing and argument, the District Court, in a two to one

decision, held that an interdistrict remedy was permis-

sible, 393 F. Supp. 428.

Although the Wilmington and Detroit cases were in-

distinguishable, the District Court strained to reach a con-

trary result. Ii began, properly enough:

“In short, this Court, in light of the Milliken holding,

is authorized to consider desegregation relief em-

9. Such districts are usually referred to throughout this litiga-

tion as the suburban school districts. In fact, however, a num

of such districts are not suburbs of Wilmington and some of the

non-contiguous districts, particularly Newark School District and

New Castle-Gunning ord School District, have their own urban

cores.

18 Jurisdictional Statement

bracing more than the Wilmington district only upon

findings either that school districts in New Castle

County are not meaningfully separate and autonomous

or that there have been racially discriminatory acts of

the State or of local school districts causing inter-dis-

trict segregation. Because our opinion of July 12,

1974, made no findings concerning inter-district con-

stitutional violations, we must now make additional

findings on these issues.” 393 F. Supp. at 432.

1. SEPARATE AND AUTONOMOUS SCHOOL DISTRICTS.

The Court then touched on historical aspects of the

relationship between Wilmington and the suburban dis-

tricts but concluded:

“Since the 1950's however, Wilmington and suburban

schools have, to a great extent, operated independently

of one another. The suburban districts have, for the

past several years, operated unitary schools for the

children residing within their districts.” 393 F. Supp.

at 437.

“There is no evidence in the record which indicates

that suburban schools in New Castle County are pres-

ently operating other than unitary schools for the

children residing in their districts.” 393 F. Supp. at

437, n. 19.

Despite the District Court’s inability to find that

school districts in Delaware are not separate and autono-

mous, it hints that the pre-Brown interrelationship be-

tween Wilmington and the suburban districts would have

justified an interdistrict remedy. This concept is disturb-

ingly irrelevant because the pre-Brown interrelationship

only discriminated against black students from the subur-

Jurisdictional Statement 19

ban districts, whereas this case is concerned only with

black students in Wilmington who were never discrimi-

nated against by Wilmington’s interrelationship with the

suburban districts. Before Brown, this interrelationship

involved sending suburban black students, particularly

high school students, into the black schools in Wilmington

when there were no separate facilities for them in the

suburban districts. This constitutional violation was cured

in the 1950s and 1960s by eliminating the dual systems

which had existed in suburban districts and admitting stu-

dents regardless of race into all schools in the districts

where they resided. All school districts in New Castle

County are and for many years have been separate, autono-

mous and unitary; and no child in New Castle County,

Delaware, is denied admission to any school in the dis-

trict in which he resides because of race or color.

Judge Layton summed up this aspect of the majority

opinion in his dissent:

“Findings to the effect that prior to 1954 there

were interdistrict transfers of black and white students

from the suburbs to Wilmington which affect present-

day school attendance are, to my mind, non-sequitur.

The majority acknowledges, but gives no significance

to, the reasons for such arrangements—that two dec-

ades ago, Wilmington had better educational facilities,

full twelve-grade programs, etc. They acknowledge

that these practices have not existed for years. But

finding that after the termination of these interdis-

trict transfers Wilmington’s schools became identifi-

ably black, the majority apparently infers that the

present black population is in part the result of such

transfers. There is no evidence to support such a

conclusion.” 393 F. Supp. at 448.

20 Jurisdictional Statement

2. Hovsinc.

The District Court proceeded to consider other ways

to distinguish Milliken. It could find no evidence (be-

cause there was none) of racially discriminatory acts of

any of the suburban school districts causing interdistrict

segregation. It turned, then, to an attempt to show ra-

cially discriminatory acts of the State of Delaware causing

interdistrict segregation. It found that the increase of

black population and the decline of white population in

Wilmington resulted from governmental action, citing the

FHA Mortgage Underwriting Manual in use between 1936

and 1949 which advocated racially and economically

homogeneous neighborhoods; the existence of racial dis-

crimination in some private sales and rentals prior to

1968; the continued recording of deeds with nugatory ra-

cial covenants; public housing policies which resulted in

the construction of substantial numbers of units in Wil-

mington and relatively few units in the suburbs; and a

provision in the Code of Ethics of the National Associa-

tion of Real Estate Boards (which was eliminated in 1970)

counseling realtors not to introduce into neighborhoods

peoples whose race, nationality or other characteristics

would be detrimental to property values.

