Petition — Newark School Dist. v. Evans

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AUG 11 OTT

Supreme Court of the United States. cen

October Term, 1977.

i eed

No. 77-2358

NEWARK SCHOOL DISTRICT, et al.,

Petitioner,

v.

BRENDA EVANS, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Joun P. SINCLAIR,

4 350 Delaware Trust Building,

Wilmington, Delaware. 19899

Attorney for Newark School

’ District, Petitioner.

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

INDEX.

NE ds ius potash 6eesbccbeeesenteesddeee sues

JURISDECTION ... ccc ccc n cc crncccccccccccccccccsccccces

QUESTIONS PRESENTED ........-. ees eeeeceeeeeeeeeeeeseees

I nc cccccccccnedveveccccceccccececccccceccesess

REASONS FOR GRANTING THE WRIT .........--000e0 eee cues

I. The Decision Below Is in Direct Conflict With the

Decisions of This Court Because It Provides a

“Remedy” for Conditions Which Do Not Offend

i CD nce cecncccccencecscecosessces

II. The Decision Below Is in Direct Conflict With the

Decisions of This Court Reversing Systemwide

Remedies Which Were Beyond the Scope of a

Remedy Commensurate to the Violations .......

Ill. The Decision Below Is in Direct Conflict With the

Decisions of This Court Recognizing That Local

Autonomy of School Districts Is a Vital National

I it reshanceusneethskadeeda tects

Es ccc nccctense dsncenweelocpoves cdeeessasons

Appenpix: Map Showing Boundaries of School Districts in

New Castle County, Delaware

Page

13

17

21

TABLE OF AUTHORITIES CITED.

Cases: Page

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

a, TE ay EE CE Av 0 60. War dn chee Ss coasvacee¥ive 20

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

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

Be MD dba chin eben ds ce dkn tbe nekockanesassicte 14

Brennan v. Armstrong, 45 U. S. L. W. 3850 (June 29,1977)... _ 17

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

4, 7, 8, 13, 14, 15

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

Dayton Board of Education v. Brinkman, 45 U. S. L. W. 4910

CO TE, DUPED avs coekes cavsnsccsnsseees 3, 16, 17, 18, 21, 22

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) ....... 5

Evans v. Buchanan, 173 F. Supp. 891 (D. Del. 1959) ....... 5

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

Evans v. Buchanan, 207 F. Supp. 820 (D. Del. 1962) ....... 6

Evans v. Buchanan, 393 F. Supp. 428 (D. Del. 1975) affd per

curiam, 463 U. &. O63 (IG7G) 2... .cccccsccceess 7, 10, 11, 15

Evans v. Buchanan, 379 F. Supp. 1218 (D. Del. 1974) ...... 9,14

Evans v. Buchanan, 416 F. Supp. 328 (D. Del. 1976) .10, 16, 19, 21

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) ............. 5

Milliken v. Bradley, 418 U. S. 717 (1974) ...8, 10, 14, 17, 19, 20, 21

Milliken v. Bradley, 45 U_ S. L. W. 4873 (June 27, 1977) .... 17

Mount Healthy City School District v. Doyle, — U. S. —, 97

Si cr ns cccneednd keWeetseess tebhesicuveses 20

San Antonio School District v. Rodriguez, 411 U.S. 1 (1973) 21

School District of Omaha v. United States, 45 U. S. L. W.

See COND TA TENET veccvccccssevccsccessencesssene 17

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

A Ge ee Te Ee CUED decd ce ccccccdcans ceveces 8,14

United States v. Scotland Neck Board of Education, 407 U. S.

EE on Cudenndpe caseeke caavkhceaseddaen peuuss 21

TABLE OF AUTHORITIES CITED (Continued).

Cases (Continued): Page

Village of Arlington Heights v. Metropolitan Housing De-

velopment Corporation, — U. S. —, 97 S. Ct. 555 (1977) 20

Washington v. Davis, 426 U. S. 229 (1976) ........+.-++-+. 20

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

(DOTB) onc cccccccccccccccncccvcsescssvevccccesecces 21

OB U. GS. C. § UDG 2. cccccccccccccccccecccccceccccccces

Delaware Constitution, Article IX, Section 1 ...............

