# Jurisdictional Statement — New Castle-Gunning Bedford School Dist. v. Evans > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0701%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1976 - **Citation:** 429 U.S. 973 ## Text 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 SY ccc nnkncosensavceseadeninsenseaseweons 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 i ata ,, a = Pe 2 T 7 a * e : . : 7 . . * + '‘ : al " ’ ‘ 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0701%3A1. Public record. Not legal advice.