Petition — Claymont School Dist. v. Evans

vy —

MICHAEL RODAK, JR., CLERK

1 aus 9 yor |

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Supreme Court of the U

October Term, 1977.

No. 77- %77220"

CLAYMONT SCHOOL DISTRICT and

STANTON SCHOOL DISTRICT,

Petitioners,

0.

BRENDA EVANS, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

James T. McKinstry,

Ricuarps, Layton & FINGER,

4072 DuPont Building,

: Wilmington, Delaware. 19899

| Attorneys for Claymont School

District and Stanton School

) District, Petitioners.

international Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

.

Page

Gm TI oo onc nck cc vtccccccccccvctconcesecescoss 1

JURISDICTION ... 2.26. - cece eee ee cere rece eect eerneeeenes 2

QUESTIONS PRESENTED ........ 0-0 eee ce cere reece eeeeeeees 2

STATEMENT OF THE CASE ........0:-ceccceceeeccseececees 3

REASONS FOR GRANTING THE WRIT .......- +6. eee cece eeeeee 10

I. The Decision of the Case Below Stands Alone in

That It Is in Direct Conflict With This Court's Rul-

ings and Decisions Beginning With Milliken I and

Continuing Through Dayton as Well as the Decision

of the Fourth Circuit Court of Appeals in Bradley v.

School Board of Richmond .........-..++++++0055 10

Il. This Court’s Summary Affirmance Has Been the

Source of Confusion as to Its Significance in the

Court Below and in Other School Desegregation

Cases and Should Be Reviewed ..........+++.+++: 12

III. Assuming, Arguendo, That This Court Affirmed the

Three-Judge Court’s Finding of a Constitutional

Predicate for an Inter-District Remedy, the Action

of the Court of Appeals Precludes Petitioners From

Any Appellate Review of the Trial Court's Finding

That They Were Implicated in the Violation and

Thus Subject to Being Included in an Inter-District

Remedy .........cccceccecececenceneececeereres 15

IV. Assuming Arguendo That This Court's Prior Sum-

mary Affirmance Was Intended to Affirm the Three-

Judge Court’s Holding of an Inter-district Violation,

the Court of Appeals Committed Error in Refusing

to Determine Which Findings Were Necessarily De-

termined by the Summary Affirmance ............ 18

INDEX (Continued).

Page

V. An Essential Basis for the Trial Court’s Finding of a

Predicate for an Interdistrict Remedy Was the

Cumulative Effect of Several Suggested Violations in

Which Neither Claymont Nor Stanton Were Impli-

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TABLE OF CITATIONS.

Cases: Page

Austin Independent School District v. United States, — U. S.

L. W. — (December 6, 1976) .......-5--e-seeeeeeeees 10, 13

Brennan v. Armstrong, 45 U. S. L. W. 3850 (June 29, 1977) 10

Brown v. Board of Education, 347 U. S. 483 (1954) ........ 5

Buchanan v. Evans, 423 U. S. 963 (1975) ........--.-. 6, 7, 10, 12

Dayton Board of Education, et al. v. Brinkman, et al., 45

U. S. L. W. 4910 (June 27, 1977) ........+-++-- 10, 13, 19, 22

Delaware State Board of Education v. Evans, — U. S. -, 45

U. S. L. W. 3394 (Nov. 29, 1976) .......-.eeeeeeeeeee 17

Evans v. Buchanan, 379 F. Supp. 1218 (D. Del. 1974) ...... 4,6

Evans v. Buchanan, 393 F. Supp. 428 (D. Del.) affd 423

U. S. 963 (1975) ..... cece eee eee eeeeees 3, 4, 5, 6, 13, 14, 21

Evans v. Buchanan, 416 F. Supp. 328 (D. Del. 1976) ....6, 12, 21

Hills v. Gautreaux, 425 U. S. 283 (1976) ......-+.+-- 10, 11, 17, 18

Milliken v. Bradley, 45 U. S. L. W. 4873 (June 27, 1977) ... 10

Milliken v. Bradley, 418 U. S. 717 ¢ Peers 5, 10, 11, 13, 17

Morgan v. Kerrigan, 530 F. 2d 401 (1st Cir. 1976) ......... 14

- §chool District of Omaha v. United States, 45 U. S. L. W.

3850 (June 29, 1977) ....-.. eee cece eee e eerste eens 10, 19

United States v. Board of School Commissioners of the City

of Indianapolis, 541 F. 2d 1211 (7th Cir. 1976), vacated

45 U. S. L. W. 3508 (January 25, 1977) ......--++-- 10, 13, 14

Village of Arlington Heights v. Metropolitan Housing De-

velopment Corporation, 45 U. S. L. W. 4073 (Jan. 11,

VOTT) wc cecccscccccnccccccccccceescscessssncecses 7, 10,13

Washington v. Davis, 426 U. S. 229 (1976) ....7, 10, 11, 13, 14, 17

Statutes:

Delaware Educational Advancement Act of 1968, 14 Del. C.

§ 1001 et seq. .....- eee eee reece teen cece eens eeeeees 5, 11, 21

U. §. Constitution, Fourteenth Amendment ..........-+---- 10, 11

IN THE

Supreme Court of the United States

OcrosEer TERM, 1977.

No. 77-

CLAYMONT SCHOOL DISTRICT and

STANTON SCHOOL DISTRICT,

Petitioners,

v.

BRENDA EVANS, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Petitioners, Claymont School District and Stanton

School District, respectfully request that a Writ of Certi-

orari issue from this Court to review the judgment of the

United States Court of Appeals for the Third Circuit

(hereinafter “Third Circuit”) in cause numbers 76-2103

through 2107.

OPINIONS BELOW.