Comparable evidence, but in far greater depth and

detail, was introduced in Richmond and Detroit and found

unpersuasive. The thinness of the evidence in this case

- and its acceptance by the District Court, coupled with its

obeisance to and defenestration of Milliken, leads to the

belief that despite Milliken the District Court was deter-

mined to remedy the “condition” rather than the “con-

stitutional violation.”

Judge Layton put it well in his dissenting opinion:

“My impression of this evidence at the conclusion

of the trial was (and still is) that it fell fat. Much of

Jurisdictional Statement 21

the record concerns circumstances which are not the

result of State action. The majority concedes that

twenty-seven years ago the Supreme Court declared

racial covenants contained in deeds to be of no legal

effect. The majority cites no authority requiring the

Recorder of Deeds to cull out and delete this sort of

material from the numerous deeds filed daily for re-

cording; nor does it attribute any specific legal sig-

nificance to failure to cull out such language. In my

judgment, the only hard evidence of State action

appearing in the mass of evidence dealing with real

estate discrimination is the State publication, until

1970, of the N. A. R. E. B. Code of Ethics. Moreover,

this Code was not exclusive to Delaware, presumably

it extended nationally from Maine to Georgia, and

from Washington, D. C. to California.”

“In my view, the majority's findings, so sweeping

in effect, so heavy with inferences but so lacking in

concrete, relevant substance, have fallen far short of

fixing the responsibility for inter-district racial dis-

crimination upon Defendants’ shoulders.” 393 F.

Supp. at 448-9).

The “only hard evidence” fell woefully short of the

standard suggested by Mr. Justice Stewart in his con-

curring opinion in Milliken:

“No record has been made in this case showing that

the racial composition of the Detroit school population

or that residential patterns within Detroit and in the

surrounding areas were in any significant measure

caused by governmental activity, and it follows that

the situation over which my dissenting Brothers ex-

press concern cannot serve as the predicate for the

22 Jurisdictional Statement

remedy adopted by the District Court and approved

by the Court of Appeals.” 418 U. S. at 756, n. 2.

(emphasis supplied ).

3. THE EpUCATIONAL ADVANCEMENT ACT.

The central issue in the trial of this case was whether

the Educational Advancement Act of 1968 amounted to

unconstitutional interdistrict segregation.

The purpose and provisions of the Educational Ad-

vancement Act and some of the problems involved in its

enactment have already been alluded to, supra. The

significant findings of the District Court concerning the

statute appear in the following passage:

“We cannot conclude, as plaintiffs contend, that

the provisions excluding the Wilmington District from

school reorganization were purposefully racially dis-

criminatory. To be sure, all legislators may have

known that the Wilmington School District was pre-

dominantly black. On the other hand, the focus of

the legislature’s concern in developing the consolida-

tion provisions of the Educational Advancement Act

was on small, weak, ineffective school districts, and

while the effectiveness of schooling in Wilmington at

this time has been disputed, it is clear that Wilmington

had larger staffs and better programs than many Dela-

ware school districts. Moreover, Wilmington had

historically been treated distinctively in Delaware

education, and there is evidence that its representa-

tives were unwilling to forego certain aspects of this

special treatment. No language in the provisions at

issue makes any reference to race, nor evidently, did

the legislative debates over the Act contain any refer-

ence to race. Finally, all Wilmington legislators,

black and white, voted for the Educational Advance-

Jurisdictional Statement 23

ment Act. In short, the record does not demonstrate

that a significant purpose of the Educational Advance-

ment Act was to foster or perpetuate discrimination

through school reorganization.” 393 F. Supp. at 439.