93 Del. Laws ch. 92 (1905) ...........ccccceeceereeeeees 6,

90 Del. Laws ch. 157 (1919) ........cccccccccecccccccees

32 Del. Laws ch. 163 (1921) ........ 6050s cece ee eee eee eee

97 Del. Laws ch. 202 (10G1) ...........ccccccccccccceces

5S Del. Laws ch. 172 (1965) ....... cee eee eeeeececeees

56 Del. Laws ch. 2902 (1968) ...........cccccceesececeees

yoo or CO C NW

IN THE

Supreme Court of the United States

Octroser TERM, 1977.

No.

NEWARK SCHOOL DISTRICT, et al.,

Petitioner,

0.

| BRENDA EVANS, et al.,

| Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Petitioner respectfully requests that a writ of certiorari

issue from this Court to review the judgment of the United

States Court of Appeals for the Third Circuit in the above-

mentioned cause.

OPINION BELOW.

The majority and dissenting opinions of the Court of

Appeals for the Third Circuit are not yet reported. They

are set out as Appendix A of the Petition for Writ of

Certiorari in Delaware State Board of Education, et al. v.

Brenda Evans, et al., No. 77-131. The majority and dis-

senting opinions of the United States District Court for the

District of Delaware are reported at 416 F. Supp. 328

(1976). They are set out as Appendix B to said Petition

) filed by the State Board of Education in No. 77-131.

2 Petition for Writ of Certiorari

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. May an interdistrict remedy be decreed to alleviate

conditions which do not offend the Constitution?

2. May the District Court construct a school system

consisting of eleven autonomous districts and then order a

systemwide remedy within such “system” to correct con-

stitutional violations in only one of the districts?

3. May eleven unitary and autonomous school dis-

tricts be displaced by a District Court without the “factual

proof” and “reasoned statement of legal principles” which

this Court has said are required?

Petition for Writ of Certiorari 3

STATEMENT. ’

The Petitioner, Newark School District (Newark), has

been included in the remedy for segregation found to exist

in Wilmington School District (Wilmington), not because

of Newark’s implication in any constitutional violation

affecting segregation in Wilmington, but only because the

District Court thought the desegregation of Wilmington

required dispersal of Wilmington’s black students through-

out ten other school districts not involved in any constitu-

tional violation. The Petitioner appealed the remedial

decree of the District Court to the Court of Appeals in the

expectation of obtaining appellate review of the reasons

for including Newark in the judicially created eleven school

district desegregation area—an area deemed by the District

Court to be necessary to alleviate the racial imbalance

between Wilmington and other school districts in New

Castle County, Delaware. Unfortunately, the reasons for

the exclusion of Newark which were presented in its briefs

and unrebutted by the plaintiffs were never addressed by

the Court of Appeals. Instead, Newark was caught up, as

in the District Court, in a welter of misleading generalities

about suburban school districts which are legally and

factually inadequate to support the judgment against

Newark. The proposed disruption of educational patterns

for the approximately 17,000 students in Newark School

District represents a misuse of judicial power at the District

Court level which cries out for the appellate review which

thus far has been withheld. “. . . the case for displace-

ment of the local authorities by a federal court in a school

desegregation case must be satisfactorily established by

factual proof and justified by a reasoned statement of legal

principles.” Dayton Board of Education v. Brinkman, 45

U. S. L. W. 4910, 4911 (June 27, 1977).

The map reproduced in the Appendix of this Petition

shows the location and boundaries of the twelve school

4 Petition for Writ of Certiorari

districts in New Castle County, Delaware. Newark is

presently the largest district in the county, having approxi-

mately 17,000 students, representing about 20% of the

public school students in New Castle County. Newark

School District was created by the General Assembly in

1919 (30 Del. Laws ch. 157) and traces its legislative

antecedents to 1873. The population of Newark and the

population of Wilmington are approximately the same al-

though the number of public school students in Newark

exceeds that in Wilmington by approximately 3,000. The

urban core of Newark School District is the City of Newark

which is the site of the University of Delaware and is a

separate community from the City of Wilmington with its

own municipal government and industrial base. Newark

is not contiguous to Wilmington and travel by any normal

routes between Wilmington and Newark involves going

through two other school districts lying between Wilming-

ton and Newark.

