Petition — New Castle Gunning v. Evans

—

AUG 11 1977 |

'

Supreme Court of the United Séibi" ——

October Term, i977.

No 977-2366

NEW CASTLE-GUNNING BEDFORD SCHOOL DISTRICT,

Petitioner,

0.

BRENDA EVANS, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Davw F. ANDERSON,

PotzER ANDERSON & CorROON,

350 Delaware Trust Building,

P. O. Box 951,

Wilmington, Delaware. 19899

Attorneys for New Castle-

Gunning Bedford School

District, Petitioner.

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

REASONS FOR GRANTING THE WRIT .........--050se0seee008

A. Wilmington Had Achieved Full Compliance With

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© FR io daidcdccccnecdevsdesvecscesevaeocces

3. The Educational Advancement Act ............

a. Use of the Compelling State Interest Test ..

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

c. Drawing or Redrawing School Boundaries . .

C. Inclusion of New Castle-Gunning Bedford School

District in the Desegregation Area Exceeded the

Lower Court's Authority Under the Decisions of

BS isi cauSecescvenecdaadececstt senses

D. The Use of Racial Disparity and the Restructuring

of More Than Half the Educational System of

Delaware Exceeded the Court’s Authority ........

E. What Did the Summary Affirmance of 393 F. Supp.

428 (1975) by This Court in 423 U. S. 963 (1975)

re rey Pr err rere Teer Tr

F. It Is Not Possible to Impose a “But for” Remedy on

the Record in This Case, and the Court of Appeals

Was in Error in Directing the Remedy Which It

ATCO onc cccccccccccccccccvccvevccececcees

21

TABLE OF AUTHORITIES CITED.

Page

Austin Independent School District v. United States, 97 S. Ct.

Me CRUE Su hovuneds cradeecuadadacuboessiwiscun ede ll

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

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

Ge We EC hwihdunccesdeceatdibsededeeiedes 20, 34

Bradley v. Milligan, 468 F. 2d 902 (C. A. 6), cert. denied 409

Oe ah EE ong pos) dcakskueedanee suwbedeteeees 29

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

4, 7, 13, 23, 24, 33, 34

Brown v. Board of Education of Topeka, 349 U. S. 294 (1955) 4

Buchanan v. Evans, 423 U. S. 963 (1975) ............... 2, 27, 29

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) ....... 5

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

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

2, 10, 28, 29, 30

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

2, 8, 9, 12, 17, 27

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

Gebhart v. Belton, Del. Supr., 91 A. 2d 137 (1952) ......... 4

Green v. County School Board, 391 U. S. 430 (1968) ....... 10

Hills v. Gautreaux, 425 U. S. 284 (1976) .................. 21

Jefferson v. Hackney, 406 U. S. 535 (1972) ................ 18

Keyes v. School District No. 1, 413 U. S. 189 (1973) ........ 18

McDaniel v. Barresi, 402 U. S. 39 (1971) ................. 4,10

Milliken v. Bradley, 418 U. S. 717 (1974) ....... 11, 14, 15, 16, 19,

20, 22, 25, 29, 34

Monroe v. Board of Commissioners, 391 U. S. 450 (1968) .. 10

Pasadena Board of Education v. Spangler, 427 U. S. 42]

DT ‘indudvusiinuses seddeuis bias secukcavaeranens 11, 31

TABLE OF AUTIIORITIES CITED (Continued).

Page

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

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

Ne Wie We A a0 veces 006 bo 0's 0s deeeweese 20

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

Swann v. Board of Education, 402 U. S. 1 (1971) ....... 10, 11, 26

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

es cic ccaub bu ceedlenssdes ou tee scones 21, 25

Village of Arlington Heights v. Metropolitan Housing Dev.

Cosp., 07 S. Ce. SEG (IGT) .... nec e ere ce ee eens 9

Washington v. Davis, 426 U. S. 229 (1976) .............. 9, 17, 30

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

SEE. SacWiuy sudeebs eee ecckrcaegu bees eecpectess 18, 20, 25

Wright v. Rockefeller, 376 U. S. 52 (1964) ................ 18

CONSTITUTIONAL AND STATUTORY PROVISIONS.

Page

Delaware Constitution of 1897, Article X, Section 2 ........ 4

7 Laws of Del. 104 (IBRD) ......cccccscccccccccvcses hems 3

Ri Oe Be, Ge CED Svc ce cecccccrencesevcccccsnes 3

OD Bree OF TE, Gis GB CEB) oc ccc ccc ccvcccccccccccces 3

i Me OD. cc ccccteereeeterecnsce 3

ee ee OD ic ciicepsccsscsscuses 3

ee Oe OE CIDE oiccckccaccevcecevcstsons 3

es Or OE ED so ccceccsecesecvesnevenss 4,7, 28

Se We OME ys ope eeca vee GUN cS cetevececcvreccescees 2

IN THE

Supreme Court of the United States

Ocroser TERM, 1977.

NEW CASTLE GUNNING BEDFORD SCHOOL

DISTRICT,

Petitioner,

v.

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 certio-

rari issue from this Court to review the judgment of the

United States Court of Appeals for the Third Circuit in

cases of Evans, et al. v. Buchanan, et al. (Nos. 76-2103/

2107), in which this Petitioner was Appellant in No.

76-2105.

OPINION BELOW.

The opinions of the Court of Appeals for the Third

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

pendix A (pp. Al to A41) in the Petition for Writ of

Certiorari filed herein by Delaware State Board of Edu-

cation, et al., Petitioners. The opinions of the United

States District Court for the District of Delaware are re-

ported at 416 F. Supp. 328 (1976). The opinions on the

interlocutory judgment of the District Court ordering the

2 Petition for Writ of Certiorari

parties to submit proposed interdistrict and single-district

desegregation plans for the Wilmington schools are re-

ported at 379 F. Supp. 1218 (D. Del. 1974) and 393 F.

Supp. 428 (D. Del 1975). An appeal from the interlocu-

tory judgment was taken to this Court, which summarily

affirmed that judgment. 423 U. S. 963 (1975).

