Opposition — Delaware State Board of Education v. Evans

| = ~eaane Court, U. &.

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| FiLeD

| NOV 20 1978

WerRET KODAK ., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

Nos. 78-671 & 78-672

DELAWARE STATE BOARD OF EDUCATION and

ALEXIS I. DuPONT SCHOOL DISTRICT, et al.,

BRENDA EVANS,

Petitioners,

vs.

et al.,

Respondents.

PLAINTIFF’S BRIEF IN OPPOSITION TO CERTIORARI

LOUIS L. REDDING

1200 Farmers Bank Building

Wilmington, Delaware 19801

JOSEPH A. ROSENTHAL

IRVING MORRIS

Morris & Rosenthal, P.A.

One Customs House Square

Customs House Plaza

P.O. Box 1070

Wilmington, Delaware 19899

LOUIS R. LUCAS

Ratner, Sugarmon, Lucas,

and Henderson

525 Commerce Title Building

Memphis, Tennessee 38103

PAUL R. DIMOND

O’Brien, Moran and Dimond

320 North Main Street

Ann Arbor, Michigan 48104

WILLIAM L. TAYLOR

Center For National Poli

Catholic University Law

Washington, D.C. 20064

Review

hool

Attorneys for Plaintiffs-Respondents

Brenda Evans, et al.

Reprographics Inc., 1732 Eye St. N.W., Washington, D.C. 20006 (202) 298-5537

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TABLE OF CONTENTS

Ie MIEN sh occ sth Fhe davate luce) pttsy nda wabasees

I NG cic cerca ab icivievassiine

IR Se merle oR int Nee © Ae eee

Pe RR ca eat i See i cE EC

Ree Rr ier rn eee Air a ee

US Ne es a uo

Primary a

“Reverse Volunteerism” .......................0.......

Secondary Remedy Decree ..................... :

Reasons for Denying Certiorari .............................

RI oy Cn ee ee a RN th pet

TABLE OF AUTHORITIES

Page

Cases

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)... 19

Alexis I, DuPont School District v. Evans, _—. U.S.

——. (No. A-188, Sept. 8, 1978) (Rehnquist, Cir-

IR NOU chs: sepge i igensy cr oansirvvaghaWDeaccansss 17, 19

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

3 RRR A ERIIY oN ae Lo eS ieleeine eR 3, 4, 14, 16, 20

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

DRE RR RRs NITES Tee UN COE ERO 16, 17

Buchanan v. Evans, 423 U.S. 963 (1975) .... 2, 5, 15

Buchanan vy. Evans, __.. U.S. —— (No. A-188,

Sept. 1, 1978), 47 U.S.L.W. 3127 (Sept. 12, 1978)

(Brennan, Circuit Justice) .................00c0 6

Dayton Board of Education v. Brinkman, 433 US.

Me 8, 9, 13, 17

Delaware State Board.of Education v. Evans, 434 U.S.

SE 8 ON eo gl. a cdvel seus 2, 9, 16, 18

Evans v. Buchanan, 195 F.Supp. 321 3

RO MN I SO ince alike eiy vo ues eCacecaseves. 3

Evans v. Buchanan, 379 F.Supp. 1218

I ON ee 3

Evans v. Buchanan, 393 F.Supp. 428

CH Gee BOD orks egw ik. Me oe Sy oy 43, 15

Evans v. Buchanan, 416 F.Supp. 328

«VEER MORS BAER Oss ity Sieee. Takk 2, 6, 7, 13, 16, 17, 18

iii

TABLE OF AUTHORITIES (Continued)

Page

Evans v. Buchanan, 435 F.Supp. 832

fo ec } eee Bh Sst apeunscocsinus 10, 11

Evans v. Buchanan, 555 F.2d 373

Ce CEPTS kins) ce aewionus 2, 7, 8, 9, 16, 18

Evans v. Buchanan, 447 F.Supp. 982

BPs SDs BIRD: isstevsoscsones me RR. Ue aa OR 29): 16

Evans v. Buchanan, Nos. 77-2336/7, 78-1143/8 and

78-1743 (3d Cir. July 24, 1978) (en banc) ... 7, 8,

Hi FO 35, Fe, 15,: 14; 39

Green v. County School Board, 391 U.S. 430

RE See seri tiers pie he aca Rr orasttdce tas oe

Hills v. Gautreaux, 425 U.S. 284 (1976) ........... + 8

Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) . Soe ekas cosh Ree eeu ateeai rece rabke bts 17

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

(epee EP) cs A SU a 1S, 36, F7,-/38

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

(Milliken II) ........... i ee Oe

Neely v. Martin K. Eby Construction Co., 386 U.S.