The opinions of the Court of Appeals for the Third

Circuit are not yet reported. They are set out as Ap-

pendix A to the Petition for Writ of Certiorari filed by

Delaware State Board of Education in No. 77-131 at pages

Al to A4l. The opinions of the United States District

Court for the District of Delaware, sitting as a three-judge

court, are reported at 416 F. Supp. 328 (1976) and are also

2 Petition for Writ of Certiorari

set out as Appendix B to the Petition of the Delaware

State Board of Education at pages A42 to All2. Other

pertinent opinions of the three judge court below are re-

ported at 393 F. Supp. 428 (1975) and 379 F. Supp. 1218

(1974).

JURISDICTION.

The opinion of the United States Court of Appeals

was filed on May 18, 1977. This Court's jurisdiction is

invoked pursuant to 28 U.S.C. § 1254.

QUESTIONS PRESENTED.

1. Can an inter-district remedy in a school desegrega-

tion case include local governmental entities such as

suburban school districts which operate unitary school

systems absent a predicate of intentional or purposeful dis-

criminatory acts by such districts and an incremental seg-

regative effect involving them?

2. Can an inter-district remedy in a school desegrega-

tion case be ordered where it would be highly speculative

to determine which constitutional violation has been

committed as well as the incremental segregative effects

thereof?

3. Can in inter-district remedy in a school desegrega-

tion case include local governmental entities such as sub-

urban school districts when based on the cumulative

impact or effect of various acts of public officials other than

such suburban school officials?

Petition for Writ of Certiorari 3

STATEMENT OF THE CASE.

This is an application for a Writ of Certiorari by the

Claymont School District and Stanton School District seek-

ing a review of a judgment dated May 19, 1977, entered

by the District Court for the District of Delaware pursuant

to the mandate of the Court of Appeals as specified in its

Opinion of May 18, 1977 (A20-24). The judgment or-

dered an inter-district desegregation plan which has the

effect of desegregating ten suburban school districts in-

cluding the two petitioning districts, which maintain uni-

tary school systems, Evans v. Buchanan, 393 F. Supp. 437

(D. Del. 1975) at p. 437; 416 F. Supp. 328 (D. Del. 1976)

at p. 339 (A52), and which have not been found to be

unconstitutionally segregated, in addition to the Wilming-

ton School District which has been found to have operated

a dual school system and to have vestiges of racially segre-

gated schools. The Court’s judgment threatens to dis-

solve all ten of the suburban school districts and merge

them with the Wilmington School District into one large

super district. There was no evidence submitted to the

court below, nor any finding, that, but for the alleged con-

stitutional violations, such a super district would exist in

northern New Castle County containing approximately

60% of the public school children of the State of Delaware.

Nor was there any finding that, but for the alleged consti-

tutional violations, the racial composition of petitioners’

schools would be any different than what they are today.

The history of this litigation is well documented in

the reported opinions of the three-judge Court below as

well as in the opinion of the Third Circuit of May 18,

1977. We will not undertake to record a detailed history

of the public education system of Delaware at this time.

However, we believe that a brief summary of the more

salient facts of such history is pertinent background to this

certiorari proceeding:

4 Petition for Writ of Certiorari

1. Since 1829, the State of Delaware has followed a

policy of comparatively small autonomous school districts

throughout the three counties of the State and has not

utilized county wide school districts as has been the case

in some other states.

2. Since 1905, the geographical boundaries of the

Wilmington School District have been coterminous with

those of the City of Wilmington. Evans v. Buchanan, 393

F. Supp. 428 (D. Del. 1975) at 443, 451.

3. Since, at least, the early 1960s, all of the ten sub-

urban school districts affected by the judgment below have

maintained unitary autonomous districts. Except for one,

the De La Warr School District, they have done so since

the 1950s. Evans v. Buchanan, 393 F. Supp. 428 (D. Del.

1975) at 437.

4. From July 24, 1961, to July 27, 1971, no questions

were raised by anyone concerning school segregation in

Wilmington or New Castle County.’ At one point during

that period, H. E. W. pointed to Delaware as the first

border state which has “completely eradicated the dual

system” Evans v. Buchanan, 393 F. Supp. 428 (D. Del.

1975) at 451.

5. Following a hiatus since June 26, 1961, at which

time the District Court for the District of Delaware ap-

proved a plan prepared by the State Board of Education

which included the continuance of Wilmington’s historic

school boundaries,’ this litigation was reactivated on July

27, 1971, when the current plaintiffs filed a petition for

supplemental order claiming violation of the constitutional

rights of black students in the Wilmington School District.

1. There were two isolated exceptions not here pertinent which

are referred to in f.n. 19 on page of 393 F. Supp.

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

1221, f.n. 2.

as

Petition for Writ of Certiorari 5

6. On July 12, 1974, the District Court for the District

of Delaware, sitting as a three-judge Court, found that be-

cause many schools in Wilmington which had been black

schools prior to Brown v. Board of Education, 347 U. S. 483

(1954) had remained identifiably black until 1975, the dual

school system in Wilmington had not been eliminated.’

The Court asked the State Board of Education to submit

alternative desegregation remedies, one limited to the

boundaries of the existing Wilmington School District and

the other incorporating school districts in northern New

Castle County. The inter-district remedy was requages

for the reason of the “central issue . . . whether an‘€ffec-

tive remedy for the continuing school segregation in Wil-

mington may be found within the existing boundaries of

the Wilmington School District.” Prior to submission of

the requested plans, the case of Milliken v. Bradley, 418

U. S. 717 (1974) was decided by the United States

Supreme Court and, in the light of that decision, the court

below gave suburban New Castle County School Districts

an opportunity to intervene and present evidence.

7. On March 27, 1975, the trial court rendered an

opinion, Layton, J., dissenting, in which it held that certain .

provisions of the Educational Advancement Act of 1968, 14

Del. C. § 1001 et seq. which excluded the Wilmington

School District from eligibility for consolidation with con-

tiguous districts were unconstitutional. Evans v. Bu-

chanan, 393 F. Supp. 428 (D. Del. 1975). The Court

proceeded to enter an interlocutory order on April 16,

1975, enjoining the State Board of Education and other

parties, including the Claymont School District and

- Stanton School District, to submit intra-district and inter-

3. The Court did not explain or consider how “virtually all-

black schools” could become non-black schools in a school district

when the district was moving from a white-black ratio of 72-28

percent in 1954 to 14-83 percent in 1974.