Prior to Brown v. Board of Education of Topeka, 347

U. S. 483 (1954) the Constitution and statutes of the

State of Delaware required separation of the races in pub-

lic schools. At that time some black students from subur-

ban districts attended Wilmington schools, although the

“victims of discrimination” in this case, the black students

in Wilmington, never experienced inter-district discrim-

ination. Newark’s only involvement disclosed in the rec-

ord consisted of sending five of its black residents to the

“colored” high school in Wilmington in 1954-55; in that

year the total number of similarly affected students in all

suburban school districts amounted to only 191 or less

than one percent of all the students in all the school dis-

tricts in the county. This arrangement ended promptly

after Brown when the schools in northern Delaware were

desegregated. Less than three months after Brown I and

without awaiting the guidelines concerning remedy which

Petition for Writ of Certiorari 5

came down in Brown II, 349 U. S. 294 (1955% Wilming-

ton voted to abolish its dual school system in stepped

phases which were completed by 1956. Newark and

other school districts in New Castle County also desegre-

gated their school systems promptly after Brown and ter-

minated all inter-district arrangements with Wilmington by

1956. In the school districts of rural Kent and Sussex

Counties, however, there was resistance to desegregation

and this lawsuit had its origins in an effort to overcome

that resistance. Evans v. Buchanan began in 1956 on the

complaint of black residents of a rural school district in

Kent County. Subsequently, additional plaintiffs inter-

vened from other districts in Kent and Sussex Counties

and the case proceeded as a class action. Summary judg-

ment 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 (3rd Cir. 1958). In

1959 a proposed plan of integration submitted by the

State Board of Education was approved with certain modi-

fications, 172 F. Supp. 508; 173 F. Supp. 891. However,

the plan approved by the District Court did not affect

Wilmington School District because it had already inte-

grated its schools. Plaintiffs appealed and the Court of

Appeals found that the approved plan did not effect de-

segregation with sufficient speed, Evans v. Ennis, 281 F.

2d 385 (3rd Cir. 1960). The Court of Appeals noted, how-

ever, that Delaware “already has integrated many of its,

schools, particularly in the Wilmington metropolitan

area.” (ibid. at p. 393).

The mandate of the Court of Appeals ordered the

State Board of Education to submit a new plan for ap-

proval of the District Court. Pursuant to that mandate

the State Board of Education prepared a plan which was

modified and approved by the District Court in June,

6 Petition for Writ of Certiorari

1961, Evans v. Buchanan, 195 F. Supp. 328). Del. 1961).

Part A of the approved plan provided, beginning with the

1961 fall term, for admission on a racially nondiscrimina-

tory basis of all Negro children who desired to attend

white schools. Part A had no relevance to Wilmington

because Negro children who desired to attend white

schools in that school district had already been admitted

and were attending formerly white schools in substantial

numbers.

Part B of the plan approved by the District Cour

consisted of a proposed new school code which would

eliminate Delaware’s separate colored school districts and

establish 30 unitary districts. Significantly, there was to

be no change in the Wilmington School District; its bound-

aries were to remain coterminous with the boundaries of

the City of Wilmington just as they had since their estab-

lishment in 1905 (23 Del. Laws ch. 92).

The District Court approved Part B without modifi-

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

entered on July 24, 17961. 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 ap-

proved 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 supplemental order claiming

violation of the constitutional rights of black students in

Wilmington.

Although the State Board of Education had thought

legislative action was necessary to eliminate colored school

Petition for Writ of Certiorari 7

districts, it later determined that it could achieve this re-

sult by vigorous administrative measures; and it pro-

ceeded to do so. In the process all black students and

teachers were absorbed into the unitary districts and by the

spring of 1967 the last vestiges of the dual system had

been eliminated. At that point everyone believed that

Delaware had fully complied with the requirements 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, Evans v. Buchanan,

393 F. Supp. 428, 451 (D. Del. 1975) affd. per curiam, 423

U. S. 963 (1975).

Long before Brown I it had been recognized that

there were too many small, inefficient districts in Delaware,

particularly in Kent and Sussex Counties, and that con-

solidation 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 pro-

posed 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 publi-

cize the need for school district consolidation and to obtain

the support which was required to achieve passage of the

necessary legislation. This effort culminated in passage of

the Educational Advancement Act, 56 Del. Laws ch. 292

(1968). By that time desegregation was considered a past

problem which had been solved; all school districts in the

state were unitary; in April, 1967, assurances of compliance

with the 1964 Civil Rights Act had been submitted by all

Delaware school districts to HEW and had been approved;

and the concept of realigning normal geographic school

boundaries of long standing to provide racial balance

among school districts was not then considered a constitu-

8 Petition for Writ of Certiorari

tional requirement (cf. Brown’s command to achieve de-

segregation “within the limits set by normal geographic

school districting.” 347 U. S. n. 13 at 495-6; 349 U. S.

n. 2 at 298) nor is-it now, Milliken v. Bradley, 418 U. S.

