Petition — Delaware State Board of Education v. Evans

FILED

; OCT 20 1978

t

Supreme Court of the United States =!

.

—

FILED. |

October Term, 1978.

No. 78-671

DELAWARE STATE BOARD OF EDUCATION,

Petitioners,

v.

BRENDA EVANS, et al.

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Ricuarp R. Wier, JR.,

Attorney General of the

State of Delaware,

Recina M. SMALL,

Deputy Attorney General of the

State of Delaware,

A for the Delaware State

of Education, Petitioners.

Pamir B. KurRLanp,

Two First National Plaza,

Chicago, Illinois. 60603

(312/372-2345)

Of Counsel.

international Printing Co., 711 So. SOth St, Phila, Pa. 18143 — Tel. (215) 727-8711

INDEX.

\ bc

i bank Sacha k Rah a oe dah Adib Os9'e'660Ape be l

EEE ESS ee a 2

SI III ogi 6 65 5646666605065 odes ccsedec'ees 2

| ee Ease ta Uwe acdeqg epececsespeseys 3

REASONS FOR GRANTING THE WRIT ...........00e0eeeeeeees 8

I. The Judgment Below, That a Remedial Decree in a

| School Desegregation Case Need Not Be Framed

as a Cure for Alleged Constitutional Violations, Is

| in Conflict With the Rulings of This Court ...... 8

II. The Courts Below, in Totally Restructuring the Local

Governance of Education in Delaware by Abolish-

ing Eleven Democratically Elected School Boards

and Replacing Them With a Single Judicially

Appointed Board, !Exceeded Their Authority as

Defined by the Decisions of This Court ......... 9

CONCLUSION ...:.,....: wat Mamie Oks. Ae Karin RP Ry re ll

APPENDIX:

Opinion of the United States Court of Appeals for the

" ‘Third Circuit Filed July 24, 1978 ................. Al

Opinion of the United States District Court for the

District of Delaware Dated August 5, 1977 ........ A63

Opinion of the United States District Court for the

| District of Delaware Dated January 9, 1978 ....... A98

| Order of the United States District Court for the Dis-

I trict of Delaware Dated January 9, 1978 .......... A213

Opinion of the United States District Court for the

District of Delaware Dated January 20, 1978 ...... A234

Order of the United States District Court for the Dis-

trict of Delaware Dated January 20, 1978 ......... A244

ht — ee a ee eee eee eee eee al, Mintle es « oi. eee ee

TABLE OF CITATIONS.

Cases: Page

Alexis I. duPont School District v. Evans, — U. S. —

SE TE MED ga cigs ce Wi whee Cobenbacgesnebs ees 7,9

Bradley v. School Board of Richmond, Virginia, 412 U. S.

Oe NE he Bi cc bess eeuahwek doh 600 Niaatidls cae sees 5

Brown v. Board of Education, 347 U. S. 483 (1954) ........ 4

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

Buchanan v. Evans, 423 U. S. 963 (1975) .............00-- 3

Buchanan v. Evans, — U. S. — (47 U. S. L. W. 3127) ...... i

Dayton Board of Education v. Brinkman, 433 U. S. 406

SRR cap AB ERE eee W ih Rae ewe Ualvs batiox’e Cave es se 6, 8,9

Evans v. Buchanan, 195 F. Supp. 321 (D. Del. 1961) ....... 4

Evans v. Buchanan, 207 F. Supp. 820 (D. Del. 1962) ....... 4

Evans v. Buchanan, 379 F. Supp. 1218 (D. Del. 1974) ...... 5

Evans v. Buchanan, 393 F. Supp. 428 (D. Del. 1975) ..... 3, 4, 5,6

Evans v. Buchanan, 416 F. Supp. 328 (D. Del. 1976) ....... 5, 6

Evans v. Buchanan, 435 F. Supp. 832 (D. Del. 1977) ....... 7

Evans v. Buchanan, 555 F. 2d 373 (3rd Cir. 1977) ......... 3, 5, 6

Evans v. Buchanan, 447 F. Supp. 982 (D. Del. 1978) ....... 7

Evans v. Buchanan, — F, 2d — (3d Cir. 7/24/78) ......... 3

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) ............. 4

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

Hills v. Gautreaux, 425 U. S. 284 (1976) ................. 10

Milliken v. Bradley, 418 U. S. 717 (1974) ................. 5, 10

Washington v. Davis, 426 U.S. 229 (1976) .............505. 8

Statutes:

Be PRM I I Beh Cane ii'es Cush cebisvoseecesscsune 2

os Re Sager ar rn eee 6

IN THE

Supreme Court of the United States

October Term, 1978

No.

DELAWARE STATE BOARD OF EDUCATION,

Petitioners,

v.

BRENDA EVANS, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Petitioners respectfully request 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 the

above-encaptioned cause.

OPINIONS BELOW.

The opinion of the Court of Appeals for the Third Cir-

cuit is not yet reported. It is set out in the Appendix

hereto at pages Al to A62. The opinions of the United

States District Court for the District of Delaware are re-

ported at 435 F. Supp. 832 (1977) and 447 F. Supp. 982

(1978), set out in the Appendix at pages A63 to A212.

2 Petition for Writ of Certiorari

JURISDICTION.

The opinion and orders of the United States Court of

Appeals for the Third Circuit were filed on July 24, 1978.

This Court’s jurisdiction is invoked pursuant to 28 U. S. C.

§ 1254.

QUESTIONS PRESENTED.

1. Do the decisions of this Court require that the same.

S for judicial remedies be applied in Southern and

rder State school desegregation cases as in Northern,

Midwestern, and Western State cases?

2. May a federal district court impose a remedy for

school segregation that is not framed to cure alleged con-

stitutional violations but is justified only on a general find-

ing of failure to actto ward off the effects of demographic

changes not caused by government action?

3. Is it within the discretion of a federal district court

to dismantle the elected governments of eleven local

school districts and to replace them with a single unelected

school board created to encompass two-thirds of the State’s

public school students, although there is no finding of

definable constitutional violation by any of the school dis-

tricts except a plaintiff school district or any finding of how

such a decree cures a constitutional violation?

))

a_i" wi

Petition for Writ of Certiorari 3

STATEMENT.

The federal district court for the District of Delaware,

with the approval of the Court of Appeals for the Third

Circuit, has obliterated eleven independent political enti-

ties of the State of Delaware in order to effectuate a judi-

cially mandated racial balance plan encompassing all pub-

lic schools in northern New Castle County. This “unique”

and unprecedented judicial action leaves Delaware—a

State with a long coveted tradition of small school dis-

tricts designed to foster local popular control of public

education—with a totally unbalanced public education

system. The number of school districts in the State has

been reduced from twenty-three to thirteen, one of which,

that created by the trial court, includes two-thirds of the

State’s public school students. The judicially created

school district is more than ten times larger than that of

the second largest district in the State.

This unprecedented judicial action was predicated on

the allegations—unsupported by factual determinations—

of eight disparate constitutional violations of an allegedly

interdistrict nature. Evans v. Buchanan, 393 F. Supp. 428

(D. Del. 1975). There has never been any explicit appel-

late review of any of the alleged violations which form the

basis for this total restructuring of Delaware public educa-

tion. When these petitioners sought interlocutory review

of the District Court’s finding of interdistrict violations, this

Court summarily affirmed a judgment requiring the sub-

mission of alternative plans, including interdistrict plans.

Buchanan v. Evans, 423 U. S. 963 (1975). That summary

action by this Court has since been held to preclude further

imuiry into the propriety or extent of the alleged viola-

tions. Evans v. Buchanan, 555 F. 2d 373, 377-8 (3rd Cir.

1977); Evans v. Buchanan, — F. 2d — (3d Cir. 7/24/78)

(A-10, fn. 4).

a

i i ee ee

4 Petition for Writ of Certiorari

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

(1954) (“Brown I”), which affirmed Gebhart v. Belton,

Del. Supr., 91 A. 2d 137 (1952), Delaware imposed school

segregation by statute. In northern Delaware, prompt

and voluntary affirmative action was taken by the school

districts in New Castle County to comply with this Court’s

mandate. See Brown v. Board of Education, 349 U. S.

294, 299 (1955).

“In short, integration in the State of Delaware, which

has already integrated many of its schools, particularly

in the Wilmington metropolitan area, should not be

viewed, gauged or judged by the more restrictive

standards reasonably applicable to communities which

have not advanced as far upon the road towards full

integration as Delaware.” Evans v. Ennis, 281 F. 2d

385, 393 (3rd Cir. 1960). ( Emphasis added. )

Compliance was less prompt and voluntary in rural, south-

ern Delaware, prompting the initiation of the predecessor

of the instant litigation. That litigation was concluded in

1961 with the approval of a State-wide desegregation plan.

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

the exception of a single dispute concerning an attendance

area in one northern Delaware school district, Evans v.

Buchanan, 207 F. Supp. 820 (D. Del. 1962), the federal

courts received no complaints concerning the desegrega-

tion of school districts in the area now under consideration.

With the exception of the plaintiff Wilmington School Dis-

trict, all school districts in the affected area were explicitly

found to be operating unitary school districts, thus having

effectuated the transition required by this Court’s mandate

in Brown II. See Evans v. Buchanan, 393 F. Supp. at 437

n. 19.

Under the rubric of the original caption in a case

which had been directed only to southern Delaware, new

Soe eens)

Petition for Writ of Certiorari 5

parties plaintiff in 1971 challenged the growing urban

concentration of black population in the City of Wilming-

ton and its contrast to the predominantly white suburban

population in some surrounding school districts. The con-

dition complained of and its causes was identical to those

in other cases which have reached this Court. See Brad-

ley v. School Board of Richmond, Virginia, 412 U. S. 92

(1973); Milliken v. Bradley, 418 U. S. 717 (1974).

Prior to this Court’s decision in Milliken v. Bradley,

supra, the District Court initially found only an intradis-

trict violation in the City of Wilmington in the failure to

eliminate all vestiges of de jure segregation in Wilmington

in connection with five identified schools. Evans v. Bu-

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

Court nevertheless directed the submission of an inter-

district desegregation plan, in addition to a Wilmington-

only plan.

Following this Court’s opinion in Milliken v. Bradley,

supra, based on exactly the same record, the District Court

issued another opinion and order requiring an interdis-

trict remedy. Evans v. Buchanan, 393 F. Supp. 428 (D.

Del. 1975). Although as noted above, the District Court

found a variety of actions which it characterized as inter-

district constitutional violations, see Evans v. Buchanan,

555 F. 2d at 384, the alleged violations were for the most

part matters that were not within the control or purview

of school officials but related to State or Federal govern-

mental activity or inactivity with regard to housing.

Following this Court’s summary affirmance, the Dis-

trict Court issued a preliminary decision directing the dis-

solution of the eleven school districts in northern New

Castle County and their replacement by a single school

board, with the direction that pupils be reassigned so that

each grade in each school building include 10 to 35% black

students. Evans v. Buchanan, 416 F. Supp. 328 (D. Del.

6 Petition for Writ of Certiorari

1976). As noted, the Court of Appeals refused to examine

the validity of the alleged constitutional violations and

affirmed by a four to three vote, but directed that the

racial ratios be eliminated. Evans v. Buchanan, 555 F. 2d

373 (3rd Cir. 1977). This Court denied certiorari on

October 3, 1977. 434 U. S. 880 (1977). |

The Court of Appeals gave the State sixty days to

formulate an alternative to the dissolution of the eleven

school districts. The State legislature enacted a volun-

tary interdistrict transfer plan providing for interdistrict

transfers on a majority to minority racial basis. 61 Del.

Laws Ch. 32 and 67. Pursuant to this legislative initia-

tive, approximately 14% and 26% of the black students in

the majority black Wilmington and DeLaWarr school dis-

tricts, respectively, transferred to majority white districts.

This substantially raised the black enrollment percentage

in virtually all of the majority white districts. For in-

stance, in the most recently completed school year, the

Alexis I. DuPont School District had 22% black enrollment

while the Mount Pleasant School District had 16.7% black

enrollment (having previously been 3.9% and 2.7% respec-

tively.) This legislative remedy was a direct response to

the alleged constitutional violations, namely, the concen-

tration of blacks in the urban Wilmington School District.

Evans v. Buchanan, 393 F. Supp. at 438.

These petitioners urged the District Court to make the

requisite finding of incremental segregative affect required

by this Court’s decision in Dayton Board of Education v.

Brinkman, 433 U. S. 406 (1977), and further urged that

those segregative effects—concentration of blacks in Wil-

mington—-were most appropriately redressed by the inter-

district transfer program which proved so successful in

fact in relieving that concentration.

The District Court rejected the legislative response

but stayed the dissolution of the eleven school districts un-

Petition for Writ of Certiorari 7

til July 1, 1978. Evans v. Buchanan, 435 F. Supp. 832 (D.

Del. 1977). The District Court then mandated a pupil

reassignment plan which will require that every student in

the former eleven district area be reassigned from his

local school for at least three and as many as nine of his

public school years. The Court further required reassign-

ment of administrative staff, teachers, and other staff,

eliminated popular control of the new school system for

five years, imposed a number of compensatory education

programs to be initially funded by the State, and ruled that

the State’s financial contribution to the new district could

not decline below historic levels. Evans v. Buchanan, 447

F. Supp. 982 (D. Del. 1978).

The Court of Appeals refused to act on the petitioners’

request for a stay prior to the ordered extinction of the

eleven school districts on July 1, 1978. Thereafter, the

petitioners applied to this Court for a stay of the pupil and

faculty reassignment components of the Court orders,

which was denied by Mr. Justice Brennan on September 1,

1978, , Buchanan v. Evans, — U. S. — (47 U.S. L. W.

3127). A subsequent reapplication to Mr. Justice Rehn-

quist by seven of the original school districts was denied.

Alexis I. duPont School District v. Evans, — U.S. — (Sep-

tember 8, 1978). The petitioners herein did not join in

that reapplication because of the recognized practicalities

of the situation, school being scheduled to open on Sep-

tember 11, 1978. The opinions denying these two appli-

cations for a stay indicate a difference of opinion as to the

effect of the prior actions of this Court in this case.

It is from the opinion and judgment of the Court of

Appeals for the Third Circuit that this petition for certio-

rari is taken.

8 Petition for Writ of Certiorari

REASONS FOR GRANTING THE WRIT.

I.

The Judgment Below, That a Remedial Decree in a School

Desegregation Case Need Not Be Framed as a Cure

for Alleged Constitutional Violations, Is jx3. Conflict

With the Rulings of This Court.

For purposes of this petition, we assume, contrary to

fact, that the courts below, in finding alleged constitutional

violations, met this Court’s standards that such violations

must have resulted from a purpose or intent to discrimi-

nate. Washington v. Davis, 426 U.S. 229 (1976); Dayton

Board of Education v. Brinkman, 433 U. S. 406 (1977).

We assume, that is, that there did occur one or more of

the alleged violations on which a remedial decree could

be predicated. We do contend, however, that the lower

courts were nevertheless obligated to meet this Court's

rulings that a remedial decree must be fashioned as a cure

for the alleged violations, i.e., to restore plaintiffs to the

conditions that would have obtained had there been no

such violations.

In Dayton, supra, this Court clearly announced that

the function of the trial court is “to first determine whether

there was any action in the conduct of the business of the

school board which was intended to, and did in fact, dis-

criminate against minority pupils, teachers or staff.” 433

U. S. at 420. It must then “determine how much incre-

mental segregative effect these violations had on the racial

distribution of the . . . school population as . . . compared

to what it would have been in the absence of such consti-

tutional violations.” Id.

The courts below did not follow this standard. In-

stead, they saw their task as the elimination of “racially

identifiable schools” in all eleven school districts and the

achievement of racial balance within this geographical

Petition for Writ of Certiorari 9

area. The decree effectuates the understanding of the

lower courts and rejects the standard of Dayton. So far

as can be told, the justification for failing to follow Dayton

is that Delaware was one of the origins! de jure States,

as to whom, it is presumed, a different rule from that ap-

plicable to all the other States of the Union may be im-

posed. But this is a distinction that finds no support in

any decision of this Court.

It is incumbent on this Court to establish that there

is a single standard for school desegregation decrees to be

applied to all States or to adopt the position that the

Southern and Border States are subject to punitive decrees

that, because of the absence of original sin, may not be

imposed on others. There are a very large number of

cases pending in the Fourth and Fifth Circuits the out-

comes of which are dependent upon which rule this Court

will choose to adopt.

Il.

The Courts selow, in Totally Restructuring the Local

Governance of Education in Delaware by Abol-

ishing Eleven Democratically Elected School Boards

and Replacing Them With a Single Judicially Ap-

pointed Board, Exceeded Their Authority as Defined

by the Decisions of This Court.

In denying the application for a stay in this case, Mr.

Justice Rehnquist aptly noted that “no case from this Court

has ever sanctioned a remedy of this kind, or any remedy

remotely like it.” Alexis I. duPont School District v. Evans,

— U. S. — (9/8/78). The extraordinary concept of

the power of federal courts to restructure local govern-

ment exhibited by the courts below is, indeed, novel and

for that reason alone invokes an expression of approval

or disapproval by this Court. It is also, however, in con-

flict with the notions earlier expressed by this Court about

10 Petition for Writ of Certiorari

the limits of judicial power over governmental organiza-

tion within the States. For, as this Court said, in Hills v.