6 Petition for Writ of Certiorari

district plans to remedy the segregation found by the

Court to exist within the Wilmington School District. An

appeal was taken from the interlocutory injunctive order

of April 16, 1975, to the United States Supreme Court.

‘Lhe interlocutory injunctive order was summarily affirmed

without an opinion, Buchanan v. Evans, 423 U. S. 963, 46

L. Ed. 2d 293, 96 S. Ct. 381 (1975), Justices Rehnquist

and Power and Chief Justice Burger dissenting.‘

8. While the appeal to the Supreme Court was pend-

ing, the parties were submitting plans of remedy to the

three-judge Court below and extensive hearings were being

held. On May 19, 1976, after this Court’s summary af-

firmance, the three-judge Court rendered a further opinion

on remedy and entered its final judgment on June 15, 1976.

Evans v. Buchanan, 416 F. Supp. 328 (D. Del. 1976). The

opinion and order (A115) for the first time, included peti-

tioners in the far-reaching inter-district remedy. Appeals

were taken to the Third Circuit Court of Appeals and to

the United States Supreme Court from the lower court's

final judgment. The appeal to the Third Circuit was

4. There has been disagreement as to the significance of this

Court’s summary affirmance and what was intended by it. How-

ever, even if it is assumed, arguendo, that the Court of Appeals was

correct in holding that this Court affirmed a findin “that one or

more inter-district constitutional violations” had taken place and

that this pee Cg constitutes the law of the case, it should be

noted that neither the order nor judgment that was then appealed

to this Court, nor the supporting opinions thereto, i.e., 379 F. Supp.

1218 and 393 F. Supp. 428 held or found that the Claymont or

Stanton Districts were implicated in any violation or involved in

the incremental segregative effect of any inter-district violation.

Accordingly, not even an inflexible application of the law of the

case rule to this case affects the petitioners, the Claymont and

Stanton School Districts. It was not until the three-judge Court’s

final judgment of June 15, 1976, and its supporting opinion. 416

F. Supp. 328, that it was held that the petitioning districts should

be included in the remedy even though no ific finding of in-

volvement or implication by the Claymont or Stanton Districts was

made at that time.

Petition for Writ of Certiorari 7

stayed pending the procedings in the United States Su-

preme Court. This Court ultimately dismissed the appeal

for want of jurisdiction. The matter then proceeded in the

Third Circuit.

9. The appeal to the Third Circuit Court of Appeals

was heard anc considered en banc. By a vote of 4 to 3,

the Court of Appeals affirmed the final judgment of the

three-judge Court with certain modifications. More

specifically, the majority of the Court:

(a) Concluded that it was precluded from re-

viewing the three-judge Court’s finding that an inter-

district constitutional violation had taken place in the light

of this Court’s summary affirmance in Buchanan v. Evans,

423 U. S. 963, 46 L. Ed. 2d 293, 96 S. Ct. 381 (1975) even

though the Court conceded that it would be “highly specu-

lative” to determine which of eight possible violations were

“necessarily decided” by the summary affirmance. The

majority held that “one or more inter-district constitutional

violations were found by the District Court and affirmed

by the Supreme Court” and suggested that, if the defend-

ants (including petitioners herein) disagreed, they should

seek review by this Court (A13). The three judge dissent

agreed that the question of whether the finding of a con-

stitutional violation emanating from the Educational Ad-

vancement Act was affected by this Court’s subsequent

decisions in Washington v. Davis and Village of Arlington

Heights was “in the province of the Supreme Court and

not of the Court of Appeals” and observed that petitioners’

argument in that regard “merits serious consideration”

(A37).

(b) Concluded that the remedy must correct the

constitutional violation and eradicate its effects by return-

ing the school system and its students, as nearly as pos-

sible, to the position they would have been in but for the

8 Petition for Writ of Certiorari

constitutional violation; but, at the same time, made the

task impossible by leaving to speculation the question of

which constitutional violations were involved as well as the

effects, if any, of such violations.

(c) Approved the inclusion of petitioners, Clay-

mont School District and Stanton School District, in the

remedy (as well as other suburban districts contiguous

and noncontiguous to the City of Wilmington) even though ©

the trial court had found that they maintained unitary

school systems and in the absence of a finding by the trial

court that these petitioners were implicated in the violation

or that there was an incremental segregative effect involv-

ing the petitioners. Nevertheless, the majority mandated

that the restructuring or dissolution of petitioners and eight

other unitary suburban districts would be an appropriate

remedy even though the lower court had not found that a

super district would have existed in northern New Castle

County “but for” the alleged violations.

Petitioners, Claymont School District and Stanton

School District, are two of the five non-contiguous suburban

school districts that may be dissolved by reason of the

Third Circuit’s rulings of May 18, 1977. The two school

districts are similarly situated in that they are suburban

school districts, operate unitary school systems and are not

contiguous to the boundaries of the Wilmington School

District. Each district is administered by its own school

board of five citizens elected by the voters of the district.

Prior to the Educational Advancement Act of 1968,

both districts were non-contiguous to the Wilmington

School District and could not have been consolidated with

the Wilmington School District unless other districts situ-

5. This is true of all but one of the ten suburban districts, the

Alexis I. duPont School District, whose board is appointed. Wil-

mington’s board is also appointed.

Petition for Writ of Certiorari 9

ated in between Claymont and Stanton were also consoli-

dated. In point of fact, the State Board of Education in

implementing the provisions of the Educational Advance-

ment Act of 1968 in New Castle County did not consoli-

date more than two contiguous districts into any new

reorganized district with one limited exception.