Having found that the Educational Advancement

Act was not purposefully racially discriminatory, the Dis-

trict Court overlooked or misinterpreted the applicable law

to arrive at a determination of unconstitutionality.

a. Use of the Compelling State Interest Test.

Although the District Court could find no intentional

racial classification in the Educational Advancement Act,

it constructed a racial effect. Immediately prior to the

Act the Wilmington School District, like the Detroit School

District, was a predominantly black district surrounded by

predominantly white districts. Had there been no Educa-

tional Advancement Act this condition would have con-

tinued, and in fact it did continue after the enactment of

the Educational Advancement Act because the Act made

no change in the Wilmington School District boundaries.

This non-action on the part of the State was seen by the

District Court as an “effective” although not an “inten-

tional” racial classification which required invalidation un-

less justified by a compelling state interest.

It is now crystal clear from this Court’s opinion in

Washington v. Davis, — U.S. —, 44 U. S. L. W. 4789 (June

7, 1976), that the District Court erred in overlooking

Wright v. Rockefeller, 376 U. S. 52 (1964), and Jefferson v.

Hackney, 406 U. S. 535 (1972), and that it misread Keyes

v. School District No. 1, 413 U. S. 189 (1973):

“The rule is the same in other contexts. Wright

v. Rockefeller, 376 U. S. 52 (1964), upheld a New

York congressional apportionment statute against

Jurisdictional Statement

claims that district lines had been racially gerry-

mandered. The challenged districts were made up

predominantly of whites or of minority races, and their

boundaries were irregularly drawn. The challengers

did not prevail because they failed to prove that the

New York legislature ‘was either motivated by racial

considerations or in fact drew the districts on racial

lines’; the plaintiffs had not shown that the statute

‘was the product of a state contrivance to segregate

on the basis of race or place of origin.’ 376 U. S., at

56, 58. The dissenters were in agreement that the

issue was whether the ‘boundaries . . . were purpose-

fully drawn on racial lines.’ 376 U. S., at 67.

“The school desegregation cases have also ad-

hered to the basic equal protection principle that the

invidious quality of a law claimed to be racially dis-

criminatory must ultimately be traced to a racially

discriminatory purpose. That there are both pre-

dominantly black and predominantly white schools in

a community is not alone violative of the Equal Pro-

tection Clause. The essential element of de jure

segregation is ‘a current condition of segregation re-

sulting from intentional state action . . . the differ-

entiating factor between de jure segregation and so-

called de facto segregation . . . is purpose or intent

to segregate. Keyes v. School District No. 1, 413

U. S. 18S, 205, 208 (1973). See also id., at 199, 211,

213. The Court has also recently rejected allegations

of racial discrimination based solely on the statistically

disproportionate racial impact of various provisions of

the Social Security Act because ‘the acceptance of

appellant’s constitutional theory would render suspect

each difference in treatment among the grant classes,

however lacking the racial motivation and however

Jurisdictional Statement 25

rational the treatment might be.’ Jefferson v. Hack-

ney, 406 U. S. 535, 548 (1972). And compare

Hunter v. Erickson, 393 U. S. 385 (1969), with James

v. Valtierra, 402 U. S. 137 (1971).” 44 U.S. L. W.

4792.

b. Causing Interdistrict Segregation.

The District Court considered the provision of the

Educational Advancement Act limiting newly consolidated

school districts to a maximum of 12,000 and the provision

retaining Wilmington’s historic, neutrally established

boundary lines and found these provisions unconstitu-

tional. Specifically, the Court found that these provisions

were “a substantial cause of interdistrict segregation” and

thus a basis for interdistrict remedy under the reasoning

of Milliken (393 F. Supp. 439). Such interdistrict racial

disparity antedated the Educational Advancement Act by

many years and it was plainly erroneous for the District

Court to equate inaction after the event with causation.