Gautreaux, 425 U. S. 284, 296 (1976), in explaining its

ruling in Milliken v. Bradley, supra:

“The District Court’s desegregation order in

Milliken was held to be an impermissible remedy not

because it envisioned relief against a wrongdoer ex-

tending beyond the city in which the violation oc-

curred but because it contemplated a judicial decree

restructuring the operation of local governmental en-

tities that were not implicated in any constitutional

violation.”

Thus, the courts below have done here exactly what this

Court has said was forbidden them in Milliken. This con-

flict with this Court’s decision also calls for judicial review

here.

Petition for Writ of Certiorari 11

CONCLUSION.

For the reasons heretofore stated, this Court should

grant the petition for writ of certiorari, treat the merits of

the controversy that has yet to receive any explicit appel-

late review of the merits of the case, and reverse the

judgment below.

Respectfully submitted,

Ricwarp R. WieER, Jr.,

Attorney General of the

State of Delaware,

Recina M. SMALL,

Deputy Attorney General of

the State of Delaware, -

State Office Building

Wilmington, Delaware 19801

WILLIAM PRICKETT,

Mason E. Turner, JR.

Prickett, Warp, Burt &

SANDERS,

1310 King Street

Wilmington, DE 19801

Attorneys for the Delaware

State Board of Education,

Petitioners.

Purr B. KurRLAnp,

Two First National Plaza

Chicago, Illinois 60603

(312/372-2345)

Of Counsel.

Appendix.

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

FILED JULY 24, 1978.

UNITED STATES COURT OF APPEALS

For THE Turrp Crrcuir

Nos. 77-2336/7, 78-1143/8 and 78-1743

BRENDA EVANS, et al.,

LILLIAN RICHARDSON

MARY WOODS

WILBUR R. CARR, SR.

CLIFTON A. LEWIS

JEANNE Q. LEWIS

BOARD OF PUBLIC EDUCATION OF THE

CITY OF WILMINGTON (Intervening Plaintiff)

THE URBAN COALITION OF METROPOLITAN

WILMINGTON INCORPORATED

t.

MADELINE BUCHANAN, et al.,

ROBERT H. McBRIDE

ELISE GROSSMAN

JOSEPH J. CROWLEY

WILLIAM E. SPENCE

CLYDE BISHOP and

RICHARD H. FARMER, constituting all the members

of the State Board of Education of the State of

Delaware

(Al)

A2 Court of Appeals Opinion (7/24/78)

DELAWARE ASSOCIATION OF SCHOOL

BOARDS

Intervening Defendants

Alexis I. duPont, Alfred I. duPont, Appoquinimink, Clay- |

mont, Conrad, Marshallton-McKean, Mt. Pleasant, New

Castle-Gunning Bedford, Newark, and Stanton School

Districts |

DeLaWarr School District

Alexis I. duPont School District,

Appellant, No. 77-2336

Delaware State Board of Education and the following de-

fendant school districts: Alexis I. duPont School District,

Alfred I. duPont School District, Claymont School District,

Conrad Area School District, New Castle-Gunning Bed-

ford School District, Marshallton-McKean School District,

Newark School District, Mount Pleasant School District

and Stanton School District,

Appellants, No. 77-2337

Claymont School District and Stanton School District,

Appellants, No. 78-1143

New Castle-Gunning Bedford School District,

Appellant, No. 78-1144

Delaware State Board of Education,

Appellant, No. 78-1145

Alfred I. duPont School District, Alexis I. duPont School

District, Conrad School District and Mount Pleasant

School District,

Appellant, No. 78-1146

Newark School District,

| Appellant, No. 78-1147

Court of Appeals Opinion (7/24/78) A3

Marshallton-McKean School District,

Appellant, No. 78-1148

APPEAL FROM THE UNITED STATES District COURT FOR THE

District OF DELAWARE

(D. C. Civil Nos. 1816-1822)

Argued In Banc May 10, 1978

Before: ALDISERT, ADAMS, ROSENN, HUNTER, WEIs, GARTH

and HiccinsoruaM, Circuit Judges.

Samuel R. Russell, Esq.

Biggs and Battaglia

1206 Farmers Bank Building

Wilmington, Delaware 19801

CouNSsEL FoR ALExIs I. DUPONT SCHOOL

DIsTRICT

Richard R. Wier, Jr.

Attorney General of the State of

Delaware

Regina M. Small

Deputy Attorney General of the State

of Delaware

Wilmington Tower Building

Wilmington, Delaware 19899

William Prickett, Esq.

Mason E, Turner, Jr., Esq.

Prickett, Ward, Burt & Sanders

1310 King Street

Wilmington, Delaware 19899

A4 Court of Appeals Opinion (7/24/78)

Of Counsel:

H. James Conaway, Jr., Esq.

Young, Conaway, Stargatt & Taylor

1401 Market Tower

Wilmington, Delaware 19899

Philip B. Kurland, Esq.

Two First National Plaza

Chicago, Illinois 60603

CouUNSEL FOR THE DELAWARE STATE

BOARD OF EDUCATION

James T. McKinstry, Esq.

Richards, Layton & Finger

4072 DuPont Building

Wilmington, Delaware 19899

CouNSEL FOR CLAYMONT SCHOOL

DisTricr AND STANTON ScHOOL DisTRICT

David F. Anderson, Esq.

Potter Anderson & Corroon

350 Delaware Trust Building

Wilmington, Delaware 19899

CouNSEL FOR NEw CastLE-GuNNING

BEDFORD ScHOOL DisTRICT

William Poole, Esq. ;

Potter Anderson & Corroon

350 Delaware Trust Building

Wilmington, Delaware 19899

CouNsEL FOR ALFRED I. puPont SCHOOL

DIsTRICT

Court of Appeals Opinion (7/24/78) AS

John P. Sinclair, Esq.

Potter Anderson & Corroon

350 Delaware Trust Building

Wilmington, Delaware 19899

CouNSEL FOR NEWARK SCHOOL DISTRICT

Edward W. Cooch, Jr., Esq.

Cooch and Taylor

601 Market Tower

Wilmington, Delaware 19801

Of Counsel:

Lino A. Graglia, Esq.

3505 Taylors Drive

Austin, Texas 78703

CouNSEL FOR MARSHALLTON-McKEAN

ScHOOL DisTFicT

Richard D. Allen, Esq.

Morris, Nichols, Arsht & Tunnell

American International Building

Twelfth and Market Streets

Wilmington, Delaware 19899

COUNSEL FOR MT. PLEASANT SCHOOL

DIsTRICT

Jerome O. Herlihy, Esq.

Herlihy & Herlihy

805 Market Tower

Wilmington, Delaware 19801

CouUNSEL FOR CONRAD AREA SCHOOL

LAsTRICT

Court of Appeals Opinion (7/24/78)

Louis L. Redding, Esq.

Farmers Bank Building

Tenth and Market Streets

Wilmington, Delaware 19899

Joseph Rosenthal, Esq.

Irving Morris, Esq.

Morris & Rosenthal

101 Market Tower Building -

Wilmington, Delaware 19899

CouNSEL FOR APPELLEES

Louis R. Lucas, Esq.

Ratner, Sugarmon, Lucas, Salky &

Henderson

525 Commerce Title Building

Memphis, Tennessee 38103

Paul R. Dimond, Esq.

O’Brien, Moran & Dimond

210 East Huron Street

Ann Arbor, Michigan 48104

William L. Taylor, Esq.

Center for National Policy Review

Catholic University Law School

Washington, D.C. 20064

Ms. Aida Waserstein, Esq.

Education Law Center, Inc.

Suite 2100

225 South Fifteenth Street

Philadelphia, Pennsylvania 19102

COouNSEL FOR INTERVENING PLAINTIFF

Court of Appeals Opinion (7/24/78) A7

STATE OF DELAWARE,

Petitioner in No. 78-1743

0.

THE HONORABLE MURRAY M. SCHWARTZ,

UNITED STATES DISTRICT JUDGE FOR THE

DISTRICT OF DELAWARE

On PetiTION For Writ oF MANDAMUS

Floyd Abrams, Esq.

80 Pine Street

New York, New York 10005

Special Counsel for the State of -

Delaware, by appointment of Governor

Pierre S. du Pont, IV and Attorney

General Richard R. Weir, Jr.

Of Counsel:

Ira J. Dembrow, Esq.

Andrew L. Deutsch, Esq.

Cahill, Gordon & Reindel

New York, New York 10005

Morris, James, Hitchens & Williams

Henry N. Herndon, Jr., Esq.

Edward M. McNally, Esq.

Edward S. Sacks, Esq.

Twelfth and Market Streets

P. O. Box 2306 ere

Wilmington, Delaware 19899

COUNSEL FOR THE NEw CastLE County

PLANNING BoarD OF EDUCATION —

A8 Court of Appeals Opinion (7/24/78)

Opinion of the Court

(Filed July 24, 1978)

ALDISERT, Circuit Judge.

The consolidated appeals by the Delaware State Board

of Education and nine school districts from the district

court's ordering of a desegregation plan in the suburban

New Castle County public schools require to decide if the

district court misused its discretioh when it rejected a state-

designed plan and adopted another plan designed to

remedy constitutionally defective segregated schools in

eleven public school districts. Evans v. Buchanan, 447

F. Supp. 982 (D. Del. 1978). We conclude that the court

did not act improperly and, accordingly, affirm.

I.

Although Delaware state court proceedings addressed

this very serious constitutional problem as far back as

1952, this case has continuously commanded the attention

of the federal courts—the district court, this court, and the

Supreme Court—since 1957. Its history up until 1974 is

discussed comprehensively in Evans v. Buchanan, 379 F.

Supp. 1218, 1220-21 (D. Del. 1974), in which a three-

judge court determined that the Wilmington schools which

had been de jure black schools prior to the Supreme

Court’s decision in Brown v. Board of Education, 347 U. S.

_ 483 (1954) (Brown I), continued to remain identifiably

black, and that the dual school system in Wilmington had

not been eliminated. In a subsequent opinion, the three-

judge court found inter-district, de jure segregation

throughout Northern New Castle County, and ordered

submission of both Wilmington-only and inter-district

plans to remedy that segregation. Evans v. Buchanan,

Court of Appeals Opinion (7/24/78) AQ

393 F. Supp. 428 (D. Del. 1975). This judgment was

summarily affirmed by the Supreme Court. Buchanan v.

Evans, 423 U. S. 963 (1975) (three Justices dissenting ).

Thereafter, the district court conducted three weeks

of evidentiary hearings on remedial plans suumitted by

the parties, specifically affording appellants the opportu-

nity of demonstrating whether the impact of the inter-

district violations was limited. At the conclusion of testi-

mony, the court found that the inter-district violations had

“a substantial, not a de minimis, effect on the enrollment

patterns of the separate districts,” and that racially dis-

criminatory acts of the State and its subdivisions were “a

substantial and proximate cause of the existing disparity

in racial enrollments in the districts of Northern New

Castle County.” Evans v. Buchanan, 416 F. Supp. 328,

339 (D. Del. 1976). Reiterating its finding of inter-district

violations,’ the court considered the various submitted

plans, finding Wilmington-only plans unacceptable, id. at

343-44, and rejecting the specific inter-district remedies

proposed by the parties.? Rather, on June 15, 1976, the

district court ordered that Delaware schools in the area

north of the northern line of the Appoquinimink School

District * be desegregated and reorganized into a new or

1. We establish here only that the remedy which we order may

include the suburban districts, because their existence and their

actions were part of the violations which lead to the remedy.

416 F. Supp. at 341 n. 43.

2..The latter included plans relying on voluntary transfer in-

ducement (“magnet” plans), 416 F. Supp. at 345-46, and several

proposals utilizing cluster and pairing techniques, id. at 346-48,

which the court determined to be “fraught with complex problems

potiogags for judicial ns ange jorT aos which tory “place the

Court e ongoing position of gen supervisor ucation in

New Castle County.” Id. at 347.

3. This area is irs! comprised of the Alfred I. duPont,

Alexis I. duPont, Claymont, Conrad, DeLaWarr, Marshallton-

McKean, Mount Pleasant, Newark, New Castle-Gunning Bedford,

Stanton, and Wilmington School Districts. 7

Al0 Court of Appeals Opinion (7/24/78)

such other new districts as would comply with the court’s

opinion, which set the date for full compliance with con-

stitutional requirements on all grade levels as September

1978. Id. at 361. In ordering reorganization or consolida-

tion of schools districts, the district court placed the labor-

ing oar in developing an acceptable plan squarely in the

possession of State authorities. See id. at 357.

Certain appellants took an appeal from this order to

the Supreme Court which, on November 29, 1976, dis-

missed the appeal on jurisdictional grounds. 429 U. S.

973 (1976). An appeal to our court followed. We af-

firmed the basic concept of the remedy ordered by the

district court. Our opinion was filed on May 18, 1977,

Evans v. Buchanan, 555 F. 2d 373 (3d Cir. 1977) (in

banc), and the Supreme Court denied certiorari on Octo-

ber 3, 1977. 434 U.S. 880 (1977) (three Justices dissent-

ing).

A.

In order to set the stage for our consideration of the

present appeal, it is important to emphasize what we did

when this case was before us last year. First, we viewed

ourselves as precluded by the Supreme Court’s summary

affirmance of the district court’s 1975 order from re-ex-

amining the existence of substantial inter-district viola-

tions. See 555 F. 2d at 377-78. We adhere to the funda-

mental law of the case principle in the present appeal.*

More important for present purposes, we also “af-

firm[ed] the basic concept of the remedy ordered by the

district court.” Id. at 380. It bears reemphasis that this

4. Although Judges Rosenn, Hunter, and Garth dissented when

case was previ before us on the that the inter-

district violations had not been identified, 555 F. 2d at 383-86, they

believe that our in banc decision is zow the law of the case and

->——-——.

Court of Appeals Opinion (7/2478) All-

basic concept called for “the State Legislature and the

State Board of Education [to] take such steps as are not

violative of constitutional rights to change the pattern set

here,” id. at 380, quoting 416 F. Supp at 357, thus placing

the primary responsibility for correcting the violations on

the State and not on the district court or a court-created

board. We adhere to, and reiterate the fundamental

philosophy of this court: court-designed plans, or plans

created by a new board were not to be effectuated unless

the State failed in its responsibility to come forward with

an effective solution to the problem. A new board to oper-

ate the schools was authorized only on a stand-by basis,

“for so long as the State takes no action.” Id. at 380.

We summarized in our prior opinion, and reiterate

now, some basic legal precepts relating to the extent of

remedies a federal court may order:

A court is rot at liberty to issue orders merely because

it believes they will produce a result which the court

finds desirable. The existence of a constitutional vio-

lation does not authorize a court to seek to bring about

conditions that never would have existed even if there

had been no constitutional violation. The remedy for

a constitutional violation may not be designed to

eliminate arguably undesirable states of affairs caused

by purely private conduct (de facto segregation) or

by state conduct which has in it no element of racial

discrimination. This much is settled by Milliken v.

Bradley, [418 U. S. 717 (1974)]. See also Spencer v.

Kugler, 404 U. S. 1027, 92 S. Ct. 707, 30 L. Ed. 2d

723 (1972), affirming 326 F. Supp. 1235 (D. N. J.);

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U. S. 252, 97 S. Ct. 555, 50

L. Ed. 2d 450. Nor may a remedial desegregation

order require “as a matter of substantive constitutional

Al2 Court of Appeals Opinion (7/24/78)

right, any particular degree of racial balance or mix-

ing” [. . .] Swann v. Board of Education, supra, 402

U. S. at 24, 91 S. Ct. at 1280... . [See also] Milliken

o. Bradley, 418 U. S. at 740-41... . These are limi-

tations by which a trial court must abide.

The task of a remedial decree in a school deseg-

regation case is simply to correct the constitutional

violation and ‘0 eradicate its effects. “As with any

equity case, the nature of the violation determines the

scope of the remedy.” Swann v. Board of Education,

supra, 402 U. S. at 16, 91 S. Ct. at 1276.

555 F. 2d at 379-80.

Subsequent to our 1976 decision, the Supreme Court

summarized these same precepts in Dayton Board of Edu-

' . cation v. Brinkman, 423 U. S. 406, 419-20 (1977):

The power of the federal courts to restructure the op-

eration of local and state governmental entities “is not

plenary. It ‘may be exercised “only on the basis of a

constitutional violation.”” [Milliken v. Bradley], 418

U. S., at 738, quoting Swann v. Charlotte-Mecklen-

burg Board of Education, 402 U. S. 1, 16. See Rizzo

ov. Goode, 423 U. S. 362, 377. Once a constitutional

violation is found, a federal court is required to tailor

‘the scope of the remedy’ to fit ‘the nature and extent

of the constitutional violation. 418 U. S., at 744;

Swann, supra, at 16.” Id., at 293-294. See also

Austin Independent School Dist. v. United States, 429

U. S. 990, 991 (1976) (Powe LL, J., concurring).

B.

Thus when these proceedings were remanded to the

district court for the action giving rise to the present ap-

Court of Appeals Opinion (7/24/78) A13

peal, the case had assumed the following jurisprudential

posture:

A. The existence and character of substantial inter-

district violations had been adjudicated and were

no longer open to review.

B. The suisenlids seuie bl the coaly Woes Bead v0

all districts north of the northern line of the

Appoquinimink School District.