The Claymont School District has further unique

characteristics. Claymont is the only remaining commu-

nity in New Castle County, other than Wilmington, which

has its own schoo! district within its boundaries. Although

an unincorporated area, it is a compact community with

its own fire department and post office. It has traditionally

had its own school district and the support of public edu-

cation in the district has been good through the years.

Claymont was one of the few suburban districts which

were not involved in a consolidation or merger under the

Educational Advancement Act of 1968.

Claymont is the only suburban district in New Castle

County which is a “walk in” district. Its pupils and parents

are not accustomed to busing even within the district ex-

cept in a small minority of cases. Approximately 10% to

11% of the students are bused within the district. There

was testimony at the hearings below that the socio-

economic characteristics of the Claymont community are

such that it is likely that mandatory busing would be more

difficult to implement smoothly within the district than

within other suburban districts.

Both of these autonomous school districts have been

operating unitary systems. Neither have been found to

have committed an unconstitutional act. No finding has

been made and no evidence has been cited to the effect

that a racially discriminatory act has been committed in

another district which has caused racial segregation in

either the Claymont or Stanton School Districts. Yet, the

Courts below have decreed that they may be abolished.

10 Petition for Writ of Certiorari

REASONS FOR GRANTING THE WRIT.

I. The Decision of the Case Below Stands Alone in That

it Is in Direct Conflict With This Court’s Rulings and

Decisions Beginning With Milliken I and Continuing

Through Dayton as Well as the Decision of the Fourth

Circuit Court of Appeals in Bradley v. School Board

of Richmond.

This Court has made it abundantly clear that, in the

setting of a school desegregation case, a desegregation

remedy cannot be decreed by a federal court based upon

the violation of the Fourteenth Amendment in the ab-

sence of a showing that an “incremental segregative effect”

has resulted from an intentional or purposeful act on the

part of school officials. Milliken v. Bradley, 418 U. S. 717,

41 L. Ed. 2d 1069, 94 S. Ct, 3112 (1974); Hills v. Gau-

treaux, 425 U. S. 283, 47 L. Ed. 2d 792, 96 S. Ct. 1538

(1976); Washington v. Davis, 426 U. S. 229, 48 L. Ed.

2d 597, 96 S. Ct. 2040 (1976); Village of Arlington Heights

v. Metropolitan Housing Development Corporation, 45

U. S. L. W. 4073 (Jan. 11, 1977); United States v. Board

of School Commissioners of the City of Indianapolis, 541

F. 2d 1211 (7th Cir. 1976), vacated 45 U. S. L. W. 3508

(January 25, 1977); Austin Independent School District v.

United States, — U. S. L. W. — (December 6, 1976); Day-

ton Board of Education, et al. v. Brinkman, et al., 45

U. S. L. W. 4910 (June 27, 1977); Milliken v. Bradley, 45

U.S. L. W. 4873 (June 27, 1977); School District of Omaha

v. United States, 45 U. S. L. W. 3850 (June 29, 1977);

Brennan v. Armstrong, 45 U. S. L. W. 3850 (June 29,

1977).

The interlocutory injunctive order (A113) which was

summarily affirmed by this Court in Buchanan v. Evans,

423 U. S. 963, 46 L. Ed. 2d 293, 96 S. Ct. 381 (1975) was

/

Petition for Writ of Certiorari 11

entered by the majority judges of the three-judge Court

below following that court’s opinion which is reported in

393 F. Supp. 428. In that opinion, certain provisions of a

state statute, the Delaware Educational Advancement Act,

14 Del. C. § 1004(c) (4) were held to be in violation of the

Fourteenth Amendment and the basis for an inter-district

desegregation remedy.’ Even though the court expressly

found that the statute had not been enacted with a racially

discriminatory purpose or intent, 393 F. Supp. at p. 439,

racial impact or effect was found to be a sufficient predi-

cate for the finding of a constitutional violation on which

an inter-district remedy could be based. Further, the

court did not find that there had been an incremental

segregative effect flowing from that violation. As of the

date of the three-judge court’s opinion and order, only

Milliken I had been decided by this Court. Therefore,

the court below did not have the benefit of the clarity of

the subsequent decisions of the court beginning with Hills

ov. Gautreaux.

We respectfully submit that the summary affirmance

by this Court of the three-judge court’s order of April 16,

1975, was not intended to be an affirmance of the court's

holding that the discriminatory effect or impact of the

statute was a constitutional basis for inter-district remedy

in the light of the affirmative finding by the court of an

absence of intent or purpose since such a holding by this

Court would be contrary to the rulings of this Court in the

above-cited cases. If the summary affirmance was in-

tended to affirm the lower court’s holding, we submit that

it must be deemed to have been reversed by Washington v.

Davis. Any other analysis of the summary affirmance

6. The three-judge court also discussed other “violations” but

made no findings with respect to intent or purpose nor as to in-

cremental egregative effect. The other violations are identified in

the dissenting opinion of Judge Garth (A27-28).

12 Petition for Writ of Certiorari

would set this case apart from all of the others. The dis-

senting Justices in Buchanan v. Evans, 423 U. S. 963, 46

L. Ed. 2d 293, 96 S. Ct. 381 (1975) inferred that the

majority of this Court undertook to resolve issues other

than the “Milliken” issues by its summary affirmance and

urged that an opinion be written by the Court denominat-

ing the “issues the Court conceives to be resolved by its

summary affirmance.” This inference appears to have been

verified by the various decisions of this Court since the

date of the summary affirmance in this case.

Il. This Court’s Summary Affirmance Has Been the

Source of Confusion as to Its Significance in the

Court Below and in Other School Desegregation

Cases and Should Be Reviewed.

This Court should note the three-judge court's con-

clusion as to the significance of the summary affirmance.

At page 334 of 416 F. Supp. (A42-43) the Court sum-

marized its prior findings and cited this Court’s affirmance.