Ey MONE oe ca, ee a

Swann v. Board of Education, 402 4 . tastes i

13,14, 16, 18, 19

United States v. Santana, 427 U.S. (1976) .....0.......... 19

Statutory Provisions

Se PRES INE. coe Seco ah scan ckbteesiencgcesy SR be Mae G8 3

iv

TABLE OF AUTHORITIES (Continued)

Page

26 UB. GIES 0. ANS SR cline aS 5

Rule 23(1)(c) of the Rules of the

Supreme Court of the United States ............. 19, 20

Rule 40(1)(d)(2) of the Rules of the

Supreme Court of the United States ..................... 20

DEL. Conk tit. 14, §§1004(c)(2), 1004(c)(4) and

ARE peal asia BR i RED OAR boo ede iF na 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

Nos. 78-671 & 78-672

DELAWARE STATE BOARD OF EDUCATION and

ALEXIS I. DuPONT SCHOOL DISTRICT, et al.,

Petitioners,

vs .

BRENDA EVANS, et al.,

Respondents.

PLAINTIFF’S BRIEF IN OPPOSITION TO CERTIORARI

QUESTION PRESENTED

Given this Court’s prior affirmance of the interdistrict

liability ruling and prior refusal to review the primary

remedy decree establishing the scope of desegregation and

the framework necessary for dismantling the interdistrict

dual system, does the subsequent secondary remedy decree

approved by the courts below to implement these prior

decisions raise any new issue warranting this Court’s

review?

STATEMENT

A. Introduction

For the fourth time in three years, the Delaware State

Board of Education and seven other Petitioners (local

school districts) seek to invoke this Court’s jurisdiction to

aol Misia

review lower court rulings that the unconstitutional actions

by the State of Delaware and responsible state and local

school authorities caused the school segregation in Northern

New Castle County on an interdistrict or area-wide basis

and that an interdistrict remedy must therefore be imple-

mented of commensurate scope. As in their prior efforts,

Petitioners persist both in regarding almost no issue in

this case as having been settled by this Court’s prior dis-

positions and in making sweeping mischaracterizations of

the rulings and proceedings below. This time the local

school district Petitioners also suggest (e.g., Pet. 11, 16,

23-25, 35-36) that the previously settled law of this case

as to both violation and remedy should now be scuttled,

along with the desegregation plan that has been imple-

mented, on the asserted ground that this Court did not

know what it was doing when it first affirmed (423 U.S.

963) the interdistrict liability ruling of the Three-Judge

Court (393 F.Supp. 428) and then denied certiorari (434

U.S. 880) from the Third Circuit’s affirmance (555 F.2d

373) of the primary remedy decree (416 F.Supp. 328)

ordering that the scope of relief fit the interdistrict nature

and area-wide extent of the violation.

A summary of the prior proceedings and rulings may

assist in showing that the lower courts applied the proper

legal standards for violation and remedy, that this Court’s

prior dispositions were fully informed and resolved the

major violation and remedy issues, and that the details of

the secondary remedy decree approved below raise no

new issue worthy of review.

B. Prior Proceedings

This is the last phase of a lawsuit begun in 1957 whose

“object was to eliminate de jure segregation in Delaware

schools,” including those of New Castle County as well

as other areas of the state. 393 F.Supp. at 430. Although

.a plan for desegregation of Delaware schools was accepted

ae: ee

in 1961, the District Court approved the plan “only to

the extent that it [would prove] effective,” 379 -F.Supp.

1218, 1222 (1974), and retained jurisdiction, 195 F.Supp.

321, 325 (1961). The plan did not prove effective in New

Castle County. 379 F.Supp. at 1223 and 1228-30; 393

F.Supp. at 433, 437-438.

The interdistrict violations later found were rooted in

circumstances existing at the time of Brown v. Board of

Education. Local school districts in Delaware at that time

were “not meaningfully ‘separate and autonomous,” 393

F.Supp. at 437, but rather were subordinate to the State

system of segregation with boundaries that were dual and

overlapping, permeable, or disregarded for the purpose of

imposing racially segregated schooling. To deal with this,

the District Court’s 1961 decree ordered, as part of the

plan for desegregation, the State Board to submit a revised

school code to the legislature, including a reorganization

of the “crazy-quilt pattern of [school] districts and laws

governing education.” 195 F.Supp. at 325.

In belated response, the legislature in 1968 enacted the

Educational Advancement Act which explicitly excluded

the Wilmington school district from the discretion vested

in the State Board to reorganize all districts in the state,

expressly providing that the boundaries for this “reorgan-

ized school district shall be the City of Wilmington with

the territory within its limits.” 14 Del. C. §§1004(c) (2),

1004(c) (4), and 1005.

In 1971, plaintiffs, by amended complaint, petitioned

the District Court for: supplemental relief; challenged the

constitutionality of the 1968 Act and redistricting; and

requested that the continuing interdistrict segregation in

New Castle County be finally and effectively dismantled.

A three-judge court was convened pursuant to 28 U.S.C.

2281. On July 12, 1974, following a lengthy evidentiary

hearing, briefs and argument, the Three-Judge Court found

pe eee

continuing de jure violations within Wilmington, but re-

served ruling on the claims of interdistrict segregation in-

cluding the constitutionality of the 1968 Act. 379 F.Supp.

1218. .