C. We had determined that the district court had not

misused its discretion in rejecting < .rtain volun-

tary plans proposed by appellants to cure the

violation.

D. The primary responsibility to fashion a remedy

was placed on the State of Delaware, through its

legislature or its Board of Education.

E. State authorities were required to file with the dis-

trict court within 60 days a formal report of their

efforts to carry out the mandate of the district

court.

Il.

Appellants first argue that, after our remand, the dis-

trict court erred in rejecting the plan submitted by the

State Board pursuant to the mandate of this court.

A.

The “plan” submitted by the State Board was in-

cluded in a report filed July 14, 1977, during the time

span between our opinion and the Supreme Court’s denial

of certiorari. Dubbed “reverse volunteerism,” the pro-

posal would have required that all Wilmington black stu-

dents in grades 7 through 12 be assigned to the suburban

Al4 Court of Appeals Opinion (7/24/78)

districts for the school year 1977-78, and that in subse-

quent years, grades 1 through 6 be incorporated into the

plan. Each student so reassigned, however, would have

retained the right to remain in his or her Wilmington

school. Presumably, this “plan” was intended to com-

plement state legislation which had been enacted subse-

quent to the three-judge court’s remedy order. Au-

thorizing majority to minority voluntary transfers, this

legislation was also offered in the State Board’s Report as

evidence of the State’s compliance with the federal court

mandates.* The actual “plan” contained in the July 14

5. The proposal was described by the district court as follows:

As part of this process, attendance zones are to be drawn in the

City of Wilmington corresponding to the various suburban dis-

ticts. In effect, for purposes of pupil assignment, each attend-

ance zone would be part of the suburban district to which the

Wilmington students residing therein would be assigned. a

As noted earlier, the proposal permits any student to elect

to remain at his or her present school. Testimony given at the

a eee that for the 1977-78 school year, a student

would have between ten and twenty days prior to the openi

of school to decide whether to transfer ate to his or her Wik

mington schec!. Thus, the choice would have to be made

without the benefit of having attended the suburban school,

SS even having visited it, and, if assigned to a

su n district with several schools serving the same grade

level, without ing the exact school within the district to

which assignment would be made. For those who elect to ac-

cept their suburban assignments, they may revoke their choice

by submitting a form _— to April 30, 1978. These students

would then return to their Wilmington schools for the 1978-79

school year.

Evans ov. Buchanan, 435 F. Supp. 838-39 (D. Del. -

baad ey pp. 832, ( 1977) (foot

had actually taken place because the statute required the approval

of both the sending and receiving districts. Det. Cons tit. ix § 603.

Following the July 15, 1976, remedy order of the three-judge court,

the state legis ature expanded the right of transfer to include all

eleven districts and eliminated the requirement of approval by the

Court of Appeals Opinion (7/24/78) Al5

report, however, had not been adopted by the State legis-

lature and had no implementing legislation to support it.

After a week of hearings on the reverse volunteerism

plan, on August 5, 1977, in its opinion granting a limited

stay pending the Supreme Court’s disposition of the peti- _

tion for certiorari, the district court rejected the State ©

Board’s proposal. Evans v. Buchanan, 435 F. Supp. 832

(D. Del. 1977). After determining that the absence of

implementing legislation precluded adoption of the state

plan, the court stated, in the alternative:

Even if this Court were permitted to consider

the State Board’s proposal, the result in this case

_ would be no different. I find the proposal unaccepta-

ble as an equitable remedy for the constitutional vio-

lations found by the three-judge court. The most

obvious and significant flaw is that the proposal places

the entire burden of the remedy on those whose rights

have been violated. In formulating a remedy for con-

stitutional violations, this Court must exercise its equi-

table powers. One would find it difficult to create a

more graphic paradigm of an inequitable remedy than

one which assigns to those who have been wronged

the responsibility of correcting those wrongs. The

uncontroverted testimony from State Board of Edu-

cation personnel adduced at the hearings established

that: no white student, suburban or city, would be

6. (Cont'd. )

sending district. 60 Del. Laws, Ch. 486. In 1977 the legislature

acted again, this time limiting the restrictions on accepting the

transfers and directing the Board of Education affirmatively to

—— the concept in all eleven districts. 61 Del. Laws, Ch. 32;

1 Del. Laws, Ch. 67.

The Delaware State Board of Education maintains that “[this

legislative voluntary transfer plan was a response to the order

this Court and the prior order of the three-judge Court.” State

Appellants’ Brief at 10.

Al6 Court of Appeals Opinion (7/24/78)

assigned to a different school district, but every black

student in Wilmington would be reassigned.

Id. at 840-41. (footnote omitted).

Bolstering these conclusions was the district court’s finding

regarding the ineffectiveness of the legislative voluntary

transfer program:

For the 1977-78 school year, somewhere between 746

and 1.194 or between approximately 6.6 and 10.5% of

* the black students from Wilmington have elected to

transfer to a suburban district. In addition, 302 black

students from DeLaWarr or approximately 17.5% of

the DeLaWarr black student population elected to

transfer to other suburban districts. In contrast to

voluntary transfer of blacksy-only 3 white students

elected to transfer into Wilmingtoh and none into

DeLaWarr.

435 F. Supp. at 837 n. 14 (citations omitted).

B.

As we consider the propriety of the district court’s re-

jection of the State Board’s proposal, it is important to

recognize that, as a reviewing court, we are not empowered

to consider the matter de novo. The approval of a deseg-

regation plan is committed to “the exercise of the district

judge’s discretion . . . [and] a school desegregation case

does not differ fundamentally from other cases involving

the framing of equitable remedies to repair the denial of a

constitutional right.” Swann v. Board of Education, 402

U. S. 1, 15-16 (1971). The Supreme Court teaches that

the exercise of discretion involves certain functional param-

eters: “[D]iscretion imports not the court’s ‘inclination,

but . . . its judgment; and its judgment is to be guided by

sound legal principles.’ Discretion is vested . . . to allow

Court of Appeals Opinion (7/24/78) Al7

the most complete achievement of the objectives . . . at-

tainable under the facts and circumstances of the specific

case.” Franks v. Bowman Transportation Co., 424 U. S.

747, 770-71 (1976), quoting Albemarle Paper Co. v.

Moody, 429 U. S. 405, 421 (1975). And, as we stated

when these proceedings were before us in 1977, “an im-

proper use of discretion exists only when the judicial ac-

tion is arbitrary, fanciful, or unreasonable, or when im-

proper standards, criteria, or procedures are used.” 555

F. 2d at 379.

Abiding by these precepts, we reject appellants’ argu-

ment that the district court misused its discretion in refus-

ing to accept the State Board’s reverse volunteerism pro-

posal as a satisfactory response to this court’s mandate.

The first obvious deficiency is the plan’s failure to comport

with our specific mandate: in affirming the three-judge

court order, we directed that the school districts “be ~s-

organized into a new or such other new districts as shall be

prescribed by the state legislature or the State Board of

Education,” 555 F. 2d at 381, and the State appellants

failed to submit any plan of mandatory reorganization.

Second, the district court properly perceived as an un-

acceptable difficulty the State’s failure to provide State

executive or legislative action to implement its proposal.

The plan could go into effect only if ordered by a federal

court. Third, like its reference to the legislative voluntary

transfer plan, in which only three white students took part,

the State Board’s “plan” carried with it the tacit assump-

tion that only—and that all—black students benefit from

transferring to a white environment, and not vice versa.

The district court properly refused to accept such an un-

tenable assumption. In this regard, the State Board’s solu-

tion simply failed to meet the standard for voluntary plans

set forth in Green v. County School Board, 391 U. S. 430,

Al8 Cours of Appeals Opinion (7/24/78)

439 (1968): “The burden on a school board today is to

come forward with a plan that promises realistically to

work, and promises realistically to work now.”

And finally, as stated by the district court, perhaps

the most glaring weakness in the State Board’s plan is that

it would improperly shift the “entire burden of the rem-

edy” onto “those whose rights have been violated.” 435

F. Supp. at 840." Precepts of equity lie at the heart of

any desegregation remedy, and fairness and justice fur-

nish the fiber and sinew of those precepts. The district

court recognized this, and we refuse to fault its judgment

in perceiving what it considered to be the basic inequity

in the Board’s proposal: “One would find it difficult to

create a more graphic paradigm of an inequitable remedy

than one which assigns to those who have been wronged

the responsibility of correcting those wrongs.” Id. In-

deed, neither by brief nor by oral argument have appel-

lants supplied this court with an effective rebuttal to the

district court’s identification of this, the plan’s most basic

defect.

7. The district court noted that uncontroverted testimony

from State Board of Education personnel established that “no white

student, suburban or city, would be — to a different school

district, but every black student in Wilmi gton would be reas-

signed.” 435 F. a at 840-41.

Dr. Thomas K. Minter, former Superintendent of Schools of

the Wilmington School System, was questioned during the hear-

ings on the State’s proposal as to his reaction to this aspect of the

plan. Characterizing the plan as “patently discriminatory”, he re-

sponded as follows:

I think it’s insulting to the parents and to the students of Wil-

mington because they are again the victims.... In undoing

the situation, if you put the burden of the remedy on those

who have been victimized, it appears to me that the majority

society is again putting the burden for—it’s almost saying “Go

out and heal yourself.” ... [W]hen the burden is equally

shared, it seems to me that it recognizes the duty of the total

society to rectify a wrong, and not just the victims.

Doc. 596 B at 494-96.

Court of Appeals Opinion (7/24/78) Al9

III.

While appellants contest the district court's rejection

of the State Board’s proposal, they garner their major at-

tack for the plan eventually approved by the district court.

A.

After determining that the State had failed to meet its

responsibility to submit a plan “eliminating the dual school

system .. . and the vestige effects of de jure segregation,

555 F. 2d at 381, the district court, in accordance with the

decrees of both the three-judge court and this court, ap-

pointed members of a New Board (the “New Castle

County Planning Board of Education”, or “NCCPBE”) to

oversee the operation of schools in the relevant area, and

to prepare a plan for the operation of unitary desegregated

schools. The district court was presented with five plans;

two came from the NCCPBE, three from the NCCPBE’s

Pupil Assignment Committee. Because building capacities

vary appreciably among the different school districts,”

under all plans schoolchildren in the predominantly black

areas were reassigned for a greater number of years than

their suburban counterparts.

The NCCPBE majority proposal was a “10-2 Con-

cept”, under which all students from the two predom-

inantly black districts would be reassigned to the pre-

dominantly white districts for ten years, and all students

8. The two predominantly black districts of Wilmington and

DeLaWarr contain in the aggregate far less student population

and, consequently far less building capacity than the aggregate

student population and building capacity of the nine predomi-

nantly white districts. Accordingly, plaintiffs accept that

under any desegregation plan “black children on the wanceee

will be reassigned to [what will be formerly racially iden fi-

able] white Is a ter number of years than white chil-

dren will be reassigned to [what will be formerly racially iden-

tifiable] black schools.”

447 F. Supp. at 994, quoting Doc. 668 at 7 (footnotes omitted ).

A20 Court of Appeals Opinion (7/24/78)

from the predominantly white districts would be reas-

signed to the predominantly black districts for two con-

secutive years. The court rejected this proposal because

among other reasons, it would “[base] a decision adverse

to black students on a grade fraction favorable to black

students,’ reassign only black children in the tender ele-

mentary years, and fail to use any of the black high schools

as 10-12 grade centers.” 447 F. Supp. at 1002.

The NCCPBE minority plan, “Plan W”, attempted to

increase the number of years that black students would

spend in their home districts. Noting that this plan was

considered the least attractive alternative by the New

Board, the State Board, and the defendant school districts

the district court stated that it “holds scant promise of

satisfactory implementation.” Id. at 1004. Among the

plan’s perceived weaknesses were its failure to keep stu-

dents together during the course of their educations to the

same degree possible under other plans, and its failure to

assign a significant number of students from the predomi-

nantly white districts to the predominantly black districts

for any amount of time at all.

Finally, the district court was presented by the Pupil

Assignment Committee with three distinct 9-3 plans: the

is Ag nage the “IF” configuration, and the “G”

ncept. e court conclu “CG”

os ded that the “G” concept was

Among the several illustrations generated by the

Pupil Assignment Committee, the “G” configuration

9. The concept of 10-2 was generated b iplyi

figure for black students in the affect arg Oph bagleae

pee sc that es was sng of grades requiring white

in order to produce a “complete mix”. i

arriv fa! a number closer to three than sa ade the Now

— ae — chose to assign children from predominantl

mg Oe Weckpener ch cbiikes Gen ech es

districts for ten years rather ~ ortega aes oman

447 F. Supp. at 1002 (footnotes omitted ).

Court of Appeals Opinion (7/24/78) AQl

appears superior. The G illustration retains a tight

feeder pattern and provides a full grade span in the

predominantly black Wilmington district, thus includ-

ing use of at least one of the Wilmington high schools

as a high school. Under the G illustration, when the

Wilmington children are assigned back to the city for

three years, they necessarily attend a school close to

their homes. This feature, apparently afforded chil-

dren from predominantly white districts under the 10-

2 plan, simply ought to be preserved as much as pos-

sible. The use of geocodes also permits the possible

high school use of both Wilmington high schools

should the NCCPBE decide such use to be education-

ally satisfactory. Further, the increased flexibility

under G permits easy modification in the future should

adjustments be necessary or desirable. Where the

educational patterns of thousands of children are in-

volved, a flexible approach is advantageous; G ap-

pears to be such a plan.

Id. at 1005. Ultimately, the court determined that the evi-

dence did indeed demonstrate “sufficient capacity . . . to

render feasible a 9-3 plan,” ’° id. at 1007, and entered an

order directing implementation of the plan by September

1978.

10. Contrasting the 10-2 and 9-3 plans, the court stated:

Apart from the question of capacity, neither the New

Board nor defendants State Board and intervening districts

have advanced any reasons why a 9-3 concept ought not to be

successfully implemented in the peo eas area. Nor has

it been shown that if a capacity problem of minor dimension

exists, a slight departure from 9-3 is sufficiently deleterious to

etc” a wholesale embracing of 10-2....

t is important to realize at the outset that unlike the af-

fected areas in other reported desegregation cases, Northern

New Castle County contains no dearth of school spaces. To

the contrary, declining enrollments have resulted in a surplus

of seats in all districts such that absent any desegregation order

A22 Court of Appeals Opinion (7/24/78)

B.

Our focal point in analyzing this remedy is to under-

stand that its purpose is to eradicate the effects of segre-

gation caused by constitutional violations; thus the quan-

tum and quality of the remedy must be designed in

accordance with the previous violation determinations.”

10. (Cont'd. ) |

the need to consider closing some schools is abundantly evi-

dent. Under the 10-2 assignment plan, severe underutilization

of city schools identified the Wilmington schools as ready

targets for closing. Under a 9-3 assignment plan, most if not

all of the Wilmington and DeLaWarr schools are actively

utilized and would probably remain open. In contrast to the

devastating impact of the 10-2 pen on the degree of utilization

of schools in the predominantly black districts, however, the

9-3 concept contemplates only minor adjustments in the use of

the schools in the predominantly white districts, reducing their

utilization from a current figure of 70% to 67%.

Id. at. 1005-06.

11. A summary of these violations has been suggested as fol-

er district court identified eight separate interdistrict vio-

ations, viz., 1. the enactment [the] Educational Advance-

ment Act of 1968 [EAA], 2. [t]he location of public housing

projects, 3. state subsidies for the interdistrict transportation

of students attending private schools, 4. the establishment by

the bijarnin, school board of optional attendance zones,

5. the recordation of deeds containing racially restrictive cov-

enants, 6. portions of the Federal Housing Administration’s

mortgage underwriting manual, 7. portions of the Delaware

Real Estate Commission handbook, and 8. the interdistrict

tr rtation of students attending all-black or all-white

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

74 S. Ct. 686, 98 L. Ed. 873 (1954).

Evans v. Buchanan, 555 F. 2d at 384 (Garth, J., dissenting) (foot-

a a oa

more generally ut similarly acceptable, characteri-

zation has been made Ey the district courts

The court concluded that an interdistrict remed uld be

propriate, based on its findings that: eer bail

1) there had been a failure to alter the historic pattern of

interdistrict segregation in Northern New Castle Canney:

2) governmental authorities at the state and local levels

were responsible to a significant degree for increasing

Court of Appeals Opinion (7/24/78) AQ3

Again, we recognize that the formulation of a practical

and effective remedy is an undertaking peculiarly within

the province of the trial court, and we intend to defer to

the court’s exercise of remedial discretion if it has applied

the proper legal precepts and remained within determined

legal boundaries. | 7

With respect to the controlling legal precepts, how-

ever, appellants vigorously contend that the district court

failed to heed the following instruction from Dayton Board

of Education, supra:

The duty of both the District Court and of the

Court of Appeals, in a case such as this, where man-

datory segregation by law of the races in the schools

has long since ceased, is to first determine whether

there was any action in the conduct of the business of

the school board minority pupils, teachers or staff. . . .