JURISDICTION.

The opinion of the United States Court of Appeals

was filed on May 18, 1977. This Court’s jurisdiction is in-

voked pursuant to 28 U. S. C. § 1254.

QUESTIONS PRESENTED.

1. Was the decision of the Court of Appeals in con-

flict with applicable decisions of this Court on an impor-

tant question of federal law, where it ordered an interdis-

trict remedy in a school desegregation case in the face of

a finding of no segregatory or discriminatory intent?

2. Did the Court of Appeals depart from the accepted

course of judicial proceedings, so as to require the exer-

cise of this Court's power of supervision, when it held

it was foreclosed by the “law of the case” doctrine from

reviewing a determination of the lower court (in conflict

with applicable decisions of this Court), by reason of the

summary affirmance of the lower court's interlocutory

judgment by this Court, on the theory that this Court’s

summary affirmance embraced all issues which might have

been decided, but were not necessarily resolved?

3. Will this Court now permit a lower court’s deci-

sion (affirmed by the Court of Appeals on the “law of the

case’ doctrine) to stand, “even it such decision is in con-

flict with other applicable decisions of this Court?

Petition for Writ of Certiorari 3

STATEMENT.

A system of free public schools began in Delaware

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

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

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

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

remote part thereof was not more than two miles from the

center and each district was to contain a single school-

house to be located near the center of the district.

Pursuant to the 1829 statute 72 school districts were

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

in Sussex County. By 1852 there were nine united school

districts in the City of Wilmington. In that year these

separate districts were brought under the governance of a

newly incorporated board of education designated “The

Roard of Public Education in Wilmington” (10 Laws of

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

historically has supervised the largest, wealthiest and most

powerful district in the state. In 1905 the boundaries of

Wilmington School District were defined by statute as

coterminous with the boundaries of the City of Wilming-

ton, including any future additions thereto, 23 Laws of

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

in 1905 confirmed the geographic identity of Wilmington

School District and the City of Wilmington which had

existed for the preceding 50 years. Since the 1905 statute

the boundaries of Wilmington School District have con-

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

Wilmington; and the statutory provisions relating to the

geographic designation of the Wilmington School District

have been carried forward explicitly in amendments to

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

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

4 Petition for Writ of Certiorari

and finally in the Educational Advancement Act, 56 Laws

of Del., Ch. 292 (1968).

A dual system of public education was mandated in

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

tution of 1897. Between that date and the decision in

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

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

were segregated by law. The challenge in Delaware to

the constitutionality of that system was mounted in Geb-

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

became one of the four cases decided in Brown.

Less than three months after Brown I and without

awaiting the guidelines concerning remedy which came

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

Public Education in Wilmington voted to abolish the dual

school system in Wilmington. A few months later the

State Board of Education directed all school districts in

Delaware to submit plans for the desegregation of their

districts. Wilmington desegregated its elementary schools

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

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

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

gation processes” was altered voluntarily, promptly and

substantially in Wilmington.

Likewise, the other school districts in New Castle

County moved promptly to admit black students into for-

merly white schools. In rural Kent and Sussex Counties,

however, change occurred more slowly and the present

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

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

trict in Kent County. Subsequently, additional plaintiffs

intervened from other districts in Kent and Sussex

Counties and the case proceeded as a class action involv-

ing the entire state. Summary judgment for the plaintiff

ower

re

7 a

Petition for Writ of Certiorari 5

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

891. Plaintiffs appealed and the Court of Appeals found

that the approved plan did not effect desegregation with

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

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

State Board of Education to submit a plan of approval of

the District Court which would provide:

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

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

subsequent school terms, of all Negro school children

who desire integration subject to the usual processing

of the school system; and

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

whereby adequate school facilities at all grades will

be provided on a racially nondiscriminatory basis.”

Pursuant to that mandate the State Board of Educa-

tion prepared a plan which was modified and approved by

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

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

provided, beginning with the 1961 fall term, for admission

on a racially nondiscriminatory basis of all Negro children

who desired to attend white schools. This short-term

remedy, however, did not provide for dismantling the dual

systems which had earlier been described by the Delaware

1. The plan approved by the District Court did not affect

Wilmington School District which had already integrated its

schools.

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

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

politan area.” 281 F. 2d at p. 393.

6 Petition for Writ of Certiorari

Supreme Court as a “maze” of overlapping white and

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

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

addressed to the elimination of those systems.

Part B consisted of a proposed new school code which

would eliminate Delaware’s separate colored school dis-

tricts* and establish 30 unitary districts. Significantly,

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

trict; its boundaries were to remain coterminous with the

boundaries of the City of Wilmington just as they had for

the preceding 100 years. It was originally thought that

the consolidation of school districts envisaged in Part B

required legislative action; and it was stated in the plan

that the State Board of Education expected it to become

effective at or before the fall term of 1970.

The District Court approved Part B without modifica-

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

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

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

range plan for Delaware which included the continuance

of Wilmington’s historic school boundaries.

Except for a dispute about the attendance areas in

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

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

was dormant from July 24, 1961 when the District Court

approved a plan for total integration throughout the state

(including retention of Wilmington School District’s his-

torical boundaries) until July 27, 1971 when the current

plaintiffs filed a petition for a supplemental order claim-

ing violation of the constitutional rights of black students

in Wilmington School District.

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

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

Public Education in Wilmington.

LOE eS es OT

Petition for Writ of Certiorari 7

Although the State Board of Education had thought

legislative action was necessary to eliminate colored school

districts, it later determined that it would be feasible to

achieve this result by vigorous administrative measures;

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

dents and teachers were absorbed into the unitary districts

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

term had been eliminated. At that point everyone be-

lieved that Delaware had fully complied with the require-

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

Health, Education and Welfare singled out Delaware as

the first southern or border state which had completely

eradicated the dual system of public education. ~*

Long before Brown I it had been recognized that

there were too many small, inefficient districts in Dela-

ware, particularly in Kent and Sussex Counties, and that

consolidation of such districts would improve the quality

of education. Bills to accomplish this were submitted to

the Delaware General Assembly in 1955, 1961 and 1963

but none were «cted upon favorably. None of these bills

proposed any change in the Wilmington School District

which was then the largest district in the State.