The District Court’s real quarrel with the Educational

Advancement Act was that it did nothing to alleviate the

condition of a predominantly black school district sur-

rounded by predominantily white school districts. This

same condition which existed in Detroit was held by this

Court not to offend the Constitution. The Michigan legis-

lature had the power to alleviate this condition by con-

solidation of Detroit with suburban school districts but it

had no constitutional obligation to do so. By the same

token, neither the Delaware General Assembly nor the

State Board of Education had any constitutional obliga-

tion to provide racial homogeneity among the separate

autonomous school districts in New Castle County.

Spencer v. Kugler, supra; Bradley v. School Board of Rich-

mond, supra; Milliken v. Bradley, supra.

26 Jurisdictional Statement

c. Drawing or Redrawing School Boundaries.

The District Court adopted plaintiffs’ contention that

an interdistrict remedy was permissible because the Edu-

cational Advancement Act unconstitutionally contributed

to interdistrict segregation by redrawing school district

boundaries.

“In short the General Assembly ‘contributed to the

separation of the races by . . . redrawing school dis-

trict lines.’ Milliken v. Bradley, at 755, 94 S. Ct. at

3132 (Stewart, J., concurring).” 393 F. Supp. 445-6.

The fallacies here are fourfold. First, the Wilmington

School District boundaries were neutrally confirmed by

legislation in 1905 as coterminous with the City of Wil-

mington where they had been for the preceding fifty years.

The Educational Advancement Act made no change in

these boundaries. Second, Chief Justice Burger’s opinion

in Milliken spoke of district lines “deliberately drawn on

the basis of race.” The District Court conceded in its

opinion that nothing in the Educational Advancement Act

was deliberately racial. Third, the Chief Justice and Mr.

Justice Stewart illustrated their concern about contribut-

ing to segregation through drawing or redrawing district

lines by referring to Wright v. Council of the City of

Emporia, 407 U. S. 451, 51 (1972), and United States v.

Scotland Neck City Board of Education, 407 U. S. 484.

Unlike Wilmington, these were cases of new district lines

actually drawn for the purposes of impeding desegrega-

tion. Fourth, the remedy commensurate with such viola-

tion in the cited cases was to set aside the school district

lines which had been deliberately drawn on the basis of

race. The inapplicability here of a remedy commensurate

with the violation simply demonstrates that there was no

violation.

Jurisdictional Statement 27

II. Inclusion of New Castle-Gunning Bedford School! Dis-

trict in the Desegregation Area Exceeded the District

Court’s Authority Under the Decisions of This Court.

In Hills v. Gautreaux, — U. S. —, 44 U. S. L. W. 4480,

4484 (April 20, 1976), Mr. Justice Stewart explained

Milliken:

“The District Court’s desegregation order in Milliken

was held to be an impermissible remedy not because

it envisioned relief against a wrongdoer extending

beyond the city in which the violation occurred but

because it contemplated a judicial decree restructur-

ing the operation of local governmental entities that

were not imp! cated in any constitutional violation.”

New Castle-Gunning Bedford School District is a

separate autonomous school district. It is not adjacent to

Wilmington School District and it is not a suburb of Wil-

mington. The focal point of New Castle-Gunning Bedford

School District is the historic City of New Castle. New

Castle-Gunning Bedford School District is a governmental

entity which has not been implicated in any constitutional

violation. Nevertheless, under the remedial order of the

District Court this governmental entity will be abolished

and its operations will be completely restructured. The

boundaries of this separate, autonomous school district,

whose urban core is the City of New Castle, will be set

aside by the District Court despite the fact that the record

fails to show any constitutional violation within the New

Castle-Gunning Bedford School District, let alone a con-

stitutional violation which has produced a segregative

effect in the Wilmington School District.