717 (1974); Spencer v. Kugler, 326 F. Supp. 1235 (D.N. J.

1971), aff'd mem. 404 U. S. 1027 (1972).

As drafted, the Educational Advancement Act did not

provide for any changes in school district configuration

except by the consolidation of existing districts. Such

consolidation was already permissible under Delaware law

when approved by referenda in the consolidating districts

but the preference in Delaware for small school districts

had prevented use of this mode of consolidation. The

distinctive feature of the Educational Advancement Act

was that for a period of one year the State Board of Edu-

cation was authorized to consolidate contiguous school

districts without referenda. The format of the statute was

to prescribe general criteria to be employed by the State

Board of Education in the exercise of this temporary

authority. The statutory criteria included requirements

that existing districts not be subdivided, that only contigu-

ous districts be consolidated, that there be not less than 20

or more than 25 reorganized districts, that each district

offer complete instructional 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

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 con-

solidated with any of the four districts contiguous to it,

Petition for Writ of Certiorari 9

would have exceeded the 12,000-pupil limitation in the

reorganized district.

The Specific statutory reference to Wilmington School

District boundaries being the same as the City of Wilming-

ton simply repeated language relating to Wilmington

School District boundaries which had appeared in all prior

statutes since 1905 [23 Del. Laws ch. 92 (1905); 32 Del.

Laws ch. 163 (1921); 37 Del. Laws ch. 202 (1931); 55 Del.

Laws ch. 172 (1965)]. Although arguably surplusage be-

cause of the 12,000-pupil limitation, the specific reference

to Wilmington stemmed from a constitutional provision

which was considered by the proponents of the Educa-

tional 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 a stat-

ute which might be construed as authorizing amendment

of Wilmington’s charter would be invalid unless passed by

a two-thirds majority of each house of the General As-

sembly. This was an important concern because the State

Board of Education believed that a two-thirds vote in favor

of the Educational Advancement Act could not be obtained

because of opposition to the elimination of small districts

in the lower counties; although all Wilmington representa-

tives were in favor of the statute and voted for it.

In its initial opinion of July 12, 1974, Evans v. Bu-

chanan, 379 F. Supp. 1218 (D. Del. 1974) the District

Court did not reach the constitutionality of the Educa-

tional Advancement Act. Instead, it held only that segre-

gated schooling had never been eliminated in Wilmington

because the formerly black schools remained identifiably

black. The District Court’s opinion concluded with a

10 Petition for Writ of Certiorari

direction to the State Board of Education to submit al-

ternate plans for the desegregation of Wilmington—first, an

intra-district plan—and second, a plan incorporating other

undesignated areas of New Castle County. Before such

submission the Supreme 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 outside Wilmington’ to intervene as parties de-

fendant and asked all parties to brief the effect of Milliken

on the propriety of an inter-district remedy in this case.

After briefing and argument, the District Court, in a two

to one decision, held that an inter-district remedy was

permissible, 393 F. Supp. 428, because segregation in the

Wilmington schools resulted from segregated housing pat-

terns initiated and supported by State action; because the

retention of Wilmington’s historic (1905) boundary lines

in the Educational Advancement Act amounted to a “re-

drawing” of school district lines which had a segregatory

effect; and because Wilmington and other school districts

in New Castle County had engaged in inter-district trans-

fers prior to Brown I, although such transfers had ceased

in the fifties.

In holding the Educational Advancement Act uncon-

stitutional 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

the constitutional problem referred to above but it con-

cluded 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

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

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

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

non-contiguous districts, particularly Newark School District and

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

cores, Evans v. Buchanan, 416 F. Supp. 328, 368 (D. Del. 1976).

Petition for Writ of Certiorari 1]

validate the statutory continuation of Wilmington School

District's historic boundary lines during the one-year

period in which the State Board of Education was au-

thorized to consolidate school districts in accordance with

prescribed criteria. The District Court then held it was

unconstitutional for the Delaware General Assembly to

retain by statute the historic boundaries of Wilmington

School District because of the racial impact of such re-

tention, even though such provisions were not purpose-

fully racially discriminatory (393 F. Supp. at 439). The

District Court held that the Educational Advancement Act,

neutral on its face, without a racially discriminatory pur-

pose, and serving legitimate and important governmental

purposes, was invalid under The Equal Protection Clause

simply because of the racial consequences of retaining

school district boundaries which had existed since 1905.