Beginning in 1965 a serious effort was begun to pub-

licize the need for reform and to obtain the support which

was required to achieve passage of the necessary legisla-

tion. This effort culminated in passage of the Educational

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

The format of the Educational Advancement Act was

to prescribe general criteria for the consolidation of school

districts and to empower the State Board of Education for

a period of one year to consolidate existing districts pur-

suant to such criteria. The statutory criteria included re-

quirements that existing districts not be subdivided, that

only contiguous districts be consolidated, that there be not

8 Petition for Writ of Certiorari

less than 20 nor more than 25 reorganized districts, that

each district offer complete instructional programs for

grades 1 through 12, and that consolidated districts con-

tain not less than 1,900 nor more than 12,000 pupils in

grades 1 through 12.

The act also provided that the Wilmington School

District shall be the City of Wilmington with the territory

within its limits.

The upper limit of 12,000 pupils meant that three

districts in New Castle County could not be consolidated

with contiguous districts by the State Board of Education.

Wilmington School District and Newark School District

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

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

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

pupil limitation in the reorganized district.

The 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 a

State constitutional problem but it concluded that such

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

District Court held that such erroneous belief was not a

compelling state interest which would validate the statu-

tory continuation of Wilmington School District’s historic

boundary lines during the one-year period in which the

State Board of Education was authorized to consolidate

school districts in accordance with prescribed criteria. The

District Court then used the compelling state interest test

to find that it was unconstitutional for the Delaware

General Assembly to retain by statute the historic bound-

aries of Wilmington School District because of the racial

‘impact of such retention, despite the fact that the District

Court expressly found that it could not conclude that such

provisions were purposefully racially discriminatory (393

Petition for Writ of Certiorari 9

F. Supp. at 439). The District Court held that the Educa-

tional Advancement Act, neutral on its face, without a

racially discriminatory purpose, and serving legitimate and

important governmental purposes, was invalid under the

Equal Protection Clause simply because of the racial con-

sequences of retaining school district boundaries which

had existed for more than 100 years. This holding is

directly contrary to Washington v. Davis, 426 U. S. 229,

and Village of Arlington Heights v. Metropolitan Housing

Dev. Corp., 97 S. Ct. 555 (1977).

10 Petition for Writ of Certiorari

REASONS FOR GRANTING THE WRIT.

A. Wilmington Had Achieved Full Compliance With

Brown.

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

Supp. 1218) * acknowledged that desegregation had begun

twenty years earlier when Wilmington began to desegre-

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

of the desegregation process was complete by the 1956-57

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

the first school district in Delaware to desegregate, and

that many school officials assumed that the dual system

had been abolished.

Nevertheless, the District Court held that segregated

schooling was never eliminated in Wilmington only be-

cause the formerly black schools remained identifiably

black. However, in Wilmington there was no “foot drag-

ging” by a “reluctant” school board such as engaged the

attention of this Court in Green v. County School Board,

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

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

U. S. 450 (1968); Swann v. Board of Education, 402 U. §.

1 (1971); McDaniel v. Barresi, 402 U. §. 39 (1971).

In Swann the Court said that in school districts where

segregated education was formerly mandated by law the

continued existence of identifiably white and identifiably

black schools establishes a prima facie case of constitu-

tional violation. But here the District Court ignored the

fact that in Wilmington the formerly white schools were

promptly opened to blacks and soon ceased to be identi-

fiably white; by 1973 a person unfamiliar with the history

4. It should be noted that this opinion finding unconstitutional

segregation in the Wilmington School District was rendered before

this petitioner was made a party in this case.

Petition for Writ of Certiorari ll

of Wilmington schools could not tell from the racial en-

rollments which schools were formerly white. By 1973,

Wilmington, which was desegregated by 1956, had long

since reached the point where instead of black schools

and white schools there were simply schools.® At that

point Wilmington had achieved full compliance with

Brown and further intervention by the District Court was

uncalled for absent any showing (and the District Court

found none in its July 12 opinion) that school authorities

or other State agencies had “deliberately” attempted to

alter demographic patterns to affect racial composition of

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

745. Cf. Pasadena Board of Education v. Spangler, 427

U. S. 421 (1976), and Austin Independent School District

v. United States, 97 S. Ct. 517 (1976).

B. There Was No Interdistrict Violation.

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

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

of Education to submit alternate plans for the desegrega-

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

plan—and second, a plan incorporating other undesignated

school districts in New Castle County. Before such sub-

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

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

Court invited the New Castle County school districts out-

side Wilmington to intervene as parties defendant and

asked all parties to brief the effect of Milliken on the

propriety of an interdistrict remedy in this case. After

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

5. The fact that such schools were predominantly black does

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

418 U. S. at 740.

6. This Court has heretofore determined by dismissing a direct

appeal from the District Court that it was not properly constituted

as a three judge court on the remedy issue.

12 Petition for Writ of Certiorari

decision, held that an interdistrict remedy was permis-

sible, 393 F. Supp. 428.

Although the Wilmington and Detroit cases were in-

distinguishable, the District Court strained to reach a con-

trary result. It began, properly enough:

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

is authorized to consider desegregation relief em-

bracing more than the Wilmington district only upon

findings either that school districts in New Castle

County are not meaningfully separate and autonomous

or that there have been racially discriminatory acts of

the State or of local school districts causing inter-

district segregation. Because our opinion of July 12,

1974, made no findings concerning inter-district con-

stitutional violations, we must now make additional ”

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

1. SEPARATE AND AUTONOMOUS ScHOOL DisTRICTs.

The Court then touched on historical aspects of the

relationship between Wilmington and the suburban dis-

tricts but concluded:

“Since the 1950’s however, Wilmington and suburban

schools have, to a great extent, operated independently

of one another. The suburban districts have, for the

past several years, operated unitary schools for the

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

at 437.