If such violations are found, the District Court in the

first instance, subject to review by the Court of Ap-

peals, must determine how much incremental segre-

gative effect these violations had on the racial distri-

bution of the Dayton school population as presently

constituted, when that distribution is compared to

what it would have been in the absence of such con

stitutional violations. The remedy must be designed

to redress that difference, and only if there has been

a systemwide impact may there be a systemwide

11. (Cont’d.) :

pilin, «0 Sealimge of otk a tag areal

3) The City of Wilmington had been unconstitutionally ex-

cluded from other school districts by the State Board of

Education, § sayy to a withholding of reorganization

pr er the Delaware Educational Advancement

ct ,

424 F. Supp. at 877 (footnote omitted ).

A24 Court of Appeals Opinion (7/24/78)

remedy. Keyes [v. School District No. 1], 413 U. S.

[189,] at 213, 93 S. Ct., at 2699.

433 U. S. at 420. Appellants argue that the failure of the

district court to determine the exact amount of “incremen-

tal segregative effect” flowing from the violations here

rendered the remedy an abuse of discretion. We disagree,

concluding instead that Dayton involved a factual setting

crucially distinct from that here.

The above quotation from Dayton reveals that the

Court was focusing on a district court’s duty where, as it

found in Dayton, “mandatory segregation by law has long

since ceased.” The Dayton Court specifically noted that

racially segregated public schools had been illegal through-

out Ohio since 1888. 433 U. S. at 410 n. 4. Delaware’s

history of public school segregation stands in stark con-

trast to Ohio’s. Until 1954, the law of Delaware man-

dated the separation of the races in the public schools.

379 F. Supp. 1218, 1220 (D. Del. 1974). The three-judge

district court in this case specifically found in 1974 “that

segregated schooling in Wilmington has never been elimi-

nated and that there still exists a dual school system.” 379

F. Supp. at 1223. In a subsequent opinion, the three-

judge district court found that, at the time of Brown,

“Wilmington and suburban districts were not meaning-

fully ‘separate and autonomous” and that “the racial

characteristics of city and suburban schools are still inter-

related.” 393 F. Supp. 428, 437-38 (D. Del. 1975). Fur-

thermore, the court found “(a) a historic arrangement for

inter-district segregation within New Castle County [and]

‘(b) significant governmental involvement in inter-district

EEE Ee ee a

discrimination.” 393 F. Supp. at 447.

Thus, in addressing appellants’ Dayton argument, we

are confronted with clear findings of the district court,

Court of Appeals Opinion (7/24/78) AQ5

first, that the mandatory segregation of the races by the

law of Delaware did not cease long ago, and second, that

because the dual school system was never dismantled, the

consequences of the mandatory segregation of the races in

New Castle County have continued up till the present day.

1.

Heeding Chief Justice Burger’s reminder that in fram-

ing an equitable remedy in a school desegregation case

“[t]he task is to correct, by a balancing of the individual

and collective interests, the condition that offends the Con-

stitution,” Swann, supra, 402 U. S. at 16-17, we must rec-

ognize that the “condition that offends the Constitution”

was, as found by the district court, a pervasive de jure

inter-district segregation throughout Wilmington and the

named Northern New Castle County school districts, in

which there was significant governmental involvement.

Although there have been references to discrete constitu-

tional violations, see note 11 supra, it is the combined effect

of all of the separate violations that must be cured by the

remedy. as

That the “condition that offends the Constitution” was

found to be inter-district in nature and extending through-

out the eleven-district area required that the remedy be

congruent with the affected geographic area. Given the

pervasive nature of the condition and the extensive area

implicated by the findings of the three-judge court, the

court fashioned a remedy that was prima facie reasonable,

to-wit, a plan that sought to root out segregative effects in

the inter-district area, a plan designed “to extirpate the

de jure segregation and dual school system in Northern

New Castle County”, 447 F. Supp. at 985, and to restore

the school system to the status it would have enjoyed but

for the constitutional violations. In our view, once this

A26 _—Court of Appeals Opinion (7/24/78)

showing was made, the burden passed to thé defendant-

appellants to demonstrate by evidence and testimony that

the proffered plan was “arbitrary, fanciful, or unreason-

able,” see Evans v. Buchanan, supra, 555 F. 2d at 378,

by specifying in what respects the reach of the plan ex-

ceeded the grasp of the conditions created by constitu-

tional violations. The defendant-appellants tailed to meet

this burden.

During the three weeks of evidentiary hearings con-

ducted by the three-judge court.after the judgment on

the violation, during hearings by the district court in July

1977 after remand by this court, and again during addi-

tional remedy hearings that began in October 1977, appel-

lants were afforded the opportunity to offer proof that some

or all of the remaining segregation that prevailed through

the schools of Northern New Castle County was not the

product of the substantial inter-district violation found by

the three-judge court and, thus, not properly the subject

of proposed remedial plans. They failed to come forward

with the required evidence to contavene the remedy

adopted by the court. Indeed, not only did they not

proffer evidence of the extent of the vestigial conditions to

show in what respects the remedy swept too broadly, but

appellants took the position that it was impossible for them

to identify the precise vestigial conditions. The State

Board’s major contention in the proceedings below was:

“It is not feasible to determine what today’s situation

would be with the school system and the student popula-

tion in the eleven affected districts ‘but for’ the alleged

constitutional violations.” . Report of the State Board of

Education Required by the Opinion and Order of the Cir-

cuit Court of Appeals in This Case, at 36-37. (Doc. 548)

(emphasis added ).

Court of Appeals Opinion (7/24/78) A27

It is true that in many cases the burden of proving the

incremental segregative effect of constitutional violations

may be properly placed on the plaintiff (see Dayton

Board of Education, supra), since that showing is nor-

mally an element of the plaintiff's case going to remedy.

We do not decide here, however, in which cases the bur-

den shifts to the defendant and in which it does not. We

hold that, in a case such as this, where there is an historical

pattern of significant de jure segregation with pervasive

inter-district effects, where a facially reasonable plan is

proposed to remedy those effects, where the defendant

itself admits that it is not feasible. to separate out the in-

cremental segregative effects of the constitutional’ viola-

tions from the segregative effects of demographic changes,

where the defendant itself is in the best position to ascer-

tain what the pattern of segregation would have- been

“but for” the constitutional violations, and where the de-

fendant has dragged-its heels and obstructed progress to-

ward desegregation for twenty-six years, then the burden

of proof shifts to the defendant. Thus the defendant, if

it opposes the remedy put forward by the plaintiff or the

district court, must show the incremental segregative ef-

fects of the constitutional violations, and must show how

the proposed remedy goes beyend that incremental im-

pact. To hold otherwise would be tantamount to holding

that the plaintiffs are without remedy.

2.

Although recognition of our proper appellate role in

reviewing the exercise of discretion by itself compels our

conclusion that appellants did not meet their burden of

proof, previous Supreme Court teachings on burdens of

proof in various phases of school desegregation cases offer

additional support. A line of important school cases

A28 Court of Appeals Opinion (7/24/78)

‘strongly suggests that it was the burden of the defendant

school boards here to g» forward with evidence to chal-

lenge the propriety of a proposed remedy. For example,

in Green v. County School Board, supra, 391 U. S. at 439,

the Court stated pointedly that “[t]he burden on a school

board today is to come forward with a plan that promises

realistically to work ... now . . . until it is clear that state-

imposed segregation has been completely removed.” And

in Swann, supra, 402 U. S. at 26, the Court advised that

“the burden upon the school authorities will be to satisfy

the court that [their schools’] racial composition is not

the result of present or past discriminatory action on their

part.”

The circumstances best approximating those of the

present case are found in Keyes v. School District No. 1,

- 413 U. S. 189 (1973), in which segregative practices within

one section of the City of Denver were said to have pro-

duced segregative effects in other sections. The Supreme

Court stated that “if respondent School Board cannot dis-

prove segregative intent, it can rebut the prima facie case

only by showing that its past segregative acts did not

create or contribute to the current segregated condition of

the core city schools.” Id. at 211. Moreover, “after past

intentional actions resulting in segregation have been

established[,] the burden becomes the school authorities’

to show that the current segregation is in no way the result

of those past segregative actions.” Id. at n. 17. Keyes

also holds that a finding of intentional segregation “in a

meaningful portion of a school system . . . creates a pre-

sumption that the other segregated schooling within the

system is not adventitious.” Id. at 208. And, extremely

significant for our purposes, the Court stated: ~-

[W]here a meaningful portion of the system is found

to be intentionally segregated, the existence of subse-

Court of Appeals Opinion (7/24/78) A29

quent or other segregated schooling within the same

system justifies a rule imposing on the school authori-

ties the burden of proving that this segregated school-

‘ing is not also the result of intentionally segregative

acts.

The Keyes Court relied on considerations of “policy and

fairness based on experience in the different situations” in

deciding when to shift the burden of proof. 412 U. S. at

209. Considerations of “policy and fairness” make it even

clearer here than in Keyes that the burden should be on de-

fendants. In Keyes, a violation had been found only in a

limited geographical area and, as a result, the burden was

placed on the defendants to prove that the racial disparity

in other areas was not also the product of constitutional

violations. Here, we have a finding that governmental ac-

tivity was a significant cause of discrimination throughout

the inter-district area.

Appellants cannot, consistent with the guidance of

Keyes, argue on the one hand that the remedy approved by

the district court covered conditions which are not effects

of de jure segregation and on the other hand contend that

it is not feasible to determine precisely what “today’s situ-

ation would be . . . ‘but for’ the alleged constitutional viola-

tions.” Not only does this avoid their established burden,

but the logical extension of the argument is untenable—

that no possible remedy can be formulated in this case.

'Desegregation remedies being drawn from the heart of

equity, no court could be so callous as to accept the con-

tention that although vestiges of de jure discrimination

pervade to this day, it is helpless to fashion a remedy to

root them out.

8.

Apart from our concern that appellants’ misperception

of “burdens” be corrected, we agree with the district court

A30 Court of Appeals Opinion (7/24/78)

that appellants’ Dayton argument is “a belated attempt to

relitigate an issue already conclusively resolved in this

case, with all right of appeal exhausted.” 447 F. Supp. at

1009. First, to the extent that Dayton requires detailed

findings of fact and reasoned statements of law regarding

the constitutional violations which exist, the numerous

prior opinions involved in this litigation more than ade-

quately predicted and satisfied those requirements. See,

e.g., 393 F. Supp. at 432-38; 416 F. Supp. at 341 (district

court specifically recognized its “duty . . . to order a remedy

which will place the victims of the violation in substantially

the position which they would have occupied had the vio-

lation not occurred” ), aff'd, 555 F. 2d 373 (3d Cir. 1977).

Second, we agree that whatever its general relevance be,

Dayton is so factually distinct from the present litigation

as to circumscribe detailed analogy. Not the least of the

differences between the two cases is that the system-wide

remedy eventually disapproved in Dayton rested on three

“relatively isolated” violations that could be deemed “of

questionable validity.” 433 U.S. at 413. And finally, the

unavoidable distinction is that prior to Brown I, in New

Castle County, Delaware, desegregation was unlawful

under Delaware law; in Dayton, Ohio, segregation was un-

lawful under Ohio law. This difference between the two

states is, at base, the difference between the two cases.

C.

That the primary responsibility to devise a suitable

plan was and is that of the State of Delaware, and not the

federal courts, and that appellants’ Dayton argument is

more properly directed toward their own failure of proof,

should not come as any surprise to appellants. As early as

1952, in a predecessor action to the present proceedings,

the Delaware Supreme Court ordered the immediate ad-

mission of biack children to certain schools previously at-

Court of Appeals Opinion (7/24/78) A3l

tended only by white children because, historically, Dela-

ware had required its public school students to attend

segregated schools. Gebhart v. Belton, 91 A. 2d 137 (Del.

S. Ct. 1952). On appeal to the Supreme Court, the Geb-

hart case was consolidated with other cases and affirmed

by the Supreme Court in Brown v. Board of Education,

347 U. S. 483 (1954) (Brown 1), again affirmed in Brown

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

and remanded to the Supreme Court of Delaware for fur-

ther proceedings to require “a prompt and reasonable start

toward full compliance” with Brown I and “to effectuate a

transition to a racially nondiscriminatory school system.”

349 U. S. at 300-01.

We set forth this history here to emphasize the length

of time the State of Delaware has been directed by judicial

decrees to fashion a remedy to eliminate the vestiges of

de jure segregation. We are in fact emphasizing two faces

of the same coin: that the present case results from statu-

torily mandated de jure segregation, not from isolated acts

of state authority, or from what is sometimes called de

facto segregation; and that State authorities have been

made aware of their responsibilities by state and federal

courts for some twenty-six years. This emphasis bears

repetition because of the persistent attempts by appellants

to have the federal courts re-examine the findings of con-

stitutional violations in New Castle County, Delaware, the

latest effort being to argue, albeit indirectly, that the deci-

sion in Dayton commands a different result. For the fore-

going reasons, we disagree that Dayton alters the law in

this case.

IV.

In addition to addressing a pupil reassignment plan,

the district court’s opinion and order instructed the New

Board to implement guidelines which the court delineated

a en lee na na ec pete ne ge ng i aM

A32 Court of Appeals Opinion (7/24/78)

in eight areas of ancillary relief: in-service training;

reading and communications skills; curriculum; counseling

and guidance; school building construction, site selection,

and use of existing schools; recognition of human values;

standards of conduct; and staff.

We note at the outset that there is no serious dispute

as to the validitv, and even the necessity, of such substan-

tive programs.’* Indeed, after a scrupulous review of the

lengthy record compiled before the district court, we are

impressed that no party ever seriously contested or contro-

verted the value of programs testified to by numerous wit-

nesses. The State appellants * nevertheless challenge the

district court’s authority to order such relief, urging that

“[nJo claim has ever been made that the [present] edu-

cational offerings in any of the affected districts in the

areas of reading, guidance, human relations or the like

were constitutionally suspect or infected with discrimina-

tory bias.” State Appellants’ Brief at 26. The underpin-

nings of their discontent are twofold: first, they offer a

12. The State Board of Education generally does not dispute

the —— that compensatory gp such as those im-

posed by the [district court] can of assistance in the de-

segregation process.

State Appellants’ Brief at 27.

[T]he evidence which plaintiffs offered consisted of the opin-

ions of educators that the enriched educational offerings

sought would be educationally desirable in the context of con-

verting from eleven separate school districts to a single de-

segregated district or that such matters should not be ignored

in the process of effecting that conversion. It is to be doubted

whether any professional educator would ever opine to the

contrary....

State Appellants’ Reply Brief at 27-28.

13. Only the State appellants challenge the propriety of the

arog Fen on appeal. The State Board contends that the sub-

urban districts lack standing to agree or disagree with the pro-

grams, since these districts will cease to exist under the court’s

order. In view of our rejection of the State Board’s claims, we

need not resolve the question of standing. -

Court of Appeals Opinion (7/24/78) A33

varying interpretation of the guiding legal precept, Milli-

ken v. Bradley, 433 U. S. 267 (1977) (Milliken II), and

second, they question whether a court should order such

remedies, contending that a school board should exercise

complete autonomy in this area.

For the following reasons, we believe that the law is

settled that the district court may, and in these circum-

stances, prop«rly did, order ancillary relief.

A.

The legal focal point in an analysis of the propriety of

ancillary relief must be Milliken II, supra, a recent Su-

preme Court case which offers strong support for the con-

cept. Addressing the question whether a district court

can, as an adjunct to a desegregation decree, order re-

medial educational programs for children who have been

subjected to past acts of de jure segregation, the Court

stated the “basic rule” that “[i]n fashioning and effectu-

ating the [desegregation] decrees, the courts will be guided

by equitable principles.” 433 U. S. at 279-80, quoting

Brown II, supra, 349 U. S. at 300.

The specific ancillary programs challenged in Milli-

ken II were in-service training for teachers and adminis-

trators, guidance and counseling programs, revised testing

procedures, and a remedial reading and communications’

skills program. These programs, along with numerous

others, were originally suggested by the Detroit School

Board and were the subject of extensive hearings before

the district court. “Substantial testimony was adduced

with respect to the proposed educational components, in-

cluding testimony by petitioners’ expert witnesses.” 433

U. S. at 274. Petitioners nevertheless claimed that the dis-

trict court’s order exceeded the scope of the constitutional

violation, i.e., the unlawful segregation of students on the

A34 Court of Appeals Opinion (7/24/78)

basis of race, contending that any remedial decree was

limited by the scope of this violation to remedying only

unlawful pupil assignment. Rejecting this contention, the

Milliken II Court stated: ;

The well-settled principle that the nature and scope

of the remedy are to be determined by the violation

means simply that federal-court decrees must directly

address and relate to the constitutional violation it-

self. Because of this inherent limitation upon federal

judicial authority, federal-court decrees exceed ap-

propriate limits if they are aimed at eliminating a

condition that does not violate the Constitution or

does not flow from such a violation, see Pasadena

Bd. of Education v. Spangler, 427 U. S. 424 (1976),

or if they are imposed upon governmental units that

were neither involved in nor affected by the consti-

tutional violation, as in Milliken I, supra. Hills v.

Gautreaux, 425 U. S. 284, 292-296 (1976). But

where, as here, a constitutional violation has been

found, the remedy does not “exceed” the violation if

the remedy is tailored to cure the ““condition that

offends the Constitution.”” Milliken I, supra, at 738.

(Emphasis supplied. )

The “condition” offending the Constitution is De-

troit’s de jure segregated school system, * ‘ic © as so

pervasively and persistently segregated «: «= Dis-

trict Court found that the need for the educational

components flowed directly from constitenal vio-

lations by both state and local officials.