Having found constitutional violations which the Dis-

trict Court deemed to include inter-district effects, the

Court ruled that it could consider both inter- and intra-

district remedies. 393 F. Supp. at 446-7.

The District Court then directed development and

submission of remedial plans and held evidentiary hear-

ings thereon. On May 19, 1976 it handed down its opinion

on remedy and on June 15, 1976 it entered judgment. Said

opinion and judgment provided for the dissolution of

eleven of the twelve school districts of New Castle County

and the creation of a New Board to administer and operate

the schools in the eleven former school districts.. In such

operation the pupils throughout eleven of the tweive school

districts in New Castle County were to be reassigned so

that every grade in every school would have a black enroll-

ment between 10% and 35%.

On appeals taken by the State Board of Education

and various school districts, including the Petitioner, the

12 Petition for Writ of Certiorari

Court of Appeals banned the requirement of racial quotas

but otherwise affirmed the judgment of the District Court

in a four to three decision. In affirming the judgment the

Court of Appeals announced the proper standard for the

formulation of a remedy.

“The school system and its students are to be re-

turned, as nearly as possible, to the position they

would have been in but for the constitutional viola-

tions that have been found.” State Bd. of Ed., App.

A, A-16.

Although the Court of Appeals correctly stated the law it

failed to apply it to the provisions of the judgment which

designated ten autonomous, unitary school districts outside

Wilmington as the area which is required to participate in

the desegregation of the Wilmington School District. It

was forcibly argued to the Court of Appeals that the record

failed to show that, but for the constitutional violations,

massive numbers of black students in Wilmington would

have been attending school in ten other school districts; or

that white students from these ten other school districts

would have been attending school in Wilmington School

District. But the Court of Appeals refused to consider the

geographical scope of the remedy in relation to the extent

of the constitutional violations. As pointed out by the

three dissenting judges, the two critical issues in the ap-

peals were (1) the identification of the inter-district viola-

tions, if any; and (2) the effects, if any, of these violations

on the racial composition of the schools in northern New

Castle County; and neither of these two critical issues was

addressed in the majority opinion of the Court (State Bd.

of Ed. App. A, A-25).

It is from the judgment of the divided Court of

Appeals for the Third Circuit, sitting en banc, that this

Petition for Certiorari is taken.

Petition for Writ of Certiorari 13

REASONS FOR GRANTING WRIT.

I. The Decision Below Is in Direct Conflict With the

Decisions of This Court Because It Provides a

“Remedy” for Conditions Which Do Not Offend the

Constitution.

The error which has permeated this case since the

first of the three opinions emanating from the three-judge

district court is the conception of the two majority judges

that the existence of racial disparity among the twelve

autonomous and unitary school districts of New Castle

County is a constitutional violation. From this premise

the two majority judges reasoned that failure to alleviate

the difference in racial enrollments among districts consti-

tuted a continuing inter-district violation which failed to

conform to the continuing mandate of Brown v. Board of

Education, supra.

The error on which this entire case rests was first

articulated by Judge Gibbons when he dissented from the

refusal of his brothers to reach the constitutionality of the

Educational Advancement Act. Judge Gibbons would

have held it unconstitutional on simplistic and untenable

grounds:

“But if the effect of the provisions fixing the bound-

daries of Wilmington is to prevent desegregation of

white schools outside the &ty and black schools

within, we need look no further.”

e oO ° oO

“The summer of 1968 was in Delaware a period of

rather intense racial tension, and probably was as

unpropitious a time for the enactment of a new school

code which would accomplish what was required by

14 Petition for Writ of Certiorari

this court’s June 26, 1961 decree as any time since

issuance of that decree. The State Board was, how-

ever, still under the affirmative duty mandated by

Brown II and that decree.” 379 F. Supp. 1218, 1228,

1232.

The “affirmative duty” which Judge Gibbons found in

Brown and in the 1961 decree was to achieve racial bal-

ancing among the unitary school districts of New Castle

County. Failure to achieve racial balance among the

established, normal geographic school districts of New

Castle County is the only “inter-district segregation”

which has existed in New Castle County since shortly after

Brown I. Because racial balance did not exist among the

school districts in New Castle County, Judge Gibbons re-

garded the suburban schools as segregated even though

they were open, and for many years had been open, to all

residents regardless of their race or color.

