Appendix — Swissvale Area School District v. Hoots

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80- 1819 i ce-aenas he

FILED

ArK 30 1981

No.

pee bs STEVAS,

IN THE

Supreme Court of the Lnited States

October Term, 1980

SWISSVALE AREA SCHOOL DISTRICT, CHURCHILL

AREA SCHOOL DISTRICT, TURTLE CREEK AREA

SCHOOL DISTRICT, and EDGEWOOD SCHOOL DIS-

TRICT,

Petitioners,

DOROTHY HOOTS, individually and as mother of her chil-

dren JANELLE HOOTS and JAMIE HOOTS; MRS.

ADDRALLACE KNIGHT, individually and as mother and

natural guardian of her children RONALD KNIGHT,

LORETTA KNIGHT, TERRANCE KNIGHT, MARC

KNIGHT and BYRON KNIGHT: BARBARA SMITH, indi-

vidually and as mother and natural guardian of her children

TAWANDA SMITH, TEVELA SMITH, JOSEPH SMITH,

WESLEY SMITH and ERIC SMITH; on behalf of them-

selves and all others similarly situated,

Respondents.

APPENDIX

CARL W. BRUECK, JR., Esquire JOHN J. HiCKTON, Esquire

1420 Grant Building 308 Frick Building

Pittsburgh, PA 15219 Pittsburgh, PA 15219

412/471-1173 412/391-1350

G. N. EVASHAVIK, Esquire J. ROBERT MAXWELL, EsQuiIRE

1218 Frick Building 1300—301 Fifth Avenue Bidg.

Pittsburgh, PA 15219 Pittsburgh, PA 15222

412/261-2813 412/281-1658

Attorneys for Petitioners

———————eeeees

TABLE OF CONTENTS

July 30, 1980 Order of United States District

Court for Western District of Pennsylvania ..

January 26, 1981 Opinion and Order of three

member panel of United States Court of

Appeals for the Third Circuit ..............

February 25, 1981 Order of United States Court

of Appeals for Third Circuit ...............

February 25, 1981 Order of Circuit Judge

Leonard Garth to Amend Dissenting Opinion

March 5, 1981 Opinion and Order of United

States District Court for Western District

OP ps us 83 FE Be ices ons cu ness

March 24, 1981 Order of United States Distict

Court for Western District of Pennsylvania ..

April 6, 1981 Memorandum Order of United

States District Court for Western District

Pennsylvania State Board of Education

Adjudication dated May 9, 1969 and filed

OE AREA eels iis chine S24 Neos es ;

June 1, 1970 Opinion and Order of Court of

Common Pleas of Allegheny County,

cA ath Ra ee ee a

ii ,

IN THE UNITED STATES DISTRICT COURT

For THE WESTERN DISTRICT OF PENNSYLVANIA

DOROTHY HOOTS, et al., >

Plaintiff’, Civil Action

VS. No. 71-538

COMMONWEALTH OF

PENNSYLVANIA, et al.,

Defendants. /

ORDER

AND NOW, this 30th day of July, 1980, it is HEREBY

ORDERED and DECREED that:

1. Plaintiffs’ request of July 30, 1980, that the Tuition Plan

and the tuition concept be rejected forthwith is DENIED,

without prejudice to its renewal at the end of the hearings on

said Plan.

2. Plaintiffs’ request of July 30, 1980, that this Court grant

them an injunction affording them merger, or consolidation,

relief beginning in the fall of 1980 is DENIED, without preju-

dice.

Chief United States District Judge

[CORRECTED COPY]

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 80-2116

DOROTHY HOOTS, individually and as mother of her

children JANELLE HOOTS and JAMIE HOOTS;

MRS. ADDRALLACE KNIGHT, individually and as

mother and natural guardian of her children RONALD

KNIGHT, LORETTA KNIGHT, TERRANCE

KNIGHT, MARC KNIGHT and BYRON KNIGHT;

BARBARA SMITH, individually and as mother and

natural guardian of her children TAWANDA SMITH,

TEVELA SMITH, JOSEPH SMITH, WESLEY

SMITH and ERIC SMITH; on behalf of themselves and

all others similarly situated,

Appellants

Vv.

COMMONWEALTH OF PENNSYLVANIA; EDWARD

X. HALLENBERG, President of the Allegheny County

Board of School Directors; THE ALLEGHENY

COUNTY BOARD OF SCHOOL DIRECTORS; wW.

DEMING LEWIS, Chairman of the Pennsylvania State

Board of Education; THE PENNSYLVANIA STATE

BOARD OF EDUCATION; MICHAEL SULLIVAN,

President of the School District of the Borough of Brad-

dock; THE SCHOOL DISTRICT OF THE BOROUGH

OF BRADDOCK; ANDREW LISYAK, President of the

School Board of the School District of the Borough of

Rankin; THE SCHOOL DISTRICT OF THE

BOROUGH OF RANKIN; LEO CAMPBELL, Presi-

dent of the School Board of the School District of the

Borough of North Braddock; and THE SCHOOL DIS-

TRICT OF THE BOROUGH OF NORTH BRAD-

DOCK; THE ALLEGHENY INTERMEDIATE UNIT

BOARD OF SCHOOL DIRECTORS AND EDWARD

X. HALLENBERG, AS PRESIDENT OF THE

ALLEGHENY INTERMEDIATE BOARD OF

SCHOOL DIRECTORS,

Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

D.C. Civil No. 71-00538

Argued November 3, 1980

Before: HUNTER, GARTH and

HIGGINBOTHAM, Circuit Judges

Opinion filed January 2, 1981

James S. Liebman (Argued)

Bill Lann Lee

Jack Greenberg

Thomas J. Henderson

Neighborhood Legal Services Association

Attorneys for Appellants

Allen C. Warshaw fArgued)

Alton Arnold

Harvey Bartle, III

Attorneys for Commonwealth of Pennsylvania

J. Robert Maxwell (Argued)

Maxwell & Huss

Attorneys for Churchill Area School District

John J. Hickton (Argued)

James R. Duffy

Hickton & Dean

Attorneys for Swissvale Area Schoo! District

G. N. Evashavik (Argued)

Evashavik, Capone, Evans & Della Vecchia

Attorneys for Turtle Creek Area School District

Carl W. Brueck, Jr.

Brueck & Houck

Attorneys for Edgewood School District

J. Frank McKenna, III

William M. Wycoff

Thorp, Reed & Armstrong

Attorneys for East Allegheny School District

Donald C. Fetzko

Attorney for Steel Valley School District

OPINION OF THE COURT

HUNTER, Circuit Judge.

1. This is the fifth published chapter in the long history of

this litigation.' The factual history and procedural posture of

'There have been four previous published opinions: Hoots v.Common-

wealth of Pennsylvania, 334 F.Supp. 820(W.D. Pa. 1971) (Hoots /)(denying

defendants’ motion to dismiss for failure to state a cause of action); Hoots v,

Commonwealth of Pennsylvania, 359 F.Supp. 807 (W.D. Pa. 1973) (Hoots

/1) (holding that the creation of the General Braddock School District by the

Pennsylvania State Board of Education was an act of de jure discrimination

in violation of the fourteenth amendment); Hoots v. Commonwealth of

Pennsylvania, 495 F.2d 1095 (3d Cir.), cert. denied 419 U.S. 884 (1974)

(Hoots I11) (dismissing appeals from district court's denial of school districts’

petitions to intervene); and Hoots v. Commonwealth of Pennsylvania, 587

F.2d 1340 (3d Cir. 1978) (Hoots IV) (dismissing appeal from order denying

approval of a remedial plan for lack of appellate jurisdiction).

In addition we have denied plaintiffs’ applications for writ of mandamus

on two occasions. Hoots v. Weber, No. 79-1474 (3d Cir. May 2, 1979); Hoots

v. Weber, No. 80-2124 (3d Cir. Sept. 9, 1980).

the case were ably recited by Judge Garth in this court’s

October, 1978 opinion.? Here, we will briefly summarize that

account and then supplement it with a recital of subsequent

events leading to the instant appeal.

2. Plaintiffs, mothers of children who attend public

schools in the General Braddock Area School District

(“GBASD”) in Allegheny County, Pennsylvania, filed a com-

plaint on June 9, 1971, alleging that the consolidation of

various school districts in that county had resulted in the

creation of racially segregrated schools.3 The district court, in

an opinion and order filed on May 15, 1973, held that the

creation of the GBASD by the Pennsylvania State Board of

Education and the Allegheny Intermediate Unit Board of

School Directors was “an act of de jure discrimination in

violation of the Fourteenth Amendment.™ Defendants were

given forty-five days to prepare and submit a comprehensive

plan for school desegregation in the central part of eastern

Allegheny County.

3. In September, 1973, defendants filed Plan “22-W” with

the district court. The most prominent feature of the Plan was

the consolidation of seven adjacent school districts, including

GBASD, into two. The school districts affected by “22-W”

were permitted to intervene to offer evidence on the Plan. In an

order and memorandum opinion filed on May 7, 1975, the

district court rejected Plan 22-W.° Defendants were ordered to

submit another plan.

?Hoots IV, 587 F.2d 1340 (3d Cir. 1978).

The original complaint is reprinted in Appendix for Appellants at

17a-32a. An amended complaint filed on July 30, 1971, is reprinted in

Appendix for Appe-iants at 45a-62a.

‘Hoots II, 359 F.Supp. at 823.

SHoots II, 359 F.Supp. at 824-24.

*Reprinted in Appendix for Appellants at 203a-207a.

4. In September, 1975, the Commonwealth submitted a

new plan, “Plan A,” providing for the consolidation of General

Braddock with neighboring school districts. On November 18,

1977, the district court denied the Commonwealth’s motion for

approval of Plan A even though it observed that the Plan

involved a “more moderate realignment” of school boundaries

than earlier plans.’ The memorandum and order denying

approval of the Plan also denied “any necessary injunctive

order to implement such plan. . . without prejudice to the right

of any party to submit further plans or proposal in support

thereof.”*

5. Plaintiffs appealed the district court’s order withhold-

ing approval of Plan A to this court. We dismissed that appeal

for want of appellate jurisdiction, noting that the district

court’s order was “neither a final order nor an appealable

interlocutory order which can vest this Court with appellate

jurisdiction.” Hoots IV, 587 F.2d at 1342. In dismissing the

appeal, however, we anticipated the speedy resolution of the

dispute and the implementation of appropriate relief by the

district court:

We are confident that, in light of the long history of

this litigation and the sensitive, constitutional nature of

the relief sought, the district court will require submission

of a plan forthwith and certainly within the time limits of

its original order, will expedite all further proceedings,

and will give priority on its calendar to consideration and

implementation of the plan. This being so, it would appear

that an appropriate final order can be entered by year end

which will grant plaintiffs the relief to which they are

entitled under the district court’s order of May 15, 1973.

587 F.2d at 1351. (footnote omitted).

’The plan would have consolidated seven school districts into three. See

Hoots IV, 587 F.2d at 1345 n.27.

* Reprinted in Appendix for Appellants at 208a-215a.

6. Following the dismissal of the appeal, appellants, on

January 25, 1979, asked the district court to order the Com-

monwealth to submit within forty-five days a desegregation

plan that was “interdistrict in character” involving either a

redistricting of GBASD, or “the tuitioning of current school-

age students in General Braddock Area School District to

appropriate surrounding school districts. . .,” or both. Appen-

dix for Appellants at 235a.

7. On February 6, 1979, the district court held a status

conference at which “a wide range of possible remedies [was]

discussed and “argued,” including district consolidation, the

tuition plan and a newly proposed “upgrade” plan for the

internal improvement of the quality of GBASD’s schools.

Application for Writ of Mandamus, Hoots v. Weber, No.

79-1474, at 7-8, reprinted in Appendix for Appellants at 243a-

244a. No order was issued by the district court at the confer-

ence.

8. On April 16, 1979, plaintiffs filed an application for

Writ of Mandamus requesting this court to order the district

court to “direct the state defendants to submit another interdis-

trict plan which would involve the use of tuition as a technique

to remedy the problem presented by C.A. No. 71-538.” Appli-

cation for Writ of Mandamus, Hoots v. Weber, No. 79-1474, at

2 reprinted in Appendix for Appellants at 23a. We denied the

application on May 2, 1979, “{iJn view of the answer of Chief

Judge Weber, and specifically his statement that he plans to

proceed promptly.” Hoots v. Weber, No. 79-1474 (3d Cir. May

2, 1979), reprinted in Appendix for Appellants at 312a.

9. On May 17, 1979 the district court entered two orders:

1) it directed the Commonwealth to prepare and file a tuition

voucher plan by August 15, 1979 for grades 7-12, or 10-12;9 and

°The district vourt’s memorandum order observed:

[i]t now appears to the Court that the most workable plan would be

a tuition voucher plan which would enable all students of the General

Braddock Area School system to achieve a quality education free from

(continued)

2) it added eight school districts as parties solely for the reme-

dial phase of the case.'° The newly joined school districts then

filed motions to dismiss; and in response to that motion the

court on June 12, 1979 ordered plaintiffs to brief the Milliken

v. Bradley question of whether the named school districts

could be included in a remedial plan.!!

10. The Commonwealth filed a proposed tuition plan and

moved for its approval on September 10, 1979.'2 After a hear-

ing on November 17, 1979, the district court denied the motion

and orally ordered the Commonwealth to prepare a more

detailed plan.

the effects of the segregation pattern now existing, by the adoption of a

tuition voucher plan available to all the General Braddock Area stu-

dents above the elementary school level, making use of the physical

plants and facilities, and the variety of educational programs offered by

nearby school districts.

Appendix for Appellant at 313a.

The following school districts were added: Turtle Creek Area School

District; Edgewood School District; West Mifflin School District; Steel

Valley School District; East Allegheny School District; Swissvale Area

School District; Churchill Area School District; and Gateway School Dis-

trict. Appendix for Appellants at 316a.

''Milliken v. Bradley, 418 U.S. 717, 744-745 (1974), discussed “the

validity of a remedy mandating cross-district or interdistrict consolidation to

remedy a condition of segregation found to exist in only one district:”

The controlling principle consistently ex pounded in our holdings is

that the scope of the remedy is determined by the nature and extent of

the constitutional violation .... Before the boundaries of separate and

autonomous school districts may be set aside by consolidating the

separate units for remedial purposes or by imposing a cross-district

remedy, it must first be shown that there has been a constitutional

violation within one district that produces a significant segregative

effect in another district. Specifically, it must be shown that racially

discriminatory acts of the state or local school districts, or of a single

school district have been a substantial cause of interdistrict segregation

. without any interdistrict violation and interdistrict effect, there is

no constitutional wrong calling for an interdistrict remedy.

'2On August 3, 1980, the Commonwealth had moved for an extension of

the August 15, 1980 deadline for submission of its plan. The motion was

unopposed and was granted on August 7, 1980.

11. The Commonwealth filed its more detailed tuition

plan on May 15, 1980 (“The Tuition Plan”). The plan provided

that: 1) all the GBASD students in grades 7-12 would be

transferred to eight surrounding school districts; 2) all the

GBASD secondary schools would be closed; 3) all the students

would be able to choose their new schools, subject to limita-

tions on the number of students that would be assigned to each

school district; 4) GBASD would pay the tuition of all of the

transferred students on the basis of the average cost of educat-

ing a student in the receiving district; 5) only the GBASD

students would be transported; and 6) there would be no

transfer of elementary school students.'3

12. On May 22, 1980, the Commonwealth submitted a

second plan, “a Metropolitan Desegregation Plan for General

Braddock Area School District” (“The Metropolitan Plan”).

Reprinted in Appendix for Appellants at 486a-516a. This plan

called for the consolidation of GBASD with three surrounding

school districts: Edgewood, Swissvale and Turtle Creek.!4

13. On June 6, 1980, GBASD filed its “upgrade plan.”

This plan provided for an intradistrict remedy: GBASD would

improve the quality of its schools’ programs and facilities in

order to attract parochial school students back to the public

schools. Reprinted in Appendix for Appellants at 475a-485a.

14. The district court ordered all parties to file their objec-

tions to the various plans by June 16, 1980. Appellants argued

for the rejection of the Tuition Plan because of its exclusion of

elementary school pupils. All but one of the school districts not

included in the Metropolitan Plan argued for its adoption for

the rejection of the Tuition Plan. All of the school districts

supported the upgrade plan; appellants opposed it.

'3Excerpts from the Commonwealth's May 15, 1980 plan are reprinted

in Appendix for Appellants at 358a-474a.

'4On August 4, 1980, the Commonwealth moved to withdraw the Met-

ropolitan Plan from the district court's consideration. The court has not

ru..d on this motion. Transcript of Oral Argument, Hoots v. Common-

wealth of Pennsylvania, No. 80-2116, at 92 (3d Cir. November 3, 1980).