In a word, discriminatory student assignment policies

can themselves manifest and breed other inequalities

built into a dual school system founded on racial dis-

Court of Appeals Opinion (7/24/78) A35

crimination. Federal courts need not, and cannot,

close their eyes to inequalities, shown by the record,

which flow from a longstanding segregated system.

Id. at 281-83.

After discussing a “pattern” of federal court decisions

ordering ancillary relief over the past decade,™* the Court

concluded that “[p]upil assignment alone does not auto-

matically remedy the impact of previous, unlawful educa-

tional isolation; the consequences linger and can be dealt

with only by independent measures”. Id. at 287-88 (em-

phasis added). We consider such advice formidable legal

support for the ancillary relief ordered in the present case.

Nevertheless, although appellants’ argument appears to be,

at bottom, the same as that of petitioners in Milliken li—

that the remedial order exceeds the scope of the constitu-

tional violations—appellants contend that a critical differ-

14. 433 U. S. at 283-86. While the Court indicated that its

reference to these cases was not necessarily tantamount to approval

of their holdings, the cases were used to “demonstrate that the

District Court in the case now before us did not break new

ground ...” Id. at 286-87.

State appellants call our attention to a Tenth Circuit case in

which the court declined to approve the district court’s order of

both an ancillary bicultural-bilingual education plan and a consoli-

dation of two schools into a campus complex. es v. School Dis-

trict No. 1, Denver, Colorado, 521 F. 2d 465 (10th Cir. 1975), cert.

denied, 423 U. S. 1066 (1976), came down before the Supreme

Court indicated its strong support for ancillary relief in Milliken

II. More important, the Keyes court was presented with problems

which are not relevant to our situation. As to the bilingual pro-

gram, it stated that “the court’s order would impose upon school

authorities a pervasive and detailed system”, 521 F. 2d at 482; as

to the consolidation plan, it stated that “the [district] court appears

to have acted solely according to its own notions of good educa-

tional policy unrelated to the demands of the Constitution”, id. at

483. Ks discussed more thoroughly below, we believe that the

district court in the present case allowed maximum room for local

authorities to contrive and implement their own programs, and

that the court did not impose is own views of what is “good” in the

educational context in the absence of record evidence.

A36 Court of Appeals Opinion (7/24/78)

ence between Milliken II and the present case is that in the

former there was an express finding that the educational

components at issue “were infected with the discriminatory

bias of a segregated school system.” Id. at 275. Indeed,

the heart of appellants’ challenge is their contention that

there were no findings of discrimination in Delaware's

present educational offerings.

First and foremost, we are not persuaded that Milli-

ken II dictates that there be a finding that each remedial

program be “infected with the discr‘minatory bias of a

segregated school system.” Id. In fact, this finding was

made as to only two of the four challenged programs in

Milliken II. See id. at 274-75. To read a general prescrip-

tion into a decision which itself did not follow that pur-

ported prescription is a path we cannot follow. Further,

there is an important practical reason that there cannot be

such a finding for each remedial program—many of them

will not, and indeed cannot, come into existence until a de-

segregation plan is implemented. For example, program

in the areas of human relations, in-service training, and

special counseling are intended to help students, parents,

and faculty deal with the various pressures which arise as

a result of desegregation. It would be logical fallacy to

require findings of discrimination for programs which do

not yet exist. That current programs, extraneous to the

desegregation plan, are sufficient to meet other needs and

may or may not be discriminatory, is simply irrelevant.

Finally, we note a troubling consistency between ap-

pellants’ position on the ancillary relief issue and their

pocition on who is to bear the burden of showing that the

major relief ordered comports with the constitutional vio-

lations found. The plain fact is that the State never sub-

mitted any ancillary plans which would help students cope

with the process of desegregation, even though much evi-

dence had been presented that such plans were necessary.

Court of Appeals Opinion (7/24/78) A37

We believe that the incisive authority of Milliken II, the

testimony presented in hearings before the district court,

and the absence of objection to, or contradiction of, that

testimony combine to indicate the critical importance of

ancillary relief in this case. |

Indeed, the district court specifically found that it is

“amply supported and undisputed on the record” that “an-

cillary remedial relief is necessary and essential to ac-

complish the transition to unitary racially nondiscrimina-

tory schooling and to overcome-the vestige effects of dz

jure segregation in Northern New Castle County.” 447

F. Supp. at 1014. It viewed the prescribed programs as

“necessary to cure the constitutional infirmity and restore

the victims of discrimination as nearly as possible to the

position they would have assumed in the absence of a vio-

lation.” Id. at 1017. These conclusions, if borne out in

the record, are important indications that the guidance of

Milliken II was considered and abided by

B.

Having determined that the district court could prop-

erly order ancillary relief,.our function in this area devolves

largely to the inquiry whether there exists adequate record

support for the various concepts."* We are bound to up-

hold them if we find, as did the Milliken II Court, that “the

decree before us was aptly tailored to remedy the conse-

quences of the constitutional violation.” 433 U. S. at 287

15. Initially, we note that we are unimpressed with appellants’

characterization of the evidence relied upon by the district court

as “merely . . . the statements of educators that the programs in

oe were matters of legitimate concern and were educationally

esirable in the desegregation process.” State a Brief at

26-27 (emphasis ad ody. The educators inclu local adminis-

trators and nationally known desegregation experts, all of whom

were in some way por aggae Sag age of the situation in the

Delaware school system. e Milliken II Court had no difficul

in crediting similar testimony. See 433 U. S. at 273, 273-74 n. 9.

A38 Court of Appeals Opinion (7/24/78)

(emphasis added). It is important to note one rather ob-

vious “consequence” of the constitutional violations here:

in September of this year, a comprehensive desegregation

plan will be put into effect in the school system of New

Castle County. Those “consequences” which are the self-

evident problems arising from the de jure segregation of

students are addressed, in large part, by the pupil reassign-

ment plan. But other “consequences” of the constitutional

violation, no less important, will arise by virtue of the de-

segregation itself. Again, it is only after a pupil reassign-

ment plan has been put into operation that these programs

may become an adjunct to, and assist in, the plan’s effec-

tive implementation. |

We shall address the various programs seriatim, but

we consider first State appellants’ apparent concern that in

ordering the ancillary relief programs, the district court co-

opted an area better left to local and State administrators.

Milliken II warned that “the federal courts in devising a

remedy must take into account the interests of state and

local authorities in managing their own affairs, consistent

with the Constitution”, 433 U. S. at 280-81, but it also

stated quite clearly that “[i]f . . . ‘school authorities fail in

their affirmative obligations . . . judicial authority may be

invoked.” Id. at 281, quoting Swann v. Charlotte-Meck-

lenburg Board of Education, 402 U. S. 1, 15 (1971). At no

time did the State indicate that it would or could contrive

the necessary ancillary programs. Simply put, we are hard

pressed to see how state appellants can now invoke pre-

cepts of local autonomy when they failed to grasp their

own opportunity to act in this regard. Under the circum-

stances, judicial authority was properly utilized. Charac-

terizing its orders as “guidelines”, the district court stated

that “[t]he precise development and actual implementa-

tion of remedial relief is left to the discretion of educa-

tional authorities.” 447 F. Supp. at 1015. See also id. at

~~

Court of Appeals Opinion (7/24/78) A39

1000. In that context, we undertake the task of evaluating

the record evidence supporting the various programs.

1.

In-service training. In-service training programs help to

prepare the staffs of schools which will be receiving new

students to cope with the special problems which arise as a

result of the reassignment process. The district court's

conclusion that “[a]dministrators, faculty, and other staff

require orientation and training for desegregation,” id. at

1015, was supported by ample testimony from local ad-

ministrators and nationally-known desegregation experts.

For example, Dr. George V. Kirk, Superintendent of

Schools in the Newark School District, testified that in

“every meeting I’ve attended anywhere where desegrega-

tion has been attempted and where it has been successful,

it is felt that [it is a] critical requiremen[t] for any plan to

have good in-service programs underway for teachers, ad-

ministrators and staff, even the cafeteria staff.” Doc. 663

at A193-94."° Dr. Raymond O. Shelton, Superintendent of

Schools in Hillsboro County, Tampa, Florida, stated that

Tampa's in-service training program helped ameliorate

problems “because some of [the staff] would be facing

black youngsters for the first time and some of the black

teachers would be facing white youngsters for the first

time.” Doc. 663a at B25. Numerous other experts testified

to the need for in-service training, see, e.g., Doc. 596B

at 529 (Dr. Thomas K. Minter, former Superintendent of

Schools in Wilmington, testifying how staff can alleviate

problems caused by transferring students); Doc. 596C at

725 et seq. (Dr. Gordon Foster, Professor in the School of

16. Dr, Kirk later added that there is a “tremendous need” for

in-service preparation, “particularly in an area like this where there

are eleven separate districts, where many of these teachers have

never worked together ....” Doc. 663B at Ba 78.

A40 Court of Appeals Opinion (7/24/78)

Education at the University of Miami, and Director of the

Florida School Desegregation Consulting Center, explains

form and purpose of in-service training); PX 6 at 32 and

Doc. 663] at 116, 139-41, 1128-29 (Dr: Joseph E. Johnson,

Superintendent of Schools in Wilmington); Doc. 663P at

N11-13 (Dr. James B. Pugh, Superintendent of the Alexis

I. duPont School District), and gave their personal opinion

that the situation in Delaware warrants such a program.

See, e.g., Doc..663B at.Ba78 and Doc. 663C at 203 (Dr.

Kirk); Doc. 663P at N60 (Dr. Donald L. Farrar, Alfred I.

duPont School District’s Director of Elementary Educa-

tion: “I think a change as drastic as desegregation would

require a great deal of in-service activity.”); Doc. 663P

at 30 (Dr. Pugh).

2.

Reading and Communications Skills. Focusing on the

guidance of Milliken II that “speech habits acquired in a

segregated system do not vanish simply by moving the

child to a desegregated school[;] [t]he root condition

shown by this record must be treated directly by special

training at the hands of teachers prepared for that task”,

433 U. S. at 288, the district court determined that there

was sufficient record evidence here to direct the New Board

“to institute an affirmative reading and communication

skills program which does not resegregate pupils.” 447

F. Supp. at 1015-16. Plaintiffs’ Exhibit 6, which was writ-

ten under the supervision of Dr. Joseph E. Johnson, Super-

intendent of Schools in Wilmington, explained the necessity

of such a program:

There is probably no educational component more

directly associated with the process of desegregation

than reading and communication skills. Children who

have been educationally and culturally set apart from

Court of Appeals Opinion (7/24/78) _ A41

the larger community by the effects flowing from the

longstanding interdistrict violation will inevitably

acquire habits of speech, conduct, and attitudes re-

flecting their cultural isolation. They are likely to

acquire speech habits and reading skills; for example,

which vary from the environment in which they must

ultimately function and compete if they are to enter

and be a part of that community. This is not peculiar

to race; it can affect any children who, as a group, are

isolated from the main stream.

PX6 at 32-33, In his oral testimony discussing this ex-

hibit, Dr. Johnson was asked what is necessary to imple-

ment an effective desegregation plan; he responded, in part,

“T feel that there is very definitely a need . . . to look at

the reading and communication skills of the individuals

....” Doc. 663J at 116. Further testimony regarding the

general necessity of such a program came from both Dr.

Foster, see Doc. 596C at 785-86, and Dr. Kirk. See Doc.

663C at pp. 204-06.

8.

Curriculum. Holding that “curriculum offerings and pro-

grams must preserve respect for the racial and ethnic

backgrounds of all students,” the district court directed

that “instructional materials, texts, and other curriculum

aids should be free of racial bias” and instructed the New

Board to “provide curriculum offerings and programs

which emphasize and reflect the cultural pluralism of the

students.” 447 F. Supp. at 1016. There was testimony

that it is necessary “to re-assess or assess the instructional

program to determine the needs for a changing pupil popu-

lation... .” Doc. 663P at N14 (Dr. Pugh). And in his

testimony, Dr. Kirk agreed that it is vital to evaluate and

attempt to make a curriculum racially nondiscriminatory,

A42 Court of Appeals Opinion (7/24/78)

Doc. 663E at 89, and that “materials on the values of

various groups and cultures in the group and cultures well

beyond the group ought to be available to the young

people.” Doc. 663C at 206. See also PX6 at 33-34; Doc.

663] at 116 (Dr. Johnson).

4

Counseling and Guidance. The district court instructed

that “to ameliorate the racial pressures on students under-

going desegregation and to prevent resegregation under

the guise of curriculum or program choices, the NCCPBE

must institute an effective and nondiscriminatory guidance

program. 447 F. Supp. at 1016. Ample testimony de-

scribed the various pressures to which reassigned students

are subjected, see e.g., Doc. 596A at 274-77, 299-301 (Dr.

Kenneth E. Madden, State Superintendent of Public In-

struction); Doc. 596A at 526-29 (Dr. Minter), as well as

the clashes which can arise as a result of these pressures.

See Doc. 663A at B25 (Dr. Shelton: “[Y]ou are putting

black and white youngsters together that had never been

to school together before . . . there is a lot of understanding

that needs to take place”). Dr. Kirk identified this aréa as

“critical” to the “successful working of a desegregation

plan to avoid the kinds of conflicts and problems that

sometimes arise”. Doc. 663 at A197. See also Doc. 596C

at 786-87 (Dr. Foster); Doc. 663C at 206-07 (Dr. Kirk);

PX6 at 34 and Doc. 663] at 16 (Dr. Johnson).

5.

Selection of School Sites, Construction of New Buildings,

Expansion of Existing Facilities, and Closing of School

Buildings. As we have previously noted, regard for the

existing physical capacities of the various school districts

was of prime importance in the formulation of pupil re-

~ Court of Appeals Opinion (7/24/78) A43

assignment plans. Of equally obvious importance is the

nondiscriminatory maintenance or alteration in those ca-

pacities during the transition to one unified school district.

Thus, the district court directed the New Board to “estab-

lish and enforce nondiscriminatory guidelines for new con-

struction, review of building needs, and the appropriate-

ness of each proposed building project or school closing.”

447 F. Supp. at 1016. Various witnesses indicated that

this area is critical to the successful implementation of the

desegregation plan, see, e.g., Doc. 663C at 207 (Dr. Kirk);

PX6 at 34-35 and Doc. 663] at 16 (Dr. Johnson), and testi-

mony adduced at the hearings indicated that it is neces-

sary to establish guidelines for an urderly and nondiscrimi-

natory effectuation of these projects. See, e.g., Doc. 695S

at 76 et seq.; see also PX 5 (admitted over objection) (in

letter to Dr. Carroll W. Biggs, Superintendent of the Alfred

I. duPont School District, Dr. Foster suggests that one

necessary criterion for a desegregation plan is the “[e]q-

uitable or proportionate burden for all racial or ethnic

groups in such matters as closing schools . . . [and] selec-

tion of schools. . . .”)

6.

Human Relations Program. The district court directed the

New Board to “provide an appropriate human relations

program throughout the unitary school system in order to

protect the individual dignity of students and teachers and

to prevent racial myths and stereotypes from prevailing in

schools undergoing desegregation.” 447 F. Supp. at 1016.

The existence of racial “myths” and “stereotypes” were

mentioned at numerous points during the hearings, see,

e.g., Doc. 596C at 786 (Dr. Foster); Doc. 663A at B25

(Dr. Shelton), and various administrators testified as to

their own successful experience with similar programs. For

example, in describing Tampa's experience, Dr. Shelton

A44 Court of Appeals Opinion (7/24/78)

said “[y]oungsters could get together and stand over here

and stand there and refuse to go to class, or something, and

the human relations people would get them back in class.”

Doc. 663A at 28. See also Doc. 663P at N33 (Dr. Pugh);

Doc. 663C at 208 (Dr. Kirk: “[H]uman relations programs

are an essential part of a desegregation process.”); PX6

at 38.

7

Standards of Conduct. The district court directed the

New Board “to develop a code of rights and responsibil-

ities regarding such issues as student conduct and suspen-

sion and expulsion, and to insure administration of the

code in an unbiased manner.” 447 F. Supp. at 1016-17.

The necessity of this program is poignantly illustrated in

a remark by Dr. Kirk: “[O]ne of the things that seems to

occur in the process of desegregation is the feeling on

the part of both black and white youngsters that someone

is being treated unfairly or someone is being given special

conditions.” Doc. 663C at 208; see also id. at 208-10.

Other witnesses testified similarly to the relevance of such

a program. See, e.g., Doc. 663P at N62 (Dr. Farrar);

see also PX 6 at 38-39.

8.

Racial Composition of Staff. In this area, the district

court stated:

[I]ndependent of student assignment, the additional

record "” made at hearings conducted after issuance

of the primary remedial decree demonstrates that

17. In a footnote here, the district court noted that, the three-

judge court had previously stated that it has “no figures in the rec-

ord to indicate whether there is a substantial disparity in racial

makeup of existing staffs.” 447 F. Supp. at 1017 n. 148, citing 416

F. Supp. at 359.

Court of Appeals Opinion (7/24/78) A45

racial identity of schools can be perceived solely by

reference to the racial composition of staff and existing

staffs manifest substantial disparity in racial make-up.

See, e.g., PX 18;"*! compare Swann, 402 U. S. at 18.

The New Board must reassign faculty, administrative,

and other staff personnel in the course of eliminating

the dual school system and the vestige effects of inter-

district de jure segregation in order to insure that

schools do not retain their former racial identity

through racially identifiable faculty and staff assign-

ments.