“There is no evidence in the record which indicates

that suburban schools in New Castle County are pres-

ently operating other than unitary schools for the

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

437, n. 19.

Petition for Writ of Certiorari 13

Despite the District Court’s inability to find that

school districts in Delaware are not separate and autono-

mous, it hints that the pre-Brown interrelationsh'» be-

tween Wilmington and the suburban districts would have

justified an interdistrict remedy. This concept is disturb-

ingly irrelevant because the pre-Brown interrelationship

only discriminated against black students from the subur-

- ban districts, whereas this case is concerned only with

black students in Wilmington who were never discrimi-

nated against by Wilmington’s interrelationship with the

suburban districts. Before Brown, this interrelationship

involved sending suburban black students, particularly

high school students, into the black schools in Wilmington

when there were no separate facilities for them in the

suburban districts. This constitutional violation was cured

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

which had existed in suburban districts and admitting

students regardless of race into all schools in the districts

where they resided. All school districts in New Castle

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

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

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

trict in which he resides because of race or color.

Judge Layton summed up this aspect of the majority

opinion in his dissent:

“Findings to the effect that prior to 1954 there

were interdistrict transfers of black and white students

from the suburbs to Wilmington which affect present-

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

The majority acknowledges, but gives no significance

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

ades ago, Wilmington had better educational facilities,

full twelve-grade programs, etc. They acknowledge

that these practices have not existed for years. But

14 Petition for Writ of Certiorari

finding that after the termination of these inter-

district transfers Wilmington’s schools became identi-

fiably black, the majority apparently infers that the

present black population is in part the result of such

transfers. There is no evidence to support such a

conclusion.” 393 F. Supp. at 448.

2. Housine.

The District Court proceeded to consider other ways

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

cause there was none) of racially discriminatory acts of

any of the suburban school districts causing interdistrict

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

cially discriminatory acts of the State of Delaware causing

interdistrict segregation. It found that the increase of

black population and the decline of white population in

Wilmington resulted from governmental action, citing the

FHA Mortgage Underwriting Manual in use between 1936

and 1949 which advocated racially and economically

homogeneous neighborhoods; the existence of racial dis-

crimination in some private sales and rentals prior to

1968; the continued recording of deeds with nugatory ra-

cial covenants; public housing ¢6licies which resulted in

the construction of substantial numbers of units in Wil-

mington and relatively few units in the suburbs; and a

provision in the Code of Ethics of the National Associa-

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

counseling realtors not to introduce into neighborhoods

peoples whose race, nationality or other characteristics

would be detrimental to property values.

Comparable evidence, but in far greater depth and

detail, was introduced in Richmond and Detroit and found

unpersuasive. The thinness of the evidence in this case

and its acceptance by the District Court, coupled with its

Petition for Writ of Certiorari 15

obeisance to and defenestration of Milliken, leads to the

belief that despite Milliken the District Court was deter-

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

stitutional violation.”

Judge Layton put it well in his dissenting opinion:

“My impression of this evidence at the conclusion

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

the record concerns circumstances which are not the

result of State action. The majority concedes that

twenty-seven years ago the Supreme Court declared

racial covenants contained in deeds to be of no legal

effect. The majority cites no authority requiring the

Recorder of Deeds to cull out and delete this sort of

material from the numerous deeds filed daily for re-

cording; nor does it attribute any specific legal sig-

nificance to failure to cull out such language. In my

judgment, the only hard evidence of State action

appearing in the mass of evidence dealing with real

estate discrimination is the State publication, until

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

this Code was not exclusive to Delaware, presumably

it extended nationally from Maine to Georgia, and

from Washington, D. C. to California.”

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

in effect, so heavy with inferences but so lacking in

concrete, relevant substance, have fallen far short of

fixing the responsibility for inter-district racial dis-

crimination upon Defendants’ shoulders.” 393 F.

Supp. at 448-9).

The “only hard evidence” fell woefully short of the

standard suggested by Mr. Justice Stewart in his concur-

ring opinion in Milliken:

16 Petition for Writ of Cértiorari

“No record has been made in this case showing that

the racial composition of the Detroit school population

or that residential patterns within Detroit and in the

surrounding areas were in any significant measure

caused by governmental activity, and it follows that

the situation over which my dissenting Brothers ex-

press concern cannot serve as the predicate for the

remedy adopted by the District Court and approved

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

(emphasis supplied ).

3. THE EpUCATIONAL ADVANCEMENT ACT.

The central issue in the trial of this case was whether

the Educational Advancement Act of 1968 amounted to

unconstitutional interdistrict segregation.

The purpose and provisions of the Educational Ad-

vancement Act and some of the problems involved in its

enactment have already been alluded to, supra. The

significant findings of the District Court concerning the

statute appear in the following passage:

“We cannot conclude, as plaintiffs contend, that

the provisions excluding the Wilmington District trom

school reorganization were purposefully racially dis-

criminatory. To be sure, all legislators may have

known that the Wilmington School District was pre-

dominantly black. On the other hand, the focus of

the legislature’s concern in developing the consolida-

tion provisions of the Educational Advancement Act

was on small, weak, ineffective school districts, and

while the effectiveness of schooling in Wilmington at

this time has been disputed, it is clear that Wilmington

had larger staffs and better programs than many Dela-

ware school districts. Moreover, Wilmington had

historically been treated distinctively in Delaware

Petition for Writ of Certiorari 17

education, and there is evidence that its representa-

tives were unwiliing to forego certain aspects of this

special treatment. No language in the provisions at

issue makes any reference to race, nor evidently, did

the legislative debates over the Act contain any refer-

ence to race. Finally, all Wilmington legislators,

black and white, voted for the Educational Advance-

ment Act. In short, the record does not demonstrate

that a significant purpose of the Educational Advance-

ment Act was to foster or perpetuate discrimination

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

Having found that the Educational Advancement

Act was not purposefully racially discriminatory, the Dis-

trict Court overlooked or misinterpreted the applicable law

to arrive at a determination of unconstitutionality.

a. Use of the Compelling State Interest Test.