15. On July 14, 1980, hearings commenced on the Tuition

Plan.'’ The Commonwealth offered evidence supporting the

Plan, arguing that it would offer a non-segregated education

for all children in grades 7-12. The Commonwealth admitted

that the plan did not address the elementary school grades, but

expressed its willingness to consider modifications to the

plan.'© The Commonwealth rested on July 17, 1980. At the

conclusion of the Commonwealth’s case, plaintiffs (along with

defendants East Allegheny, GBASD, Steel Valley, and West

Mifflin school districts) orally moved for the rejection of the

Tuition Plan. The motion was denied. Appendix for Appel-

lants at 529a.

16. Plaintiffs then presented testimony critical of the Tui-

tion Plan. The testimony centered on the inadequacy of the

relief insofar as it did not provide for the desegregation of

grades K-6. Plaintiffs’ witnesses were critical of the plan’s

allocation of GBASD students among eight, rather than fewer,

school districts. Plaintiffs also objected to shifting the entire

burden of relief to GBASD.

17. On July 24, 1980 plaintiffs filed a written motion to

reject the Tuition Planand for an injunction setting a timetable

to implement interdistrict relief beginning in the fall of 1980.

On July 28, 1980, the district court orally denied the motion.

Appendix for Appellants at 556a-560a. The plaintiffs then

'SThere is some dispute between the parties as to the scope of the July

and August district court hearings. At the conclusion of oral argument, we

requested the parties to submit letters addressing the question of whether the

hearings were limited to consideration of the Tuition Plan or whether they

also included consideration of interdistrict consolidation plans as well.

We have reviewed the submissions by the parties and believe that the

trial court intended to limit the hearings to the question of whether it should

adopt the Tuition Plan. Although the court received some evidence concern-

ing the advisability of implementing interdistrict consolidation relief, the

Tuition Plan remained the primary focus of the hearings.

'*The district court left open the possibility that it might order the

Commonwealth to modify the plan to include grades K-6. Transcri pt, Hoots

v. Commonwealth of Pennsylvania, No. 71-538, at 192-93(W.D. Pa. July 14,

1980).

10a

continued their presentation of evidence, which was not only

critical of the Tuition Plan, but also urged the adopted of

consolidation relief similar to the Metropolitan Plan.

18. On July 30, 1980, at the close of their case, plaintiffs

once again filed a written motion asking the district court to

reject the Tuition Plan and to grant an injunction providing for

immediate relief in the form of a merger or consolidation plan,

and for the imposition by the court of a timetable to implement

such a plan beginning in mid-school year 1980-81. The district

court denied the motion without prejudice.!’

19. On August 4, 1980 plaintiffs filed a notice of appeal

from the district court’s July 28 (oral) and July 30 (written)

orders denying injunctive relief. An application for a writ of

mandamus was filed on August 11, 1980. We granted plaintiffs’

motion for expedited appeal on August 14, 1980. Hoots v.

Commonwealth of Pennsylvania, No. 80-2116 (3d Cir. August

14, 1980). Subsequently, we denied the application for manda-

mus on September 9, 1980. Hoots v. Weber, No. 80-2124 (3d

Cir. September 9, 1980).

20. Following the notice of appeal, the district court con-

tinued to take testimony on the Tuition Plan. At the conclusion

of hearings on August 22, 1980, the district court requested

briefing on two issues: 1) which school districts could be

included, consistent with Milliken v. Bradley, in a remedial

plan; and 2) whether the Tuition Plan, asa matter of law, failed

to correct the constitutional violation. The court scheduled

arguments on these issues for October 2, 1980, and noted that

'"The district court's July 30 order provided:

1. Plaintiff's request of July 30, 1980 that the Tuition Plan and the

tuition concept be rejected forthwith is denied, without prejudice to its

renewal at the end of the hearings on said Plan.

2. Plaintiff's request of July 30, 1980, that this Court grant them an

injunction affording them merger, or consolidation relief beginning in

the fall of 1980 is denied, without prejudice.

Reprinted in Appendix for Appellant at 584a.

their resolution would determine the possibility of future hear-

ings on either merger or upgrade plans.

21. Oral argument was held before this court on

November 3, 1980. Subsequently, on November 20, 1980 we

granted appellants’ motion that the record be supplemented

with all documents and transcripts of testimony and argument

filed in the district court after July 30, 1980. We filed a second

order to supplement the record on December 4, 1980.

22. The supplemented record reveals that on November

13, 1980 Judge Weber stated that he would schedule no further

proceedings until this court ruled on the instant appeal.

Further, he ordered that disposition of the matters briefed and

argued on October 2, 1980 be stayed pending appeal.

23. The threshold question in this appeal is that of appel-

late jurisdiction. Appellants assert that Judge Weber's July 30,

1980 order is either final within the meaning of 28 U.S.C. § 1291

(1976),'8 or that the order comes within the class of appealable

injunctive orders under 28 U.S.C. §1292(a)(1) (1976).'® The

Commonwealth appellees “concede” jurisdiction under section

1292(a)(1) but challenge our jurisdiction under section 1291.

Several school district appellees contest jurisdiction on either

basis.

24. It is the duty of this court to examine its jurisdiction in

every case, Mansfield, Coldwater & Lake Michigan Railway

'*Section 1291 provides:

The courts of appeals shall have jurisdiction of appeals from all

final decisions of the district courts of the United States, ... except

where a direct review may be had in the Supreme Court.

"Section 1292(a)(1) provides:

(a) The courts of appeals shall have jurisdiction of appeals from:

(1) Interlocutory orders of the district courts of the United States,

.. or of the judges thereof, granting, continuing, modifying, refusing

or dissolving injunctions, or refusing to dissolve or modify injunctions,

except where a direct review may be had in the Supreme Court.

12a

Company v. Swan, 111 U.S. 379 (1884); United States ex rel.

Esola v. Groomes, 520 F.2d 830, 834 n.16 (3d Cir. 1975),

notwithstanding any agreement among the litigants that such

jurisdiction exists. United States v. Cities Service Company,

410 F.2d 662, 663 (Ist Cir. 1969). Accordingly, we must exam-

ine the text of Judge Weber’s July 30, 1980 order to see if it is

appealable under either section 1291 or section 1292(a).

25. Appellants premise their claim of section 1291 jurisdic-

tion, as they did in Hoots IV, on the Sixth Circuit's decision in

Kelley v. Metropolitan Board of Education, 436 F.2d 856 (6th

Cir. 1970).2° We once again find this argument unpersuasive,

and find that the district court’s July 30 order was not a final

decision within the meaning of section 1291. This circuit has

consistently given a narrow definition to the class of final

orders that are appealable. Hoots /V, 587 F.2d at 1347;

Bachowski v. Usery, 545 F.2d 363, 373-74 (3d Cir. 1976). The

July 30 order does not fall within this narrow class, and hence is

not appealable under section 1291. A contrary finding would

substantially erode the purpose of the final order doctrine.

Bachowski, 545 F.2d at 373. See Hoots IV, 587 F.2d at 1346-

48.

26. Appellants argue, in the alternative, that the July 30,

1980 order is appealable as a denial of an injunction under 28

U.S.C. §1292(a\(1) (1976). They claim that the district court's

denial of an injunction that would have afforded them merger

or consolidation relief falls within the class of appealable inter-

locutory orders under section 1292(a 1).

27. The July 30 order, on its face, denied injunctive relief

to appellants. We have observed, however, that “literal charac-

terization of an order as an injunction only begins the inquiry

That case involved the desegregation of the Nashville, Tennessee

schools. The school board had submitted a plan for desegregation relief to

the district court, but the court stayed indefinitely all proceedings pending

the Supreme Court's decision of desegregation cases on its docket. The Sixth

Circuit held that a stay for an indefinite time was appealable as a final order

under §1291, and vacated the stay.

13a

into appealability.” Stateside Machinery Company, Ltd. v.

Alperin, 526 F.2d 480, 482 (3d Cir. 1975); Rodgers v. United

States Steel Corporation, 541 F.2d 365, 372 (3d Cir. 1976), We

must look beyond the text of the order and read it in the

context of the history and purpose of section 1292(a)(1). See

Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 180-81

(1955); Stewart- Warner Corporation v. Westinghouse Electric

Corporation, 325 F.2d 822, 829-30 (2d Cir. 1963) (Friendly, J.

dissenting), cert. denied 376 U.S. 944 (1964). Appealability of

interlocutory orders under section 1292(a)(1) developed

because of a “need to permit litigants to effectually challenge

interlocutory orders of serious, perhaps irreparable, conse-

quence,” Gardner v. Westinghouse Broadcasting Co., 437 U.S.

478, 480 (1978), quoting Baltimore Contractors, 348 U.S, at

181,

28. We find that the July 30, 1980 order denying injunctive

relief to appellants effective in the fall of 1980 was an interlocu-

tory order of “serious, perhaps irreparable consequences” that

vests this court with appellate jurisdiction under 28 U.S.C,

§1292(ay(1) (1976).2! The district court denied the relief

requested by appellants, and the denial had serious, if not

irreparable consequences for GBASD school children who will

now have to wait another year before enrolling in racially

integrated schools, “Although the trial court denied the motion

for an injunction “without prejudice,’”? the effect of the denial

was to preclude any possibility of granting the relief sought by

appellants,” Thus the July 30, 1980 order is distinguishable

from the order appealed in Hoots /V which did not deny any

“element of the relief sought by plaintiffs” and “did not seek

any injunction,” Hoots /V, 587 F.2d at 1348 n,42,2)

Judge Higginbotham is of the view that there is also appellate jurisdic

tion under 28 U.S.C, 61291 (1976),

See n. 17, supra,

“CY, United States v, Texas Educational Ageney, No, 79-2833 (Sth Cir,

Nov, 15, 1979) (Court of appeals took jurisdiction over trial court's denial of

immediate injunctive relief in school desegregation case),

I4a

29. Having decided that we have jurisdiction to review the

district court’s July 30, 1980 order, we begin our consideration

of the merits by observing that our role as an appellate court is

a limited one. As this court held in Evens v. Buchanan, 555

F.2d 373, 380 (3d Cir, 1977) (en banc), in school desegregation

cases “[fJormulating a realistic, practical, and effective remedy

is a job peculiarly within the province of the trial court, whose

position gives it a quantum advantage over an appellate court

in weighing the ‘practicalities of the situation,’” In litigation as

long and complex as this, the fashioning of relief should nor-

mally “be entrusted in large measure to the sound discretion of

the District Court Judge who has lived with [it] for so many

years.” Gilmore v. City of Montgomery, 417 U.S, 556, 577

(1974) (Marshall, J, concurring).

30. Balanced against our deference to the trial court,

however, is an affirmative obligation to ensure that de jure

discrimination in public schools is remedied “forthwith,”

Swann v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1, 14-15 (1971); See also Carter v. West Feliciana Parish

School Board, 396 U.S, 290 (1970); Alexander v. Holmes

County Board of Education, 396 U.S. 19 (1969); Green v.

County School Board of New Kent County, 391 U.S, 430

(1968). Although the primary responsibility for remedying past

discrimination rests with the school authorities, Green, 391

U.S, at 437-38, “in default by the school authorities of their

obligation to proffer acceptable remedies, a district court has

broad power to fashion a remedy that will assure a unitary

school system,” Swann, 402 U.S, at 16. See also Columbus

Board of Education v, Penick, 443 U.S, 449, 458-61 (1979), The

district court “has not merely the power but the duty to render

a decree which will so far as possible eliminate the discrimina-

tory effects of the past as well as bar like discrimination in the

future.” Green, 391 U.S. at 438 n.4, quoting Louisiana vy,

United States, 380 U.S, 145, 154 (1965), See also United States

15a

v. DeSoto Parish School Board, 574 F.2d 804, 811 (Sth Cir.)

cert. denied, 439 U.S, 982 (1978). (“If the school board defaults

in its duty, the responsibility of the District Court is equally

clear and compelling: to use its broad and flexible equitable

powers to implement a remedy.”)

31. Striking the required balance in this case, we conclude

that the formulation of an appropriate remedy lies within the

sound discretion of the district court. Accordingly, we decline

to grant appellants’ request that we require the implementation

of merger or consolidation relief, We also decline, at this time,

to reject the concept of a tuition plan for GBASD. The primary

duty to choose between these competing remedial plans rests

with the district court, Regardless of the particular plan chosen

by the district court, the remedy must be broad enough to

completely eradicate the de jure discrimination found by the

trial court in Hoots //, See Anderson v. Dougherty County

Board of Education, 609 F.2d 225, 226 (Sth Cir, 1980),

32. Although we held that the duty to fashion a remedy is

charged to the district court, we are nonetheless obligated to

ensure that relief be implemented as promptly and as practica-

bly as possible. Once before, we expressed our confidence that

the parties would assist the trial court in reaching a speedy

resolution of the remedial phase of this protracted case, But the

vagaries of litigation, including a change in appellant's counsel

and shifting litigation strategies and positions, have prevented

this result, Accordingly, we are constrained to take affirmative

steps to guarantee that relief will be implemented forthwith,

33, Our understanding of the posture of the case is that

hearings have been completed on the Tuition Plan and that at

least some testimony has been taken on the merits of consolida-

tion or interdistrict relief.2* The district court has taken briefs

and heard arguments on the Milliken question, but has not yet

ruled on which school districts can be included within an

“See discussion at n, 15, supra,

16a

interdistrict remedial plan. On November 13, the district court

suspended all further proceedings pending our decision.

34. We believe it to be essential that the district court

afford relief to appellants that will be effective in the fall of

1981. Under no circumstances should a new school year begin

in the fall of 1981 without an acceptable remedial plan in place.

35. Accordingly, we order the district court? to expedite

its consideration of this case so that within ninety days”¢ of the

issuance of the mandate of this court it shall:

1) complete all hearings and necessary proceedings on

the merits of the competing remedial plans for the

desegregation of GBASD;

2) decide the Milliken v. Bradley issue of which school

districts may be included within an interdistrict

remedy; and

3) enter an appropriate final order granting appellants

the relief to which they are entitled under the district

court’s order of May 15, 1973, such relief to be effec-

tive and implemented by the beginning of the first

semester of the school year in the fall of 1981.

‘We are confident that with the cooperation of all parties, and

with complete mobilization of the court’s and the parties’

efforts and resources in this compelling endeavor, this time-

table may and will be achieved.

25 Although our order is necessarily directed to the district court, we fully

recognize that the delay in this litigation is in large part attributable to the

actions of the parties, and not to the Chief Judge of the Western District, who

has valiantly and ably wrestled with the complex issues of this case since

1971. Thus, contrary to the assertion made by the dissent, our order does not

reflect any criticism, implied or express, of the Chief Judge’s conduct of the

litigation. Accordingly we admonish the parties to provide the district court

with whatever assistance it may require to comply with our mandate.

26Cf. Anderson v. Dougherty County Board of Education, 609 F.2d 225,

226 (Sth Cir. 1980) (Court of appeals ordered district court to adopt a

desegregation plan within sixty days of entry of its order).

17a

IV.

36. Therefore, we vacate the July 30, 1980 order of district

court and remand for proceedings consistent with this opinion.

The mandate of this court shall issue forthwith.

LEON HIGGINBOTHAM, JR., Concurring.

On June 9, 1971, Dorothy Hoots and other concerned

parents of children attending public schools in the General

Braddock Area School District (GBASD) in Allegheny

County, Pennsylvania, filed a complaint challenging its

racially segregated school system. On May 15, 1973, the district

court held that the creation of the GBASD was “an act of de

jure discrimination” in violation of the fourteenth amendment.

Hoots v. Commonwealth of Pennsylvania, 359 F.Supp. 807,

823 (W.D.Pa. 1973), (Hoots Il), appeal dismissed, 495 F.2d

1095 (3d Cir. 1974), cert. denied, 419 U.S. 884 (1974). Almost

seven years have since elapsed without the district court order-

ing any remedy. There have been numerous appeals during this

period attempting, without success, to expedite the implemen-

tation of an effective remedy. Judge Hunter has dealt with this

problem of unconscionable delay in a thoughtful and moderate

opinion which imposes quite reasonable time limitations. I join

Judge Hunter in the result.!

I feel compelled to write separately, however, to empha-

size my fundamental differences with the dissent of Judge

Garth, whochallenges the power and the wisdom of this court’s

'If | had been a member of the panel in Hoots /V, 587 F.2d 1340 (3d Cir.

1978), | would probably have agreed with Judge Gibbons’ dissent. From my

view, Judge Gibbons’ conclusion was unassailable. As he wrote:

On the record before us, where the very object of the appeal is to cure

unconscionable delay which is causing irreparable harm, the majority's

reference to “the goal of speedy justice” as a justification for dismissing it

rings hollow. And as to caseload considerations, this is one of those

cases in which our concern about the caseload must yield to our obliga-

tion to enforce the supremacy of federal law. There is no justification for

dismissing this appeal.

587 F.2d at 1357 (footnote omitted).

18a

imposing a 90-day timetable on the district court to choose a

remedial plan. Despite the passage of 9!4 years since the filing

of the original complaint, and the graduation of black students

each year from a public school system held to be in violation of

the United States Constitution, the dissent today claims that

we are powerless to place any time limitations on the district

court’s consideration of possible remedial decrees. I find this

view of the powerlessness of an appellate court contrary to

judicial precedent and doctrine and a derogation of our judicial

mandate to enforce the provisions of the Constitution. I know

of no other judicial authority, and the dissent does not cite any,

which has ever taken such a position. I reject it completely.