Those findings included “that the segregation was never

erased; and that this segregation resulted from a combina-

tion of factors, including demographic and housing pat-

terns initiated and supported by state action. ..”. At

p. 339 of the same opinion, the Court stated:

“We need not catalogue the set of violations with

regard to housing and zoning set forth in the last

opinion affirmed by the Supreme Court...” (Em-

phasis supplied, A52) a

Thus, it is apparent that the trial court below viewed this

Court’s summary affirmance as supporting the proposition

that the constitutional predicate for an inter-district school

desegregation remedy may be made out by showing that

demographic and housing and zoning patterns have af-

fected the racial balance of adjacent school districts even

Petition for Writ of Certiorari 13

though school authorities have had no involvement in

them. We know of no Supreme Court authority for such

a proposition. In fact, it cannot be squared with various

views expressed by the Justices of this Court.’ Conceiv-

ably, other trial courts may be laboring under the same

misconstruction of this Court’s summary affirmance.

Opinions of circuit courts elsewhere have reflected

confusion over the significance of this Court's summary

affirmance. Thus, in U. S. v. Board of School Commis-

sioners of City of Indianapolis, 541 F. 2d 1211 (7th Cir.

1976), the majority opinion of the Court of Appeals for the

Seventh Circuit discussed and cited Evans v. Buchanan,

393 F. Supp. 428 (D. Del. 1975), aff'd 423 U. S. 963, 96

S. Ct. 381, 46 L. Ed. 2d 293 (1975) for the proposition that

racial impact and effect of state legislation was a sufficient

basis for an inter-district school desegregation remedy and

pointedly noted that “[T]he Supreme Court summarily

affirmed”. 541 F. 2d at 1222. It is significant to observe

the dissenting judge’s observation at p. 1226 that the

Indianapolis case was briefed before the Seventh Circuit

prior to this Court’s decision in Washington v. Davis and

that the appellees assumed that a finding of a racially dis-

criminatory purpose was not required.* The three-judge

7. In Dayton emphasis is given to the redress of violations on

the part of ‘school officials” or “school boards”. In Austin, Justice

Powell's concurring opinion pointedly observes that racial and

ethnic imbalance in urban schools is the result of imbalance in

residential patterns which “are typically beyond the control of school

authorities”. Milliken I spoke in the context of acts of school

officials or public officials acting in educational matters. Swann

warned against overloading the school authorities with all of the

“baggage” of racial prejudice.

8. This Court made a similar observation in Village of Arling-

ton at 45 U. S. L. W. 4078, noting that the case was tried and then

reviewed in the Court of Savon before Washington v. Davis and

that “r dents proceeded on the erroneous theory that“. . . a

raciall yor oe effect . . . was, without more, unconstitu-

tional.

14 Petition for Writ of Certiorari

court’s decision on liability below, based upon a finding of

racial impact and effect and including an express finding

of no intent or purpose, as well as this Court’s summary

affirmance, were also decided prior to the Washington v.

Davis decision. In any event, this Court has remanded

U. S. v. Board of School Commissioners of City of Indian-

apolis and its racial impact theory to the Seventh Circuit

for reconsideration in the light of Washington v. Davis.

It would appear, therefore, that the Seventh Circuit's

analysis of the significance of the summary affirmance of

the case below was incorrect. The Third Circuit majority

opinion below would appear to be consistent with the

Seventh Circuit’s analysis of the significance of this Court's

summary affirmance and should be reviewed by this Court.

In comparison with the Seventh Circuit’s treatment of

Evans v. Buchanan is the citation of the case, including its

summary affirmance by this Court, by the Court of Appeals

for the First Circuit in Morgan v. Kerrigan, 530 F. 2d

401 (1st Cir. 1976) at p. 422, wherein the Court states that

“racial isolation imposed by historic school district bound-

aries . . . becomes constitutionally significant only when

the district boundaries are drawn with segregative intent,

Evans v. Buchanan, 393 F. Supp. 428, 445-46 (D. C. Del. )

aff d 423 U. S. 963, 96 S. Ct. 381, 46 L. Ed. 2d 293 (1975)

.”. Since the majority of the three-judge court in

Evans v. Buchanan clearly and expressly did not find segre-

gative intent and, indeed, made a finding as to the absence

of such intent, the First Circuit Court of Appeals must have

rationalized this Court’s summary affirmance in the light of

this Court’s subsequent decisions by concluding that the

three-judge majority must have found racial intent or pur-

pose, the clear language of their opinion to the contrary

notwithstanding.

Thus, the analysis of the Seventh Circuit of this

Court’s summary affirmance appears to be in contradiction

a

Petition for Writ of Certiorari 15

to the analysis of the First Circuit. The First Circuit's

analysis, in turn, is in direct contradiction of the clear

language of the three-judge court below and would appear

to be based upon the assumption that this Court would not

intend to make a decision in this field of law inconsistent

with the long line of cases which have been handed down

since the date of this Court’s summary affirmance.

The proceedings below should be reviewed by this

Court to dispel the confusion that the Third Circuit was

confronted with as well as the precedential significance of

the case in other school desegregation cases throughout

the country.

III. Assuming, Arguendo, That This Court Affirmed the

Three-Judge Court’s Finding of a Constitutional Pred-

icate for an Inter-District Remedy, the Action of the

Court of Appeals Precludes Petitioners From Any

Appellate Review of the Trial Court’s Finding That

They Were Implicated in the Violation and Thus Sub-

ject to Being Included in an Inter-District Remedy.

The opinion of the majority judges of the three-judge

court on liability which formed the basis for the issuance

of the interlocutory injunctive order of April 16, 1975 made

no findings of liability as to the petitioning suburban

school districts of Claymont and Stanton nor of their in-

volvement in any of the suggested violations.