Although the District Court could find no intentional

racial classification in the Educational Advancement Act,

it constructed a racial effect. Immediately prior to the

Act the Wilmington School District, like the Detroit School

District, was a predominantly black district surrounded by

predominantly white districts. Had there been no Educa-

tional Advancement Act this condition would have con-

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

the Educational Advancement Act because the Act made

no change in the Wilmington School District boundaries.

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

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

tional” racial classification which required invalidation un-

less justified by a compelling state interest.

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

Washington v. Davis, 416 U. S. 229 (1976), that the Dis-

18 Petition for Writ of Certiorari

trict Court erred in overlooking Wright v. Rockefeller, 376

U. S. 52 (1964), and Jefferson v. Hackney, 406 U. S. 535

(1972), and that it misread Keyes v. School District No. 1,

413 U. S. 189 (1973):

“The rule is the same in other contexts. Wright

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

York congressional apportionment statute against

claims that district lines had been racially gerry-

mandered. The challenged districts were made up

predominantly of whites or of minority races, and their

boundaries were irregularly drawn. The challengers

did not prevail because they failed to prove that the

New York legislature ‘was either motivated by racial

considerations or in fact drew the districts on racial

lines’; the plaintiffs had not shown that the statute

‘was the product of a state contrivance to segregate

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

56, 58. The dissenters were in agreement that the

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

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

“The school desegregation cases have also ad-

hered to the basic equal protection principles that the

invidious quality of a law claimed to be racially dis-

criminatory must ultimately be traced to a racially

discriminatory purpose. That there are both pre-

dominantly black and predominantly white schools in

a community is not alone violative of the Equal Pro-

tection Clause. The essential element of de jure

segregation is ‘a current condition of segregation re-

sulting from intentional state action . . . the differ-

entiating factor between de jure segregation and so-

called de facto segregation . . . is purpose or intent

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

ene mae a me

5 RA RN Pe eck hE M wte pes ow

re

Petition for Writ of Certiorari 19

U. S. 189, 205, 208 (1973). See also id., at 199, 211,

213. The Court has also recently rejected allegations

of racial discrimination based solely on the statistically

disproportionate racial impact of various provisions of

the Social Security Act because ‘the acceptance of

appellant's constitutional theory would render suspect

each difference in treatment among the grant classes,

however lacking the racial motivation and however

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

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

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

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

4792.

b. Causing Interdistrict Segregation.

The District Court considered the provision of the

Educational Advancement Act limiting newly consolidated

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

retaining Wéilmington’s historic, neutrally established

boundary lines and found these provisions unconstitu-

tional. Specifically, the Court found that these provisions

were “a substantial cause of interdistrict segregation” and

thus a basis for interdistrict remedy under the reasoning

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

disparity antedated the Educational Advancement Act by

many years and it was plainly erroneous for the District

Court to equate inaction after the event with causation.

The District Court’s real quarrel with the Educational

Advancement Act was that it did nothing to alleviate the

condition of a predominantly black schcol district sur-

rounded by predominantly white school districts. This

same condition which existed in Detroit was held by this

Court not to offend the Constitution. The Michigan legis-

lature had the power to alleviate this condition by con-

solidation of Detroit with suburban school districts but it

20 Petition for Writ of Certiorari

had no constitutional obligation to do so. By the same

token, neither the Delaware General Assembly nor the

State Board of Education had any constitutional obliga-

tion to provide racial homogeneity among the separate

autonomous school districts in New Castle County.

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

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

of Richmond, 462 F. 2d 1058 (4th Cir., 1972), aff'd. by

equally divided court, 412 U. S. 92 (1973); Milliken v.

Bradley, supra.

c. Drawing or Redrawing School Boundaries.

The District Court adopted respondent’s contention

that an interdistrict remedy was permissible because the

Educational Advancement Act unconstitutionally con-

tributed to interdistrict segregation by redrawing school

district boundaries.

“In short the General Assembly ‘contributed to the

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

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

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

The fallacies here are fourfold. First, the Wilmington

School District boundaries were neutrally confirmed by

legislation in 1905 as coterminous with the City of Wil-

mington where they had been for the preceding fifty years.

The Educational Advancement Act made no change in

these boundaries. Second, Chief Justice Burger’s opinion

in Milliken spoke of district lines “deliberately drawn on

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

opinion that nothing in the Educational Advancement Act

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

Justice Stewart illustrated their concern about contribut-

ing to segregation through drawing or redrawing district

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

et ll (Na A i a ae te lt NO ROA ON ete i NG Ai A te seg rage

Petition for Writ of Certiorari 21

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

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

Unlike Wilmington, these were cases of new district lines

actually drawn for the purposes of impeding desegrega-

tion. Fourth, the rernnedy commensurate with such viola-

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

lines which had been deliberately drawn on the basis of

race. The inapplicability here of a remedy commensurate

with the violation simply demonstrates that there was no

violation.

C. Inclusion of New Castle-Gunning Bedford School Dis-

trict in the Desegregation Area Exceeded the Lower

Court's Authority Under the Decisions of This Court.

In Hills v. Gautreaux, 425 U. S. 284 (1976), Mr.

Justice Stewart explained Milliken:

“The District Court’s desegregation order in Milliken

was held to be an impermissible remedy not because

it envisioned relief against a wrongdoer extending

beyond the city in which the violation occurred but

because it contemplated a judicial decree restructur-

ing the operation of local governmental entities that

were not implicated in any constitutional violation.”