After this Court issued its opinion in Milliken v. Bradley,

418 U.S. 717 (1974), the Three-Judge Court promptly

invited the reorganized school districts of New Castle

County to intervene and present evidence on all the issues

raised by plaintiffs’ 1971 Petition for Supplemental Relief

and Amended Complaint. Suburban school districts inter-

vened as parties defendant;’ they elected to adopt the State

Board pleadings and to stand on the evidence already of

record and to submit briefs on the interdistrict violation

issues and the impact of Milliken. Primary issues litigated

by the parties included the alleged continuing nature of

the historic interdistrict dual system; the purpose and effect

of acts following Brown, including a state-wide reorganiza-

tion of school districts, alleged to be either independent

constitutional violations or ineffective means of eliminating

the continuing effects of the historic interdistrict de jure

segregation; and the extent to which the existing racial

disparity in enrollments between Wilmington and suburban

New Castle County school districts resulted from the inter-

district effect of any constitutional violations rather than

other causes.

Liability Ruling. On March 27, 1975, the Three-Judge

Court, Judge Layton dissenting, expressly applied the

Milliken legal standards (393 F.Supp. at 431-432, 437-

438, 446) to the record evidence and found:

1. The “historic arrangement for interdistrict seg-

regation within New Castle County” (393 F.Supp.

at 447) “was a cooperative venture involving both

1The Wilmington school district had previously intervened

as a party plaintiff and joined in the Petition and Amended Com

.plaint.

canes

city and suburbs” to implement State-mandated “de

jure segregation” (393 F.Supp. at 437); “at that time,

in other words, Wilmington and suburban [school]

districts were not meaningfully ‘separate and auto-

nomous.’” /d.

2. “Significant governmental involvement in inter-

district discrimination” (393 F.Supp. at 447), which

perpetuated and augmented (393 F.Supp. at 432-438)

rather than dismantled this historic arrangement for

complete segregation on an interdistrict basis, is

“responsible to a significant degree for the increasing

disparity in residential and school populations be-

tween Wilmington and its suburbs in the past two

decades.” 393 F.Supp. at 438 (emphasis supplied).

3. In addition, the Educational Advancement Act,

which unconstitutionally red: w school distict lines

by excluding the Wilmington School District from

consideration for reorganization or consolidation in

the 1968 state-wide action, “played a significant part

in maintaining the racial identifiability of Wilmington

and the surburban New Castle County school districts.”

393 F.Supp. at 445 (emphasis supplied).

Accordingly, the Three-Judge Court declared the provisions

excluding Wilmington from the consolidation unconstitu-

tional and directed the parties to submit alternative inter-

district and intradistrict desegregation plans. 393 F.Supp.

at 447.

The defendants appealed the interdistrict violation judg-

ment and order by invoking this Court’s jurisdiction under

28 U.S.C. 1253. Plaintiffs filed a Motion to Dismiss or

Affirm, arguing that there were substantial grounds for

either disposition. This Court summarily affirmed the inter-

district violation ruling (Rehnquist, J., joined by Burger,

C. J., and Powell, J., dissenting, on the grounds that the

appeal did not lie under 28 U.S.C. 1253 within the Supreme

Court’s jurisdiction because the case was not one required

to be heard by a three-judge court). 423 U.S. 963. The

interdistrict liability ruling “thus constitutes the law of the

sail sch

case. . .” Buchanan v. Evans, __—_ U.S. —-—._ (No. A-188

Sept. 1, 1978), 47 L.W. 3127, 3128 (Brennan, Circuit

Justice) (Slip Op. 4).

Primary Remedy Decree. Following evidentiary hearings

on plans submitted, and expressly applying Swann and

Milliken legal standards (416 F.Supp. 328, 338-341) to

the record evidence and previously affirmed violation rul-

ing, the Three-Judge Court recognized its remedial duty

to insure relief that “will place the victims of the violation

in substantially the position which they would have occu-

pied had the violation not occurred” (416 F.Supp. at 341).

Based thereon, the Three-Judge Court found:

1. The unconstitutional acts previously found “had

a substantial, not a de minimis, effect on the enroll-

ment patterns of the separate districts,” 416 F.Supp.

at 339 (emphasis supplied).

2. The continuing unconstitutional action of the

State, and the State Legislature and State Board, “is

a substantial and proximate cause of the existing dis-

parity in racial enrollments in the districts of Northern

New Castle County.” 416 F.Supp. at 339 (emphasis

supplied).

3. Wilmington-only relief therefore would not rem-

edy the area-wide impact of the violation. 416 F.Supp.

at 341-344.

4. The free choice and magnet plans proposed are

“inadequate as remedies” because those plans do not

promise realistically to overcome the interdistrict im-

pact of the violation (416 F.Supp. at 346); voluntary

magnet proposals have not proven effective as rem-

edies, and “no showing” was made that actual deseg-

regation would “occur in fact as a part of the operation

of magnet schools.” 416 F.Supp. at 346.