Judge Garth provides three reasons for refusing to impose

a time limitation on the district court. First, he claims that an

appellate court lacks the power under any circumstance to

impose a timetable for decision on a district court judge.

Second, he claims that even if we do possess such power, it is

inadvisable as a matter of policy that we exercise it. He believes

this is especially true in this case where, according to Judge

Garth, the 9'4 year delay is not the responsibility of the district

court judge. Finaily, he claims that a 90-day requirements is

too restrictive. I find his hypothetical and speculative argu-

ments unpersuasive and divorced from the stark reality of this

inexcusable 9!4 year delay.

THE POWER TO IMPOSE A TIMETABLE

The dissent’s contention that we lack the power to place

time limitations ona district judge is contradicted by numerous

federal decisions. Every court which has reached this issue has

found that an appellate court possesses the power, in excep-

tional circumstances, to impose time limitations on the district

court. In Anderson v. Dougherty County Bd. of Educ., 609

19a

F.2d 225, 226 (Sth Cir. 1980), the appellate court ordered “the

district court to adopt a plan for the desegregation of the

elementary and junior high schools in the Dougherty County

School system within sixty days from the entry of [the appel-

late court’s] order,” and retained jurisdiction. The Fifth Circuit

also imposed a mandatory timetable in the case of United

States v. Texas Educ. Agency, No. 79-2833 (Sth Cir. November

15, 1979) (per curiam). The dissent characterizes the Anderson

decision as “improvident and improper,” but cites no cases

from the Fifth Circuit or any other circuit disapproving sucha

decree. Typescript at 45-46 n.8.

Indeed, numerous courts have gone even further and

themselves drafted injunctions where the district court was

unwilling or unable to act. For example, in United States v.

Lynd, 301 F.2d 818 (Sth Cir.), cert. denied, 371 U.S. 893 (1962),

the Fifth Circuit employed extraordinary powers to remedy

violations of voting rights by granting a temporay injunction at

the Court of Appeals level. Judge Tuttle, writing for the court,

ordered the injunction “transmitted forthwith to the Clerk of

the District Court,” bypassing completely a remand to the

district court for fashioning an entry of the injunction. 301

F.2d at 823. See also United States v. Lynd, 349 F.2d 785 (Sth

Cir. 1965); Stell v. Savannah-Chatham County Bd. of Educ.,

318 F.2d 425 (Sth Cir. 1963). An even more compelling exam-

ple of the power of the Court of Appeals was evidenced in

United States v. Barnett, 330 F.2d 369 (Sth Cir. 1963) (the

James Meredith case), cert. denied, 376 U.S. 681 (1964), where

the appellate court, sitting en banc, heard witnesses in open

court and entered “its order, findings of fact and conclusions of

law and judgment of civil contempt.” 330 F.2d at 376.

Although Chief Judge Weber’s handling of the Hoots case is

not comparable to the actions of the district court judges in

Lynd and Barnett, these cases demonstrate the power and duty

of the Court of Appeals to make real every citizen’s fundamen-

tal civil rights.

20a

The dissent does not challenge the power of the circuit

court to take testimony and to fashion and enter its own

injunctive decree, as in Lynd and Barnett. Rather, it claims,

that the exercise of such powers “obviously [has] nothing to do

with a Court of Appeals order which commands that a district

court deal with discretionary and evidentiary matters within a

particular time frame”. Typescript at 51. Yet the usurpation by

the Court of Appeals of the district court’s duty to hold eviden-

tiary hearings and to fashion a remedy isa far greater intrusion

on the lower court’s discretion than a modest 90-day order. If

the dissent does not challenge the power of the court to take

these extraordinary actions, I fail to see how it can deny its

power merely to place a time limitation on the district court’s

decision. It is precisely because we are unwilling to intrude

upon the district court’s discretion any further than is neces-

sary that we have sent the case back for a final decision by Chief

Judge Weber.

THE WISDOM OF PLACING TIME

LIMITATIONS ON JUDGES

The dissent’s second argument is that, even if we have the

power to impose such a time limitation, it is “inadvisable” that

we exercise it. Setting any timetable would be “unseemly,

injudicious, improper and unrealistic” because it unduly limits

the discretion of the district court judge and upsets him emo-

tionally. The dissent is replete with scare words predicting

doom for the federal judiciary if, after 9'4 years, the district

court is ordered to relve the case within an additional 3 months.

It sees this order as carrying the “seeds of great mischief and

potential disruption” and finds it “demeaning and even insult-

ing” to the district court judge because it “misconceived and

misdirected” and implies “criticism” of the district judge.

Typescript at 37-40. Judge Garth sees the majority’s opinion as

an implied threat to hold the district judge “in contempt,” to

2la

subject him to “some form of disciplinary proceeding,” to

“remove his caseload,” and finally, to “point a gun without the

ability to pull its trigger”. Typescript at 49.

I cannot find a basis for any responsible judge to be

demeaned because a judgment is vacated and remanded to him

in a 9'4 year case where the litigants have received no relief.

Article III judges are, or should be, mature enough to recog-

nize that remands are not “demeaning and even insulting.”

Speaking of the Supreme Court, Justice Robert Jackson once

commented, “We are not final because we are infallible, but we

are infallible only because we are final.” Brown v. Allen, 344

U.S. 433, 540 (1953) (Jackson, J., concurring). In my view,

district court judges have a healthy skepticism of the infallabil-

ity of all appellate courts. I do not believe that they will shirk

from their duty and obligations when a “higher” court dis-

agrees with them on the law. Hardly a week goes by without

this court reversing a district judge. I have yet to find any

district court judge who believes that a good faith reversal or

remand is “pointing a gun” to the lower court judge’s head.

Judge Garth stresses what he perceives as the “humilia-

tion” of the district judge because of this 90-day order. Our

court should have equal concern for the humiliation thrust

upon innocent black children who for almost a decade have

been begging for judicial relief from the persistent constitu-

tional violation which Chief Judge Weber? found they endure,

and of the humiliation when hundreds of black children have

already graduated without ever having their constitutional

rights enforced.

Nowhere is the dissent more misleading and deceptive

than the “Ode” to district court judges. The dissent distorts the

issue totally and measures the precious constitutional rights of

children by impermissible standards. While I appreciate the

21 would like to make it clear that I have high regard for Chief Judge

Weber. While I am dissatisfied with his pace in handling this particular case,

my opinion is not intended to be disparaging of him asa Judge or as a person.

22a

fact, as Judge Garth notes, that he was a district court judge for

three years, the judges of the majority are not bereft of state

trial or district court experience. I am not hostile to district

court judges and I will not debate the claim that district court

judges are “the most diligent, conscientious and hard-working

judicial cadres in this country.” Typescript at 39. I recognize

that Chief Judge Weber is an excellent judge; he is not malevo-

lent, venal or incompetent. But despite my agreement with the

dissent’s accolades on the general exellence of district judges, I

believe that Chief Judge Weber, like all of us, is not infallible.

Far more important than back-patting rhetoric among the

judicial fraternity as a mutual admiration society, the citizens

of this nation are entitled to have their civil rights implemented

promptly even if, in the words of the dissent, some district

judges might “have resentment” of our views of the Constitu-

tion.

Judges and lawyers should never be shocked with time

limitations to finish their obligations. This court’s own Internal

Operating Procedures (IOP’s) are replete with time limitations

on judges and the parties which can be more restrictive and

demanding than the present 90-day order. We require that

parties submit briefs four weeks before oral argument. IOP,

Chapter I(A). We require that a judge write a dissent within 45

days of the circulation of the majority opinion. IOP, Chapter

V(D). And we require that judges vote to rehear a case, or filea

dissent to a denial of a petition for rehearing, within 8 days of

the circulation of the petition for rehearing. IOP, Chapter

IX(A)(3), (A)(6)(d).

The dissent’s rejection of the time limitations is predicated

on the view that we never could enforce such an order. Of

course, all appellate decisions ultimately rest upon the willing-

ness of district court judges to obey them, rather than any

inherent power we have to physically enforce compliance.

Time limitations are not more inherently unenforceable than

any other type of order. If the power of this court to act were

limited, as the dissent suggests, to those situations where we

23a

could physically force compliance on district court judges, then

this court would be stripped of its purpose and function.

It is the responsibility of a district court judge to shape the

movement of cases through his or her court. Once suit has been

brought, he or she has a duty to meet this constitutional

mandate. Yet nearly ten years have elapsed in this case since the

suit was filed. The original plaintiffs, along with a generation of

black students from Allegheny County, have already gradu-

ated from school and irretrievably lost the opportunity ever to

receive a public school education which conforms with consti-

tutional requirements. After the judge has struggled without

success for almost ten years to meet this mandate, and we have

recommended in a previous appeal of two years ago that the

case be disposed of within six months, it would be a derogation

of our function as an appellate court not to impose a require-

ment that the court act with dispatch.

Neither Chief Judge Weber nor district court judges in

general are on trial here. The issue is whether black children

who have waited patiently at the courthouse door for more

than 9/4 years without an ounce of relief are entitled toa decree

that their matter be expedited withina specific time frame. The

rights of citizens are not contingent upon a Gallup poll survey

as to whether a district judge or even the community in general

is receptive to a constitutional mandate. If the Constitution

required that appellate courts worry about “resentment on the

part” of a district court judge or by the community, as Judge

Garth suggests, Typescript at 39, then James Meredith would

still be waiting in vain to enter the University of Mississippi,

Autherine Lucy’s application to the University of Alabama

would still be in limbo, and thousands of blacks denied the

right to vote in Forrest County, Mississippi would still be

disenfranchised. See United States v. Barnett; Lucy V. Adams,

228 F.2d 619 (Sth Cir.), cert. denied, 351 U.S. 931 (1956);

United States v. Lynd}

3See generally Note, Judicial Performance in the Fifth Circuit, 73 Yale

L.J. 90 (1963).

24a

Fortunately, neither the Court of Appeals for the Fifth

Circuit nor any other federal appellate court in the nation has

adopted the unconstitutional standard urged in the dissent.

THE CAUSE OF THE DELAY

Judge Garth also contends that whatever the general mer-

its of restricting the timetable of district court decisions, the

facts of this case do not warrant such action. He suggests that

the 94 year delay is due entirely to the actions of the plaintiffs,

and therefore the district should not be held accountable for

the time delay.

The delay in this case is allegedly due to “two improvident

appeals and the} recent decision of the plaintiffs to change

direction in midstream.” Typescript at 40-41 (footnote omit-

ted). A review of the factual circumstances under which the

plaintiffs were forced to act reveals that the two appeals were

taken in an effort to force the implementation of a remedy and

not to delay the proceedings. Indeed, virtually every action by

the plaintiffs has been in response to inaction by either the

district court or the defendants.

The plaintiffs’ first appeal* was taken to this court in 1977

after Chief Judge Weber issued his November 1977 Order

denying Plan A. Plan A was a school district consolidation

program first submitted to the Pennsylvania State Board of

Education (State Board) in July of 1973 by the plaintiffs. The

plaintiffs endorsed this plan from 1973 until it was rejected by

the district court. The State Board itself adopted Plan A after

hearings in 1975, and at the hearing held before Chief Judge

Weber, only one defendant district opposed its implementa-

tion. Nevertheless, Judge Chief Weber rejected Plan A and

another consolidation alternative (Plan 22-W) because he

‘An earlier appeal was taken by the defendants but presumably the

plaintiffs cannot be charged with the delay incident to it. Hoots I11, 495 F.2d

1095 (3d Cir.), cert. denied, 419 U.S. 884 (1974).

25a

found “no evidence of broad base community support for such

a remedy.”> Order of November 18, 1977, p. 4, reprinted in

Appendix at 21 la.

The plaintiffs appealed this order. Judge Garth, writing

for a divided court, held that there was no appealable order and

dismissed the appeal. Hoots IV. Interestingly enough, Judge

Garth observed in Hoots IV that:

The order of May 15, 1973 provided for submission of a

plan within forty-five days. Inasmuch as the plaintiffs now

regard the Commonwealth’s Plan A as affording appro-

priate relief, a common base apparently exists from which

a remedy may be expeditiously fashioned.

587 F.2d at 1351 n.57. As has already been exhaustively

detailed, the Hoots IV admonition by Judge Garth did not

result in the desegregation of GBASD or in any remedy for

plaintiffs during the 26 months since that decision was filed.

The second “improvident appeal” resulted from the plain-

tiffs’ motion of January 29, 1979 asking Chief Judge Weber to

order the Commonwealth to submit one or more plans to the

district court. This motion followed repeated efforts by the

court and the plaintiffs to move the Commonwealth to propose

an acceptable plan.’ When the district court by mid-April of

5It is axiomatic that community resistance to a desegregation remedy is

an inappropriate rationale for rejecting an otherwise acceptable plan. Brown

v. Bd. of Educ. of Topeka, Kansas (Brown /1), 349 U.S. 294, 300 (1955);

Cooper v. Aaron, 358 U.S. | (1958); Monroe v. Bd. of Comm'rs of the City of

Jackson, 391 U.S. 450 (1968).

‘After Chief Judge Weber's initial 1973 order directed the Common-

wealth to submit a plan for desegregation within 45 days, the Commonwealth

sought and received two extensions which resulted in the passing of the

1973-1974 and 1975-1976 school years without a remedy in place.

7It is clear that if a defendant fails to come up with an adequate remedy

then the duty falls upon the district court to “make every effort to achieve the

greatest possible degree of actual desegregation.” Davis v. School Comm'rs

of Mobile County, 402 U.S. 33, 37 (1971). The federal courts have the

authority to formulate broad remedies. Dayton Bd. of Educ. v. Brinkman,

433 U.S. 406 (1977); Keyes v. School District No. 1, Denver, Colorado, 413

(continued)

26a

1979 had still taken no action on the January 29 motion, the

plaintiffs petitioned this court for a writ of mandamus. This

court denied the writ after receiving a response from Chief

Judge Weber that he would “order a submission of a plan

forthwith and schedule the plan for prompt hearings.”

Nowhere did this court indicate that the action of the plaintiffs

was dilatory or frivolous.

Likewise, the plaintiffs’ reluctant willingness to accept a

tuition plan was more the result of frustration occasioned by

the passage of school year after school year than it wasa desire

to see a tuition plan in use. Chief Judge Weber has regularly

indicated to the plaintiffs that “the difficulty with. . .any

. .merger plan is what might be called community accep-

tance,” and that a tuition plan “arouse{s] the least opposition.”

It is little wonder that the plaintiffs during the course of their

914 year battle would be willing to at least have considered the

use of a tuition plan. It is also not surprising that, as able and

conscientious attorneys, they would refuse to accept a tuition

plan, as ultimately developed, which is unconstitutional on

its face because it leaves completely unremedied grades K

through 6. As I view the facts and history of this case, the

plaintiffs have been flexible and willing to consider any alter-

native that might result in an effective remedy. In turn, they

have been met be delay and inaction on the part of the court

and defendants.

THE 90-DAY REQUIREMENT

Finally, Judge Garth argues that, even if some time limita-

tion is proper, 90-days is too short. I believe that the order is

entirely appropriate and reasonable under the circumstances

U.S. 189 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. |

(1971). The district court’s granting of two major extensions to the Common-

wealth when the latter failed to discharge its duties under the 45-day order

cannot be attributed in any way to the plaintiffs.

27a

of this case, Most of the factual issues have been litigated and

the legal issues briefed," From its experience with the case for

nearly ten years, the district court is also intimately familar

with the various options,

The need for a 90-day fixed time order, enforceable by

mandamus if necessary, is evidenced by the failure of this

court's admonition to the district court in Hoots /V to have a

plan in place by the 1978-1979 school year, There Judge Garth

wrote:

Having concluded that the November 18, 1977 order

is not appealable, we have no jurisdiction to review it and

thus must dismiss the plaintiffs’ appeal, We are confident

that, in light of the jong history of this litigation and the

sensitive, constitutional nature of the relief sought, the

district court will require submission of a plan forthwith

and certainly within the time limits of its original order,

will expedite all further proceedings, and will give priority

on its calendar to consideration and implementation of

the plan, This being so, it would appear that an appro-

priate final order can be entered by year end which will

grant plaintiffs the relief to which they are entitled under

the district court's order of May 15, 1973,

587 F.2d at 1351 (footnote omitted),

To anyone who believes that the civil rights of our citizens

are at least as important as the business rights of corporations,

the dissent’s explanation as to why it may be so difficult for a

judge to act within 90 days on this 9'4 year-old case is absurd,

Judge Garth is worried that there might be “unforeseen cir-

cumstances, illnesses, accidents, emergencies, deaths, court

conflicts and the like.” Typescript at 44, From my observation

as a federal judge for more than 17 years, | have never found

the federal courts impotent or unable to act with dispatch when

important corporate or stockholder rights are involved,

‘For example, the Milliken v, Bradley, 418 U.S, 717 (1974), issue has

been briefed four times before Chief Judge Weber since 1974,

28a

Only last month, in Kennecott Corp, v. Smith, No, 80-

2696 (3d Cir, December 17, 1980), we were willing to impose

extraordinary time deadlines because of the needs of two cor-

porations in a sixteen million dollar tender offer battle, On

November 15, 1980, the district court in that case denied a

motion by Kennecottfora preliminary injuction and vacation

of a temporary restraining order, thereby preventing the con-

tinuation of the tender offer, “Because of the short time

requirements for tender offers established by the SEC regula-

tions,” Slip Op, at 7, this court expedited briefing and appeal,

and oral argument was held on December 11, On December 17,

six days after oral argument, the panel, of which Judge Garth

was a member, filed a 21-page opinion reversing the district

court and directing it to conduct further proceedings “as expe-

ditiously as possible.” Slip Op, at 21 n.11, Normally, under the

1OP’s of our court, a judge must circulate a draft opinion to the

active judges for eight days before it can be filed. IOP, Chapter

IX(A)(3). In Kennecott, because of the importance of time to

the corporations involved in the tender offer, this court held an

expedited oral argument sixteen days after the district court's

decision, and filed the opinion six days after that argument.’