New Castle-Gunning Bedford School District is a

separate autonomous school district. It is not adjacent to

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

mington. The focal point of New Castle-Gunning Bedford

School District is the historic City of New Castle. New

Castle-Gunning Bedford School District is a governmental

entity which has not been implicated in any constitutional

violation. Nevertheless, under the remedial order of the

District Court this governmental entity will be abolished

and its operations will be completely restructured. The

boundaries of this separate, autonomous school district,

22 Petition for Writ of Certiorari

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

aside by the Court despite the fact that the record fails to

show any constitutional violation within the New Castle-

Gunning Bedford School District, let alone a constitutional

violation which has produced a segregative effect in the

Wilmington School District.

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

lowing language written by Mr. Chief Justice Burger:

“The controlling principle consistently expounded

in our holdings is that the scope of the remedy is

determined by the nature and extent of the constitu-

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

boundaries of separate and autonomous school dis-

tricts may be set aside by consolidating the separate

units for remedial purposes or by imposing a cross-

district remedy, it must first be shown that there has

been a constitutional violation within one district

that produces a significant segregative effect in an-

other district. Specifically, it must be shown that

racially discriminatory acts of the state or local school

districts, or of a single school district have been a

substantial cause of interdistrict segregation. Thus

an interdistrict remedy might be in order where the

racially discriminatory acts of one or more school dis-

tricts caused racial segregation in an adjacent district,

or where district lines Fave been deliberately drawn

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

district remedy would be appropriate to eliminate the

interdistrict segregation directly caused by the con-

stitutional violation. Conversely, without an inter-

district violation and interdistrict effect, there is no

constitutional wrong calling for interdistrict remedy.”

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

717, 744-45.

Petition for Writ of Certiorari 23

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

ford School District cannot properly be included in an

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

tional violation within New Castle-Gunning Bedford

School District which has produced a significant segrega-

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

cially discriminatory acts of New Castle-Gunning Bedford

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

stantial cause of interdistrict segregation between New

Castle-Gunning Bedford School District and Wilmington

School District.

The District Court attempts to justify inclusion of

districts like New Castle-Gunning Bedford referring to the

effects of the pre-Brown segregation to which they were

parties. Prior to Brown black students residing in Wil-

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

son of the dual school system in Wilmington; and some

black students outside Wilmingon were segregated on an

interdistrict basis by being required to attend the “col-

ored” schools in Wilmington when there were not enough

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

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

Castle-Gunning Bedford School District did not have

enough black students for a separate high school and these

students crossed into Wilmington to attend the “colored”

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

segregation to which New Castle-Gunning Bedford School

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

gation did not discriminate against black residents of Wil-

mington. The victims of this constitutional violation were

black students residing in New Castle-Gunning Bedford

School District; their constitutional rights were restored

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

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

24 Petition for Writ of Certiorari

District Court expressly recognized that the interdistrict

transfer program ceased after Brown I.

The District Court conceded that it could not say

that the “constitutional violation” attributable to the State

in the Educational Advancement Act had any interdis-

trict effect between Wilmington School District and New

Castle-Gunning Bedford School District. The same rea-

sons given by the District Court for the inclusion of

Newark School District apply to the inclusion of New

Castle-Gunning Bedford School District, viz.:

“It is difficult to say with any certainty that

Newark would have been included in any reorganiza-

tion had the State Board been entitled to exercise its

discretion in 1968. Since Newark at that time had

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

limitation may have been to foreclose Newark’s in-

clusion. On the other hand, had the Legislature or

the State Board considered desegregation as one of

the appropriate goals to be accomplished in the course

of reorganization, very different criteria might have

led to the consolidation of part of either Wilraington

or DeLaWarr with part of the present Newark dis-

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

post hoc rationalizations, and on what might have

been. Rather, uncontradicted testimony indicates that

the stability of any desegregation plan is enhanced by

the inclusion of larger geographical areas and higher

white populations. The Court cannot ignore the fact

brought so forcefully to its attention that desegrega-

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

tional equipment and training. The difficulties of de-

clining tax bases, and the problem of preventing

growth areas from maintaining the duality of schools

in the Northern New Castle County area require the

inclusion of Newark.”

Petition for Writ of Certiorari 25

There are no dual school systems in Delaware. The

Court uses “duality” for the concept that the percentage of

blacks in the unitary Newark School District would be less

than the percentage of blacks in the desegregation area.

Just as the District Court in Milliken sought to include

suburban areas to remedy the condition it found in Detroit,

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

Gunning Bedford School District to remedy the condition

it finds in Wilmington School District. With no showing

that the “unconstitutional” features of the Educational Ad-

vancement Act had any interdistrict effect between Wil-

mington and New Castle-Gunning Bedford, the District

Court mandated the inclusion of New Castle-Gunning

Bedford to improve the stability of the desegregation area.

“Stability” meant to the District Court the prevention of

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

cluded in the exercise of its informed discretion on what

would constitute an appropriate remedy, citing Wright v.

Council of the City of Emporia, 407 U. S. at 465, and

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

490-91. 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 dis-

trict. White flight, however, is not a constitutional viola-

tion. Even if it had been shown that whites will flee from

Wilmington suburban areas to New Castle-Gunning Bed-

ford School District in order to avoid desegregation (and

this was not shown) such showing would furnish no legiti-

mate basis for including New Castle-Gunning Bedford

School District in the absence of its involvement in any

constitutional violation.

The District Court in its March 27, 1975 opinion said

that the victims of discrimination in this case are the school

children of Wilmington. There is no showing that New

26 Petition for Writ of Certiorari

Castle-Gunning Bedford School District has itself per-

formed any act contributing to discrimination against

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

ing that any act of the State of Delaware has involved

New Castle-Gunning Bedford School District in discrim-

ination against the school children of Wilmington. In

such circumstances there is no constitutional basis for in-

cluding New Castle-Gunning Bedford School District in

an interdistrict remedy to alleviate what the District Court

has (mistakenly) called segregation in the Wilmington

School District.

D. The Use of Racial Disparity and the Restructuring of

More Than Half the Educational System of Delaware

Exceeded the Court’s Authority.

This Court recognized in Swann that the “predicate”

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

finding of a dual school system and a total default on the

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

able plan, notwithstanding the patient efforts of the Dis-

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

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

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

formulation of a remedy.