The record is clear that in 1961 the District Court rec-

ognized that Wilmington was operating a desegregated

school district; that before 1968 all the suburban districts

were operating desegregated school districts; and there has

been no “continuing and unremedied inter-district consti-

tutional violation” in New Castle County unless differences

in racial composition of the various school districts is a

constitutional violation. But it is settled that racial dis-

parity among school districts is not a constitutional viola-

tion, Brown v. Board of Education, 347 U. S. at 495-6; 349

U. S. at 298; Milliken v. Bradley, 418 U. S. 717 (1974);

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

aff d mem. 404 U. S. 1027 (1972); Bradley v. School Board

of City of Richmond, 462 F. 2d 1058 (4th Cir. 1972) affd

by equally divided court 412 U. S. 92 (1973).

Furthermore, the configuration of districts which re-

sulted from the Educational Advancement Act closely re-

Petition for Writ of Certiorari 1

sembled the configuration which had been approved by

the District Court in its 1961 decree in this case. In fact,

with respect to Wilmington, it was identical. The sugges-

tion of Judge Gibbons that a constitutional violation arose

from consummation of the very plan approved by the Court

itself in 1961 is incredible; but perhaps no more incredible

than his view that Brown contained a continuing mandate

to dismantle normal geographic school districts in order

to provide racial balance among a group of such unitary

districts selected by the Court more than twenty years after

Brown.

The views of Judge Gibbons became the majority view

of the District Court when it considered the constitution-

ality of the Educational Advanceinent Act in its next

opinion.

“Even though the State Board may not have been re-

quired to alter the Wilmington District, this Court

cannot find that the exclusion from the Board’s

powers was racially insignificant. On the contrary, the

reorganization provisions of the Educational Advance-

ment Act played a significant part in maintaining the

racial identifiability of Wilmington and the suburban

New Castle County school districts.” 393 F. Supp.

428, 445.

But “maintaining” the racial disparity in enrollments

between Wilmington and other New Castle County dis-

tricts is not a constitutional violation if the existence of

such disparity is not itself a violation, Milliken v. Bradley,

supra. A constitutional condition does not become uncon-

titutional simply because it is permitted to continue.

Compare the recent approval by this Court in Dayton of

language from the Court of Appeals.

“The question of whether a rescission of previous

Board action is in and of itself a violation of appellants’

16 Petition for Writ of Certiorari

constitutional rights is inextricably bound up with the

question of whether the Board was under a constitu-

tional duty to take the action which it initially took.

Cf. Hunter v. Erickson, 393 U. S. 385 (1960) [sic];

Gomillion v. Lightfoot, 346 U. S. 339 (1960). If the

Board was not under such a duty, then the rescission

of the initial action in and of itself cannot be a con-

stitutional violation.” 45 U.S. L. W. at 4912.

The error of the majority judges was reiterated and

expanded in the opinion on remedy.

“The suburban districts have attempted to foreclose

the application of an inter-district remedy including

them by citing the prior finding of this Court that each

of them was at present operating a unitary system,

and urging that they had committed no constitutional

violation. Such a defense is inadequate where, as

here, the local boards are creatures of the State, and

it was the State Legislature and the State Board of

Education which acted in a fashion which is a substan-

tial and proximate cause of the existing disparity in

racial enroliments in the districts of Northern New

Castle County. The fact that birth rates, or popula-

tion shifts, or other factors also contributed to a de-

gree will not relieve the State from its obligation to

desegregate.” 416 F. Supp. 328, 339-40. (State Bd.

of Ed., App. B, A-52-53).

The “obligation to desegregate” found by the Court

was an obligation to eliminate “the existing disparity in

racial enrollments” among the school districts of New

Castle County despite the Court’s acknowledgement that

these districts were operating unitary school systems.

The expansion of error by the District Court in the

language last quoted should also engage the attention of

Petition for Writ of Certiorari 17

this Court. The District Court’s ruling that the suburban

districts’ lack of implication in a constitutional violation

was no defense because such districts were creatures of the

State is clearly at variance with Milliken I, supra, and

Milliken II, 45 U. S. L. W. 4873 (June 27, 1977), and

should not receive the tacit approval of this Court.