The essential holding of Milliken is set out in the fol-

lowing language written by Mr. Chief Justice Burger:

28 Jurisdictional Statement

“The controlling principle consistently expounded

in our holdings is that the scope of the remedy is

determined by the nature and extent of the constitu-

tional violation. Swann, 402 U. S., at 16. Before the

boundaries of separate and autonomous school dis-

tricts may be set aside by consolidating the separate

units for remedial purposes or by imposing a cross-

district remedy, it must first be shown that there has

been a constitutional violation within one district

that produces a significant segregative effect in an-

other district. Specifically, it must be shown that

racially discriminatory acts of the state or local school

districts, or of a single school district have been a

substantial cause of interdistrict segregation. Thus

an interdistrict remedy might be in order where the

racially discriminatory acts of one or more school dis-

tricts caused racial segregation in an adjacent district,

or where district lines have been deliberately drawn

on the basis of race. In such circumstances an inter-

district remedy would be appropriate to eliminate the

interdistrict segregation directly caused by the con-

stitutional violation. Conversely, without an inter-

district violation and interdistrict effect, there is no

constitutional wrong calling for interdistrict remedy.”

(emphasis added). Milliken v. Bradley, 418 U. S.

717, 744-45.

If racially discriminatory acts in districts A and B

(but not in district D) produce a segregative effect in dis-

trict C, the Milliken decision does not suggest that dis-

trict D may be consolidated with districts A, B and C in

order to remedy the segregation in district C. The rem-

edy is determined by the nature and extent of the consti-

tutional violation and if it occurred in districts A, B and C

Jurisdictional Statement 29

there is no constitutional violation which justifies inclu-

sion of district D in an interdistrict remedy.

The same reasoning must apply if the racially dis-

criminatory acts of the State furnish the predicate for an

interdistrict remedy. When the racially discriminatory

acts of the State are a substantial cause of interdistrict

segregation among districts A, B and C this furnishes no

valid basis for including district D in an interdistrict rem-

edy. When the constitutional violation caused by State

action takes place in districts A, B 2nd C there is no con-

stitutional violation which justifies inclusion of district D

in an interdistrict remedy.

In the context of this case New Castle-Gunning Bed-

ford School District cannot properly be included in an

interdistrict remedy unless (1) there has been a constitu-

tional violation within New Castle-Gunning Bedford

School District which has produced a significant segrega-

tive effect in Wilmington School District, or (2) the ra-

cially discriminatory acts of New Castle-Gunning Bedford

School District or the State ot Delaware have been a sub-

stantial cause of interdistrict segregation between New

Castle-Gunning Bedford School District and Wilmington

School District. |

The District Court attempts to justify inclusion of

districts like New Casile-Gunning Bedford referring to the

effects of the pre-Brown segregation to which they were

parties. Prior to Brown black students residing in Wil-

mington were segregated on an intra-district basis by rea-

son of the dual school system in Wilmington; and some

black students outside Wilmington were segregated on an

interdistrict basis by being required to attend the “col-

ored” schools in Wilmington when there were not enough

black students to justify a separate “colored” school in the

district in which they lived. In pre-Brown days New

30 Jurisdictional Statement

Castle-Gunning Bedford School District did not have

enough black students for a separate high school and these

students crossed into Wilmington to attend the “colored”

high school there. This is the only pre-Brown interdistrict

segregation to which New Castle-Gunning Bedford School

District was a party. This pre-Brown interdistrict segre-

gation did not discriminate against black residents of Wil-

mington. The victims of this constitutional violation were

black students residing in New Castle-Gunning Bedford

School District; their constitutional rights were restored

more than fifteen years ago and the effects of such segre-

gation have long since been fully dissipated. In fact, the

District Court expressly recognized that the interdistrict

transfer program ceased after Brown I.