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

tem” in Delaware is the disparity in racial percentages

among the twelve separate unitary school districts in New

Castle County, a condition which this Court has said does

not offend the Constitution.

It seems plain that the Court below has done what

Swann says it cannot do.

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

to require, as a matter of substantive constitutional

Petition for Writ of Certiorari 27

right, any particular degree of racial balance or mix-

ing, that approach would be disapproved and we

would be obliged to reverse. The constitutional com-

mand to desegregate schools does not mean that every

school in every community must always reflect the

racial composition of the school system as a whole.”

(402 U. S. at 24.)

Unlike many states there is no relationship in Dela-

ware between the school districts and the counties. The

determination of the District Court to establish essentially

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

proximately five times larger than any district now in

existence anywhere in the State is an unwarranted inter-

ference with the internal governance of the State of Dela-

ware for which there is no constitutional justification. The

tradition of local control over the operation of schools

which this Court recognized as essential both to main-

tenance of community concern and support of public

schools and to quality of education has been set aside by

the Court below because of its erroneous belief that

Delaware is obligated to provide racial balance among the

twelve separate autonor .us school districts in New Castle

County. To permit the involuntary restructuring of the

school districts of Delaware on so faulty a premise will

achieve an impermissible result—one which is plainly con-

trary to the controlling standards expounded in the hold-

ings of this Court.

E. What Did the Summary Affirmance of 393 F. Supp. 428

(1975) by This Court in 423 U. S. 963 (1975) De-

termine?

The only constitutional violation upon which the Dis-

trict Court specifically relied (Evans v. Buchanan, 393 F.

28 Petition for Writ of Certiorari

Supp. at 445) was the Delaware Educational Advancement

Act of 1968 (56 Del. L., Ch. 292) neglecting to mention

that in its previous opinion (379 F. Supp. 1218) the Court

had found there was no intentional racial classification in

the adoption of this statute. Furthermore, by its terms, said

statute was in effect for a period of only one year, and had

expired some years before the Court rendered its opinion

in 1975. The District Court did mention in passing sev-

eral other possible constitutional violations, heretofore con-

sidered, but there was no evidence and the District Court

made no findings on what effect, if any, such other consti-

tutional violations had on the racial composition of the

Wilmington public schools. As noted above, the Act pre-

vented the State Board of Education for a period of one

year from consolidating the Wilmington School District

with any school district outside of Wilmington. The Dis-

trict Court referred to the statute as the racially discrim-

inatory exclusion of Wilmington, because for one year it

prevented Wilmington from being consolidated with a

school district outside of Wilmington, and stated:

“But for this racial classification, the Board may

have consolidated Wilmington with other New Castle

County districts, with the result that the racial propor-

tions of the districts would have been altered signifi-

cantly.”

There was no evidence whatsoever that supported the

Court's reference to a “racial classification”; as a matter of

fact, the same statute also prevented the consolidation of

two other New Castle Districts because of their large size

(more than 12,000 pupils). Also, there was no evidence

and the Court made no finding that Wilmington would

ever be consolidated with another District outside the city,

nor in what respect the racial proportions of any such

Petition for Writ of Certiorari 29

possible consolidated district would be altered. The Court

concluded that the Educational Advancement Act played

a significant part in maintaining the racial identifiability

of Wilmington and was equivalent to redrawing school

district boundary lines. On this basis the Court found that

applicable law ( Milliken v. Bradley, 418 U. S. 717 (1974) )

authorizes consideration of inter-district as well as Wil-

mington only remedies for school “segregation” in New

Castle County. The Court determined that the Educa-

tional Advancement Act of 1968, excluding Wilmington

from consolidation was unconstitutional, and then directed

. the parties to submit to alternative plans to remedy the

segregation in Wilmington as found by the Court in 379

F. Supp. 1218 (1974), “(a) within the present boundaries

of the Wilmington School District, and (b) incorporating

other areas of New Castle County”.

A direct appeal from this interlocutory judgment was

taken to this Court and there was a summary affirmance in

Buchanan v. Evans, 423 U. S. 963 (1975), with three Jus-

tices dissenting. The dissenting Justices ( Mr. Justice Rehn-

quist, joined by the Chief Justice and Mr. Justice Powell )

did not know what issues the Court resolved by its sum-

mary affirmance. The dissenting opinion pointed out that

the injunction on the Educational Advancement Act was

moot since it had expired in 1969, and that an interlocutory

order finding an interdistrict violation and requiring sub-

mission of plans was not appeal ble. Bradley v. Milligan,

468 F. 2d 902 (C. A. 6), cert. denied 409 U. S. 844 (1972).

The majority of the Court of Appeals in its opinion

(A12-13 of Del. State Board of Ed. Petition) found that

under the law of the case principle it was required by this

Court’s summary affirmance to accept that eight possible

constitutional violations had been found by this Court and

should accordingly be the subject of a remedy, saying

(A13):

30 Petition for Writ of Certiorari

“If the defendants believe that some of the eight

alleged violations were it affirmed, they should take,

or perhaps previously should have taken, appropriate

steps to obtain review of this matter, or a clarification,

by the Supreme Court.”

The majority of the Court of Appeals also refused to con-

sider whether this Court’s summary affirmance was altered

by Washington v. Davis, 426 U. S. 229 ( 1976), saying:

“The short answer is that it remains for the Su-

preme Court, not an ‘inferior’ tribunal to entertain this

contention.”

Consequently, only this Court can determine what it

decided in its summary affirmance of 1975 (423 U. S. 963 ).

It is submitted that the consideration of the possible con-

stitutional violations discussed supra in this petition shows

that none of said alleged constitutional violations meets

the criterion established by this Court in the cases hereto-

fore cited. It is unreasonable to believe that this Court

ever intended by its summary affirmance to do anything

more than find at that point in these proceedings the Dis-

trict Court had not abused its discretion in ordering the

submission of alternative plans, and that on remand to the

Court of Appeals it should be instructed to consider all the

alleged constitutional violations, what are the interdistrict

violations, if any, with which we are concerned, and what

effect, if any, do those violations now have on the racial

composition of the schools of northern New Castle County,

Delaware.