The Court of Appeals simply perpetuated, sub silentio,

the errors of the District Court:

“For the reasons set forth in Part II, supra, we affirm

the basic concept of the remedy ordered by the dis-

trict court.” State Bd. of Ed. Appendix A—A-19.

But Part II did not address any of the specifics of this

case and certainly did not address the contention of the

Petitioner and other local school districts that there was no

basis in the Constitution or the decisions of this Court for

including them in a judicially constructed eleven district

system to remedy segregation found to exist only in

Wilmington School District.

II. The Decision Below Is in Direct Conflict With the

Decisions of This Court Reversing Systemwide

Remedies Which Were Beyond the Scope of -a

Remedy Commensurate to the Violations.

Even within a single school system there is no war-

rant for a systemwide remedy absent a finding that the

incremental segregative effect of the constitutional viola-

tions has had a systemwide impact, Dayton, supra; Bren-

nan v. Armstrong, 45 U. S. L. W. 3850 (June 29, 1977):

School District of Omaha v. United States, 45 U. S. L. W.

3850 (June 29, 1977).

“Viewing the findings of the District Court as to the

three-part ‘cumulative violation’ in the strongest light

for the respondents, the Court of Appeals simply had

18 Petition for Writ of Certiorari

no warrant in our cases for imposing the systemwide

remedy which it apparently did. There had been no

showng that such a remedy was necessary to ‘elim-

inate all vestiges of the state-imposed school segrega-

tion.’ It is clear from the findings of the District Court

that Dayton is a racially mixed community, and that

many of its schools are either predominantly white or

predominantly black. This fact without more, of

course, does not offend the Constitution. Spencer v.

Kugler, 404 U. S. 1027 (1972); Swann, supra, at 24.

The Court of Appeals seems to have viewed the

present structure of the Dayton school system as a

sort of ‘fruit of the poisonous tree’, since some of the

racial imbalance that presently obtains may have re-

sulted in some part from the three instances of segre-

gative action found by the District Court. But instead

of tailoring a remedy commensurate to the three

specific violations, the Court of Appeals imposed a

systemwide remedy going beyond their scope. Day-

ton, supra. 45 U.S. L. W. at 4913.

Here we are concerned not with a systemwide remedy

within a single school system as in Dayton, Omaha and Mil-

waukee, but rather with eleven autonomous school systems

melded into one by judicial fiat to correct segregation

found to exist in only one of the eleven districts. Before

the District Court could impose a systemwide remedy it

first had to construct the system; and the criteria for such

construction were patently invalid—since they were de-

signed for racial homogenization of the schools throughout

the eleven districts rather than addressed to a remedy

commensurate to the violations and designed to restore the

victims of discrimination to the position they would have

occupied in the absence of such discrimination.

——

Po

Petition for Writ of Certiorari 19

The District Court recognized that birth rates, popu-

lation shifts and other factors contributed to the disparity

in racial enrollments between Wilmington and other New

Castle County districts (supra, p. 16) but conceived its

remedial duty to require the greatest possible elimination

of racial disparity among districts regardless of cause. It

should have been clear to the District Court that this was

an improper standard under Milliken’s teaching that the

equitable power of district courts is limited to the cor-

rection of conditions caused by unconstitutional conduct.

There is not a shred of evidence in the record to sug-

gest that forced transfers of students between Wilmington

and Newark at all grade levels is a remedy commensurate

to any of the violations found by the District Court. In

fact, the District Court conceded that Newark had been

included for impermissible reasons.

“It is difficult to say with any certainty that Newark

would have been included in any reorganization 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 inclusion. 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 reorganiza-

tion, very different criteria might have led to the con-

solidation of part of either Wilmington or DeLaWarr

with part of the present Newark district. We do not,

however, rest our holding on such post hoc rationali-

zations, and on what might have been. Rather, un-

contradicted testimony indicates that the stability of

any desegregation plan is enhanced by the inclusion

of larger geographical areas and higher white popu-

lations.” 416 F. Supp. at 355.

20 Petition for Writ of Certiorari

Actu. lly, Newark’s enrollment in 1968 was 14,042.

Thus, Newark was clearly precluded from consolidation

with any other district for reasons entirely lacking in racial

motivation. It was also precluded from consolidation with

Wilmington School District or DeLaWarr Scnool District

because the Act limited consolidation to contiguous dis-

tricts. The suggestion by the District Court that parts of

Wilmington or DeLaWarr might have been consolidated

with part of Newark was not permissible under the Act

because the statute was structured only for consolidation

of entire districts. None of these provisions were found

by the Court to be unconstitutional and there is no evi-

dence in the record to suggest that these provisions were

racially motivated. Under Washington v. Davis, 426 U. S.