The District Court conceded that it could not say

that the “constitutional violation” attributable to the State

in the Educational Advancement Act had any interdis-

trict effect between Wilmington School District and New

Castle-Gunning Bedford School District. The same rea-

sons given by the District Court for the inclusion of

Newark School District apply to the inclusion of New

Castle-Gunning Bedford School District, viz.:

“It is difficult to say with any certainty that

Newark would have been included in any reorganiza-

tion had the State Board been entitled to exercise its

discretion in 1968. Since Newark at that time had

close to 12,000 students, the effect of the enrollment

limitation may have been to foreclose Newark’s in-

clusion. On the other hand, had the Legislature or

the State Board considered desegregation as one of

the appropriate goals to be accomplished in the course

of reorganization, very different criteria might have

led to the consolidation of part of either Wilmington

or DeLaWarr with part of the present Newark dis-

Jurisdictional Statement 31

trict. We do not, however, rest our holding on such

post hoc rationalizations, and on what might have

been. Rather, uncontradicted testimony indicates that

the stability of any desegregation plan is enhanced by

the inclusion of larger geographical areas and higher

white populations. The Court cannot ignore the fact

brought so forcefully to its attention that desegrega-

tion is costly, in ways beyond dollars spent on addi-

tional equipment and training. The difficulties of de-

clining tax bases,*° and the problem of preventing

growth areas from maintaining the duality” of

schools in the Northern New Castle County area re-

quire the inclusion of Newark.” (Slip Opiaion pages

57-8).

Just as the District Court in Milliken sought to include

suburban areas to remedy the condition it found in Detroit,

so the District Court in this case has included New Castle-

Gunning Bedford School District to remedy the condition

it finds in Wilmington School District. With no showing

that the “unconstitutional” features of the Educational Ad-

vancement Act had any interdistrict effect between Wil-

mington and New Castle-Gunning Bedford, the District

Court mandated the inclusion of New Castle-Gunning

Bedford to improve the stability of the desegregation area.

“Stability” meant to the District Court the prevention of

“white flight” which the District Court said could be in-

cluded in the exercise of its informed discretion on what

would constitute an appropriate remedy (Slip Opinion

page 56), citing Wright v. Council of the City of Emporia,

407 U. S. at 465, and U. S. v. Scotland Neck Board of

10. There is no evidence in the record of declining tax bases.

1l. There are no dual school systems in Delaware. The Court

uses “duality” for the concept that the percentage of blacks in the

unitary Newark School District would be less the percentage

of blacks in the desegregation area.

32 Jurisdictional Statement

Education, 407 U. S. at 490-91. But these were single-

district cases and it was permissible to consider white flight

in devising an intradistrict remedy for constitutional vio-

lations within the district. White flight, however, is not a

constitutional violation. Even if it had been shown that

whites will flee from Wilmington suburban areas to New

Castle-Gunning Bedford School District in order to avoid

desegregation (and this was not shown) such showing

would furnish no legitimate basis for including New Castle-

Gunning Bedford School District in the absence of its in-

volvement in any constitutional violation.

The District Court in its March 27, 1975 opinion said

that the victims of discrimination in this case are the school

children of Wilmington. There is no showing that New

Castle-Gunning Bedford School District has itself per-

formed any act contributing to discrimination against

the school children of Wilmington. Nor is there any show-

ing that any act of the State of Delaware has involved

New Castle-Gunning Bedford School District in discrim-

ination against the school children of Wilmington. In

such circumstances there is no constitutional basis for in-

cluding New Castle-Gunning Bedford School District in

an interdistrict remedy to alleviate what the District Court

has (mistakenly) called segregation in the Wilmington

School District.

III. The Use of Racial Quotas and the Restructuring of

More Than Half the Educational System of Delaware

Exceeded the District Court’s Authority.

This Court recognized in Swann that the “predicate”

for the District Court’s use of a 71% to 29% ratio was its

finding of a dual school system and a total defauli oa the

part of the school board to come forward with an accept-

able plan, notwithstanding the patient efforts of the Dis-

trict Judge who, on at least three occasions, urged the

Jurisdictional Statement 33

Board to submit plans. It was this predicate that al-

lowed the use of racial ratios as a “starting point” in the

formulation of a remedy.