If in corporate cases this court is willing to expedite its

own procedures so dramatically to reduce judicial considera-

tion by several months, I fail to understand why we may not

"The opinion of the court in Kennecott repeatedly stresses the critical

need to avoid delay when courts are issuing injunctions in tender offer

battles. Delay would have “detrimental effects on the stock market" and

undermine the “market approach of the Williams Act,” Slip Op, at 16, 18, An

evidentiary hearing to determine the impact of delay was held to be unwar-

ranted because, as found by Congress in passing the Williams Act, “it would

not be possible to recast the balance between incumbent and challenger.” Slip

Op, at 19, The dissent finds Kennecott distinguishable because it involves the

Court of Appeals placing a time limitation on itself, rather than on the

district court, Typescript at 53-54, Kennecott is cited, however, to refute the

dissent's proposition that, assuming time limitations are proper, the court's

workload makes a 90-day deadline unreasonable,

29a

require a district court judge to decide a civil rights case in three

months when he has had it for almost ten years,

Il,

The Intrusion Upon Judicial Independence

In the final analysis Judge Garth's ultimate conclusion is

that ‘we have committed an almost unprecedented intrusion

upon judicial independence,” Typescript at 45, He cites only

one case to explain why this is true—Chandler v, Judicial

Council, 398 U.S, 74(1970), Chandler involved a tragic case of

a district judge who was cantankerous to the extreme and in all

probability mentally ill, As Justice Douglas commented, the

Chandler “case has been and continues to be the liveliest, most

controversial contest involving a federal judge in modern Unit-

ed States history,” 398 U.S. at 130, There the Judicial Council

of the Tenth Circuit had, because of “the attitude and conduct

of Judge Chandler,” found that he was “unable, or unwilling,

to discharge efficiently the duties of his office; that a change

must be made in the division of business and the assignment of

cases in the Western District of Oklahoma;” and that for a

period of time his cases had to be reassigned to other judges.

398 U.S, at 77-78. The Supreme Court denied him a writ of

mandamus,

Two cases could hardly be more dissimilar, Here we are

dealing with a judge who is well, competent and has not been

disparaged personally or professionally, Even in Chandler

when focusing on this problem, Chief Justice Burger observed:

There can, of course, be no disagreement among us as to

the imperative need for total and absolute independence

of judges in deciding cases or in any phase of the decisional

function, But it is quite another matter to say that each

Judge in a complex system shall be the absolute ruler of his

manner of conducting judicial business.

398 U.S. at 84 (emphasis added). Chief Justice Burger ques-

tioned whether “each judge [can] be an absolute monarch and

-*%

30a

yet have a complex judicial system function efficiently?” 398

U.S. at 86.

The dissent asserts that this court lacks the power to

impose a time limitation on a district court judge because such

a step is analagous to “stripp[ing]” him of his “caseload” as in

Chandler. I find this analogy unpersuasive. We are not depriv-

ing the district court judge of his right to hear the case, as in

Chandler, or to fashion a remedy, as in Lynd. While I do not

disagree with Justice Douglas’ concerns about preserving the

independence of the federal judiciary, bluntly, Chandler is

totally irrelevant to the instant case.

If one is seeking more relevant philosophical expressions

of Justice Douglas, I submit that the Justice’s opinion in Bell v.

Maryland, 378 U.S. 226 (1964), involving the question of

whether blacks could be denied equal public accommodations

in a restaurant, would be far more apt. Twelve black students

had been prosecuted for criminal trespass because they dared

to believe they were entitled to unsegregated service at the

Hooper’s Restaurant in Baltimore. In urging that the indict-

ment must be dismissed, Justice Douglas asserted:

We have in this case a question that is basic to our way of

life and fundamental in our constitutional scheme. No

question preoccupies the country more than this one; it is

plainly justiciable; it presses for a decision one way or

another; we should resolve it. The people should know

that when filibusters occupy other forums, when oppres-

sions are great, when the clash of authority between the

individual and the State is severe, they can still get justice

in the court. When we default, as we do today, the prestige

of law in the life of the Nation is weakened.

378 U.S. at 244-45 (Douglas, J., concurring). If the disent’s

views were accepted, this court would be defaulting on its

obligations and “the prestige of law in the life of the Nation

[would be] weakened.” |

3la

Ill

CONCLUSION

When dissenting in Hoots 1V, Judge Gibbons asserted:

On the record before us, where the very object of the

appeal is to cure unconscionable delay which is causing

irreparable harm, the majority’s reference to “the goal of

speedy justice” as a justification for dismissing it rings

hollow. And as to caseload considerations, this is one of

those cases in which our concern about the caseload must

yield to our obligation to enforce the supremacy of federal

law.

587 F.2d at 1357. Since then, two more school years have gone

by and the children still have received no relief. In an attempt to

be moderate and responsible, the majority today has said that

the district court must make a decision within 90 days.

At some point appellate judges must be as concerned

about the human and civil rights of all of our citizens as they

are fearful of offending their judicial colleagues or peers. |

regret that I have been compelled to write so forcefully to a

dissent, which if it were adopted, could have tragic implica-

tions for the weak, the poor and the dispossessed, whose rights

are often denied and who must rely on the power of the federal

court for ultimate vindication. !°

What the majority has ordered is no radical decree. It is

precedent as old as the Republic. More than two centuries ago

Blackstone declared “it is a general indisputable rule, that

While | recognize that reasonable persons may often disagree on

substantive matters, nevertheless, and with all due respect, | believe that the

reasoning of the dissent is as specious as that declared in Chief Justice

Taney’s lamentable and erroneous Dred Scott decision. There Chief Justice

Taney declared that under the Declaration of Independence and the United

States Constitution a black man “had no rights which the white man was

bound to respect.” Dred Scott v. Sanford, 60 U.S. 393, 407 (1857). For

scholarly analyses of the error of the Dred Scott decision, see Fehrenbacher,

The Dred Scott Case, (1978); Vincent C. Hopkins, Dred Scott Case (1967);

Walter Ehrlich, They Have No Rights: Dred Scott's Struggle for Freedom

(1979).

32a

where there is a legal right, there is also a legal remedy by suit,

or action at law, whenever that right is invaded.” 3 Blackstone,

Commentaries 23 (as cited in Marbury v. Madison, | Cranch

137, 163 (1803) ). In Marbury v. Madison, | Cranch at 161-63,

Chief Justice John Marshall asserted:

The very essence of civil liberty certainly consists in the

right of every individual to claim the protection of the

laws, whenever he receives an injury. One of the first

duties of government is to afford that protection.

The plaintiffs in this case are entitled “to claim the protec-

tion of the laws” because of the constitutional injuries they

have sustained. After a 9'4 year persistent denial of their

constitutional rights, the children of Allegheny County should

not have to wait for more than an additional 90 days.

GARTH, Circuit Judge dissenting.

I agree in large part with the majority, with its statement of

historical events, with its holding that appellate jurisdiction

here is predicated on 28 U.S.C. 1292(a)(1)! and with its remand

to the district court to complete the proceedings pending

before it. I also agree that this protracted litigation should be

completed as speedily as possible and thus should be accorded

the very highest priority.

I disagree, however, with the majority’s mandate for two

reasons. As to the first, which has to do with the form of the

mandate, I believe that our difference is semantic. As to the

second I believe that our difference is profound and significant.

The majority’s mandate recites “Therefore, we vacate the

July 30, 1980 order of district court and remand for proceed-

'Hoots v. Commonwealth of Pennsylvania, 587 F.2d 1340 (3d Cir. 1978)

(Hoots IV) disposes of any contention that the order from which this appeal

is taken could be the predicate for final order jurisdiction under 28 U.S.C.

§1291.

33a

ings consistent with this opinion. The mandate of this court

shall issue forthwith.” (maj. op. typescript at p. 17) In its prior

paragraph, the majority states “...we order the district court

to expedite its consideration of this case so that within ninety

days of the issuance of the mandate of this court it shall:

1) complete all hearings and necessary proceedings on

the merits of the competing remedial plans for the

desegregation of GBASD;

2) decide the Milliken v. Bradley issue of which school

districts may be included within an inter-district

remedy; and

3) enter an appropriate final order granting appellants

the relief to which they are entitled under the district

court’s order of May 15, 1973, such relief to be effec-

tive and implemented by the beginning of the first

semester of the school year in the fall of 1981.”

(footnote omitted) /d. at 20.

The majority thus incorporates within its mandate a 90

day time limit.

My first dispute with the mandate is that some may regard

this mandate as a reversal of the district court order rather than

as an affirmance, which it is. Indeed Judge Higginbotham,

himself a member of the majority discusses in Part | B of his

concurring opinion, not the problem that I have raised of a 90

day limit, but rather the reactions of a district court judge when

he is reversed.

In point of fact and law, the majority affirmed Judge

Weber’s order of July 30, 1980. That order, which I reproduce

in full in the margin, decreed the following: ”

la ORDER

AND NOW, this 30th day of July, 1980, it is HEREBY

ORDERED and DECREED that:

1. Plaintiffs’ request of July 30, 1980, that the Tuition Plan and the

tuition concept be rejected forthwith is DENIED, without prejudice to

its renewal at the end of the hearing on said Plan.

2. Plaintiffs’ request of July 30, 1980, that this Court grant them an

injunction affording them merger, or consolidation relief beginning in

the fall of 1980 is DENIED, without prejudice.

34a

(1) It denied the plaintiffs’ request that the Tuition

Plan and the tuition concept be rejected forthwith;

(2) It did so without prejudice to renewal of the

hearings on the Tuition Plan;

(3) It denied the plaintiffs’ request for an injunction

“affording them merger, or consolidation relief beginning

in the Fall of 1980”;

(4) And it denied that injunction without prejudice.

What does the majority mandate do with respect to this

order? It purports to vacate it! And then it remands for pro-

ceedings consistent with the majority opinion. And what does

the majority opinion require? It requires precisely that which

Chief Judge Weber provided in his July 30, 1980 order.

It requires the completion of “all hearings and necessary

proceedings on the merits of the competing remedial plans”

(maj. op. p. 16) a reference which obviously includes the Tui-

tion Plan. I say “obviously”, because in Paragraph 31 of the

majority opinion, the majority recites quite explicitly “We

decline to grant appellants’ request that we require the imple-

mentation of merger or consolidation relief. We also decline at

this time, to reject the concept of a Tuition Plan for GBASD.

The primary duty to choose between these competing remedial

plans rests with the district court.” (maj. op. p. 16)

Thus, as I understand it, and I consider myself a member

of the majority for all purposes other than subscribing to the 90

day deadline, we have affirmed and not reversed the district

court’s order of July 30, 1980. By having cast our mandate in

the form of “vacating and remanding” it appears to me that we

have given an ambiguous direction, but one which has the same

effect as a mandate which “affirms and remands”. What we

intended, and what we have done, is to affirm the actions and

order of the district court. We have then directed that the

action be remanded to the district court to continue and com-

plete the proceedings—the very action which the district court

by its July 30, 1980 order contemplated and decreed.

35a

Accordingly, so much of the concurring opinion which

speaks to the issue of reversal and which interprets what I have

said in this dissent as implicating reversals of district court

orders, is without foundation and is irrelevant.

My second and more fundamental dispute with the man-

date is that it incorporates within it a 90 day deadline which it

imposes upon the district court. Those few words “within 90

days of the issuance of the mandate” carry the seeds of great

mischief and potential disruption.

Because of the significant implications which this latter

portion of the mandate has, I will devote virtually the whole of

this dissent to demonstrating that we have no power to issue

such an order; that such an order is unwise and inadvisable

even if we had that power (and we do not); and if we sought to

exercise this non-existent power we would have no means to

enforce compliance with our orders.

The majority’s mandate imposes a 90 day deadline upon

the district court, (maj. op. p. 17). During that time, the district

court must complete on order from our court, all matters and

hearings pertaining to a// plans and al// proceedings. All issues,

including the difficult and complicated Milliken v. Bradley?

issue must be resolved by the district court, and an appropriate

order entered so that a remedial plan may be implemented in

time for the school term commencing September, 1981. In this

opinion, I address myself only to the advisability, propriety

2The Milliken v. Bradley, 418 U.S. 717 (1974) (Milliken 1) issue, which

the district court must resolve, involves the question of which districts are to

be included in a remedial plan. For example, the Churchill district has

steadfastly maintained the under Milliken /, it cannot be regarded in the same

fashion as those districts which were created simultaneously with the General

Braddock Area School District. See Hoots /V at 1342 n.5. The district court

has ordered briefing on this issue, but it is unclear whether evidentiary

hearings must still follow. The resolution of this issue is apparently the key to

any interdistrict remedy.

36a

and power of the judges of this court to order another federal

judge, in this case Chief Judge Weber of the Western District of

Pennsylvania, to perform his judicial functions under a 90 day

deadline.

I dissent from the majority in this regard because:

(1) Even if Chief Judge Weber had been the cause of

the delays which have plagued this litigation (which he has

not), | know of no power available to us to impose upon

him, such a sanction or order. (see discussion at p. 36,

infra.)

A fair analysis of the litigation to this point reveals

clearly that any delays that have been suffered have come

about not because of Chief Judge Weber’s actions or

inactions, but because of the litigants’ changing positions

and improvident detours through this Court. Thus, in my

view, even apart from considerations concerning our

power to impose a 90 day order, any deadline order which

decrees that the burden of compliance be placed on Chief

Judge Weber, is misconceived and misdirected.

(2) I firmly believe that it is inadvisable, unseemly,

injudicious, improper and unrealistic to establisn, by

order, any time frame in which a district court judge must

perform his judicial functions. An order such as this one

can only lead to resentment on the part of one of the most

diligent, conscientious, and hard-working judicial

cadres—the district court judges—in this country.

Moreover, an order such as this one, which could, but

hopefully will not, lead to other orders of this character

must in the long run rupture the sensitive relationship

among court members of different judicial echelons and

indeed may well be regarded by many of them as demean-

ing and even insulting.

(3) I know of no power by which we can assert the

right to impose such an order and once imposed, enforce

iThe majority, as I do, recognizes, as it must, that Chief Judge Weber

has “valiantly and ably wrestled with the complex issues of this case since

1971,” (maj. op. p. 17, n.25).

37a

such an order if compliance does not result. I deliberately

do not address the subject of wilful non-compliance,

because I do not believe that any district court judge, no

matter what his reaction to such an order might be, would

wilfully refuse to meet a deadline ordered by a higher

court. Thus, I am not suggesting that a failure to comply

would be wilful. 1 am fearful, however, that the require-

ments of the Speedy Trial Act compounded by the exigen-

cies of the normal district court civil calendar‘ which these

days is crowded by competition for priority among differ-

ent categories of statutory and constitutional cases, to say

nothing of emergency applications and preliminary

injunction proceedings and the fact that the district courts’

jury and non-jury calendars are planned months in

advance—all militate against the probability that the 90

day mandate will be met. My fear is even greater in this

particular case, because I recognize that Chief Judge

Weber, in addition to the multitude of judicial matters to

which he must attend as a functioning district court judge,

must also deal with a multitude of intra-district adminis-

trative problems of not inconsiderable dimensions.

1. The Litigation Giving Rise to the 90 Day Mandate.

The majority opinion adequately and accurately sets forth

the chronology of this action. To put my observations concern-

ing the 90 day mandate in proper perspective, however, I think

something more must be said respecting the reasons that this

litigation has taken the length of time that it has. I do not

intend to mention or dwell upon every aspect of this case, but I

believe it is important to recognize that many, many months

‘The 1980 Annual Report of the Director of the Administrative Office of

the United States Courts notes that in 1980 civil cases filed in the U.S. district

courts have continued to rise to a point that the filings were more than 9%

above the 154,666 cases filed in 1979, and 93.3% over the civil filings reported

in 1970. As of June 30, 1980 pending civil cases numbered 186,113, more than

8,000 over the number recorded one year earlier (p. 2-3).