5. In view of the difficulties with cross-district

assignments between existing districts and court-

ordered redistricting (416 F.Supp. at 347-351), inter-

im “consolidation or reorganization is required” pur-

suant to the existing state law model subject at all

iia

times to the State’s adoption of any effective and

constitutional alternative. 416 F.Supp. at 350-353,

357.

6. In view of the area-wide impact of the violation,

the geographic scope of the remedy must include

Northern New Castle (except for Appoquinimink)

(416 F.Supp. at 353-355); and the responsible school

authority, insofar as it proposes to maintain one-race

schools, will bear the burden of showing that such

assignments are genuinely nondiscriminatory rather

than the result of the continuing interdistrict “dual

system.” 416 F.Supp. at 355 and n.135; see also 416

F.Supp. at 357 n.149.

7. With respect to governance, the State Legislature

should have the first opportunity to reorganize school

districts; but, absent effective and constitutional legis-

lative action, the provisional consolidation of the

existing districts under a single interim board (made

up of existing local school authorities appointed by

the State Board) would go into operation no later

than September, 1977 for secondary schools and

a awnaae 1978 for elementary schools, 416 F.Supp.

at ~ :

? This decision was based on (a) the defendants’ evidence and

representation that transfers across existing districts would create

administrative conflicts requiring constant judicial supervision and

the Three-Judge Court’s determination that it should leave such

day-to-day school affairs in the hands of the responsible school

authorities in order to avoid judicial intervention if a less intrusive

remedy were available (416 F. Supp. at 347-348); and (b) the

Three-Judge Court’s view that any reorganization by redistricting

would involve a variety of policy choices better left to the state

legislature (416 F.Supp. at 350-352). As a result, the Three-Judge

Court, in order to intrude as little as possible in state policy and

local school administration, chose to rely on an interim consolidation

(with planning and implementation in the hands of the responsible

school authorities and reliance on existing state law) so long as the

State chose not to take effective alternative action. 416 F.Supp. at

351-353, 357. In sum, this provisional or stand-by governance plan

was specifically designed to minimize judicial intervention and to

give responsible State authority the rtunity to come forward

with an effective remedy. See also 555 F.2d at 380-381; Pet. App.

All.

These ultimate fact findings and legal holdings concerning

the extent of the continuing violation, the scope of its im-

pact, requisite scope of desegregation, and the governance

aspects of the remedial framework were amply supported

by evidence, subsidiary fact findings, and law. As a result,

they were specifically affirmed by the Court of Appeals

(555 F.2d 573; also Pet. App. A13, A30), with the added

direction that State authorities file with the District Court

within sixty days a report of their efforts to carry out the

mandate of the District Court (555 F.2d at 381; also Pet.

App. A13).* So that there would be no misunderstanding

of its judgment, the Court of Appeals detailed a revised,

primary remedy decree to be entered by the District Court.

See 555 F.2d at 381-382.

There was no confusion among the State and local

defendants as to the area-wide scope of remedy thereby

affirmed by the Court of Appeals’ judgment, the provision

for a third opportunity for the State to come forward with

an effective alternative in the first instance, and the decreed

consequences of a provisional consolidation of the affected

districts so long as the State refused to come forward with

an effective alternative. The defendants raised all of these

remedy issues in their certiorari petitions to this Court

arguing that the lower court’s judgment failed to adhere

to Dayton, Milliken, and/or Gautreaux. Plaintiffs re-

sponded that this primary remedy decree was fully sup-

ported by these decisions based on the particular circum-

stances, proceedings, evidence, and findings in this case.

This Court denied certiorari (the Chief Justice, Mr. Justice

Powell, and Mr. Justice Rehnquist dissenting by noting

that they would grant the petitions, “vacate the judgment,

3 The Third Circuit, like the Three-Judge Court, reviewed and

affirmed the scope of the remedy pursuant to the Milliken legal

standard governing the tailoring of equitable relief to do no more

Soy habe TOEaOE ake Pow Aso Atl constitutional violation.

555 F.2d at 379-380; also Pet. App. A1l1-A12, A30.

sea a:

and remand the case . . . for further consideration in light

of Dayton”). 434 U.S. 880 (1977), rehearing denied, 434

U.S. 944 (1977).*

“Reverse Volunteerism.” Pursuant to the Third Circuit’s

direction, the District Court immediately entered the re-

vised decree (see 555 F.2d at 381-382). Sixty days later

the State Board filed its “Report” revealing that the State

Legislature and State Board had taken no action (except

for “liberalization” of the preexisting “free choice” inter-

district transfer legislation). Instead, the State Board pro-

posed that the District Court, in the absence of any im-

plementing legislation or reorganization, order a “plan”

dubbed “reverse volunteerism” whereby every Wilmington

black student (but only these black students) would be

reassigned to existing suburban districts with the absolute

right to transfer back to the Wilmington district. Plaintiffs

filed written objections and presented substantial evidence

in Opposition to show that the proposal (a) was as totally

ineffective as the “free choice” plans and transfers pre-

viously rejected by the Three-Judge Court and (b), adding

insult to this injury, was also racially stigmatizing in con-

cept and wholly inequitable in operation. In contrast,

defendants offered no evidence to show (a) that “reverse

volunteerism,” or any other voluntary transfer scheme,

promised to operate in fact to remedy the continued marked

racial disparity in enrollments between districts caused by

the violation or (b) that the substantial area-wide impact

of the inter-district violation was less extensive in any re-

spect than previously found. Indeed, defendants represented

that they had no such proof to offer. E.g., Pet. App. A26;