229 (1976); Village of Arlington Heights v. Metropolitan

Housing Development Corporation, — U. S. —, 97 S. Ct.

555 (1977); and Austin Independent School District v.

United States, — U. S. —, 97 S. Ct. 517 (1976), it should

be clear that there was nothing unconstitutional about the

provisions of the Educational Advancement Act which

precluded Newark from being consolidated with Wil-

mington or any other school district.

And even if the exclusion of Wilmington from the dis-

cretionary power of the Board of Education to consolidate

districts were unconstitutional despite the lack of racial

motivation, any causal connection between such exclusion

and the remedy involving Newark is so attenuated as to

be, in fact, non-existent, cf. Mount Healthy City School

District v. Doyle, — U. S. —, 97 S. Ct. 568 (1977).

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 included Newark School

District to remedy the condition it found in Wilmington

School District. With no showing that the “unconstitu-

tional” features of the Educational Advancement Act had

- —

Petition for Writ of Certiorari 21

any inter-district effect between Wilmington and Newark,

the District Court mandated the inclusion of Newark solely

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 (416 F. Supp. at

354; St. Bd. of Ed. App. B, A-81) citing Wright v. Council

of the City of Emporia, 407 U. S. 451, 465 (1972), and

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

490-91 (1972). But these were single-district cases and

it was permissible to consider white flight in devising an

intra-district remedy for constitutional violations within

the district where the constitutional violation took place.

White flight, however, is not a constitutional violation and

prevention of white flight furnishes no independent basis

for including Newark absent its involvement in the consti-

tutional violation which is to be remedied, Milliken v.

Bradley, supra.

III. The Decision Below Is in Direct Conflict With the

Decisions of This Court Firmly Recognizing That

Local Autonomy of School Districts Is a Vital

National Tradition.

The Court said in Milliken v. Bradley:

“No single tradition in public education is more

deeply rooted than local control over the operation of

schools; local autonomy has long been thought essen-

tial both to the maintenance of community concern

and support for public schools and to quality of the

educational process.” 41 L. Ed. 2d at 1069.

The same concern had earlier been expressed in San

Antonio School District v. Rodriguez, 411 U. S. 1, 50

(1973). Most recently, the Court said in Dayton:

Lo

bo

Petition for Writ of Certiorari

“But our cases have just as firmly recognized that local

autonomy of school districts is a vital national tradi-

tion. Milliken v. Bradley, 418 U. S. 717, 741-42

(1974); San Antonio School District v. Rodriguez, 411

U. S. 1, 50 (1973); Wright v. Council of Emporia,

supra, at 469. It is for this reason that the case for

displacement of the local authorities by a federal court

in a school desegregation case must be satisfactorily

established by factual proof and justified by a rea-

soned statement of legal principles. Cf. Pasadena

City Board of Education v. Spangler, 427 U. S. 424

(1976).” 45 U.S. L. W. at 4911.

The “factual proof” and “reasoned statement of legal

principles” for the displacement of Newark School District

are sadly lacking in this school desegregation case. Such

displacement rests only on the fact that Newark School

District is an instrumentality of the State of Delaware, a

palpably inadequate basis; and the fact that in 1954-55

when de jure segregation was in force under the Delaware

Constitution, Newark sent five of its black residents to the

colored high school in Wilmington. But by 1956 the black

residents of Newark had been absorbed into the white

high school and since then no residents of Newark have

attended public school in any other schoo! district for

racial reasons.

On these tenuous bases the Court of Appeals has

affirmed the District Court’s proposal to restructure the

educational patterns of approximately 17,000 students in

Newark School District in order to remedy the dubious

finding of segregation in the schools of Wilmington School

District. This represents a misuse of the federal equity

power which should not be permitted to remain uncor-

rected.

am

Petition for Writ of Certiorari 23

CONCLUSION.

For the reasons heretofore stated, this Court should

grant the petition for a writ of certiorari and reverse the

judgment below.

Respectfully submitted,

Joun P. SINcLar,

350 Delaware Trust Building,

Wilmington, Delaware. 19899

Attorney for Newark School

District, Petitioner.

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