38a

have literally been wasted by at least two improvident appeals®

and the recent decision of the plaintiffs to change direction in

midstream. It must be remembered that the plaintiffs unremit-

tingly urged the consideration of a Tuition Plan and then

abruptly, after many months, reversed their position and

argued for its rejection.

: The Hoots IV appeal, 587 F.2d 1340, was taken from an

order of the district court entered in 1977. Hoots IV did no

more than deny the appealability of an order refusing to imple-

ment a particular plan, without prejudice to the submission of

additional plans. Thereafter, as the majority opinion observes,

the plaintiffs sought the submission and approval of a Tuition

Plan. which they desired the Commonwealth to prepare and

submit. Indeed, the plaintiffs went so far as to file an applica-

tion for a Writ of Mandamus which asked this court to order

the district court “to direct the state defendants to submit

another interdistrict plan which would involve the use of tui-

tion as a teciinique to remedy the problem ... ” (emphasis

added). Within a month the direct court ordered that the

Commonwealth prepare and file a Tuition Voucher Plan.

Hearings were commenced. Approximately one year later and

while these hearings were still proceeding, the plaintiffs appar-

ently had a change of heart, which was evidently prompted by

the addition of new counsel. At this time, despite their earlier

insistence upon a Tuition Plan, they now argued to have the

Tuition Plan rejected. When this was denied by the district

51 do not take the position that the plaintiffs did not have the right to

appeal. All litigants have the right to do what they believe is best in order to

further their interests and that includes taking appeals to this court, even

when in so doing, substantial delays in the ultimate resolution of their

problems ensue. I do mean to emphasize that the delays which the majority

now seeks to attribute to the district court, even though it transparently

disclaims that intention in its footnote 25, are delays wholly caused by

litigational strategies. Thus, if a generation of school children has gone

through the school system in this district under circumstances which have

violated their constitutional rights, that delay may not be attributed to Chief

Judge Weber.

.'=

39a

court, the plaintiffs once again appealed to this Court. They

did so despite the fact that the district court had not concluded

the hearings and therefore had neither recommended nor dis-

approved the Tuition Plan nor any other plan which was

“waiting in the wings.”

While I am sure that the majority would disclaim any

intent to criticize the district court, my reading of its mandate

leaves no doubt but that by its very nature, criticism is implied.

It is evident that during the periods of time when appeals were

proceeding before our court, the district court could take no

action.® Nor can the district court be faulted for seeking to

complete the hearings that it had started and for refusing the

commence simultaneously a different set of hearings involving

an inter-district consolidation plan, until after ii had com-

pleted taking evidence on the Tuition Plan.

I am satisfied that Chief Judge Weber is as concerned

about the school children in the General Braddock Area

School District as are we. 1am convinced that he is as disturbed

and upset over the length of these protracted proceedings as are

we. There can be no question that he deplores, as do we, the

fact that these school children have been obliged to endure

schooling in what has been acknowledged as an unconstitu-

tional environment, and that they are victims of the delays

which have been caused by some of the circumstances which I

have underscored. I am also convinced that Chief Judge Weber

would be overjoyed if he could put the final touches to all these

proceedings, not within 90 days, but even earlier, if such were

possible. I can think of no one more than he who would want to

be relieved of these very considerable issues by their resolution.

I am certain that even without our suggestions, he has placed

and will continue to place these hearings and this litigation on

*Despite the fact that jurisdiction of these proceedings was in this Court,

we note that during the pendency of this appeal, the district court in an effort

to conclude these proceedings, did, in fact, continue them at least through

November 13.

40a

his court’s “most front burner”, and I am equally certain that

there would be no one more pleased than he if a plan were in

place in time for implementation by September, 1981. How-

ever to achieve that goal, it is not necessary to “order” his court

to complete what is “uncompletable” within an arbitrary and

artificial timeframe. It is this subject that I address next.

2. The Wisdom of a 90 day Mandate.

Passing over for the moment the very critical issue of

whether this court has the power to order Chief Judge Weber

to comply with its mandate, I observe that by imposing a time

limit on a district court judge, this court has usurped unto itself

the district court’s scheduling functions, a matter which has

traditionally and necessarily been committed solely to the

district court.

As a former district court judge, | know the pressures

under which district court judges operate and the very careful

and meticulous scheduling of their cases. Jury cases are sche-

duled months in advance. So indeed are non-jury matters,

although in some instances these can be squeezed into the open

days or hours that occur when a jury trial or other proceeding is

unexpectedly terminated or recessed. Moreover, with the dis-

missal sanction now in force under the Speedy Trial Act, a

forced reorganization of a district court schedule could result

in serious consequences leading possibly to the discharge of

criminal defendants whose trials were not timely commenced.

Interwoven throughout this complex of judicial functions are

the multitude of motions, emergency and otherwise, which

must be heard and decided; sentencings, preliminary hearings,

and the preparation of opinions,—yes, and in many cases,

service on this very Court of Appeals when our manpower

needs have required it. Indeed, Chief Judge Weber sat as a

member of a panel of this court within the past few months and

is accordingly responsible for the opinions assigned to him

which were generated by that sitting. In his particular case as

’%

4la

Chief Judge. have earlier noted that he must attend to many

administrative matters from which other judges are freed.

I detail this listing, which is incomplete by far, only to

illustrate the impracticality of ordering a district court judge to

perform his tasks in a sound, conscientious, thoughtful and

knowledgeable manner, limited however toa specific period of

time, such as 90 days. I note for instance that this very appeal

which was argued on November 3rd has taken more than 60

days to resolve by written opinion, and we, unlike the district

court, had no evidentiary hearings, with all the uncertainties to

which they are heir, confronting us. I would not like to hazard a

guess as to the reactions of my colleagues on this court, if

another court having the same lack of knowledge of our

responsibilities and schedules as we have respecting Chief

Judge Weber’s responsibilities and schedule, ordered us to

complete a highly complicated hearing and file an opinion for

ultimate implementation within a deadline of a limited number

of days. :

To this point I have not even mentioned those unforeseen

circumstances, illness, accidents, emergencies, deaths, court

conflicts, and the like, which could add to the time needed to

complete the hearings and resolutions mandated to be com-

pleted within 90 days. I note only the profound practical

considerations which up to this time have restrained Courts of

Appeals from intruding upon the functions of the district

court.

I have gone into some detail in setting forth these matters

because I want to emphasize how very unrealistic and inadvis-

able this court’s mandate is. Hopefully, Chief Judge Weber will

complete the tasks which the majority opinion requires him to

complete, and will do so within 90 days.’ If he cannot because

’The same evils that lurk in a 90 day mandate are equally present in a

mandate specifying any particular deadline. Thus I would have the same

objection if the mandate here limited the district court in the discharge of its

functions to 120 days, 200 days or 240 days, etc.

42a

of his other commitments or because of the nature of the

proceedings themselves, does he then transfer Hoots to

another judge in the Western district, thereby losing his

“investment” of some eight years? And if they may be the result

of the 90 day mandate, is it realistic to assume that a new judge

will have a plan in place for the September 1981 term? My own

view of this matter is that intricate scheduling, such as is

involved here, ought not to be supervised from the far reaches

of a Court of Appeals chambers. Some cases take longer than

others to complete, just by their very nature. If indeed this is

one of those cases, then I suggest that less harm and mischief

will result if we properly permit the district court to adjust its

own schedule, once that court has been advised that the highest

priority should be given to this case.

‘

3. Enforcement.

I have attempted to explain why the history of this litiga-

tion and the inherent functions of the district court make it

impractical and inadvisable for us to set a specific time limit for

the discharge of particular district court functions. Until this

point I have not referred to our power to order the district

court to perform these functions within a timeframe. I am

convinced that we have no such power, and any attempt to

exercise such a non-existent supervisory power can ovly result

in embarrassment or disaster. Thus by having ordered this

district court judge to perform and complete all Hoots matters

pending before him in no longer than 90 days we have commit-

ted an almost unprecedented intrusion upon judicial indepen-

dence.’

8] know of no other instance, in this Circuit, when an order was fash-

ioned with a specific time limit. Even in Kelley v. Metropolitan County

Board of Education of Nashville, Tennessee, 436 F.2d 856 (6th Cir. 1970), a

case relied upon by the dissent in Hoots /V, no such deadline mandate was

imposed. Kelley, which held that final order appellate jurisdiction vested in

an appellate court under the circumstances of that case, involved school

segregation issues that had lingered for fifteen years, id. at 858, and had been

(continued)

43a

Justice Douglas, dissenting in Chandler v. Judicial Coun-

cil, 398 U.S. 74 (1970) referred to this very subject. He did so in

the context of an action brought by a district court judge who

had his caseload stripped from him because he was unable or

unwilling to discharge efficiently the duties of his office. Judge

Chandler was not directed, as the majority has directed Chief

Judge Weber, to perform discretionary functions within a

specified time limit. In the course of his dissenting opinion,

Justice Douglas made this observations which are every bit as

pertinent today:

An independent judiciary is one of this Nation’s out-

standing characteristics. Once a federal judge is confirmed

by the Senate and takes his oath, he is independent of

every other judge. He commonly works with other federal

judges who are likewise sovereign. But neither one alone

nor any number banded together can act as censor and

place sanctions on him. Under the Constitution the only

leverage that can be asserted against him is impeachment,

where pursuant to a resolution passed by the House, he is

tried by the Senate, sitting as a jury. Art. I, §2 and §3. Our

tradition even bars political impeachments as evidenced

subiect to an order which stayed all proceedings for an indefinite time. Yet,

« 1 in that egregious circumstance, no specific time limit was mandated

during which the district court was to perform its functions.

The majority opinion here, however, calls attention to Anderson v.

Dougherty County Board of Education, 609 F.2d 225 (Sth Cir. 1980), in

which a sixty day time limit was imposed on the district court.

My chambers was orally advised by the Fifth Circuit clerk’s office that

argument in Anderson was held on November 6, 1979. The opinion was filed

on January 7, 1980. Thus, as it has in this case, it took the Court of Appeals

about sixty days to prepare, draft, and file its own opinion.

I believe that the order entered in Anderson is as improvident and

improper as the order entered here. I note that nothing appears in the

Anderson opinion, or by the Anderson panel members, commenting on this

aspect of the mandate. And so it is impossible to tell whether that mandate

would have issued in its sixty day form had the considerations which I urge

here been called to that court's attention. I believe that had the panel there

focused on the matters with which I express concern, that court may well

have eschewed the 60 day time limit in its mandate.

44a

by the highly partisan, but unsuccessful, effort to oust

Justice Samuel Chase of this Court in 1805. The Impeach-

ment Provision of the Constitution indeed provides for

the removal of “Officers of the United States,” which

includes judges, on “Impeachment for, and Conviction of,

Treason, Bribery, or other high Crimes and Misdemea-

nors.” Art. Il, §4.

What the Judicial Council did when it ordered peti-

tioner to “take no action whatsoever in any case or pro-

ceeding now or hereafter pending” in his court was to do

what only the Court of Impeachment can do. If the busi-

ness of the federal courts needs administrative oversight,

the flow of cases can be regulated. Some judges work more

slowly than others; some cases may take months while

others take hours or days. Matters of this kind may be

regulated by the assignment procedure. But there is no

power under our Constitution for one group of federal

judges to censor or discipline any federal judge and no

power to declare him inefficient and strip him of his power

to act as a judge.

The mood of some federal judges is opposed to this

view and they are active in attempting to make all federal

judges walk in some uniform step. What has happened to

’ petitioner is not a rare instance; it has happened to other

federal judges who have had perhaps a more libertarian

approach to the Bill of Rights than their brethren. The

result is that the nonconformist has suffered greatly at the

hands of his fellow judges.

The problem is not resolved by saying that only

judicial administrative matters are involved. The power to

keep a particular judge from sitting on a racial case, a

church-and-state vase, a free-press case, a search-and-

seizure case, a railroad case, an antitrust case, or a union

case may have profound consequences. Judges are not

fungible; they cover the constitutional spectrum; and a

particular judge’s emphasis may make a world of d'ffer-

ence when it comes to rulings on evidence, the temper of

the courtroom, the tolerance for a proffered defense, and

398

45a

the like. Lawyers recognize this when they talk about

“shopping” for a judge; Senators recognize this when they

are asked to give their “advice and consent” to judicial

appointments; laymen recognize this when they appraise

the quality and image of the judiciary in their own com-

munity.

There are subtle, imponderable factors which other

judges should not be allowed to manipulate to further

their own concept of the public good. That is the crucial

issue at the heart of the present controversy.

All power is a heady thing as evidence by the increas-

ing efforts of groups of federal judges to act as referees

over other federal judges.

U.S. 136-37 (footnotes omitted).

Justice Douglas concluded his observations by saying:

It is time that an end be put to these efforts of federal

judges to ride herd on other federal judges. This is a form

of “hazing” having no place under the Constitution. Fed-

eral judges are entitled, like other people, to the full free-

dom of the First Amendment. If they break a law, they can

be prosecuted. If they become corrupt or sit in cases in

which they have a personal or family stake, they can be

impeached by Congress. But I search the Constitution in

vain for any power of surveillance that other federal

judges have over those aberrations. Some of the idosyn-

crasies may be displeasing to those who walk in more

measured, conservative steps. But those idiosyncrasies

can be of no possible constitutional concern to other

federal judges.

U.S. 140-41 (footnote omitted).

Although these remarks were written in dissent, none of

the other Justices in Chandler either refuted, or took issue with

them. These principles lead inexorably to the conclusion that

in circumstances such as are present here, we have neither the

right nor any power to order Chief Judge Weber to complete

his processing of this case within a time limit of 90 days. If there

46a

is such a right or power, I do not know from whence it stems, ?

and absent such a power, there is no reason for a federal judge

to give heed to our mandate.

Such a consideration, I am sure, would never cross Chief

Judge Weber’s mind. I am certain that all of us know, that even

if he were to endanger his own health in so doing, he would

make every effort to meet the time strictures which the major-

ity, in my view, has so improvidently imposed upon him. Yet, if

despite these efforts, he cannot, or does not, do we hold him in

contempt? Do we subject him to some form of disciplinary

proceeding? Do we remove his caseload? Do we hold a hearing

and ask i. to show cause why he has violated the 90 day

mandate? What action can we take? And should we as a Court

of Appeals point a gun without the ability to pull its trigger? I

recognize that the illustration is extreme, but it conveys my

feeling that one should not order what one cannot enforce. To

do so can only lead to embarrassment on our part, or to put the

matter colloquially, I fear we shall end up with “egg on our

face.” Even worse, from the standpoint of the district court, is

the humiliation of being ordered to do that which is “undo-

able”. The order itself carries with it a flavor or opprobrium

and, to the extent that it implies our disapproval of the district

court’s prior actions, it carries with it a stigma that will be

difficult to erase.

I ask additional questions. Does a mandate such as the

majority has imposed anticipate that if the tasks to be accom-

plished cannot be completed in the judge’s normal, competent,

workmanlike manner, is he to rush the hearings (with all that

such haste implies), skimp on the decisional processes, and

produce a product which may not withstand constitutional or

appellate scrutiny? If so, what have we accomplished in our

efforts to expedite a school plan?

°The Judicial Court Reform and Judicial Conduct and Disability Act of

1980, Pub.L.No. 96-458 which reflects, in its provisions the furthest extent to

which Congress has gone in evidencing concern with judicial conduct, does

not bear upon the instant situation.

.*%

47a

Finally, even if Chief Judge Weber could, and does,

accomplish the impossible and furnish us with a complete

resolution of all issues within 90 days, I am convinced that this

would have been accomplished in any event and without the

reproach implied by the majority’s direction.

Ill.

Before concluding this dissent I feel obliged to answer

some of the irrelevant arguments found in the concurring

opinion.

Unfortunately the author of the concurring opinion in his

understandable zeal to solve the school problems in the Gen-

eral Braddock District as soon as possible, has misread both

the majority opinion in which he has joined, and my dissent.

Thus, he seemingly has failed to understand that the majority

opinion does not reverse the district court, see pp. 35-36, supra,

but rather affirms it. He has also failed to understand that my

third reason for dissenting is not because I find a “90 day

requirement...too restrictive”, (concurring op. p. 19), but

rather because I know of no means by which any such time

limit may be enforced (see pp. 45-59, supra).

Finally, Judge Higginbotham fails to understand that the

only disagreement I have with the majority is with its imposi-

tion of a specific deadline on a district court judge. Thus, the

examples which he cites of instances where Courts of Appeal

have acted themselves or have directed the district courts to

engage in ministerial actions, are completely inapposite. Judge

Higginbotham refers in his opinion (concurring op. p. 19) to

cases where Courts of Appeals have granted injunctions at the

Court of Appeals level. Such actions obviously have nothing to

do with a Court of Appeals order which commands that a

district court deal with discretionary and evidentiary matters

within a particular time frame.