A153***,

Maybe ged arte Benny 2 Doe anne may wish to deter-

dere, the subsidiary tact findings, rings, or primary remedy

Se

oe

BE

a.

z

a

5

Opposition

al. at pages 10-30.

gels

After reviewing the prior proceedings and the evidence,

the District Court on August 5, 1977 rejected “reverse

volunteerism” both because it violated the mandate of the

Third Circuit in failing to provide any supporting legisla-

tion or reorganization (Pet. App. A77-A78) and because

it was wholly inequitable and totally ineffective as a remedy

for the interdistrict violation of the nature, extent, and

impact previously found by the Three-Judge Court (Pet.

App. A78-A80).° At bottom, the proposal “like its reference

to the legislative transfer plan, in which only three white

students took part, . . . carried with it the tacit assumption

that only — and that all — black students benefit from

transferring to a white environment, and not vice versa.”

Pet. App. Al7. “One would find it difficult to create a

more graphic pardigm of an inequitable remedy than one

which assigns to those who have been wronged the [sole]

responsibility of correcting those wrongs.” Pet. App. A78;

also Pet. App. A18.° The Court of Appeals unanimously

affirmed the District Court’s determination that the State

Board’s Report and “reverse volunteerism” proposal repre-

sented nothing but an affirmative statement of the State’s

continuing default. Pet. App. A13-A19.

5 In evaluating the positions of the parties concerning the nature,

extent, impact and effect of the continuing interdistrict violation

(435 F.Supp. at 844-845), and reviewing the record evidence and

Three-Judge Court findings, the District Court noted that (a) the

“trier of fact” had previously found that “the iges of an inter-

district de jure segregated school system” had not dismantled

and (b) the “three-judge court made all the subsidiary findings with

respect to discriminatory intent and incremental segregative effect

(unless that phrase is to mean precise mathematical percentage)

that the record permits without resort to sheer speculation.” Pet.

App. A88 and n.45.

* With respect to the defendants’ claim that the legislature’s stop-

gap “free choice” scheme “is adequate to overcome the dual school

p wecgy one the pervasive effects of de jure segregation,” the District

Court found:

Not only is the evidence to the contrary, but the voluntary

transfer legislation suffers from the same basic flaws that proved

—= “a7

sibs wine

Secondary Remedy Decree. Pursuant to the Third Cir-

cuit’s mandate, the District Court therefore directed the

State Board to appoint the five members to the new interim

school board, with four of the five members from the

defendant suburban school districts and the fifth from the

intervening plaintiff Wilmington School District. The

District Court, however, granted a stay of the implementa-

tion previously scheduled for September, 1977 to allow

the responsible school authorities additional time to plan

and the defendants time to petition for review of the Third

Circuit’s affirmance of the Three-Judge Court’s primary

remedy decree. Pet. App. A94-A97; also Pet. App. A19.

In the fall, the District Court he’< extensive hearings

on a “10-2” grade-center approach (with two grades in

Wilmington and ten grades in the suburbs) proposed by

the new Board majority, a regional clustering approach

proposed by the new Board minority, and a modification

of the Board’s grade-center approach to provide for three

grade-centers (including in Wilmington) in order to elim-

inate the inequitable and unjustifiably discriminatory

aspects of “10-2” in the particular circumstances of this

case. Once again no defendant offered any evidence (or

alternative plan) to suggest that the scope of any of these |

remedial proposals was more extensive than the impact

of the violation. E.g., Pet. App. A26. And the new Board

fatal to the State Board’s alternate proposal known as “reverse

volunteerism” . . . Absent any evidence that [reverse volun-

teerism] would work and given the more than 20 years that

the State has had to dismantle its dual system, this Court con-

cluded that the plan’s disparate [racial] burden and “too little,

too late” character rendered it unacceptable under Green v.

County School Board, 391 U.S. 430, 438-9 (1968; 435 F.Supp.

*832, 841 (1977). The voluntary plan promises even less.

Pet. App. A134. Only three white students transferred into Wil-

mington schools (Pet. App. A16, A71 n.14); as a result, the de

jure black scl.-~is remained virtually all-black under the State’s

“free transfer” legislation.

procedural posture and law of the case, that was all that

Bee yey ti eee rmwrcape assy and findings on the

. relevant issues the litigants on the “10-2” or “9-3”

(Pet. .A119-A151), the

to apply for relief from the “9-3” approach if it proved difficult in

cap

taxes to the

counter (hee Aceh Sas ened

also dropped any of error on this score in its

el

found by the Three-Judge Court, to insure that the scope

of the remedy finally approved would match the current

effect of the violation. Pet. App. Al1l-A12, A22-A31,

A152-A156. Reiterating that the Three-Judge Court had

already specifically applied the appropriate remedial stan-

dard articulated by this Court (Pet. App. A130, A152,

A30; 416 F.Supp. at 341), the District Court, as affirmed.

by the Court of Appeals, found that, “in satisfying its

[remedial] duty, the Three-Judge Court relied primarily

upon Milliken I and Swann, supra, and made the detailed

findings of fact and reasoned statement of law later ex-

plicitly required by Dayton.” Pet. App. A152; also Pet.