447 F. Supp. at 1017. The passage from Swann quoted by

the district court offers clear support for its order in this

regard. Stating that “policy and practice with regard to

faculty [and] staff . . . [are] among the most important

indicia of a segregated system,” the Swann Court held

that “where it is possible to identify a ‘white school’ or a

‘Negro school’ simply by reference to the racial composi-

tion of teachers and staff . . . a prima facie case of viola-

tion of substantive constitutional rights under the Equal

Protection Clause is shown.” 402 U. S. at 18. It bears

particular note that the Swann Court rejected the conten-

tion that “the Constitution prohibits district courts from

using their equity power to order assignment of teachers

to achieve a particular degree of faculty desegregation.”

Id. at.19.

Thus, based upon the record evidence that the “racial

identity of schools can be perceived solely by reference to

the racial composition of [their] staff[s],” 447 F. Supp.

at 1017, we are bound by the teachings of Swann to up-

hold this part of the order. Moreover, even taking the dis-

trict court’s language merely as an indication that the

18. See also Doc. 663] at 14-5; Doc. 663H at 208-16.

A46 Court of Appeals Opinion (7/24/78)

record has now been made more whole on the subject of

staff employment,”® we would affirm this guideline on the

basis that ample testimony was adduced during the hear-

ings which indicated a critical necessity for reassigned

schoolchildren to have role models at their new schools.

For example, Dr. Johnson testified:

[The fact that individuals with—minority individu-

als—who are successful in their field, who have the

ability to master certain subject areas, [can come]

into a school to give individuals new perceptions of

what another race can do and how they can teach...

I would characterize that as positive.

I would favor a concept that I think would be educa-

tionally sound and needed to have a smooth imple-

mentation of the desegregation plans, and that is for

those youngsters who move into new situations [to]

have role models that are of the same racial and ethnic

background as they are... .

Doc. 663] at 1124; Doc. 663L at K125. See also Doc.

596B at 502 et seg. (Dr. Minter); Doc. 663C at 139, 209-

31 (Dr. Kirk); PX6 at 39-41.

C

To sum up, we believe that in ordering ancillary relief

as an adjunct to the pupil reassignment plan, the district

court exercised an informed discretion. Each area of re-

lief ordered was well-supported in the record, and the evi-

19. We note that the district court rejected appellees’

inclusion of two additional provisions, oie penvlsteat wate at

past hiring and promotion policies of the existing districts and ap-

ropriate actions to overcome the continuing effects of any past

diecchinhs ation, and the other pn any decrease in the per-

centage of minority employees... .” 447 F. Supp. at 1017 n. 149.

Court of Appeals Opinion (7/24/78) A47

dence of its value and necessity in the implementation of a

successful desegregation plan in Northern New Castle

County remains, even at this juncture, uncontroverted by

the State appellants.

V.

The Alexis I. duPont School District argues separately

that it should not be included in the new plan. Its con-

tention is based on the present racial composition of its

schools: the school population is generally 78.5% white

and 19.4% black in New Castle County, and as of Septem-

ber 1977, the Alexis I. duPont School District consisted of

78.38% white students and 19.23% black. Thus Alexis I.

argues that it is now fully desegregated, that it need not

be included in the plan, and that the district court erred by

denying its motion to be excluded. On review our stand-

ard is the same as it is in the chief appeals—a review of

the district court’s discretion. We find no misuse and

accordingly will not disturb the ruling. This particular

district is a portion of a larger geographic area deter-

mined by the three-judge court to be the subject of a sub-

stantial, longstanding inter-district violation. As stated

earlier, see Part I supra, the previous decision of this

court determined that the geographic scope of the remedy

was to include all the districts in Northern New Castle

County except the district of Appoquinimink. That dur-

ing a given month a discrete portion of this area—the

Alexis I. duPont School District—exhibited a changed

statistical profile by virtue of a voluntary effort is no guar-

antee that Alexis I’s student population will remain the

same. At any event, this in itself is insufficient reason for

us to conclude that the district court misused its discre-

tion, faced as it was with the prior inclusion of Alexis I. in

the area to be reorganized.

A48 Court of Appeals Opinion (7/24/78)

VI.

Finally, we turn to that part of the remedy that pro-

vides for local taxation. This is a most troublesome aspect

of the district court’s disposition of this case, in which a

uniform tax rate was established to be applied throughout

the desegregation area in order to “eradicate existing dis-

parities and resultant inequities between present districts.”

447 F. 2d at 1025. The district court conferred on the

New Castle County Planning Board of Education the au-

thority to establish, levy and collect taxes for the current

operating expenditures up to a maximum authorized rate

of $1.91 per $100 of assessed property valuation. Id. at

1033. It indicated, however, that the Delaware Legisla-

ture could raise or lower this tax authorization as long as

the rate was not lowered “below a generally acceptable

rate to a point at which the desegregation process would

be imperiled. ...” Id. at 1026. Moreover, the court per-

mitted the New Board to set a tax rate of up to $.32 for

tuition, debt service, and minor capital improvements. Id.

at 1027.”

Acknowledging the sensitivity of its actions, the dis-

trict court commented:

Authorization to set a school tax rate is properly a

product of the political process. For that reason, it is

my view a federal court should not become involved

failing a total abdication of responsibility: over a

period of time such that further delay significantly

jeopardizes constitutional rights. . . .

20. In a subsequent clarification of its January 9th opinion an

order, the district court limited the o sabi of ‘the ‘aici ot

in these three areas to the fiscal year beginning July 1, 1978. There-

after, the NCCPBE was authorized to set the rates. See Evans v.

Buchanan, Nos. 1816-22 (D. Del. Jan. 20, 1978), Slip Opinion at 4.

Court of Appeals Opinion (7/24/78) A49

. . . [T]he luxury of further delay comes at the cost of

endangering an orderly transition to a racially non-

discriminatory unitary school system. . . .

It is with deep seated reluctance overcome only

by the pressing, immediate necessity and the realiza-

tion that no other option is available to fill the legis-

lative void that the Court becomes involved at all in

matters of taxation. Were it not true that the de-

segregation process faces imminent peril unaddressed

by any other practical alternative, the federal court

would not intrude. If the political process had pro-

vided statutory machinery or a procedure for devising

a tax rate for the single district, or if there were not an °

immediate need to act now, I would further defer the

matter of local tax rate authorization.

‘The Court is compelled, however, to order that a

tax rate be established. This action is taken with the

understanding that the Legislature can alter the pa-

rameters authorized. Because state political processes

are preferred over even limited intervention by a fed-

eral court, the Delaware Legislature may raise or

lower the tax authorization established here. The

Court must caution, however, that any legislative

action that lowers the established tax rate below a

generally acceptable rate to a point at which the de-

segregation process would be imperiled will be re-

ceived skeptically. Given the historical stance of the

Legislature, if such a lowering occurs, the usual pre-

sumption of legislative regularity will not attach. If,

as an alternative, the Delaware Legislature makes pro-

vision for replacement of the authorized revenue lost

through reduced local school tax rates, the local school

tax rate can be lowered to any level or even eliminated.

447 F. Supp. at 1025-26 (footnotes omitted) (emphasis

added).

A50 Court of Appeals Opinion (7/24/78)

Pursuant to the district court’s instructions, the

NCCPBE on February 23, 1978, established a tax rate for

current operating expenses of $1.68, a rate to be described

in the district court’s May 5, 1978, Opinion as “within the

guidelines sanctioned by the Court’s order.” May 5 Slip

Opinion at 5. At about the same time, however, the Dela-

ware General Assembly passed, and Governor Pierre S.

du Pont IV signed into law, Senate Bills 456 and 457;

_ S. B. 456 “directed the State Board of Education to devise

an alternative plan of governance,” and S. B. 457 directed

the State Board to set a maximum tax rate for each new

school district so devised. On March 16, 1978, the district

court enjoined the implementation of a four-district plan

contrived as a result of S. B. 456," and shortly thereafter,

the State Board calculated a tax ceiling for the single dis-

trict at a rate lower than that established by the NCCPBE.

Eventually set at $1.585, or 9% cents lower than the

NCCPBE’s rate, the State Board’s rate would yield ex-

pected revenues roughly $2.5 million less than the $1.68

rate.” See May 5 Slip Opinion at 32.”

21. In its May 5th opinion, the district court explained that the

four-district plan “conflicted with the January 9, 1978 order of the

Court,” May 5 Slip Opinion at 5, a characterization “reluctantly

conceded by representatives of the State defendants.” Evans v.

Buchanan, Nos. 1816-1822 (D. Del., June 22, 1978), Slip Opinion

at 8. The injunction is not contested here.

22. The district court has summarized the procedure by which

S. B. 457 authorized the State Board to calculate a tax rate as

follows:

The legislation directs the State Board to: (1) estimate fiscal

1978 current expenditures; (2) divide this figure by the num-

ber of students enrolled for fiscal year 1978 to calculate a cur-

rent average per pupil expenditure; (3) multiply the average

expenditure total by the number of students expected to attend

in fiscal 1978 to establish an estimated expenditure required

for fiscal year 1979; (4) using the current total assessed value

of taxable real estate establish a tax that would yield 110%

of the 1979 estimated expenditure. Although providing that

the 110% amount so obtained included delinquencies and the

Court of Appeals Cpinion (7/24/78) A51

In light of the variance in tax rates, the State Board

applied,.to the district court for an injunction to per-

manently enjoin the NCCPBE from fixing, levying or col-

lecting a local tax for current operating expenses in excess

of that established under State law. After a three-day

hearing and the submission of post-trial briefs by various

parties, the district court on May 5, 1978, denied the in-

junction on the ground that S. B. 457 as implemented by

the State Board provided “a taxation scheme likely to

frustrate or imperil the desegregation process in the single

school district.” May 5 Slip Opinion at 2. The State of

22 (Cont'd)

costs of collection, the statute is silent on whether the 10% is

also intended to cover the costs of reorganization and desegre-

gation or is simply an inflation factor reflecting the historic

percentage of increase in total yo "arene eed the stat-

ute provides that the Board of Education (NCCPBE) rather

than‘ the State Board may set the tax rate for debt service,

minor capital expenditure and tuition.

May 5 Slip Opinon at 10-11.

23. The State Board represented that its tax rate will yield

$39,873,626; the court noted that assuming the historical collection

yt 98.5%, a tax of $1.585 will actually yield $39,275,251. Id.

at 18-19.

24. The district court offered the following reasons why “the

desegregation plan . . . [would] be imperiled by reason of the $1.585

current expense tax rate”:

(1) Based upon historic levels of local support, the yield avail-

able for public education in the desegregation area from the

$1.585 tax rate is less than the projected total aggregate local

expenditure for school children which would have been made

by the eleven component districts in the absence of reorgani-

zation and desegregation; (2) No provision was made for local

current operating tax revenue to enable the NCCPBE to meet

essential expenses incidental to reorganization and desegrega-

tion; (3) S. B. 457 as construed and as procedurally presented

in the form of a motion for permanent injunction by the State

Board would establish for all —— purposes the $1.585

limit in perpetuity notwithstanding that inflation is a fact of

life and an outstanding January 9, 1978 order of this Court

requires the NCCPBE to pay fifty percent of the costs of de-

segregation commencing in year 1980 and increasing ten

A52 Court of Appeals Opinion (7/24/78)

Delaware sought immediate relief in this court by filing a

petition for mandamus directing the district court to vacate

its order of May 5, 1978, and to enter the injunction re-

quested by the State Board. Because the subject matter

of the mandamus petition implicates a critical issue of

this appeal, we have consolidated the mandamus request

with the appeais already before us.

A.

“Courts of appeals, pursuant to their supervisory

powers, may review in a mandamus proceeding questions

of unusual importance necessary to the econsmical and

effective administration of justice. Schlagenhauf v. Holder,

379 U. S. 104 [, 109-12] (1964); La Buy v. Howes Leather

Co., 351 U. S. 949, 259-60 (1957). See Will v. United

States, 389 U. S. 90, 107 (1967).” In Re Grand Jury Sub-

poenas, 573 F. 2d 936, 940-41 (6th Cir. 1978). For several

important reasons, we believe that the present case merits

use of this exceptional writ. First, the establishment of a

taxation scheme for a new, court-created, school district

24. (Cont'd)

percent each year thereafter; and (4) the State Board in adopt-

ing the $1.585 rate predicated the same upon an peantietion

which is invalid under State law.

Id. 17-18. .

In its petition for mandamus in this court, the State observes:

“While the district court does not use the term ‘unconstitutional’ in

its opinion, its conclusions that S. B. 457 ‘must be rejected’ (Opin-

ion, p. 8) [ "may be invalidated’ (Opinion, p. 15), and that a fed-

eral court authority to ‘strike down impediments . . . to an

appropriate [desegregation] remedy’ (Opinion, p. 12), compel this

conclusion.” Petition at 5 n. 1. However, in its latest opinion, the

district court has clearly explained that “[t]he constitutionality of

S. B. 457 was not reached,” June 22 Slip Opinion at 16 n. 1, and

that the court's “conclusion” in its May 5 opinion and order was

that “the State Board failed to make the showing required to justify

a permanent injunction of any tax rate in excess of the $1.585 fig-

ure.” Id. at 14. In light of our sition of the mandamus re-

quest, it is unnecessary for us to a these interpre-

varying interp

Court of Appeals Opinion (7/24/78) A53

is an act of unique import, qualifying the matter for con-

sideration under a device “reserved for really extraordinary

causes.” Platt v. Minnesota Mining and Mfg. Co., 376

U. S. 240, 245 (1964). Second, because the subject matter

of the mandamus action is inexorably intertwined with an

important aspect of the opinions and orders presented for

our review in the consolidated appeals, it would be an act

of sheer sophistry to review the merits of the court’s prior

tax rate determinations without taking into consideration

the subsequent act of the Delaware legislature and the

additional court action of May 5 on the same subject. And

finally, because the issue is neatly framed both by the

briefs in the main appeals and: in those supporting and

opposing the mandamus request,” no additional purpose

would be served by denying a review on the merits now;

the demands of economical and effective administration of

justice can be satisfied without prejudice to the rights of

any interested party.

25. By order dated June 6, 1978, we permitted any party inter-

ested in the main proceedings to file an answer to: the mandamus

ition.

= Appelices confined their response to the mandamus petition

almost exclusively to an attack on the State’s standing to seek the

writ. Although the State was not a party to the proceedings below,

it argues that it has standing “to vindicate, on behalf of Delaware

and its citizens, core principles of federalism,” and that “[o]nly the

State, as an entity, can bring an action designed solely to protect

the integrity of the constitutionally-protected taxing function of a

State....” Petition at 2,8. While it may appear that the better

course would have been for the State to move to intervene for pur-

es of appeal, we agree with a critical distinction raised in the

State's petition: those named pertirs which ma sppeet the May 5

judgment pursuant to 28 U. S. C. bg ad including the State

Board), are primarily concerned with the formulation of the actual

tax rate that will go into effect; the State of Delaware, while ob-

viously sharing this concern, directs its mandamus petition toward

its unique interest in the sppeonce taken by the district court in its

handling of S. B. 457. Under these exceptional circumstances, in

which principles of federalism are sought to be vindicated by a

State nonparty whose declared interest differs from those of other

parties in the main appeals, we believe the State properly has

standing.

A54 Court of Appeals Opinion (7/24/78)

We are cognizant that the writ of mandamus is not to

be used as a substitute for appeal. Ex parte Fahey, 332

U. S. 258, 259-60 (1947).

On direct appeal, a court of appeals has broad au-

thority to “modify, vacate, set aside or reverse” an

order of a district court, and it may direct such fur-

ther action on remand “as may be just under the

circumstances.” 28 U. S. C. $2106. By contrast,

under the All Writs Act, 28 U. S. C. § 1651(a), courts

of appeals may issue a writ of mandamus only when

“necessary or appropriate in aid of their respective

jurisdictions.”

Will v. Calvert Fire Insurance Co., — U. S. — (46 L. W.

4811, 4813, June 23, 1978) (Opinion of Justice Rehnquist).

We are persuaded that, for the above stated reasons, to

entertain the present petition is to aid our clear jurisdic-

tion to determine the taxation issue presented on direct

appeal. To entertain this petition is simply to consider

additional matters not only relevant and germane to the

issue on appeal, but absolutely critical to an intelligent

disposition of it. As we consider the mandamus petition,

however, we recognize the extremely narrow precedential

effect of our action and reaffirm our fealty to the general

rule that writs of mandamus are not substitutes for direct

appeals, but rather are traditionally used in the federal

courts only “to confine an inferior court to a lawful ex-

ercise of its prescribed jurisdiction or to compel it to

exercise its authority when it is its duty to do so.” Will v.

United States, 389 U. S. 90, 95 (1967), quoting Roche v.

Evaporated Milk Assoc., 319 U. S. 21, 26 (1943).

B.