This Court should also consider that the basic premise

upon which this case is founded rests on the decision of

the three judge District Court in Evans v. Buchanan, 379

F. Supp. 1218 (1974), which held that there was uncon-

Petition for Writ of Certiorari 31

stitutional segregation in the Wilmington public schools by

reason of demographic changes in the racial balance of the

city whereby the racial composition of city schools changed

from a black minority to a black majority of eighty percent

from 1956 to 1973. This Petitioner was not made a party

to this suit until after that decision was made and no

appeal was taken from that decision. However, it would

appear to be erroneous under the law as stated by this

Court in Pasadena City Bd. of Education v. Spangler, 96

S. Ct. 2697 (1976). That case also recognized (at p. 2705)

that there are well established rules governing modifica-

tion of even a final decree in equity, so that if the standards

now plainly stated by this Court in 1976 would not have

justified the finding of segregation in Wilmington made in

1974, this Court should now review this 1974 decision of

the District Court and if it does not meet existing law, re-

mand for appropriate modification.

F. It Is Not Possible to Impose a “But for” Remedy on the

Record in This Case, and the Court of Appeals Was

in Error in Directing the Remedy Which It Approved.

The remedy invoked by a majority of the District

Court (A84) was to establish a standard that a range of be-

tween 10 and 35% black in each grade of each school of all

the school districts in New Castle County except one would

determine desegregation. The District Court recognized

the principle to be followed, saying (A58): “The Supreme

Court has made it clear that the determination of the viola-

tion is a key factor in determining remedy.” Nevertheless,

without any finding of what violations it was trying to

remedy, with the sole exception of the Educational Ad-

vancement Act of 1968, the District Court determined that

some sort of consolidation or reorganization is required. It

directed the State to accomplish some reorganization that

32 Petition for Writ of Certiorari

would accomplish the racial balance in eleven school dis-

tricts it had prescribed, and if the State failed to do so

the Court in effect consolidated all the school districts in

New Castle County, except one district, into a single

county-wide district with a new appointed board to super-

vise the new district. All the existing eleven school dis-

tricts and their respective boards would be abolished.

The transfer of responsibility to the new board becomes

effective in September 1977. Not one word was said about

the mechanics of accomplishing this transformation, except

that the new board of education would have “full respon-

sibility”.

The majority of the Court of Appeals again empha-

sized the necessity of a “but for” remedy, but the only part

of the District Court’s judgment which it modified was the

racial quota enrollment criterion, saying “we specifically

hold that no particular racial balance will be required in

any school, grade, or classroom.” (A19). However, as the

minority opinion of the Court of Appeals points out (A25),

the majority opinion did not address two critical issues:

1. What are the interdistrict violations, if any, which are

involved, and 2. What effects, if any, do those violations

now have on the racial composition of the schools of

northern New Castle County? The minority opinion stated:

“I must confess if I were a Delaware official

charged with desegregating the schools of northern

New Castle County ‘in accordance with the Opinion

of the Court of Appeals for the Third Circuit,’ I

would not know where to begin.”

We agree. It is not possible to comply with the require-

ments of this Court that the scope of the remedy must

fit the nature and extent of the constitutional violation,

unless and until the parties know the particular constitu-

Petition for Writ of Certiorari 33

tional violations with which they are charged, and what

significant segregative effect did such violation have on

the black school children of Wilmington. The record in

this case fails to furnish the basic facts to determine what

remedy, if any, should be imposed.

CONCLUSION.

The unarticulated premise on which the Courts be-

low acted was the decision to make the racial balance in

all schools in New Castle County, Delaware, approxi-

mately the same as the racial balance throughout the

county, despite the fact that in New Castle County, Dela-

ware, there are twelve separate, autonomous districts—

only one of which was found to contain vestiges of the

pre-Brown segregation which was mandated by the Dela-

ware constitution. On the basis of specious attempts to

show an interdistrict constitutional violation the District

Court (affirmed by the Court of Appeals) uprooted the

historical pattern of education in New Castle County,

Delaware, drastically reduced school board representation,

set aside neutrally established boundaries of eleven au-

tonomous school districts, forced new financing patterns

and taxes on the citizens of Delaware, and changed the

educational patterns of 60 percent of the public school

students in the entire State of Delaware.

The central theory to support this interference with

the internal governance of Delaware is the unwarranted

conception of Brown’s command to dismantle the dual

system of education. After Brown, racial minority pupils

were freely admitted into the schools in the district in

which they resided and no school district boundaries were

altered to discriminate against any pupil of a racial minor-

ity. After Brown, there were twelve unitary school dis-

tricts in New Castle County, Delaware, and no pupil in

34 Petition for Writ of Certiorari

any of these districts was excluded because of race from

any school in the district in which he resided. This was

full compliance with Brown’s command to achieve de-

segregation “within the limits set by normal geographical

school districting.” 347 U. S. at 495-6, 349 U.S. at 298.

The Courts below say that Delaware was obligated to

do more, that it was required to achieve racial balance

among the twelve unitary school districts in New Castle

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

the Educational Advancement Act is said to violate its

continuing duty under Brown to desegregate the schools

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

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

1069 (4th Cir. 1972), aff'd. by equally divided court, 412

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

418 U. S. 717 (1974).

The refusal of the Court of Appeals to follow this

Court's prior decisions requires a further authoritative

statement to put such issues to rest. While this is of para-

mount importance to the citizens of Delaware, it has

nationwide implications which commend it to full-scale

review and reversal by this Court. *

Respectfully submitted,

Davin F. ANDERSON,

PoTTER ANDERSON & CorRroon, |

350 Delaware Trust Building, .

P. O. Box 951, |

Wilmington Delaware. 19899

Attorneys for New Castle-Gunning

Bedford School District, Petitioner.