App. A30.° With respect to discriminatory intent and

“incremental segregative effect,” the District Court reit-

erated “its prior holding that ‘the three-judge court made

all the subsidiary findings . . . that the record permits

without resort to sheer speculation.”” A153***. The

District Court concluded by holding:

. . . the firmly established. constitutional violations

in this case are the perpetuation of a dual school system

and the vestige effects of pervasive de jure intér-district

segregation. Evans v. Buchanan, 416 F.Supp. at 343;

393 F.Supp. at 432-38, 445, 447. Dayton reaffirms

that “[o]nce 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 constitu-

tional violation.”” 97 S.Ct. at 2775; see Milliken I,

418 U.S. at 744; Swann, 402 U.S. at 16. Eradication

of the constitutional violation to the scope and extent

enumerated by the three-judge court is all that any

of the plans and concepts submitted purport to ac-

* Both the Three-Judge Court and the Court of Appeals in first

shaping. and then reviewing the remedial framework through the

conscientious application of Swann and Milliken \egal standards

had previously used the “same precepts” (Pet. App. Al2) for j

ing causation and the appropriate scope of remedy subsequen

announced by this Court in Dayton. See also Statement, supra,

pp. 6-7 and 8 n.3.

eee Tia

complish, and that is all the concept endorsed by

A156. Thus did the District Court meet its “duty” under

the mandates of Brown and of the Third Circuit “to insure

the elimination of the interdistrict racially discriminatory

dual school system that has persisted in New Castle

County.” Pet. App. A130.

Noting that the “condition that [here] offends the Con-

stitution,” Swann, 402 U.S. at 17, is “pervasive de jure

interdistrict segregation throughout Wilmington and the

named Northern New Castle County school districts,” the

Court of Appeals affirmed the trial court’s approval of

the new Board’s proposal in order “to restore” area schools

to the status they “would have enjoyed but for the constitu-

tional violations.” Pet. App. A25; also Pet. App. A26-A30.

The Court of Appeals concluded by reiterating that “the

primary responsibility to devise a suitable plan jfor North-

ern New Castle County] was and is that of the State of

Delaware” and had been at least since Brown. Pet. App.

A30-A31; see also Pet. App. All, A19, A26-A27. After

having “dragged its heels and obstructed progress toward

desegregation for twenty-six years” (Pet. App. A27), the

plan approved by the courts below “was promulgated” and

_remains in place “only because, the State, through its legis-

~ lature or its board of education” has thus far “failed to

come forward” with an effective alternative. Pet. App. A61;

also Pet. App. A134-A136.

State authorities are still invited, nay, urged, to come

forward with meaningful solutions to this vexing prob-

lem, solutions that will achieve the same objectives

ds the court-ordered plan. Continued criticism, organ-

ized or otherwise, formal or informal, of the plan

ordered by the federal courts as a last resort, is an

insufficient and ill-advised response to the void caused

State inaction.

Pet. App. A62, A134-A136.

Spay ene

This continuing invitation by the Court of Appeals, in

the face of the State’s longstanding and steadfast default,

is consistent with the studied restraint and deference of

the lower courts here: to go to “virtually unprecedented

lengths to minimize federal court intrusion,” to “defer to

the State Legislature to cure the constitutional violation,”

to afford several years of delay “to promote an orderly

transition,” and only to intervene to guarantee relief to the

extent necessary by establishing a provisional consolidation

controlled by local school authorities pursuant to the exist-

ing state law model and to remain in operation only so long

as the State defaults by choosing not to come forward with

an effective and constitutional alternative. Pet. App. A105;

also, e.g., Pet. App. All, 416 F.Supp. at 357.

Following the denials by Justices Brennan and Rehnquist

of stay applications, the new Board this September imple-

mented its plan dismantling, at long last, the interdistrict

dual system that heretofore has riven public schooling

throughout Northern New Castle County on a racially

dual basis.