In my dissent I have not addressed the power of a Court of

Appeals either to enter an order itself or to order a district

48a

court to perform a non-discretionary ministerial act, because

this case involves neither. Thus the relevance of Judge Higgin-

botham’s observations concerning such circumstances escapes

me. I note, however, that if such a circumstance was relevant,

which it is not, Judge Higginbotham could have referred to this

court’s opinion in Evans v. Buchanan, 582 F.2d 750 (3d Cir.

1978), to illustrate his thesis. In Evans, supra, this court

ordered the district court to enter a particular order, but that

order had first been drafted by the Court of Appeals and

nothing remained to be done except to have it entered. Had the

district court failed or refused to follow our direction to per-

form this ministerial act, we could not have compelled it.

Obviously, however, this court had the power to enter that

order itself, had it become necessary. This, however, is not the

situation which is at issue here.

In this case Judge Higginbotham could have voted to have

an order entered by this court. He could have voted to have

granted to the plaintiffs the relief that they sought * 1d he could

have voted to afford that relief at the Court of Appeals’ level.

And if he felt, as he evidently does, that the particular nature of

this litigation is such that it required this court, rather than a

district court to hold hearings or to enter a remedial order

without holding hearings, he could have so voted. He did not.

Rather, Judge Higginbotham joined the majority and voted to

return this case to the district court so that the district court

judge could continue the hearings that he, the district court

judge, had ordered, and in so doing could perform his proper

function of taking evidence and fashioning a remedial plan.

Accordingly, Judge Higginbotham’s exhortations about what

has been done in other courts and what should have been done

in this case totally miss the mark.

Of more concern to me than Judge Higginbotham’s lack

of understanding of the difference between actions taken by a

Court of Appeals itself and those actions which it orders a

district court to perform within a prescribed time limit, is the

49a

assertion by Judge Higginbotham that this court has the power

to supervise the activities of a district court judge in his func-

tions and that we may exercise that power on an hour-to-hour

and day-to-day basis.

I note with considerable interest that nowhere in Judge

Higginbotham’s opinion, however, does he furnish for our

guidance and edification any authority from which this power

emanates. Nor does he refute the analysis of Justice Douglas in

Chandler, supra, (see pp. 46-48 of this dissent, supra) which

concludes that there is no such power to be found anywhere in

our Constitution or statutes. I assume that if Judge Higgin-

botham knew of such authority, he would have cited it. He

does not, because none exists.

In this connection, therefore, it is of no help whatsoever to

have the concurring opinion direct us to Bell v. Maryland, 378

U.S. 266, (concurring op. p. 32) which holds no more than that

where an intervening state statute made it unlawful for restau-

rants to deny services to individuals because of their race, the

proceeding had to be remanded to state court for reconsidera-

tion in light of that statute. Justice Douglas whose concurrence

in that case urged the Court to reach the merits of the plaintiffs’

claims and reverse their convictions outright, is apparently

cited by Judge Higginbotham as authority for the presence of

our power over district court judges.

I make two observations. Judge Higginbotham is urg-

ing us to reach the merits of the plaintiffs’ claims in this case, he

has abandoned that battle himself, for as | have mentioned, he

has voted to affirm Chief Judge Weber’s order and to remand

for further proceedings. My second observation is that Bell v.

Maryland does not even address, let alone establish, the power

of a superior court over the activities and functions of district

court judges. One can look long and hard through the Bell

opinion and not find even a reference to a district court judge.

This is completely understandable, as that case came before the

Supreme Court from the Maryland state court. I therefore

question its relevance in the instant context.

50a

I will make just a few more comments about Judge Hig-

ginbotham’s disagreement with my thesis.

First, I concede that if Judge Higginbotham had been a

member of the Hoots JV panel, he would have agreed with

Judge Gibbons’ approach that the Hoots /V order was appeal-

able. That was the only issue decided in Hoots IV, i.e., whether

this court had jurisdiction of the appeal. A majority of the

panel held that it did not. Thus, Judge Higginbotham’s

espousal of Judge Gibbons’ dissent in that case reflects no more

than a difference of opinion as to what constitutes a final or

injunctive order from which an appeal may be taken.

Second, the concurring opinion refers to our recent Ken-

necott'® decision as demonstrating this court’s ability to deal

with an emergent matter and to deal with it in a remarkably

short time. Its thesis apparently is that if the Court of Appeals

can operate expeditiously, there is no reason why a district

court judge cannot. However, Judge Higginbotham overlooks

one salient fact: what this court may do has no bearing upon

what the district court does, or upon the district court’s com-

mitments, its functions and our power to order that court to

conform to our dictates.

I suggest that it is illogical to extrapolate from our discus-

sion of “delay” in Kennecott, the principle that we can impose a

90 day deadline in Hoots. Nevertheless, if someone more astute

than I, can discern a relationship between the principles enun-

ciated in the Securities Regulation case and the power to

supervise a district court judge, I still find that Judge Higgin-

botham’s concurrence in this respect defies reason. He states,

“[i}f in corporate cases this court is willing to expedite its own

procedures so dramatically to reduce judicial consideration by

several months, I fail to understand why we may not require a

district court judge to decide a case in three months when he

has it for almost ten years.” I can only suggest that this dissent

‘Kennecott Corp. v. Smith, No. 80-2696 (3d Cir. December 17, 1980).

Sla

has gone into considerable detail in order to explain why we

cannot.

Third, Judge Higginbotham’s references to our Internal

Operating Procedures and the time limits which we have

voluntarily imposed upon ourselves are as irrelevant to the

issue here as his other arguments (concurring op. p. 23). I have

no problem if a district court judge voluntarily imposes a

deadline upon himself, any more than I have any problem with

the members of our court voluntarily imposing deadlines upon

themselves whether for the circulation or the preparation of

their opinions, or otherwise. A problem would be presented,

however, if either the Congress, or the Supreme Court, or the

President, were to direct us to prepare and file all of our

opinions within a specified time limit, for example, 45 days.

In the first place, they would have no power to do so.

Second, it would be inadvisable. Third, there would be no

means at their disposal, short of impeachment, for them to

enforce such a command. Thus, there is just no logical nexus

that can be perceived between a voluntary self-imposed dead-

line and a 90 day mandate such as the majority has imposed in

this case.

Finally, I suggest, that the references made in the concur-

ring opinion to other than the 90 day deadline imposed by the

mandate, are irrelevant. Thus, I do not find it necessary to

address each and every feature of the concurrence because as |

“have indicated, not one of them focuses on the questions to

which the mandate’s 90 day order has given rise:

(1) Does this court have either statutory or constitu-

tional power to order a district court judge to perform his

judicial functions within any set period of time where the

district court’s functions to be performed are discretion-

ary, evidentiary and nonministerial in character;

(2) if so, from where does that power come and what

are the parameters of that power;

(3) even assuming the presence of this power, (a

power I do not believe we have and nothing that Judge

52a

Higginbotham has written persuades me ctherwise) is it

advisable and realistic to exercise that power over a dis-

trict court judge and his functions; and

(4) if we have such a power and if it is advisable to

exercise it, can we enforce compliance?

I have answered these questions in this dissent. I have said

we do not have the power; it is not advisable to exercise the

power even if we had it, and if we have the power and did act to

exercise it, we could not enforce it. There is nothing that

appears in Judge Higginbotham’s concurring opinion which

alters these conclusions.

IV.

I regret having written at such length on a subject which

superficially, at least, appears to be a small part of the man-

date, but which in reality has profound implications, which I

believe even dwarfs the basic issues before us. Because its

significance in terms of judicial independence and judicial

relationships cannot be ignored, I cannot subscribe to, or let go

unanswered, this aspect of the majority mandate which I

regard as improvident, unadvisable, unrealistic, dangerous

and unenforceable. 1, for one, reject the notion that the

members of this court can “arrogate to themselves” and exer-

cise such powers over the federal district court judges, particu-

larly since no authority to do so is to be found in our

Constitution or laws. See Chandler, supra, p. 10 at 142 (Black,

J., dissenting).

I therefore respectfully dissent from so much of the man-

date as imposes a fixed period upon Chief Judge Weber for the

completion of the Hoots proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

53a

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 80-2116

DOROTHY HOOTS, individually and as mother of her

children JANELLE HOOTS and JAMIE HOOTS;

MRS. ADDRALLACE KNIGHT, individually and as

mother and natural guardian of her children RONALD

KNIGHT, LORETTA KNIGHT, TERRANCE

KNIGHT, MARC KNIGHT and BYRON KNIGHT;

BARBARA SMITH, individually and as mother and

natural guardian of her children TAWANDA SMITH,

TEVELA SMITH, JOSEPH SMITH, WESLEY

SMITH and ERIC SMITH; on behalf of themselves and

all others similarly situated,

Appellants

COMMONWEALTH OF PENNSYLVANIA;

EDWARD X. HALLENBERG, President of the

Allegheny County Board of School Directors; THE

ALLEGHENY COUNTY BOARD OF SCHOOL

DIRECTORS; W. DEMING LEWIS, Chairman of

the Pennsylvania State Board of Education; THE

PENNSYLVANIA STATE BOARD OF EDUCA-

TION; MICHAEL SULLIVAN, President of the

School District of the Borough of Braddock; THE

SCHOOL DISTRICT OF THE BOROUGH OF

BRADDOCK; ANDREW LISYAK, President of

the School Board of the School District of the

_ Borough of Rankin; THE SCHOOL DISTRICT OF

Ff.

54a

THE BOROUGH OF RANKIN; LEO CAMP-

BELL, President of the School Board of the School

District of the Borough of North Braddock; and

THE SCHOOL DISTRICT OF THE BOROUGH

OF NORTH BRADDOCK; THE ALLEGHENY

INTERMEDIATE UNIT BOARD OF SCHOOL

DIRECTORS AND EDWARD X. HALLEN-

BERG, AS PRESIDENT OF THE ALLEGHENY

INTERMEDIATE BOARD OF SCHOOL DIREC-

TORS,

Appellees

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS,

GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM

and SLOvITER, Circuit Judges

The petition for rehearing filed by

Appellees

in the above entitled case havng been submitted to the

judges who participated in the decision of this court and to

all other available circuit judges of the circuit in regular

active service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition for

rehearing is deined.

BY THE COURT,

JAMES HUNTER, III

: Circuit Judge

Dated: February 25, 1981

55a

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

In their Petition for Rehearing, the appellees again claim,

as the dissent did, that a 90 day time limit “is an unprecedented

intrusion” upon a district court’s power. Petition for Rehear-

ing at 10. I vote to deny the petition for the reasons stated in my

prior concurring opinion and in Judge Hunter’s opinion. I also

point out that this court has previously been willing, when

dealing with corporate litigation, to impose a more rigid time

limit on a district court judge than we have imposed in the

present case. In Kohn v. American Metal Climax, Inc., 458

F.2d 255 (3d Cir.), cert. denied, 409 U.S. 874 (1972), minority

stockholders brought suit on April 8, 1970 to enjoin the amal-

gamation of their company and another corporation because

the merger allegedly violated Section 10(b) of the Securities

and Exchange Act of 1934, and Section Seven of the Clayte™

Act. The district court on August 12, 1970 preliminarily

enjoined the amalgamation. In an order of August 31, this

court amended a prior order staying the injunction, and

directed that the district court “proceed promptly with the trial

and disposition of this case on the merits so that it may enter its

Final Judgment prior to October 29, 1970” — that is within 60

days of the court of appeals’ order. The subsequent opinions of

the district and appellate courts are reported at 322 F.Supp.

1331 (E.D.Pa. 1970) and 458 F.2d 255 (3d Cir. 1972). While

parties may disagree on what is an appropriate time limit ina

part‘cular case, the power to impose some time limit is clear.

Civ:: rights litigants have rights equal to corporate parties in

assuring an expeditious disposition of their legal claims.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

Sor the Third Circuit —

56a

UNITED STATES COURT OF APPEALS

FoR THE THIRD CIRCUIT

No. 80-2116

DOROTHY HOOTS, individually and as mother of her child-

ren JANELLE HOOTS and JAMIE HOOTS; et al.

Appellants

COMMONWEALTH OF PENNSYLVANIA; et al.

Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

D. C. Civil No. 71-00538

Argued November 3, 1980

Before: HUNTER, GARTH and HIGGINBOTHAM,

Circuit Judges

Opinion filed January 26, 1981

ORDER TO AMEND DISSENTING OPINION

It is hereby ordered that the dissenting opinion be

amended as follows:

Footnote 8, which commences on page 45 of the slip

opinion and concludes on page 46 thereof is hereby amended

so as to add as an addition to footnote 8, the following para-

graph, which will appear after the conclusion of the present

footnote:

57a

By the same token, the unreported proceeding and

order in Kohn v. American Metal Climax, Inc., 485 F.2d

255, (3d Cir.) cert. denied, 409 U.S. 874 (1972), to which

the Opinion Sur Denial of Petition for Rehearing refers,

gives no indication that the issues discussed in this dissent

were ever considered or urged in connection with that

order. Moreover, it is impossible to judge the context in

which that unreported and thus non-precedential order,

which was collateral to the reported proceedings in Kohn,

was entered, or indeed, whether time restrictions were

even at issue. Thus, that order, independent of any rea-

soned and published opinion, can scarcely constitute

authority for this court to impose deadlines on district

court judges.

BY THE COURT:

LEONARD I. GARTH

Circuit Judge

Dated: February 26, 1981

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

58a

IN THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

DOROTHY HOOTS, individually and

‘as mother of her childern JANELLE

HOOTS and JAMIE HOOTS, MRS.

ADDRALLANCE KNIGHT, individually

and as mother and natural guardian

of her children RONALD KNIGHT,

LORETTA KNIGHT, TERRANCE KNIGHT,

MARC KNIGHT and BYRON KNIGHT;

BARBARA SMITH, individually

and as mother and natural guardian

of her children TAWANDA SMITH,

TEVELA SMITH, JOSEPH SMITH,

WESLEY SMITH and ERIC SMITH;

on behalf of themselves and all others

similarly situated

vs.

COMMONWEALTH OF PENNSYLVANIA:

EDWARD X. HALLENBERG, President

of the Allegheny County Board

of School Directors; THE ALLEGHENY

COUNTY BOARD OF SCHOOL DIREC-

TORS; W. DEMING LEWIS, Chairman of the

PENNSYLVANIA STATE BOARD OF

EDUCATION; MICHAEL SULLIVAN,

President of the School District of the

Borough of Braddock; THE SCHOOL

DISTRICT OF THE BOROUGH OF

BRADDOCK; ANDREW LISYAK, President

a‘

Civil Action

No. 71-538

59a

of the School Board of the School

District of the Borough of Rankin;

THE SCHOOL DISTRICT OF THE

BOROUGH OF RANKIN, LEO CAMPBELL,

President of the School Board of

the School District of the Borough

of North Braddock; and THE SCHOCL

DISTRICT OF THE BOROUGH OF NORTH

BRADDOCK; THE ALLEGHENY INTERME-

DIATE UNIT BOARD OF SCHOOL

DIRECTORS AND EDWARD X. HALL-

ENBERG, AS PRESIDENT OF THE ALLE-

GHENY INTERMEDIATE BOARD OF

SCHOOL DIRECTORS,

TURTLE CREEK AREA SCHOOL DISTRICT

EDGEWOOD SCHOOL DISTRICT, |

WEST MIFFLIN SCHOOL DISTRICT,

STEEL VALLEY SCHOOL DISTRICT,

EAST ALLEGHENY SCHOOL DISTRICT,

SWISSVALE AREA SCHOOL DISTRICT,

CHURCHILL AREA SCHOOL DISTRICT,

and GATEWAY SCHOOL DISTRICT.

OPINION

WEBER, C. J. March 5, 1981

In 1973, this court found the General Braddock Area

School District was a racially segregated district, created by the

Commonwealth of Pennsylvania through its state and county

Boards. Since that time, the court has heard testimony on

several plans designed to desegregate the school system. At this

stage, however, no further decisions on an appropriate plan

can be made until it is determined which, if any, of the sur-

rounding school districts can be included in any remedy within

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

(Milliken I).

60a

This was a matter set down for briefing and argument in

August 1980 at the time of extensive hearings on this case. Our

consideration and determination of this matter was inter-

rupted and delayed by the abrupt change of position of plain-

»tiffs’ counsel, the interlocutory appeal which followed, and the

five months’ wait until the decision of the Court of Appeals on

this matter. Now that it is back with this court time was

required to refresh recollection and review files before deter-

mining what might have been determined in September 1980.

The court has relied on the arguments made at that time and

the extensive briefs filed at various points to arrive at the

following conclusions.

Milliken held that a multi-district remedy was impermissi-.

ble where the court has found a condition of segregation in

only one district, unless it can be shown that the violation was

caused by the acts of adjacent school districts.

The controlling principle consistently expounded in

our holdings is that the scope of the remedy is determined

by the nature and extent of the constitutional violation.