More specifically, and using the eight possible inter-

district violations suggested ® by the three judges’ dissent

to the Third Circuit's opinion, the only passing reference

to either the Claymont or Stanton School Districts in the

9. The word “suggested Na used advisably since it is not clear

that the three-judge court intended that each of the alleged acts

constituted a violation upon which an inter-district remedy could

be based or merely referred to them as historical events.

16 Petition for Writ of Certiorari

trial court’s opinion of Mazch 27, 1975, is found at p. 433

of 393 F. Supp. wherein it was observed by the Court that

in the 1954-55 school year, some white students from the

Claymont district attended Wilmington schools. Footnote

7 on page 433 identifies seven suburban districts in which

a total of 191 black students resided who attended Wil-

mington schools in 1954-55. Neither Claymont nor

Stanton were so identified. This single reference to Clay-

mont does not relate even to the pre-Brown inter-district

transfers of a small number of suburban black students to

black Wilmington schools, since the reference to Claymont

involves white and not black students.

Neither the order appealed from in 1975 nor its sup-

porting opinions made any findings as to unconstitutional

acts by the Claymont or Stanton school officials nor do they

suggest any implication in any way. The court merely

concluded that it would “consider” inter-district as well as

Wilmington only remedies. 393 F. Supp. at p. 446. It's

specific holding was that the Court would consider plans

“(b) incorporating other areas of New Castle County”.

No holding was made as to which “areas” would be con-

sidered. No findings were made that such areas would or

could include school districts non-contiguous to Wilming-

ton such as petitioners. No finding was made that either

Claymont or Stanton were implicated or involved in the

violation or in the incremental segregative effect. This

was the posture of the case at the time of this Court’s sum-

mary aflirmance.

It wasn’t until the opinion of May 19, 1976, which

formed the basis for the Court’s final judgment of June 15,

1976, that the majority members of the three-judge court

held that Claymont and Stanton should be included in the

inter-district remedy. In doing so, the Court made no

findings of implication in any constitutional violations by

Claymont or Stanton school officials. Nor did the Court

Petition for Writ of Certiorari 17

make any findings of the presence of an incremental segre-

gative effect within these districts. Yet, the Court held

that it could directly interfere with these local govern-

mental entities and restructure them.

The Court’s actions were contrary to Milliken I and

Hills v. Gautreux, which had already been decided. Hills

had been decided but a month before the Court's opinion

of May 19, 1976 and after briefing had been completed by

the parties. The parties were not asked to consider and

brief the significance of Hills. The Court’s opinion pre-

dated Washington v. Davis by about a month and, there-

fore, the Court did not have the benefit of this Court's

opinion in that case. The opinion of May 19, 1976 (as

well as the earlier opinion of March 27, 1975) is in direct

contradiction with those cases and those that have fol-

lowed. For the first time, the Claymont and Stanton school

districts were found to be subject to dissolution by judicial

fiat and to be involved in an inter-district remedy so as to

remove the remaining vestiges of a dual school system in

the Wilmington School District.

Petitioners, Claymont and Stanton School Districts,

appealed to this Court. The appeal was dismissed for lack

of jurisdiction. Delaware State Board of Education v.

Evans, — U. S. —, 45 U. S. L. W. 3394 (Nov. 29, 1976).

Petitioners then pursued their appeal to the Third Circuit

only to find that an appellate review of the constitutional

violation issues at that level was precluded by the law of

the case principle because of this Court’s summary affirm-

ance. They were told by the Court of Appeals that it would

be too “speculative” to determine which violations they

had been implicated in. Thus, the petitioners, Claymont

and Stanton School Districts, together with other suburban

districts, will be deprived of any appellate review in this

matter unless the Court grants this petition for certiorari.

Although they have been found to have operated unitary

Ss

18 Petition for Writ of Certiorari

school systems and although they have never been found

to have been implicated in any act with the intent or pur-

pose of discriminating against Wilmington’s black children,

and although they have never been found to have com-

mitted any acts having a discriminatory effect or impact

upon Wilmington’s black children, they are to be involved

in an inter-district remedy with probable dissolution.

The final judgment of the three-judge Court contem-

plates “a judicial decree restructuring the operation of

local governmental entities that were not implicated in any

constitutional violation”. Hills v. Gautreaux. We submit

that there should be an appellate review of this action. It

has been denied these petitioners. This is not the ordinary

situation where an intermediate court has previously re-

viewed the acts of the trial court. We urge this Court to

exercise its discretion so as to assure these petitioners one

appellate review of the decision to restructure and, prob-

ably, to dissolve them.

IV. Assuming Arguendo That This Court’s Prior Summary

Affirmance Was Intended to Affirm the Three-Judge

Court’s Holding of an Interdistrict Violation, the

Court of Appeals Committed Error in Refusing to

Determine Which Findings Were Necessarily Deter-

mined by the Summary Affirmance.

The Court of Appeals held that it was precluded from

reviewing the findings and conclusions of the three-judge

court on the question of liability because of the application

of the law of the case principle. The court stated that

“constitutional questions necessarily decided in a summary

affirmance” may not be reexamined by lower courts but re-

fused to decide what had been “necessarily decided”. The

court stated that it would be “a highly speculative exer-

Petition for Writ of Certiorari 19

cise” to determine which of eight possible violations found

by the three-judge court were affirmed or not affirmed by

the Supreme Court (A13).

In determining remedy, it is essential to know which

violation and what incremental segregative effect is being

redressed. Dayton Board of Education v. Brinkman,

School District of Omaha v. United States, Brennan v.