This predicate is absent here. The only “dual sys-

tem” in Delaware is the disparity in racial percentages

among the twelve separate unitary school districts in New

Castle County, a condition which this Court has said does

not offend the Constitution. Nor can it be said that school

boards have defaulted on the court-imposed obligation to

come forward with an interdistrict remedy for the so-

called segregation in Wilmington School District. The

State Board of Education proposed a five-district plan for

a desegregation area in which the percentage of black stu-

dents would have been approximately 24%; but the Dis-

trict Court has insisted on 20%. Other more modest but

perfectly acceptable plans were before the District Cowrt

which would have eliminated all identifiably black schools

without restructuring the entire county. There was no

need here, as in Swann, for the District Court to use

racial quotas as a starting point; the starting point oc-

curred months before at hearings on remedy when the

school boards submitted plans which would have elimi-

nated racially identifiable schools.

Although the District Court employs euphemistic lan-

guage to describe its requirement that every grade in

every school be not less than 10% nor more than 35% black,

it seems plain that it has done what Swann says it can-

not do.

“If we were to read the holding of the District Court

to require, as a matter of substantive constitutional

right, any particular degree of racial balance or mix-

ing, that approach would be disapproved and we

would be obliged to reverse. The constitutional com-

mand to desegregate schools does not mean that every

34 Jurisdictional Statement

school in every community must always reflect the

racial composition of the school system as a whole.”

(402 U. S. at 24.)

Unlike many states there is no relationship in Dela-

ware between the school districts and the counties. The

determination of the District Court to establish essentially

all of New Castle County as a single school district ap-

proximately five times larger than any district now in

existence anywhere in the State is an unwarranted inter-

ference with the internal governance of the State of Dela-

ware for which there is no constitutional justification. The

tradition of local control over the operation of schools

which this Court has recognized as essential both to main-

tenance of community concern and support of public

schools and to quality of education has been set aside by

the District Court because of its erroneous belief that

Delaware is obligated to provide racial balance among the

twelve separate autonomous school districts in New Castle

County. To permit the involuntary restructuring of the

school districts of Delaware on so faulty a premise will

achieve an impermissible result—one which is plainly con-

trary to the controlling standards expounded in the hold-

ings of this Court.

Jurisdictional Statement 35

CONCLUSION.

The errors committed by the District Court should not

be permitted to go uncorrected at the expense of the

citizens of Delaware. In a case indistinguishable from

Milliken the District Court misapplied the teaching of

Richmond, Milliken, Spencer v. Kugler, Hills v. Gautreaux,

and Washington v. Davis to impose a remedy not com-

mensurate with any constitutional violation and to re-

structure governmental entities not implicated in any con-

stitutional violation. The decree of the District Court

should be reviewed and reversed.

Respectfully submitted,

Davp F. ANDERSON,

PotreR ANDERSON & CORROON,

350 Delaware Trust Building,

P. O. Box 951,

Wilmington, Delaware. 19899

Attorneys for New Castle-Gunning

Bedford School District, Appellant.

APPENDIX C.

IN THE

UNITED STATES DISTRICT COURT

IN AND FOR THE District OF DELAWARE

Crviz Action Nos. 1816-1822.

BRENDA EVANS, ET AL.,

Plaintiffs,

v.

MADELINE BUCHANAN, Er ALt.,

Defendants.

Notice of Appeal to the Supreme Court

of the United States

Notice is hereby given that Defendant, New Castle-

Gunning Bedford School District, a Defendant in the

above-entitled action, hereby appeals to the Supreme

Court of the United States from the Final Order against

the Defendant entered in this action on June 15, 1976.

This appeal is taken pursuant to 28 U. S. C. § 1253.

/s/ Davww F. ANDERSON,

David F. Anderson,

PoTrTreR ANDERSON & CORROON,

350 Delaware Trust Building,

P. O. Box 951,

Wilmington, Delaware. 19899

A. C. 302 658-6771,

Attorney for Defendant, New Castle-

Gunning Bedford School District.

(Al)