REASONS FOR DENYING CERTIORARI

1. The substantiality and extent of the interdistrict de

jure segregation violation in Northern New Castle County

Public Schools has long since been adjudicated by the

Three-Judge Court, and affirmed by this Court, pursuant

to the application of the Milliken legal standard to the

record evidence. Petitioners’ attempt to recast the determin-

ations of the Three-Judge Court on this score are at best

belated attempts to relitigate factual issues which they

finally lost on the evidence and factual findings three years

ago before the Three-Judge Court, 393 F.Supp. 428, aff'd

423 U.S. 963. There is no reason to reexamine the settled

law of the case concerning the nature and extent of the

Pay eNews

2. Similarly, the Three-Judge Court’s restrained exercise

of equitable discretion in fashioning the primary remedy

decree pursuant to the Swann and Milliken standards, 416

F.Supp. 328, has long since been affirmed by the Court

of Appeals, 555 F.2d 373, with review being denied by

this Court. 434 U.S. 880. Given the nature and extent of

the established interdistrict violation — “the interdistrict

racially discriminatory dual system that has persisted in

New Castle County” since Brown (Pet. App. A130) —

the lower courts, of course, had “a duty to prescribe ap-

propriate remedies.” Milliken v. Bradley, 418 U.S. at 744;

Brown II, 349 U.S. 294, 300-301. As to the structure for

governing and administering the requisite interdistrict

relief, three alternatives were available: retaining existing

districts with transfers across district lines, redrawing school

Cistrict lines, or consolidation pursuant to the existing state

law model. Given the defendants’ objections (and sub-

stantial proof in opposition) to retaining existing districts

and the greater judicial intervention into local school opera-

tions and state policy choices required by cress-district

assignments or redrawing school district boundaries, the

Three-Judge Court did not err in choosing the least intru-

sive alternative: consolidation yursuant to the existing state

law. model with racially unitary schools operated by a new

local school board. In fact, the Three-Judge Court pro-

ceded with restraint by making this reorganization provi-

sional on the State’s adoption of any constitutional and

effective alternative and by giving the State ample time

to respond before requiring implementation of even this

stand-by remedy.’

® The lower courts scrupulously adhered to existing state policy

and practice in making the new Board the operational equivalent

of every other loca] district in Delaware and thereby keeping the

federal courts out of the business of running the public schools.

(And the new Board is most assuredly not a surrogate for the

District Court nor an appointed Master. The new Board was ap-

. pointed by the Defendant State Board; four of its five members are

A

The Third Circuit on appeal the first time, and this

Court in denying review, therefore made no mistake in

rejecting the defendants’ claim of an abuse of discretion

in the face of the State’s continued decision not to propose

any effective alternative. In essence, the defendants dis-

agreed not with the Three-Judge Court’s choice of one

of the three available structural alternatives but rather with

the Court’s very “duty to prescribe appropriate remedies”

at all in such circumstances. As that duty had long since

been settled generally for federal remedy and de jure school

cases (see, e.g., Marbury v. Madison, 5 U.S. (1 Cranch)

137, 163 (1803) and Brown II, 349 U.S. 294, 300-301

(1955)) and interdistrict school segregation cases in par-

ticular (see Milliken I, 418 U.S. at 744, and Brown II,

supra), the Third Circuit affirmed the primary remedy

decree and this Court quite properly denied review. 555

F.2d 373, cert. denied 434 U.S. 880.

Similarly, the defendants’ challenge to the scope of de-

managing agent board members of the suburban districts; and the

new Board, its staff and teachers operate independently of the Dis-

trict Court just like any other local school board.) How the lower

court’s shaping of the required inter-district relief in this least in-

trusive and most restrained fashion imaginable — taking the concerns

Grate lage: 10d nk prestion, ‘nal dadlidg. an Hate $0

be compared to a “railroad reorganization” in Mr. Justice Rehn-

quist’s opinion denying a renewed ication for stay is a mystery.

Alexis: 1. DuPont School District v. tg US. (No.

A-188) (Sept. 8, 1978) (Slip Op. 4). The comparison

simply does not fit what has actually in this case. The

Three-Judge Court and the District Court expressly relied on this

Court’s counsel in Milliken I, 418 U.S. at 742-744, and chose the

e.g., 416 F.Supp. at 347-348, 350-353, 357.

tM ais

segregation required by the Three-Judge Court on appeal

to the Third Circuit the first time did not concern the

extent of-the relief actually tailored but rather the estab-

lished duty (see Swann, 402 U.S. at 16-17, 24-26 and

Milliken I, 418 U.S. at 744, 746) to “place the victims of

the violation in substantially the position which they would

have occupied had the violation not occurred” (416 F.Supp.

at 341) by redressing the area-wide effect of the pervasive

interdistrict violation. The Third Circuit on appeal from

the primary decree, and this Court in denying review,

therefore did not err in rejecting defendants’ challenge to

the basic duty itself. 555 F.2d 373, cert. denied 434 US.

880.

In their latest pleas to this Court, from the affirmance

of the secondary remedy decree, Petitioners merely parrot

their previous challenge to the basic duties already met in

the primary remedy decree: (a) to prescribe an appropriate

interdistrict remedy and (b) to overcome the’ area-wide

impact of the substantial interdistrict violation by requiring

desegregation to the same scope and extent. Given the fact

that the District Court, in its secondary remedy judgment

did no. more than implement the primary remedy decree by

tailoring the relief to eradicate bat pes exceed the adjudi-

cated effects of the violation, as unanimously affirmed by

the Court of Appeals, the Petitioners present no reason

for this Court to reexamine the basic remedial duties already

established for school cases generally and previously

settled in this case.