Swann, 402 U.S., at 16. Before the boundaries of separate

and autonomous school districts may be set aside by

consolidating the separate units for remedial purposes or

by imposing a cross-district remedy, it must first be shown

that there has been a constitutional violation within one

district that produces a significant segregative effect in

another district. Specifically, it must be shown that

racially discriminatory acts of the state or local school

districts, or of a single school district have been a substan-

tial cause of interdistrict segregation. Thus an interdistrict

remedy might be in order where the racially discrimina-

tory acts of one or more school districts caused racial

segregation in an adjacent district, or where district lines

have been deliberately drawn on the basis of race. In such

circumstances an interdistrict remedy would be approp-

riate to eliminate the interdistrict segregation directly

caused by the constitutional violation. Conversely, with-

out an interdistrict violation and interdistrict effect, there

is no constitutional wrong calling for an interdistrict

remedy.

Milliken v. Bradley, supra at p. 744-45.

6la

Before any proposed remedy can be fully considered we

must review the facts of this case to determine whether an

interdistrict remedy is appropriate here or whether any remedy

imposed must be limited in its application to less than all of the

districts joined herein. It begins to appear that there is no

possible remedy that would effectively desegregate General

Braddock that does not include many neighboring school dis-

tricts. Because an interdistrict remedy may be the only remedy

available to the court, we must review the facts of this case to

determine whether such a remedy is appropriate here.

Furthermore, from the testimony produced at the hear-

ings on tie tuition plan it becomes more evident that an

interdistrict remedy that does not include a broad area would

be a futile judicial exercise because limiting the remedy to only

some of the districts, or the adjacent districts, would enlarge

the size of the segregated district because the school population

in some nearby districts approaches the degree of minority

concentration existing in General Braddock Area School Dis-

trict. The focus of the infection would metastasize; a super

General Braddock Area School District would be created with

the same problem. The same consideration required that we

reject Plan 22-W because the inclusion of Wilkinsburg com-

pletely upset the racial balance sought.

The General Braddock Area School District was created

as a result of a reorganization of school districts initiated by the

Commonwealth and accomplished by three specific pieces of

legislation.

Prior to 1961, the Pennsylvania Public School Code of

1949, 24 P.S. §2-251 allowéd school districts to merge volun-

tarily. Thereafter there was a series of statutes compelling

mergers. The Commonwealth first passed the Act of Sep-

tember 12, 1961, P.L. 1283, No. 561, 24 P.S. §2-281 et seq. [Act

561] to effectuate the state’s goal of achieving comprehensive

programs of education through larger school districts.

Although the Act recognized voluntary merger of districts this

was the first Act to set up a compulsory system of reorganiza-

tion and merger and provided that each county board of school

directors should prepare a plan of organization of administra-

62a

tive units for the county for review by the State Council of

Education by Jan. 1, 1963. 24 P.S. §§2-282, 2-283. State Board

of Education v. Franklin Township School District, 209 Pa.

Super. 410, 228 A.2d 221,223 (1967). Once submitted by the

county board, the State Board would review the plan for

approval taking into consideration certain environmental

criteria, including topography, pupil population, socio-

economic characteristics, facility of transportation of pupils,

utilization of existing school buildings, existing administrative

units, and potential population changes. 24 P.S. §2-281. After

review, the State Board could reject or rewrite those plans that

it did not consider “wise in the best interests of the educational

system of the Commonwealth.” It was further provided specifi-

cally that the State Board could rot approve any plan for an

administrative unit which contained a student population of

less than 4,000 pupils unless the above criteria were considered

and the Board found that the situation necessitated the lower

student population. In no event, however, was the State Board

to approve any administrative unit with less than 2,500 pupils.

24 P.S. §2-283. Once approved, the administrative units were

to become operative in 1965.

At the time Act 561 was passed, the following school

districts operated in central eastern Allegheny County: Wil-

merding, North Versailles, Gateway, Turtle Creek, East Pitts-

burgh, Braddock, North Braddock, Rankin, Braddock Hills,

Swissvale, Edgewood, Wilkens, and Forest Hills.3 On May 15,

1962, before the County Board had established a plan for

reorganization, Wilkens and Forest Hills areas voted to volun-

tarily merge into a single district known as Churchill. Churchill

was later approved by the State Board on June 25, 1962.

Allegheny County did submit a reorganization plan under Act

561 which was approved by the State Board, but before the

effective date of 1965.

Act 299 (Act of August 8, 1963, P.L. 564, No. 299, 24 P.S.

§2290 et seq.) was passed to replace Act 561. Act 299 contained

3Several of these districts did not maintain their own high schools bui

utilized a tuition plan with neighboring districts.

ee,

63a

the same basic provisions as Act 561, but included a three-

tiered appeals process for “aggrieved” school districts. The

criteria for reorganization and the minimum 4,000 pupil popu-

lation provision were both carried over. Act 299, however,

expressly reserved to the State and County Boards the right to

reconsider its approval of previously joined districts (ones

formed by voluntary merger prior to Act 299) and to be

remerged into even different and larger districts. 24 P.S.

§2-292. Therefore, any administrative units that had been

approved under Act 561 would still come under the authority

of Act 299 and the County was effectively operating from a

clean slate.

Although aware of strenuous objections to the proposed

plan submitted by the County Board, at its meeting on Sep-

tember 6, 1964, the State Board approved the following admin-

istrative units: Unit 14 (Gateway); Unit 15 (Wilkens and Forest

Hills combining to form Churchill); Unit 18 (Wilmerding and

North Versailles combin‘ng to Form East Allegheny) and Unit

38 (Braddock Hills, Edgewood, and Swissvale). As a result,

Units 14, 15 and 18 all became operative on July 1, 1966. Unit

38 did not because Edgewood took an appeal.

Along with Unit 38, this left unapproved the racially

unbalanced and controversial proposed Unit 16, which con-

sisted of Braddock, North Braddock, Rankin, Turtle Creek,

and East Pittsburgh. Since the surrounding municipalities with

approved school districts were now operative, they were no

longer available under any reorganization plans. This left the

State few options with which to deal with Unit 16. The state

chose to create new Unit 16, consisting of Braddock, North

Braddock and Rankin (with a close to 40% black student

population as of 1967), and new Unit 42, consisting of Turtle

Creek and East Pittsburgh (with a 1.3% black student popula-

tion as of 1967).

In 1968, the legislature passed Act 150 (Act of July 8, 1968,

P. L. 299. No. 150, 24 P. S. §2400.1 et seq.) which superseded

Act 299. This Act was simply a continuation of Act 299 and

contained the same basic provisions as Act 299, except for

64a

modified appeals procedure. Act 150 further provided that all

districts that had been merged under Act 299 would not be

forced to merge to form larger districts. Therefore, with

nothing new to work with, the State approved Unit 16 (now

called General Braddock Area School District, and Unit 42,

now known as Turtle Creek, as they had been proposed under

Act 299. The only change of the County Board’s plan that

occurred under Act 150 was that the proposed Unit 38 (Edge-

wood, Braddock Hills and Swissvale) was split up into two

smaller districts: Edgewood, with a student population of 928,

0% black, and Swissvale and Braddock Hills, now known as

Swissvale, with a student population of 2,286, 10% black. This

was done in spite of the statutory criteria for the size of dis-

tricts.

These school districts went into effect on July 1, 1971 and

this lawsuit was filed on June 9, 1971.

In an earlier opinion in this case, Hoots v. Commonwealth

of Pennsylvania, 359 F. Supp. 807 (1973), this court made the

following conclusion of law.

7. The natural, foreseeable and actual effect of combining

Braddock, North Braddock and Rankin into a single

school district was to perpetuate, exacerbate and maxi-

mize segregation of school pupils. Such conduct consti-

tuted an act of de jure discrimination in violation of the

Fourteenth Amendment. (citations omitted).

359 F. Supp. 807, at 823.

This constitutional violation was accomplished by the

State and County Board through the reorganization process

completed through Acts 561, 299, and 150. This court found

specifically that the County and State Boards maximized racial

segregation in the public schools by creating a school district

composed of Braddock, North Braddock and Rankin. At the

time the state approved such a district, no other combination

of school districts in the area would have created a district with

as large a percentage of non-white enrollment. (Finding of Fact

No. 51, Hoots, supra at 819). Furthermore, the plan of organi-

zation adopted by the County and State Boards pursuant to

Act 150 failed to meet many of the essential requirements of

65a

that Act and recognized educational standards. Act 150 was

not met in several ways, the most obvious of which is the

disregard of the 4,000 pupil population requirement (unless a

small district was required) by combining Turtle Creek and

East Pittsburgh with a population of only 1,898, by combining

Braddock Hills and Swissvale with an enrollment of only

1,925, and by permitting Edgewood to stand alone with an

enrollment -of only 928. (Findings of Fact, No. 52, Hoots,

supra, at 819).

The court found that the State and County Boards knew

or should have known that they were creating a racially segre-

gated school district. (Finding of Fact No. 50, Hoots, supra, at

818.) This court also found that the school districts in the

vicinity of Braddock and Rankin continually sought to avoid

being included in a school district with them due to the high

concentration of blacks. (Finding of Fact No. 39, Hoots,

supra, at 816). At the time that General Braddock Area School

District was approved by the State Board, alternatives to a

school district composed of Braddock, North Braddock and

Rankin were available that would have been more consistent

with Act 150. In view of the availability of these alternatives,

the decision of the County and State Boards to create General

Braddock Area School District was contrary to Act 150 and

the standards set forth therein. (Findings of Fact 53 and 54,

Hoots, supra, at 820).

On the basis of all the facts, this court concluded that by

combining Braddock, North Braddock and Rankin into one

school district, the County and State Boards created a racially

segregated school district. (Finding of Fact No. 58, Hoots,

supra, at 820). Furthermore, this court found that “the County

and State Boards devised this plan of organization of adminis-

trative units which comprised Braddock, North Braddock and

Rankin into one school district to satisfy the desires of as many

of the surrounding municipalities as possible to be placed in a

school district which did not include Braddock and Rankin.”

(Finding of Fact No. 59, Hoots, supra, at 821.) Finally, the

record contained no evidence showing that the school district

boundaries established in the plan of organization of adminis-

**%

66a

trative units are rationally related to any legitimate purpose

and the court found that those boundaries did not promote any

valid state interest. (Finding of Fact No. 61, Hoots, supra, at

821).

On the basis of the above history of the reorganization of

school district boundaries in the central eastern portion of

Allegheny County pursuant to Acts 561, 299 and 150 and on

the Findings of Fact of this court, particularly those laid out

above, the court holds that a multi-district remedy is appro-

priate and permissible in this case. General Braddock Area

School District was created as a result of an interdistrict viola-

tion conducted by the state during the reorganization process

which included the redrawing of school district boundaries in

that part of Allegheny County. Milliken J holds that “an

interdistrict remedy would be appropriate to eliminate the

interdistrict segregation directly caused by the constitutional

violation.” This case clearly falls within Milliken J guidelines

for an inter-district remedy, since racially discriminating acts

of the state have been a substantial cause of interdistrict segre-

gation.

The neighboring school districts that argue against an

interdistrict remedy base their arguments on the ground that

this court has made no finding that they had any involvement

in the reorganization process which would enable the court to

apply any remedy to them. They claim that since they are not

guilty of any specific discriminatory actions they cannot be

implicated in a multidistrict remedy.

A multidistrict remedy can be applied to surrounding

districts that have not been found to have committed a consti-

tutional violation themselves where their boundaries were

drawn or redrawn during the course of the same violation

which created the segregated school districts. Morrilton

School District No. 32 v. United States, 606 F.2d 222 (8th Cir.

1979), cert. denied 444 U.S. 1071 (1980); Evans v. Buchanan,

416 F. Supp. 328 (D. Del. 1976), aff'd 555 F.2d 373 (3d Cir.

1977; United States v. Board of School Commissioners of the

City of Indianapolis, 451 F. 2d 1211 (7th Cir. 1976).

°°.

67a

In the Morrilton case, the court found that the school

district lines in Conway County followed a discriminatory

pattern and ordered an interdistrict remedy. Some of the sur-

rounding districts that would be effected by the remedy argued

that since there was no evidence implicating them in a direct

way, the court had no authority to order them to remedy the

state’s wrong. The court found this argument to be without

merit since the effects of the unconstitutional state action are

felt in both districts. The court went on to quote United States

v. Board of School Board Commissioners of City of Indiana-

polis, 573 F.2d 400, 410 (7th Cir. 1978), cert. denied, 439 U.S.

824 (1978):

[S]chool officials may not maintain that their districts

should be excluded from any interdistrict remedy if they

are found innocent of committing any constitutional vio-

lations because they should not be held responsible for the

acts of the state legislators or other state subdivisions such

as a local housing authority or a zoning board. The com-

mands of the Fourteenth Amendment are directed at the

state and cannot be avoided by a fragmentation of respon-

sibility among various agents. Cooper v. Aaron, 358

U.S. 1, 15-17, 78 S.Ct. 1401, 3 L.Ed. 2d 5 (1958). If the

state has contributed to the separation of the races, it has

the obligation to remedy the constitutional violations.

That remedy may include school districts which are its

instrumentalities and which were the product of the viola-

tion.

The several opinions written in the Wilmington case,

Evans v. Buchanan, supra, also support an interdistrict remedy

in a case whose facts are similar to our own. The State of

Delaware had set out a plan for reorganization and consolida-

tion, which excluded the school district df Wilmington by a

provision which limited the maximum pupil enrollment to

12,000 since Wilmington already had an enrollment of over

15,000, they were not considered for consolidation with any of

the surrounding school districts. Since their non-white popula-

tion was already at 66%, this had the effect of perpetuating and

continuing segregation in the Wilmington schools.

68a

The court in Evans found that the state had violated the

constitution by acting in a manner which was a substantial and

proximate cause of the existing disparity in racial enrollments

in the districts of that area. They ordered a multidistrict

remedy and the surrounding districts complained that they had

committed no constitutional violation and should not be

included in such a remedy. The court found this defense to be

inadequate where the local boards are creatures of the state

that had committed the violation.

The fact that birth rates, or population shifts, or other

factors also contributed to a degree will not relieve the

State from its obligation to desegregate. The remedy for

the violation must include school districts which are its

instrumentalities and which were the product of one of the

violations. The remedy for the acts of the State may be

inconvenient, burdensome, and expensive to some of

those instrumentalities, but neither inconvenience,

burden nor expense can negate the duty of the Court to

order effective relief when a not insubstantial violation

has been shown.

Evans, supra, at 339-340.

The case presently before this court, as in the cases cited

above, calls for an interdistrict remedy. The State and County

Boards violated the constitution in the manner in which the

school district lines were drawn and so all surround:ng districts

can be implicated in a remedy, despite their alleged lack of

involvement in the process.

Where the State has contributed to the separation of races

by redrawing school lines, necessarily the districts on both

sides of the lines are part of the violation itself, and

exclusion of the suburban districts cannot be predicated

on their own purported innocence when their present lines

were drawn or redrawn in the course of a violation.

Evans, supra, at 340.

Neither are the surrounding districts innocent in the reor-

ganization plan which created General Braddock. This court

found that the school districts in the vicinity of Braddock and

Rankin continually sought to avoid being included in a school

69a

district with them due to the high concentration of blacks.

Hoots, supra. Finding of Fact No. 39.

Some of the school districts also claim a particular exclu-

sive status, allegedly given them by the state, which would

exclude them from being a part of any multidistrict remedy.

Churchill, and East Allegheny were approved as school dis-

tricts under Act 299. When that Act was superceded by Act

150, districts approved under Act 299 were exempted from Act

150. Churchill and East Allegheny claim they were granted

“grandfather status” and therefore were not implicated in the

creation of General Braddock which occurred under Act 150.

Edgewood claims that because its boundaries pre-existed all

mergers, they were never involved in any redistricting which

led to the creation of any segregated district.

This argument is without merit since the constitutional

violation was not only committed under Act 150, but pursuant

to the entire reorganization process that began with Act 561.

Furthermore, the very eliminatian from consideration for

merger with those districts was itself a contributing factor to

the creation of a segregated school district since all the districts

with a lower black student population were now excluded from

any plan, leaving General Braddock Area School District inan

isolated position.

Churchill argues exclusion from a remedy even further in

that they had begun their voluntary merger plans back in the

1950’s, before Act 561 and the state reorganization plan. It is

irrelevant, however, when their current boundaries were first

established. The actual vote to merge did not occur until after

the passage of Act 561. The state at all times under Act 561 and

Act 299 had expressly retained the power to force further

merger with districts that had previously voluntarily merged.

The fact that the state chose not to disrupt the new district of

Churchill does not mean that the State could not have ordered

them to merge again with Braddock Hills. Furthermore, it was

the refusal to force such a merger, which was within the state’s

power, which contributed to the isolation of General Brad-

dock.

Finally, the alleged«“grandfather status” granted by Act

150 cannot eliminate any of the school districts from a future

70a

remedial plan of this court or the State, School districts are the

creation and instrumentalities of the state and have no vested

rights in their boundaries. In a case challenging the ability of

the state to require merger under Act 299, the Pennsylvania

- Supreme Court held that the legislature reserves its powers to

alter school laws in all contracts made by school districts. The

court found that Act 299 could alter any mergers completed

under prior acts since the Public School Code of 1949 did not

intend created vested rights but merely authorized the forma-

tion of school districts which would exist until changed by

future legislative direction.