Armstrong, supra. Conceivably, a given suburban district

might have been implicated in one violation but not the

others. Or, possibly, an incremental segregative effect

may appear in a given suburban district as flowing from

one violation but not the others. As the three dissenting

judges observed, it is impossible to fashion a remedy with-

out knowing the specific violation that is involved or the

incremental segregative effect therefrom. The dissenters

stated:

“.. . After all, it is by no means obvious what the

racial composition of the affected schoois would be at

present if the eight violations found by the district

court had not occurred. One could argue in good

faith that but for those violations the ratio of black

students to white students would be approximately

the same in all the affected schools. One could also

argue in good faith that even if those eight violations

had never occurred, the racial composition of the af-

fected schools would not be appreciably different

from what it is today. I do not see how a proper

remedial plan can be developed until the court as-

sesses the continuing effects of any valid interdistrict

violations. Until such an assessment is made, it will

be impossible to determine whether or not the re-

quired causal connection exists between the violations

and the remedies which the parties may propose.”

(A29).

20 Petition for Writ of Certiorari

These observations were applied by the dissenters to the

total desegregation area, generally. However, they apply

to each suburban district, specifically.

The fact that one or more suburban districts are im-

plicated in a given violation does not mean that all were.

The fact tha: there may be an —e ef-

fect in one or more does not mean that thefé was in all of

them. The petitioners, Claymont and Stanton, have the

iight to have these findings made with respect to them

based on a sufficient record. This right has been denied

them. We submit that the decisions of this Court call for

a review of this issue and of the case below.

If review is granted by this Court, we will be pre-

pared to show that there has been no finding and that there

is no basis on which a finding may be made that either

Claymont or Stanton were implicated in any of the sug-

gested violations nor that there was any incremental seg-

regative effect in either district flowing from any of the

suggested violations.

V. An Essential Basis for the Trial Court’s Finding of a

Predicate for an Inter-district Remedy Was the Cumu-

lative Effect of Several Suggested Violations in Which

Neither Claymont nor Stanton Were Implicated. _

In his dissenting opinion from this Court’s summary

affrmance, Mr. Justice Rehnquist correctly noted that the

three judge court relied in large measure upon the cumu-

lative effect of various “governmental policies” which en-

couraged and assisted “in part” the demographic shift of

whites to the suburbs outside Wilmington and the growth

of identifiably black schools in Wilmington. Justice Rehn-

quist observed that the majority judges of the three judge

court below determined that “the cumulative effect” of

these policies “constituted segregative acts with interdis-

Petition for Writ of Certiorari 21

trict effect” and found a basis for inter-district relief.

Buchanan ». Evans, supra. Reference to the lower court’s

opinions confirm the accuracy of Justice Rehnquist’s ob-

servations of the lower court's thesis.

In the opinion of March 27, 1975, reported at 393

F. Supp. 428, the Court discussed the various possible

contributors to the racial imbalance or disparity between

the city and the suburbs using such ambiguous comments

as to cause and effect as “assisted”, “encouraged”, “evident

effect”, “may have”, “to some extent”, and “undoubtedly

served to augment” the racial disparity between the city

and its suburbs. 393 F. Supp. 434-437. The court sum-

marized that since Brown, governmental authorities (other

than suburban school officials) had contributed to the

racial isolation of the city from the suburbs by a variety of

federal, state and local conduct which assisted the white

exodus from the city. The governmental authorities were

said to have condoned and encouraged discrimination in

the private housing market. The court concluded that

“governmental authorities are responsible to a significant

degree for the increasing disparity in residential and school

populations” over the last 20 years and that “This conduct

constitutes segregative action with inter-district effects”

(393 F. Supp. at 438).

In the three-judge court’s opinion of May 19, 1976 re-

ported at 416 F. Supp. 328, the court referred to its prior

opinion saying that it had ruled that the segregation of

Wilmington schools had never been erased “and that this

segregation resulted from a combination of factors, includ-

ing demographic and housing patterns initiated and sup-

ported by state action” in addition to the enactment of the

Educational Advancement Act (416 F. Supp. 334). The

court further stated at p. 339 that:

“We need not catalogue the set of violations with

regard to housing and zoning set forth in the last

22 Petition for Writ of Certiorari

opinion affirmed by the Supreme Court. Nor need

we rehearse the reasons why we held the Educational

Advancement Act to be an unconstitutional ‘redrawing

of district lines’. It suffices to say that the acts de-

scribed in the prior opinions were the acts of the

State and its subdivisions, and had a substantial, not

a de minimis, effect on the enrollment patterns of the

separate districts.” (Emphasis supplied, A52)

At p. 343, the court stated:

«<<

_ . . Moreover, state action was also found to be re-

sponsible here for the racial identifiability of the

suburbs and the city, through enforcement of racial

covenants, zoning and encouragement and support of

private discrimination in housing . . .” (A59)

Thus, in addition to the holding with respect to the

Educational Advancement Act, the lower court made a

separate finding of the existence of a predicate for inter-

district relief on the basis of the “cumulative violation”

concept rejected by this Court in Dayton. Further, the

cumulative violation and effect theory of the lower court is

based on a series of suggested violations in which the peti-

tioners, Claymont and Stanton, had no part. No findings

were made of their implication or involvement. No find-

ings were made with respect to incremental segregative

effect flowing from these suggested violations or the cu-

mulative effect thereof within the two districts.

In refusing to review the liability issue in this case,

the Court of Appeals permitted the cumulative violation

and effect findings of the lower court to stand because it

would be “highly speculative” to do otherwise. We sub-

mit that the petitioners are entitled to a judicial review of

this patently erroneous holding.

Petition for Writ of Certiorari 23

CONCLUSION.

The case below, a metropolitan school desegregation

case, involves the restructuring of local governmental en-

tities by federal court order. The predicate for such fed-

eral judiciai interference has not been reviewed. All of

the seven judges of the Court ef Appeals for the Third

Circuit, sitting en banc, concludel that they were pre-

cluded from reviewing the basic liability issues of this

case and that only this Court could do so.

For the reasons set forth herein, we respectfully sub-

mit that this Court should grant the Petition for Writ of

Certiorari to review and reverse the judgment below.

Respectfully submitted,

James T. McKinstry,

RicHarps, LAYTON & FINGER,

4072 DuPont Building,

Wilmington, Delaware. 19899

Attorneys for Claymont School

District and Stanton School

District, Petitioners.