In a matter fraught with much emotion, the question

of taxation understandably has generated heated com-

Court of Appeals Opinion (7/24/78) A55

munity interest. Where, as here, a tax rate has been im-

posed by a couit as an important aspect of its desegrega-

tion decree, there occurs a tension between two venerable

maxims Of the American tradition: “Taxation without rep-

resentation is tyranny” becomes the banner of some of

those who are to be taxed, while the district court, safe-

guarding the effective implementation of its order, is

deeply cognizant of the venerable phrase that “the power

to tax involves the power to destroy.” * The district court

sought an accommodation between these noble concepts—

balancing the right of the people to be taxed in accordance

with a “politically” formulated rate against its own duty

to ensure that the desegregation plan not be aborted by

that taxation schema. Without reaching the merits of its

decision, however, we have concluded that the May 5, 1978,

determination must be reversed for a new hearing because

of what we perceive to be a fundamental error in the con-

duct of the hearing for a permanent injunction.

True to the statement in its January 9, 1978, opinion

that “the usual presumption of legislative regularity will

not attach,” 447 F. Supp. at 1026, the district court ap-

proached the injunction hearing without extending the

requisite deference to which legislative judgments in the

field of taxation are entitled. The district court did rec-

ognize the precepts announced in San Antonio Independent

School District v. Rodriquez, 411 U. S. 1, 42 (1973):

The very complexity of the problems of financing and

managing a state-wide public school system suggests

that “there will be more than one constitutionally per-

missible method of solving them,” and that, within the

limits of rationality, “the legislature’s efforts to tackle

the problems” should be entitled to respect. Jefferson

v. Hackney, 406 U. S. [535, 546-47 (1972)].

" McCulloch v. Maryland, 17 U. S. (4 Wheat.) 316, 427

(1819).

A56 Court of Appeals Opinion (7/24/78)

But weighing these precepts against what it called “[t]he

inherent power of a court to take whatever steps are re-

quired to fashion an effective desegregation decree,” May

5 Slip Opinion at 12, the court jettisoned “the usual pre-

sumption of deference to a legislature in taxation matters.”

Id. We are persuaded that in so doing, the court over-

stated its power to fashion, and insure implementation of,

an effective decree. For while it is true that the court spe-

cifically recognized that “deference . . . does not mandate

acceptance,” id., and while we agree that this particular

formulation is a proper statement of the governing pre-

cept, we are convinced that the court failed to afford any

deference to the legislative action. At best, the legislative

solution was received as a neutral narrative fact; at worst,

it was received with suspicion, subject to a condition that

Delaware prove its regularity and constitutionality.

Properly, Delaware’s statutory solution to the vexing

taxation problem should have been received with the pre-

sumption of regularity and constitutionality mandated

clearly and unequivocally by the teachings of the Supreme

Court. Although the district court did not base its deci-

sion on the constitutionality of the state taxation scheme,

see note 24 supra, the*remedy in this case is the vehicle

to cure constitutional violations. Therefore, it is not inap-

propriate to analogize Supreme Court teachings relating

to the deference to legislative action where the issue of

constitutionality is directly implicated. For example, in

Madden v. Kentucky, 309 U. S. 83, 88, the Court stated:

[I]n taxation, even more than other fields, legislatures

possess the greatest freedom in classification. Since

the members of a legislature necessarily enjoy a fa-

miliarity with local conditions which this Court cannot

have, the presumption of constitutionality can be over-

come only by the most explicit demonstration that a

Court of Appeals Opinion (7/24/78) A57

classification is a hostile and aggressive discrimination

against particular persons and classes.

This language was repeated in San Antonio Independent

School District v. Rodriquez, supra, 411 U. S. at 40-41, with

the prefatory comment: “This Court has often admonished

against such interferences with the State’s fiscal policies

under the Equal Protection Clause”. In Carmichael v.

Southern Coal & Coke Co., 301 U. S. 495, 510 (1937), the

Court explained how the presumption vindicates tradi-

tional notions of separation of powers:

A state legislature, in the enactment of laws, has the

widest possible latitude within the limits of the Con-

stitution. In the nature of the case it cannot record a

complete catalogue of the considerations which move

its members to enact laws. In the absence of such a

record courts cannot assume that its action is capri-

cious, or that, with its informed acquaintance with

local conditions to which the legislation is to be ap-

plied, it was uot aware of facts which afford reasonable

basis for its action. Only by faithful adherence to this

guiding principle of judicial review of legislation is it

possible to preserve to the legislative branch its right-

ful independence and its ability to function.

And if other cases fail to explicate so clearly the rationale

behind the presumption, it is only because the presumption

is so impervious to alteration. See, e.g., McGowan v.

Maryland, 366 U. S. 420, 425-26 (1961) (“State legisla-

tures are presumed to have acted within their constitu-

tional power despite the fact that, in practice, their laws

result in some inequality.” ); Allied Stores of Ohio, Inc. v.

Bowers, 358 U. S. 522, 526 (1959) (“The States have a

very wide discretion in the laying of their taxes.”) See

also Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S.

Abe Court of Appeals Opinion (7/24/78)

356 (1973). Moreover, it must be noted that United States

v. Missouri, 515 F. 2d 1365 (8th Cir. 1975) (in banc), re-

lied upon by the district court, did reverse the district

court’s imposition of a tax rate insofar as that rate exceeded

one which was represented as adequate by state officials.

Under these percepts, in the proceedings to enjoin the

operation of the rate set by the NCCPBC, the legislative

solution should have been received by the district court

with a presumption of regularity and constitutionality.

Absent the proper presumption, the State Board’s ability

to make a strong showing on the merits—a requisite in any

injunctive action—was improperly skewed. Accordingly,

we will direct the district court to vacate its order of May

5, 1978, and to conduct a new hearing in accordance with

the foregoing. Given the unusual posture of these pro-

ceedings, we further direct that the district court enter an

order preliminarily enjoining a tax rate of $1.68 for current

operating expenses and affirmatively imposing a tax rate of

$1.585 until a final order on the request for a permanent

injunction is entered. In this regard, we cannot emphasize

strongly enough that nothing in our disposition of this

issue is intended to interfere with the implementation of

the desegregation plan in Northern New Castle County this

September. To the extent that the State legislature may

discover that the State Board’s determination of priorities

in setting the rate of $1.585, see Section VI C infra, must

be altered, it may legislate a change retroactively.

C.

Although it is unnecessary for us to pass on the merits

of the district court’s May 5 taxation ruling, we neverthe-

less are compelled to highlight some points which may as-

sist the court in its further proceedings and which, al-

though self-evident, may have been relegated to an

undeserved background position in the prior proceedings.

Court of Appeals Opinion (7/24/78) A59

The district court was apparently—and understand-

ably—concerned that, if set below a certain level, the State-

authorized tax rate will prevent the effective implementa-

tion of the desegregation plan. Numerous times in its

May 5 opinion, the court expressed concern that the State-

approved budget did not reflect an increment to the normal

operating budget sufficient to meet desegregation needs.”

Our observation is that this overlooks the critical, and in-

controvertible, proposition that any money budgeted by

the State to the Northern New Castle County school sys-

tem must be used by the NCCPBE, first, to effect the de-

segregation order, and then to meet the expenses of other

programs. Put another way, it is the NCCPBE’s respon-

sibility to work with the money it has by attending first to

all aspects of the remedial order, and then to other aspects

of the school system’s expenses. The Board has much dis-

cretion in setting the priorities within the latter group, but

none as to the former.

For example, and only by way of illustration, the

school authorities may decide to curtail certain extracur-

ricular school programs which fall outside the area man-

dated by the court’s desegregation order, so as to remain

within budgetary limits. If any or all of these programs

need be cut completely from the budget, this will occur as

a result of the legislature’s judgment, not the court’s. The

legislators who passed S. B. 457 were well aware of the

remedial order which will go into effect this September.

27. See, e.g., May 5 Slip Oninion at 20, 23:

One can . . . say with some assurance that when less is spent

on education during the first year of desegregation than would

have been By absent ton the effort to desegregate

is threatened if not imperil

To embark on the long overdue course of desegregation with

funds which, if minimally sufficient to satisfy operating costs

for one year, are inadequate to meet the actual costs of de-

segregation and reorganization is to invite disaster.

A60 Court of Appeals Opinion (7/24/78)

We must assume not only their ability to compute what

the mandatory expenses would be, but also their good faith

in so doing.** Cognizant of what the State must pay by

way of implementing the desegregation plan before using

money for other purposes, the legislators arrived at an

amount which may or may not imperil other non-Court-

ordered aspects of the New Castle County school system.

As the Supreme Court stated in Carmichael v. Southern

Coal and Coke Co., supra, 301 U. S. at 510, “[the legisla-

tors] cannot record a complete catalogue of the considera-

tions which moved [them] to enact [the law].” But given

the nature of our political system, these legislators will

most certainly receive feedback from the electors to whom

they are accountable as to whether they have made the

right choices.” Thus, without detracting from the im-

portance of a federal court’s duty to ensure that its re-

medial decrees be effected properly and wholly, we suggest

that there are obvious inherent political safeguards in-

volved in this case which should be permitted to run their

own course.

28. Indeed, in earlier hearings before the district court, the

State Board of Education’s attorney gave explicit coe a to the

arameters of the State’s good faith efforts. Contending that “the

Lentelamees is ultimately the body which can . .. say . . . what tax

rates are going to be,’ he conceded “that the Legislature [does

not have] the right to frustrate a Federal Court decree,” and that

“it is never too late for the Democratic Legislature of this State to

take cunstitutional action insofar as it doesn’t unconstitutionall

interfere with a proper order of this Court.” Dec. 663Q at O-166,

O-168, O-169-70.

29. Under S. 457, the NCCPBE “:nay gg fe a tax rate

for current opera not ter e] maximum

rate at byi'te Bas bowl” Al gh we share the district

court’s observation that this does not seem to take into account

such factors as inflation, see note 22 supra, again we are constrained

to note that the populace’s reaction to the increasingly pared-dowr

budget which may result from this provision will be properly di-

rected to the State Legislature.

Court of Appeals Opinion (7/24/78) A61

It also bears emphasis that these observations are

based on a factual complex in which the difference be-

tween the State rate and the court rate amounts only to

$2.5 million in a package designed to produce school tax

revenues of approximately $40 million. In the extreme

case, obviously not present here, if the State had allocated

only $8 million for court-ordered programs, and no funds,

or substantially insufficient funds, to operate the remainder

of the school system, such action by the State would clearly

be unacceptable as interfering with the operations of the

desegregation decree. See Griffin v. County School Board,

377 U. S. 218, 233-34 (1969). The balance, as always,

should be struck, in the first instance, by the trial court.

VII.

That the district court retains supervisory jurisdic-

tion until the transition to a unitary school system is

completely effectuated, 447 F. Supp. at 1039, should not

be construed as a change of emphasis that the primary

responsibility for public education in Delaware rests with

the State government and its subdivisions. Operating a

nondiscriminatory school system is the responsibility of the

State and not the federal court system. We detect noth-

ing in the district court’s opinion that ousts the State of

Delaware from that primary responsibility. That the plan

submitted by the State in 1977 pursuant to our mandate

was properly rejected by the court should not deter the

State Board of Education from working directly with the

district court in efforts to eliminate “the vestige effects of

pervasive de jure inter-district segregation.” Id. at 1011.

The court-ordered plan which we have reviewed in

this appeal was promulgated only because the State,

through its legislature or its board of education, failed to

come forward with a suitable plan. State authorities are

A62 Court of Appeals Opinion (7/24/78)

still invited, nay, urged, to come forward with meaningful

solutions to this vexing problem, solutions that will achieve

the same objectives as the court-ordered plan. Continued

criticism, organized or otherwise, formal or informal, of

the plan ordered by the federal courts as a last resort, is

an insufficient and ill-advised response to the void caused

by State inaction.

In the appeals at Nos. 77-2336 and 2337 and Nos. 78-

1143, 1144, 1145, 1146, 1147 and 1148, the orders of the

district court will be affirmed.

In the mandamus action at No. 78-1743, the writ will

be granted in accordance with the discussion in Part VI,

supra.

District Court Opinion (8/5/77) A63

OPINION OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF DELAWARE

FILED AUGUST 5, 1977.

Brenda EVANS et al., Plaintiffs,

v.

Madeline BUCHANAN et al., Defendants.

Civ. A. Nos. 1816-1822.

August 5, 1977.

Joseph A. Rosenthal and Irving Morris of Morris &

Rosenthal, and Louis L. Redding, Wilmington, Del., for

individual plaintiffs.

Richard Allen Paul of Paul, Lukoff & Hurley, Wil-

mington, Del., of counsel, Louis R. Lucas, Ratner, Sugar-

mon, Lucas, Salky & Henderson, Memphis, Tenn., Paul

R. Dimond of O’Brien, Moran & Dimond, Ann Arbor,

Mich., for intervening plaintiffs.

Richard R. Wier, Jr., .\tty. Gen., State of Del., and

Regina M. Small, Asst. Atty. Gen., State of Del., William

Prickett and Mason E. Turner of Prickett, Ward, Burt &

Sanders, H. James Conaway of Young, Conaway, Stargatt:

& Taylor, Wilmington, Del., for defendant State Bd. of Ed.

Edward W. Cooch, Jr., of Cooch & Taylor, Wilming-

ton, Del., for Marshallton-McKean School Dist.

Samuel R. Russell of Biggs & Battaglia, Wilmington,

Del., for Alexis I. duPont School Dist.

William Poole of Potter, Anderson & Corroon, Wil-

mington, Del., for Alfred I. duPont School Dist.

James T. McKinstry of Richards, Layton & Finger,

Wilmington, Del., for Claymont and Stanton School Dists.

John P. Sinclair of Potter, Anderson & Corroon, Wil-

mington, Del., for Newark School Dist.

A64 District Court Opinion (8/5/77)

Jerome O. Herlihy of Herlihy & Herlihy, Wilmington,

Del., for Conrad Area School Dist. 3

Howard M. Handelman and Jeffrey M. Weiner of

Bayard, Brill & Handelman, Wilmington, Del., for New

Castle County Vocational-Technical Schoo! Dist.

James M. Tunnell, Jr., and Richard D. Allen of Mor-

ris, Nichols, Arsht & Tunnel, Wilmington, Del., for Mount

Pleasant School Dist.

Aida Waserstein, Wilmington, Del., for intervening

Hispanic plaintiffs.

David Anderson of Potter, Anderson & Corroon, Wil-

mington, Del., for New Castle-Gunning Bedford School

Dist.

Thomas S. Lodge of Connolly, Bove & Lodge, Wil-

mington, Del., for DeLaWarr School Dist.

Murray M. Scuwartz, District Judge.

I. INTRODUCTION.

Presently before the Court are two motions filed by

the Delaware State Board of Education (“State Board” ).”

The first is a motion to stay all proceedings in this case

pending a determination by the Supreme Court of the State

Board’s petition for a writ of certiorari.” The second mo-

1. Doc. 538; Transcript of July 18, 1977 Argument (herein-

after July 18 Tr.) AM-11. All of the suburban school districts

who are intervening defendants, except the DeLaWarr School Dis-

trict, have joined in the State Board’s motion. July 18 Tr. AM-4-6,

DeLaWarr opposes the stay motion. Transcript of Hearings Held

July 19-25, 1977 (hereinafter “Hearings Tr.”) 216.

2. The State Board’s Petition for Writ of Certiorari was dock-

eted on July 25, 1977 in the Supreme Court of the United States.

At the time of the hearings (July 19-25), the suburban school dis-

tricts had not yet filed their respective petitions for a writ of certio-

rari, but with the exception of DeLaWarr, several have made clear

their intention to do so. Docs. 540, 543, 544. By its motion seek-

ing adoption of the plan, the State Board is not altering or waiving

its compel ance that no unconstitutional segregation exists in the

public Is in Northern New Castle County.

District Court Opinion (8/5/77) A65

tion urges that the Court adopt as a plan for desegregating

the public schools of Northern New Castle the proposal

contained in the State Board’s report submitted to the

Court on July 14 pursuant to a mandate of the Court of

Appeals for the Third Circuit. On their face, these mo-

tions appear analytically and legally distinct. Closer ex-

amination, however, reveals that the issue of the accept-

ability of the State Board’s plan is inextricably bound up

with the issue of the propriety of a stay.

As discussed more fully infra,* one of the factors a

court must weigh in considering a motion for a stay is

whether the movants will suffer irreparable injury if the

stay is not entered. The mandate of the Third Circuit

which affirmed, with certain modifications not relevant

here, the June 15, 1976 Order of the three-judge court

(“June 15, 1976 Order”), designated September, 1977 for

the initial implementation of a desegregation remedy. The

injury defendants allegedly will suffer, absent a stay, de-

rives basically from the residual effects of implementing a

remedy that may be vacated and remanded or reversed.

Therefore, it is essential that this Court attempt to deter-

mine if there is a meaningful quantum difference in such

injury between the remedy proposed by the State Board

and that developed by the three-judge court and affirmed

as modified by the Third Circuit.* If there is a substantial

difference in impact upon defendants, it must then be

determined what remedy will take effect if a stay is not

entered.

The proposal of the State Board now before the Court

constitutes that Board’s proposed remedy. If the Court

3. See p. A82 infra.

4. The June 15, 1976 Order called for the implementation of

the one-district plan developed by the three-judge court unless the

State Board ond legislature enacted their own constitutional! plan

prior to September, 1977.

A668 District Court Opinion (8/5/77)

finds the proposal unacceptable, then the State Board, pur-

suant to the mandate of the Third Circuit, must appoint a

five-member “New Board” and that New Board is charged

with the responsibility of planning and implementing a de-

segregation remedy. Because questions have been raised

regarding the precise responsibility assigned to the New

Board, a brief digression is necessary.

