# Petition — Delaware State Board of Education v. Evans > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0027%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 447 U.S. 854 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0027%3A1. Public record. Not legal advice.