Al-A41

APPENDIX A.

We adopt and incorporate by reference Appendix A

to the Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit filed by the Dela-

ware State Board of Education in No. 77-131.

A42-A112

APPENDIX B.

We adopt and incorporate by reference Appendix B

to the Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit filed by the Dela-

ware State Board of Education in No. 77-131.

All13-A1l14

APPENDIX C.

We adopt and incorporate by reference Appendix C

to the Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit filed by the Dela-

ware State Board of Education in No. 77-131.

Al1l5

APPENDIX D.

In THE UNiTED States District Count

For the District of Delaware

BRENDA Evans, et al.,

Plaintiffs,

Civil Action

” Nos. 1816-1822

MADELINE BUCHANAN, et al.,

Defendants. |

Judgment.

This 15th day of June, 1976, for the reasons stated in

the Opinion of the Court issued May 19, 1976.

It Is HEREBY ORDERED AND DECREED:

1. (a) That this action shall be maintained as a class

action, and the class shall consist of all black and Hispanic

children presently enrolled in the Wilmington, Delaware

School system, and that the representation of the Inter-

vening Plaintiffs Pacheco, Rodriguez, et al., is limited to

the protection of the interests of the Hispanic students who

are members of the class, in receiving bilingual education;

(b) That the class so defined shall be represented by

the named plaintiff before the Court who are members

of the class, through their parents, legal guardians, or next

friends;

2. That the school in that area of Delaware north of

the northern line of the Appoquinimink School District;

that is, the area presently comprised of the Alfred I. Du-

A116

Pont, Alexis I. DuPont, Claymont, Conrad, DeLaWarr,

Marshallton-McKean, Mount Pleasant, Newark, New

Castle-Gunning Bedford, Stanton, and Wilmington School

Districts, shall be desegregated in accordance with the

Opinions of this Court, and shall be recognized into a new

or such other new districts as shall comply with the

Opinion of this Court issued on May 19, 1976;

3. The State Board of Education shall:

(a) Appoint a board of five members (the “New

Board”) to oversee the operation of the schools of the

area as defined in { 2 of this Order, such members to be

appointed so that one member of the New Board shall be

a member of the present Newark School Board; one mem-

ber of the New Board shall be a member of the present

Wilmington School Board; one member of the New Board

shall be a member of either the present New Castle-Gun-

ning Bedford, or DeLaWarr or Conrad School Boards;

one member of the New Board shall be a member of the

present Stanton, Marshallton-McKean, or Alexis I. DuPont

School Boards; and one member of the New Board shall

be a member of either the present Alfred I. DuPont, Mount

Pleasant or Claymont School Boards; and that the mem-

bers of the New Board so appointed shall serve until their

successors are selected and duly qualified;

(b) Cooperate and assist the New Board in all plan-

ning and operational phases of the implementation of a

plan which shall be designed to desegregate the schools in

accordance with the Opinion of the Court issued May 19,

1976;

(c) Exercise appropriate supervision of the New

Board or its successor or successors and its exercise of

authority;

All7

(d) Set a date certain for the transfer of full re-

sponsibility for the operation of the schools to the New

Board or such successor or successors designated by state

law; such date to be prior to September 1, 1977;

(e) Be responsible, together with the presently exist-

ing boards, for any expenses created by the operation of

the New Board or its successor or successors until such

time as the New Board or its successor or successors, in a

transfer of authority, receive taxing power, in accordance

with § 3(d) hereof, and state law;

4. The New Board or its successor or successors shall:

(a) Commence immediately upon appointment to

consider any necessary planning for the transfer to it of

operating authority;

(b) Prepare a plan for the operation of unitary de-

segregated schools, in accordance with the Opinion of

May 19, 1976;

(c) Accept responsibility for the operation of the

schools, beginning with the Fall, 1977 term, in accordance

with a timetable to be set by the State Board of Educa-

tion;

5. The existing boards of the present school districts

shall assist in the transfer of authority, and shall be liable

together with the State Board for the expenses of the New

Board or its successor or successors, until such time as the

New Board or its successors receive taxing authority, in

accordance with § 3(d) hereof, and state law, the afore-

said expenses of the New Board shall be borne by the

existing boards of the present school districts and by the

State Board; each existing board’s contribution being as-

sessed in proportion to the ratio which the assessed value

of taxable property in that present school district bears to

A118

the total assessed value of taxable property in all districts;

provided, however, that each existing board’s contribution

shall be reduced from the aforesaid sum by virtue of the

State Board’s required contribution,, which contribution

shall equal the largest contribution required from any of

the local boards.

6. The State Board, in cooperation with the existing

local districts, may assign members of the professional

staff of the Department of Public Instruction or the local

districts, to assist the New Board during the period prior

to September, 1977;

7. Upon the transfer of full authority to the New

Board or its successors, the present boards shall, in ac-

cordance with state law, cease to exist;

8. The provisions of Paragraph 1 through 7 of this

Order in accordance with the Opinion of May 19, 1976,

shall be inapplicable to the New Castle County Voca-

tional-Technical School District.

9. The application of the plaintiff class for an injunc-

tion to restrain the payment by the State of any subsidy

for the transportation of students to private schools is

denied;

10. The provisions of Paragraphs 2 and 7 of this

Order shall be stayed in accordance with the Opinion of

May 19, 1976; and

11. The three-judge panel convened for the purpose

of considering the above matters is dissolved, and super-

visory jurisdiction will remain in the District Court, in

accordance with the provisions of the Opinion of May 19,

1976, and the mandate of the Court of Appeals for the

A119

Third Circuit in Evans v. Ennis, 281 F. 2d 385, 391 n. 1

(1960).

/s/ Joun J. Grpsons,

John J. Gibbons,

United States Circuit Judge.

/s/ Cates M. Wricut,

Caleb M. Wright,

United States Circuit Judge.