3. With respect to the relatively narrow issues thereby

left open for review at this time, Petitioners make no claim

of error at all. See Statements note 7, p. 12, supra. First

the.suburban school district and State Petitioners make no

claim of error concerning the lower courts’ approval of

the grade-center pupil assignment concept proposed by the

new Board, as modified by the District Court to prevent

. gross racial discrimination against black students in the

BEDS, | wee

reassignment process. The suburban school district and

State Petitioners opposed the alternative regional clustering

and pairing concept and strenuously preferred the new

Board’s grade-center approach in the trial court; and Peti-

tioners made no claim of error concerning grade centers

in their appeals to the Third Circuit. Under this Court’s

normal rules for refusing review in such circumstances,

the District Court’s decision to defer to the responsible

school authorities’ preference by approving the grade-center

approach presents no issue for this Court. Cf. Adickes v.

S. H. Kress & Co., 398 U.S. 144, 147 n.2 (1970); United

States v. Santana, 427 U.S. 38, 41 n.2 (1976); and Neely

v. Eby Const. Co., 386 U.S. 317, 330 (1967).*°

Second, suburban school district petitioners supported

1°'We are therefore at a loss to understand why Justice Rehn-

ny in his opinion denying a renewed application for stay, criticizes

is aspect of the decision below. Alexis I. DuPont School District

v. Evans, US. (No. A-188) (Sept. 8, 1978) (Slip Op.

3). Moreover, the lower courts never reviewed the specific pupil

assignments adopted by the new Board subsequent to the District

Court’s approval of the Board’s recommended concept; the specific

pupil assignments were properly vested in the sound discretion of

the responsible school officials in thet first instance. E.g., Swann,

402 U.S. at 15-16. State and suburban school district defendants

did not object in the trial court nor the court of appeals ‘to ‘the

specific pupil assignments finally developed and adopted by the

new Board in the exercise of its discretion. Despite Justice Rehn-

quist’s invitation, we do not understand that either of the certiorari

petitions even suggests that this Court should review the decision

Rules. But, even if the issue had been preserved and raised by

Petitioners, it would not relate to the District Court’s intervening

in the affairs of he local school authority by drawing a Court plan

ee eee ee inion (Slip Op. )

iis MD seats

the relief ancillary to pupil assignments finally approved

by the lower courts pursuant to Milliken II, 433 U.S. 267

(1977), and the uncontroverted record evidence. The

State Petitioners objected to such relief in the courts below

apparently on the grounds that Milliken II was wrongly

decided. But the State Board presented no proof to con-

trovert the substantial evidence introduced in the District

Court showing that such ancillary relief was necessary to

overcome the effects of the violation as specifically found

by the District Court (Pet. App. A162 et seq.) and unan-

imously affirmed by the Court of Appeals (Pet. App. A32-

A46). In their Petition, the State defendants therefore

understandably make no reference to this issue in their

questions presented and argument and only a fleeting ref-

erence to ancillary relief at all in their statement (Pet. 7).

Whether or not Supreme Court Rules 23(1)(c) and 40

(1)(d)(2) effectively bar consideration of the issue, there

is absolutely no* conflict between the restrained general

guidelines for ancillary relief approved below and Milliken

II, and-no other reason for this Court to review. the issue

in view of the lower courts’ express application of Milliken

IT to the uncontroverted record.

we He ee Oe

In sum, Petitioners have failed to demonstrate any error _

in the Court of Appeals’ judgment affirming the secondary

remedy decree, any departure by the lower courts from this

Court’s violation and remedy standards, and any reason

to revisit the settled law of this case. The official racial

discrimination that for so long has divided public schooling

in Northern New Castle County is at an end and the

transition to racially nondiscriminatory schooling contem-

plated by Brown is finally in progress. The State of Dela-

ware, the responsible state and local school authorities,

and the people of Northern New Castle County are at last

._ rid of the blight of racially dual schooling. They are free

sees We

to operate area schools in whatever constitutional way

they deem fit, now and hereafter.

CONCLUSION

Wherefore, for the foregoing reasons, the Petition for

a Writ of Certiorari should be denied forthwith.

LOUIS L. REDDING

1200 Farmers Bank Building

Wilmington, Delaware 19801

JOSEPH A. ROSENTHAL -

IRVING MORRIS

Morris & Rosenthal, P.A.

One Customs House Square

Customs House Plaza

P.O. Box 1070

Wilmington, Delaware 19899

Respectfully submitted,

LOUIS R. LUCAS

Ratner, Sugarmon, Lucas,

and Henderson

525 Commerce Title Building

Memphis, Tennessee 38103

PAUL R. DIMOND

O’Brien, Moran and Dimond

320 North Main Street

Ann Arbor, Michigan 48104

WILLIAM L. TAYLOR

Center For National icy Review

Catholic University Law ool

Washington, D.C. 20064

Attorneys for Plaintiffs-Respondents

Brenda Evans, et al.

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