The continued ability to alter the organization of the

school system throughout the Commonwealth is a prereq-

uisite to the fulfillment of the Legislature’s constitutional

duty to provide for the maintenance of a thorough and

efficient system of public schools.

* * *

The jointure agreement involved here was made pursuant

“to the authority given to school districts to enter into such

agreements with the concomitant condition inherent in

such legislative authority that actions taken pursuant

thereto are subject to later change by the Legislature. As

was pointed out in Dodge v. Bd. of Education, 302 U.S.

74, 79, 58 S. Ct. 98, 100 (1937), ‘the presumption is that

such a law is not intended to create private contractual or

vested rights, but merely declares a policy to be pursued

until the Legislature shall ordain otherwise.’

Chartiers Valley Joint Schools v. Allegheny

County Board 418 Pa, 520, 528-29 (1965).

School districts have no vested rights in their boundaries and

they can be altered by the state whenever necessary. When the

state has committed a constitutional violation in the use of its

power, school district lines can be redrawn by the court to

remedy that violation.

Edgewood also claims a sort of special status exempting it

from any remedial plan since the Pennsylvania Supreme Court

upheld its right to stand alone as a school district, despite its

Tla

obvious non-compliance with the student population require-

ments. Edgewood Borough School District Appeal, 445 Pa.

343 (1971). That case, however, did not specifically address the

propriety of or the motivation for letting Edgewood stand

alone. It did not address the segregative effect of that action at

all. That case was decided on a finding that the state had not

abused its discretion in approving such a school district. The

court refused to interfere with administrative decisions.

This court, however, must interfere with administrative

decisions which are made by the state during the course of a

constitutional violation.

On the basis of the foregoing’ this court holds that the

following school districts may be included in any remedial plan

to be considered by this court: Churchill, Turtle Creek, Swiss-

vale, East Allegheny, Edgewood, and Gateway.

Two other school districts have been added as parties to

consider the nature of the remedy, West Mifflin and Steel

Valley. Both these school districts are located across the

Monongahela River from the others in this area of eastern

central Allegheny County. They were never considered in prior

merger plans. The evidence shows that there is only one bridge

carrying heavy traffic connecting these two school districts

with the General Braddock area. This factor would make any

consolidation with West Mifflin or Steel Valley highly imprac-

tical and they are, therefore, not to be included in any remedial

plan before this court. Furthermore, the evidence suggests that

as to Steel Valley, the present high degree of black school

attendance in that district would only spread the area of segre-

gation, and in West Mifflin the black school population in the

most adjacent school facilities shows the same pattern. Fur-

thermore, neither Steel Valley nor West Miffflin were involved

in the jointure, consolidation or merger of the school districts

which eventually led to the creation of the General Braddock

Area School District.

72a

ORDER a:

AND NOW, this Sth day of March, 1981, IT IS

ORDERED THAT further consideration of remedial plans

shall be governed by the above Opinion, and the motions to

dismiss of the school districts of Churchill, Turtle Creek, Edge-

wood, East Allegheny and Gateway are DENIED. The

motions to dismiss of the school districts of Steel Valley and

West Mifflin are GRANTED.

/s/ GERALD J. WEBER

GERALD J. WEBER

Chief United States District Judge

cc: Thomas J. Henderson, Esq.

Neighborhood Legal Services Assoc.

10th Floor, Allegheny Building

Pittsburgh, PA 15219

Allen C. Warshaw, Deputy Attorney General

Chief, Civil Litigation

Commonwealth of Pennsylvania

Department of Justice

Strawberry Square

Harrisburg, PA 17120

J. Robert Maxwell, Esq.

Suite 1301 Farmers Bank Bldg.

310 Fifth Avenue

Pittsburgh, PA 15219

John J. Hickton, Esq.

Alan Opsitnick, Esq. (

308 Frick Building

Pittsburgh, PA 15219

Thomas M. Rutter, Esq.

324 Frick Building

Pittsburgh, PA 15219

73a

G. N. Evashavik, Esq.

1218 Frick Building

Pittsburgh, PA 15219

Anton Bigman, Esq.

210 Fort Pitt Commons

445 Fort Pitt Blvd.

Pittsburgh, PA 15219

Donald C. Fetzko, Esq.

3714 Homestead-Duquesne Road

West Mifflin, PA 15122

Carl W. Brueck, Esq.

1420 Grant Building

Pittsburgh, PA 15219

William M. Wycoff, Esq.

J. Frank McKenna, III, Esq.

2900 Grant Building

Pittsburgh, PA 15219

James S. Liebman, Esq. .

Suite 2030

10 Columbus Circle

N.Y. N.Y. 10019

»S

74a

IN THE

United States District Court

For THE WESTERN DISTRICT OF PENNSYLVANIA

DOROTHY HOOTS, et al_ )

C.A. No. 71-538

COMMONWEALTH OF

PENNSYLVANIA et al.

ORDER

Four of the parties have filed motions to alter, amend, or

reconsider the court order of March 5, 1981. AND NOW, this

24th day of March, 1981, IT IS ORDERED that the motions

to alter or amend filed by Churchill, East Allegheny, Edge-

wood and Turtle Creek are DENIED.

/s/ GERALD J. WEBER

GERALD J. WEBER

Chief United States District Judge

cc: All Counsel

75a

IN THE

United States District Court

For THE WESTERN DISTRICT OF PENNSYLVANIA

DOROTHY HOOTS, et al. i

Plaintiffs

Vv. » Civil Action

COMMONWEALTH OF No. 71-538

PENNSYLVANIA et al.

Defendants -

MEMORANDUM ORDER

After the Order of the Court of Appeals directing this

court to proceed to a final determination of this matter within

90 days we began to proceed further with matters pending

before us in August 1980. We proceeded to decide the second of

the three part requirement imposed by the Court of Appeals at

p. 17 of the slip opinion, the decision of Milliken v. Bradley

issue of which schools may be included within an interdistrict

remedy. On March 5, 1981, we issued our opinion in which we

held that the Districts of Churchill, Edgewood, Swissvale,

General Braddock Area, Turtle Creek, East Allegheny and

Gateway may be legally included in an interdistrict remedial

plan. We concluded that it was not feasible because of geo-

graphy and other considerations to include the districts of Steel

Valley and West Mifflin and granted the motions to dismiss as

to those districts.

During this time we were also aware that the plaintiffs had

engaged experts to prepare a report for the court proposing an

interdistrict remedial plan. This came to our attention because

of the presentation of certain motions to compel discovery.

The report and recommendation of plaintiffs’ experts was filed

in this court on March 26, 1981, and came into the hands of this

court on Saturday, March 28, 1981, and was immediately read.

76a

On Monday, March 30, 1981 we ordered a conference of all

counsel on Wednesday, April 1, 1981, to consider pending

matters and determine a course of action. We heard two hours

of argument and objections, suggestions and objections, prop-

osals and objections. This Memorandum order is made on

consideration of all matters raised.

On June 6, 1980, General Braddock filed an “upgrade

plan.” This was a very sketchy proposal to improve the quality

of its schools to attract non-minority students back to the

General Braddock Area schools to improve the racial balance.

No testimony on this plan was taken in the extensive hearings

during the summer of 1980 which were concentrated on the

“tuition plan” originally urged on us by plaintiffs in their

application for Mandamus of April 16, 1979, and which we

ordered the Commonwealth to prepare on May 17, 1979.

On March 26, 1981, there was also filed by the General

Braddock Area School District a fleshed-out version of the

“upgrade plan” submitted by its experts, the Donald M. Car-

roll Agency. Several of the parties defendant strongly insist

that we hear testimony on the Carroll plan, and also request

that the court consider a further development of the plan to be

submitted. We reject the Carroll plan for further considera-

tion. The plan is intradistrict; it does not face the issue of

desegregation. Only as an admitted after-thought was there

added a provisin for interdistrict visits one half day each week.

We are ready for the consideration of the remedial plan

proposed by plaintiffs. We are thoroughly familiar with all of

the districts to be involved, we have considered other plans

involving permutations and combinations of neighboring dis-

tricts to the point that little can be added.

Having dismissed West Mifflin and Steel Valley Districts,

we have remaining before us seven (7) districts as parties added

for the purpose of a remedy.

The plaintiffs now propose a five district remedy, com-

posed of five districts most fully covered in prior hearings.

Plaintiffs do not propose the inclusion of East Allegheny and

Gateway for many reasons of efficiency, area, distances and

facilities. To the court’s suggestion that East Allegheny and

77a

Gateway be dropped as defendants there was only partial and

moderate opposition. They will remain as parties until we have

concluded the further hearings provided herein.

From all of the hearings held we are of the opinion that

only an interdistrict remedy is feasible here, and we will pro-

ceed to determine the districts to be included on the basis of the

HGH Associates Plan of Consolidation. We are also of the

opinion that only a single new district be formed from the

consolidation because of the many difficulties presented by

plans of consolidation into multiple new districts on which we

have heard testimony in prior hearing.

Finally, after full hearings thereon, we are satisfied that

the tuition plan prepared by the Commonwealth or any

amendments or modifications thereof, cannot achieve effective

desegregation, and the plan is therefore rejected.

NOW, THEREFORE, IT IS ORDERED that hearings

on the remedy to be ordered shall be held beginning at 9:30

a.m. Monday, April 20, 1981. The hearings shall be held solely

for the purpose of determining the districts to be consolidated

for the purpose of remedying the constitutional violations

found to have been imposed on the plaintiffs here. The districts

to be considered will be limited to General Braddock Area,

Churchill Area, Swissvale Area, Edgewood, Turtle Creek

Area, East Allegheny and Gateway.

No evidence or testimony will be taken as to any prior plan

presented to this court.

The testimony shall be limited to the geographical area of

a new school district proposed to be formed by the consolida-

tion or merger of the above districts.

No evidence or testimony shall be presented on any aspect

of administration of the newly created district, including mat-

ters of pupil assignment, staff assignment, utilization of facili-

ties, transportation or any matter of implementation.

Due to the substantial evidence already presented and in

view of the requirement of immediate relief, the hearings shall

be limited as follows:

Monday, April 20, 1981. Presentation by Plaintiffs of

expert testimony in support of their submitted plan.

78a

Tuesday, April 21, 1981. Cross-examination of Plaintiffs’

expert witnesses and presentation of expert testimony of

Defendants.

Wednesday, April 22, 1981. Presentation of Defendants’

expert testimony.

Cross-examination of Plaintiffs’ expert shall be limited to three

of defendants’ counsel, chosen by agreement among them.

Defendants shall be limited to the presentation of one witness

for each party defendant.

At the close of the hearings on Wednesday, April 22, 1981,

the court shall proceed to an order establishing the school

district designate to effect the remedy.

SO ORDERED this 6th day of April, 1981.

/s/ GERALD J. WEBER

Chief United States District Judge

cc: All counsel

79a

ORDER OF COURT.

AND Now, to wit, this 6th day of June, 1969, upon presen-

tation of the Petition for Appeal and For Supersedeas, and

supersedeas is hereby granted and all proceedings related to the

reorganization of the School District of the Borough of Brad-

dock are hereby stayed until final determination of this appeal;

appropriate notice to be given to counsel for the State Board of

Education. ‘

By THE Court:

WATSON,

Adjudication.

(Filed June 23, 1969.)

In Re: APPEALS OF THE SCHOOL DISTRICTS OF

THE BOROUGHS OF RANKIN, BRADDOCK AND

NORTH BRADDOCK FROM THE PLAN OF ORGANI-

ZATION OF ADMINISTRATIVE UNITS SUBMITTED

BY THE ALLEGHENY COUNTY BOARD OF SCHOOL

DIRECTORS.

AND Now, May 9th, 1969, the State Board of Education makes

the following adjudication:

Pursuant to the mandate of the School District Reorgani-

zation Act of 1968, approved July 8, 1968 (Act 150), the

Allegheny County Board of School Directors on October 7,

1968, adopted, and thereafter submitted to the State Board of

Education a plan of school district reorganization for Alleghe-

ny County, which provided for the creation of Administrative

Unit 16, composed as follows:

School District of the Borough of Rankin, School

District of the Borough of North Braddock and

School District of the Borough of Braddock.

80a

Each of the three districts comprising Unit 16, considering

itself aggrieved by the Allegheny County Plan, has appealed to

the State Board of Education to amend the Plan by establish-

ing each district as a single administrative unit and, in addition,

the School District of Rankin also petitioned, as an alternative

amendment, to be combined with Unit 38.

After due notice, a hearing on said appeals was held on

February 25, 1969, in Harrisburg, Pennsylvania. At the hear-

ing, opportunity was afforded all parties in interest to offer

testimony, examine and cross examine witnesses and to intro-

duce exhibits for consideration by the Board. This adjudica-

tion is made in accordance with the Board’s determination

based upon the testimony, exhibits and other matter incorpo-

rated into the record of the proceedings.

FINDINGS OF FACT

1. Administrative Unit 16 is comprised of the School

Districts of the Boroughs of Rankin, Braddock and North

Braddock (County Plan).

2. Unit 16 has a total land area of only 2.64 square miles

(County Plan).

3. The total ADM in Unit 16 for the base year 1966-1967

was 4,110 (County Plan).

4. The educational program offered in the North Brad-

dock system will benefit the pupils in the other two districts

comprising proposed Unit 16 (North Braddock N. T. 64).

5. There are no cafeteria facilities in the North Braddock

School System (North Braddock N. T. 31).

6. A very low percentage of the North Braddock graduates

attend degree-granting institutions (North Braddock N. T. 57).

7. The current total pupil enrollment in the Rankin School

System is approximately 630 students (Rankin N. T. 6).

* =e

8la

8. Rankin is a regressing community economically and is

in desperate need of financial aid from a broader economic

base (Rankin N. T. 18-20).

9. The present ADM in the Braddock School District is

approximately 1,244 (Braddock N. T. 16).

10. There are no anticipated population changes in the

Braddock School District (Braddock N. T. 22).

11. There are no cafeteria facilities in the Braddock sys-

tem, although there are 931 children certified under Title I as

being underprivileged (Braddock N. T. 46-47).

DISCUSSION

The State Board of Education is empowered under Act

150 (1968) to adopt standards to which county plans of school

district reorganization must conform, but the initial burden

and responsibility in selecting among possible combinations

which meet these standards is reposed in the local county board

of school directors.

The record establishes that Administrative Unit 16 of the

Allegheny County Plan does meet the minimum mandated

pupil populativn of 4,000. None of the three constituent dis-

tricts can approach this figure individually or in combination,

now or in the foreseeable future, except as in the merger

proposed by the County Plan.

Topographically, no barriers appear which would militate

against common administration. The need and extent, if any,

for massive pupil transportation has not been adequately dem-

onstrated. Moreover, the future utilization or nonutilization of

attendance centers in the component districts is subject to the

discretion of the reorganized board for determination as in the

best interests of all the pupils of Unit 16. In this proposed unit

there is afforded maximum flexibility in planning for future

needs under a common administration.

82a

Although each of the component school districts have

distinctive and noteworthy programs, the testimony and

exhibits in the record indicate that none have the capacity to

provide a comprehensive program of quality education as

envisioned as the legislative goal of Act 150 (1968). In this

regard, the advantages of increased curricular offerings, finan-

cial savings in many areas of purchase and a broader economic

base far outweigh the initial adjustments of finance, adminis-

tration and personal relationships attendant upon reorganiza-

tion.

The responsibility of the county board is an onerous one.

It must adopt a Plan consistent with the statutory factors and

our supplementing standards that provide the maximum edu-

cational benefits to every pupil of the area irrespective of

whether he lives in a rich or poor district. This Board agrees

that the only reasonable plan conforming to that responsibility

is Administrative Unit 16.

CONCLUSION

The appeals of the School Districts of the Boroughs of

Rankin, Braddock and North Braddock are denied, and Unit

16 of the Allegheny County Plan of Organization of Adminis-

trative Units is here. y approved as being in the best interests of

the educational system of the Commonwealth.

Davip H. KURTZMAN,

Chief Executive Officer.

83a

IN THE

COURT OF COMMON PLEAS

OF ALLEGHENY COUNTY, PENNSYLVANIA

CIVIL DIVISION

In Re: Appeal of the »

School District of the

Borough of Rankin from

Plan of Reorganization ) SA 544 of 1969

of Administrative Units

by State Board of

Education Forming Unit 16

YS Se

In Re: Appeal of the

School District of the

Borough of North Braddock

from plan of Reorganization SA 556 of 1969

of Administrative Units

by State Board of

Education Forming Unit 16

In Re: Appeal of the

School District of the

Borough of Braddock

from Plan of Reorganization p SA 559 of 1969

of Administrative Units

by State Board of

Education Forming Unit 16 F

OPINION

MCKENNA, J.

These cases arise under the School District Reorganiza-

tion Act, No. 150 of July 8, 1968, P.L. (24 P.S. 2400.1, et

seq.). The Act requires each County Board of School Directors

in the State to submit to the State Board of Education a plan

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