Some confusion has arisen over whether the New

Board is intended to devise an entirely new desegregation

plan, including governance, or merely is to complete the

planning and administrative work necessary to implement

the one district plan outlined by the three-judge court in

its May 19, 1976 opinion. See Evans v. Buchanan, 416

F. Supp. 328, 352-358 (D. Del. 1976). The text of Para-

graph 4 of the mandate is virtually a verbatim restatement

of Paragraph 3 of the Order of June 15, 1976. Subsequent

to the entry of the three-judge court Order, a five member

Board (“Interim Board”) was appointed. The member-

ship was expanded to thirteen members by the Delaware

Legislature.© The Interim Board labored over the past 13

months to devise a desegregation plan and apparently

understood their powers to include the development of an

entirely new plan that did not use the one-district concept.

Evidence of this approach is found in their report sub-

mitted to the State Board of Education (Doc. 528A). That

report suggested the retention of the 11 existing school dis-

tricts during a two year transition period, but also recom-

mended that the scnool districts be supervised by a board

composed of representatives from the 11 school districts.

This governance structure is clearly inconsistent with the

June 15, 1976 Order which required transfer of full au-

thority to the Interim Board and abolition of the existing

11 school districts no later than September 1, 1977. The

5. Seaate Bill No. 796, as amended by Senate Amendment No.

1 (June 25, 1976).

6. Paragraphs 3(d); 7 of June 15, 1976 Order.

District Court Opinion (8/5/77) A67

approach taken by the Interim Board may have been due

in part to the fact that the State Board appears to have

shared that interpretation of the June 15, 1976 Order.’

Because the Third Circuit was concerned only with

the June 15, 1976 Order and the May 16, 1976 Opinion,

conceivably and perhaps probably it was unaware of this

history that was not made a part of the record in this case

and thus did not realize that the adoption of the language

of the June 15, 1976 Order carried with it a substantial

historical gloss. In any event, notwithstanding what inter-

pretation the Interim Board or the State Board placed on

the June 15, 1976 Order, the Third Circuit mandate, when

read in light of Part IV of the Third Circuit Opinion of

May 18, 1977,*° contemplates that the “iew Board will con-

cern itself with the development of a desegregation plan

only in the context of the one district governance concept

described by the three-judge court.

Thus, the Court is faced with two possibilities. If the

State’s proposal is accepted, it will be implemented in Sep-

tember, 1977, and will have certain effects on the current

structure and operation of the affected Northern New

Castle County school districts. If the State’s plan is not

accepted, the New Board will be appointed and, in the

absence of a stay, the one district plan will be implemented

- in the fall of 1977, with the concomitant demise of the

eleven affected districts.

The question of what injury the movanis will suffer

in the absence of a stay pending determination of their

application for certiorari involves primarily an examination

of the effects of the plan that is implemented. The one-

district plan would require at a minimum the abvlition of

the ten suburban and Wilmington school districts as dis-

7. Doc. 528 Appendix B at 1.

8. Evans v. Buchanan, 555 F. 2d 573, 380-81 (3d Cir. 1977);

for the relevant text of Part IV, see infra at A77-A78 n. 29.

A68 District Court Opinion (8/5/77)

tinct entities, a substantial reorganization of the adminis-

trative internal structure, certain major decisions involving

adjustments to the tax rates and teacher salaries in the now

separate districts, as well as a wholesale reorganization of

pupil and teacher assignments. The State Board's proposal

does not contemplate the vast administrative reorganization

involved in the one-district plan, but potentially could lead

to major changes in pupil and teacher assignments.

Substantial disruption of the educational process in

the affected school districts would occur if either plan is

implemented and the Third Circuit subsequently is re-

versed. However, clearly the disruption caused by the dis-

engagement of the one-district plan would be more sub-

stantial and severe than if disengagement of the State

Board’s proposal were required.’ Because of this differ-

ence, it is impossible for the Court to evaluate accurately

the factor of irreparable injury without first ‘determining

which plan is to go ifito effect absent'a stay. Accordingly,

after a brief recitation of the current factual and procedural

background pertinent to a determination of the present

motions, consideration will be given to the acceptability of

the State Board’s proposal prior to examining the merits

of the Motion fci a.Stay.

II. Current FACTUAL AND PROCEDURAL BACKGROUND.

Prior opinions detail the history of this 20 year litiga-

tion,” including the proceedings since 1971 on plaintiffs’

amended complaint. For present purposes, it is only

necessary to review what has transpired subsequent to the

9. July 18 Tr. AM-78-79. |

a ee Se Co eater

District Court Opinion (8/5/77) A69

May 19, 1976 three-judge court remedy decision which

was preceded by a Supreme Court summary affirmance of

the three-judge court Order emanating from its two

opinions in which it found the constitutional rights of

plaintiffs had been violated. Following the three-judge

court remedy decision, the State Board of Education and

intervening defendant school districts filed a direct appeal

to the United States Supreme Court, as well as a protective

appeal to the Third Circuit Court of Appeals. Defend-

ants’ protective measure proved necessary as the Supreme

Court dismissed the direct appeal for want of jurisdiction.

Delaware State Board of Education v. Evans, 429 U. S.

973, 97 S. Ct. 475, 50 L. Ed. 2d 579 (1976). Thereafter,

the Third Circuit sitting en banc ™ affirmed the decision of

the three-judge court with certain modifications in an

Opinion dated May 18, 1977. Evans v. Buchanan, supra,

555 F.2d 373. Because of the modifications contained in

the majority opinion, the Third Circuit set forth the spe-

cific order to be entered by this Court, and remanded for-

entry of that order.”

On May 19, 1977, this Court entered the order de-

lineated in the Third Circuit majority opinion. The Third

Circuit's order replicated much of the order originally

entered by the three-judge court, and from which the ap-

peal had been taken. The Third Circuit mandate also di-

rected that the State Board of Education (or other appro-

priate authority ) was to file a “formal report in accordance

with Part IV [Governance] of the Opinion of the Court of

ll. Chief Judge Seitz and Judge Gibbons did not cipate

ni Gnas Meee od wy thie —

12. The Third Circuit further directed that its mandate was to

issue “forthwith,” as to the normal time for issuance con-

tained in F. R. P. 4l(a ), , which provides: “The mandate of the

court shall issue 21 days Ce entry of jedgment unless the

time is shortened or enlarged by order

a ete:

A70 District Court Opinion (8/5/77)

Appeals of the Third Circuit within 60 days from May 18,

1977.” Evans v. Buchanan, supra, 555 F. 2d at 381.

On July 14, 1977, defendant State Board of Education

filed a formal report as required by the order. The report

disclosed that the only concrete measure which had been

taken since entry of the three-judge court remedy order

was passage of legislation authorizing majority to minority

voluntary transfers. This would permit transfers of black

students from the Wilmington and DeLaWarr™ School

Districts to the remaining intervening suburban school dis-

tricts, and transfers of white students from the suburban

school districts to either the Wilmington or DeLaWarr

School District."* The report also contained a “plan” pro-

13. Throughout these ings the DeLaWarr School Dis-

trict, which has an approximate black enrollment of 55% ( Depart-

ment of Public Instruction (“DPI”) Ex. 52, p. 11), has pursued a

different role than its suburban counterparts. DeLaWarr inter-

vened as a defendant, along with the suburban districts of

New Castle County, following the Su e Court’s decision in ,

Milliken v. Bradley, 418 Ux S. 717, 94 S. Ct, 9112, 41 L. Ed. 2d 1069

(1974). However, unlike the other interv school districts

which opposed adoption of an interdistrict remedy, DeLaWarr has

itself primarily with plaintiffs in seeking an interdistrict

remedy. For reason, unless otherwise noted, references here-

inafter to “the suburban school districts” will not include DeLa-

Warr, also will not include Appoquinimink School District, :

which was éxcluded from the Corngregerins area “by the three-

judge court.

14. Legislation passed as the sole —o to the ep

trict refused to forward records of white students. (DPI Ex. 52, p.

District Court Opinion (8/5/77) A7l

posed by the State Board of Education which purportedly

complied with the requirements established in the majority

opinion of the Third Circuit. However, the State legisla-

ture neither has expressly adopted the plan through legis-

lation nor has it conferred upon the State Board the

discretionary authority it would need to implement the

plan. Thus, the State Board, which lacks statutory autho-

rity to make pupil assignments across district lines, could

not implement its proposed plan, even if it so desired."

The proposed plan only can be implemented by Order of

this Court, pursuant to the exercise of its equitable powers.

~~~-~At- the request of the Court and*so that the State

Board’s proposed plan could be considered in an appro-

priate procedural context, the State Board filed a motion

seeking ddoption 2f its plan by the Court. The motion

was filed under objection by the State Board, and with

reservation of its opposition to adoption of any interdistrict

remedy.

Argument on the State Board’s application for stay

was held on July 18, 1977 and hearings were held on the

State Board’s plan from July 19-25, 1977.. Plaintiffs vig-

14. (Cont’d.) © » ‘

they apply as transfers... .” 129th Gen. Assembly Sen. Bill No.

173. For the 1977-78 school year, somewhere between 746 (PX-

3A) and 1,194 (DPI 50) or between approximately 6.6 and 10.5%

of the black students from Wilmington have elected to transfer to a

suburban district. In addition, black students from DeLaWarr

black student population elected to transfer to other suburban dis-

tricts. In contrast to voluntary transfer of blacks, only 3 white

students elected to transier into Wilmington and none into DeLa-

Warr. DPI Ex. 50.

i5. It is noted, however, that between 1968 and 1973, the

State board, by regulation, subsidized interdistrict transportation of

students, while | on passed by the General Assembly limited

such subsidization to intradistrict tion. 94% of the stu-

dents receiving transportation subsidies were white. For a fuller

discussion, see Evans v. Buchanan, supra, 393 F. Supp. at 436-37.

~ a _ - - - ” :

i nn WE ne ee oe ee

>

>.

AT72 District Court Opinion (8/5/77)

orously opposed acceptance of the State Board’s plan and

granting of the stay. They also sought to introduce their

own plan, labeled Plan Q. The Court did not accept the

plan into evidence, although it permitted plaintiffs to make

an offer of proof on the record concerning Plan Q.** None

of the suburban school districts made offers of proof con-

cerning alternate plans, although they were accorded the

opportunity to do so.

At the hearings, counsel for the suburban school dis-

tricts indicated that they viewed the voluntary transfer

legislation to be sufficient to vindicate the constitutional

rights of plaintiffs which had been infringed. If the Court

did not agree with that proposition, the suburban school

districts indicated that the State Board’s plan was accept-

able as a second choice. Counsel for the suburban dis-

tricts also either orally joined in the application of the

State Board for a stay, or as in the case of the Newark,

Marshallton-McKean, Claymont and Stanton School Dis-

tricts, filed their own stay applications.’” (Doc. Nos. 540,

In summary, in the fourteen months between issuance

of the three-judge court remedy opinion and commence-

ment of the July, 1977 hearings, the only steps taken by

the State io devise and implement school desegregation

was passage of the voluntary transfer legislation as pre-

viously rehearsed and proposal of a plan by the State

16. This Court ruled that it would not commence another

round of hearings on plans. The offer of proof permitted to

enable plaintiffs and suburban districts to make the necessary

record to preserve this point on appeal.

17. The DeLaWarr School District opposed both the Stat

Board's plan and the various a Mcstices her step. Slo posites om

either motion was taken by Appoquinimink School District,

which was not represented at the nor by the New Castle

srg er thay org School Peeing Sy aece was a

at the, t was exem risi

Order of June 15, 1976. i -aiesaeth nee

District Court Opinion (8/5/77) AT73

Board which it had no power to implement. Attention is

now turned to the State Board’s proposal.

III. State Boarp’s PROPOSAL.

The proposal submitted by the State Board of Educa-

tion would require that all black students in Wilmington

in grades 7 through 12 be assigned to suburban school

districts for the school year 1977-78.** Each student,

however, would retain the right to elect to remain in his

or her Wilmington school.’ Three general questions

frame this Court’s inquiry into the acceptability of the

plan: (1) Whether the Third Circuit’s mandate contem-

plated the presentation of a proposal for desegregation

which requires a federal court order to be implemented;

(2) Whether the proposal purports to achieve that degree

.. of fairness essential to the framing of any equitable decree,

~ which is to remedy a constitutional violation; (3) Whether

the proposal’s provisions promise realistically to desegre-

gate the public schools of Northern New Castle County

now. See Green v. County School Board of Kent County,

391 U. S. 430, 439, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968).

In its report to the Court,” the State Board takes the

position that it is not “feasible” to determine what the

affected school districts and school populations would be

18. The unmistakable implication of counsel's varied state-

ments and the testimony given during the July, 1977 hearings was

that removal by the Third Circuit majority of the three-judge court

idelines as the starting point of what would constitute a prima

cie gated school permitted consideration of “one way”

busing as an acceptable court imposed equitable remedy.

19. The testimony adduced at the hearings clearly indicated

that the State Board does not intend for its proposal to supplant

the majority to minority voluntary transfer legislation, but rather

anticipates ay the two plans would be coordinated. See also

Doc. at

20. Report of the State Board of Education Required the

Opinio ad Oreo the Cet Court of Appa in te Case

AT4 District Court Opinion (8/5/77)

today “but for” the constitutional violations found by the

three-judge court and affirmed on appeal.” It is the State

Board's position, however, that its proposal represents a

“practical and realistic response” to the Circuit Court

mandate.”

The State Board’s proposal recommends the assign-

ment of black students residing in Wilmington and enrolled

in grades 7 through 12 to suburban school districts for the

1977-78 school year. 'As part of this process, attendance

zones are to be drawn in the City of Wilmington cor-

responding to the various suburban districts.” In effect,

for purposes of pupil assignment, each attendance zone

would be part of the suburban district to which the Wil-

mington students residing therein would be assigned.”

For the 1978-79 school year, grades 1 through 6 are to be

incorporated into the plan and the attendance zones are to

be redrawn, if necessary, to balance roughly the percentage

of black students in each school district.

As noted earlier, the proposal permits any students to

élect to remain at his or her present school. Testimony

given at the hearings indicated that for the 1977-78 school

year, # student would have between:ten and twenty days

prior to the opening of school to decide whether to transfer

back to his or her Wilmington school.” ‘Thus, the choice

would have to be made without benefit of having attended

the suburban school, perhaps without even having visited

it, and, if assigned to a suburban district with several

schools serving the same grade level, without knowing the

exact school within the district to which assignment would

21. Doc. 548 at 36-37.

22. Id. ot 37.

23. Id. at 82.

24. Hearings Tr. at 319.

45. DPI Ex. 55; Hearings Tr. 237-238.

District Court Crile (8/5/77) AT

be made. For those who elect to accept their suburban

assignments, they may revoke their choice by submitting

a form prior to April 30, 1978. These students would then

return to their Wilmington schools for the 1978-79 school

year,”

The State Board’s proposal contains additional provi-

sions covering the varied responsibilities of the various

school districts incluaing tuition payments, the establish-

ment of local grievance procedures for parents, and trans-

portation. The proposal also sets out a procedure whereby

Wilmington teachers displaced by the exodus of students

to the suburbs can seek employment with suburban dis-

tricts. Basically the proposal requires each suburban dis-

trict to hire one Wilmington teacher for each state unit of

pupils transferred from Wilmington to its district, assum-

ing a sufficient number of qualified Wilmington teachers

apply.” The exact procedure to be used in implementing

this policy is somewhat unclear. Ultimately, however, the

affected teachers would be faced with deciding whether to

remain at their higher paying positions in Wilmington in

the hope they will not be terminated in the spring of 1978

or to seek lower paying positions with a suburban.district.”

The absence of implementing legislation créates the

need for an order by this Court before the State Board’s

proposal can be put into operation. That fact raises an

issue of serious concern. Paragraph 2 of the mandate of

the Third Circuit orders the schools in Northern New

Castle County to be “desegregated in accordance with the

Opinion of the Court of Appeals for the Third Circuit” and

26. The State Board’s report is ambiguous and the testimony

of witnesses uncertain as to whether a student, having elected to

stay in Wilmington, can retract the election in a subsequent year

a return, to his assigned suburban school. Hearings 261-64.

27. Doc. 548 at 85.

28. Id. at 85-86.

a ee Be > + -—.

A76 District Court Opinion (8/5/77)

to be “reorganized into a new or such other new districts

as shall be prescribed by the state legisiature or the State

Board of Education. . . .” (emphasis added) Paragraph

4 of that mandate provides: “The State Board of Educa-

tion shall, if the state legislature or the State Board of

Education do not promptly comply with paragraph 2 of

this Order [appoint the New Board] . . . to oversee the

operation of the schools of the area as defined in { 2 of this

Order. ...” It must be determined whether the mandate

permits consideration of a State Board proposal that re-

quires a federal court order for implementation or, alterna-

tively, only gave the State of Delaware the opportunity

to formulate its own desegregation plan which was to be

self-executing and thus without need for further judicial

action.

The State Board argues that the use of the word “or”

in paragraphs 2 and 4 of the mandate is critical. Its posi-

tion is that the Third Circuit was well aware that the

State Board has no power to reorganize school districts or

to reassign students; that power resides exclusively with

the legislature. By its use of the word “or,” the State

Board contends the Third Circuit clearly intended to per-

mit two possible courses of action: (1) the legislature

could act to reorga

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