# Appendix — Swissvale Area School District v. Hoots

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 963

## Text

ee

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,

v.

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

et

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-

2a

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

3a

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).

4a

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.

I.

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.

Sa

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.

6a

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)

7a

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.

8a

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).

9a

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.

oS

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 daysӢ 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).

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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.

I.

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.

A.
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.

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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

es

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.

C.
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).

7S

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.

D.
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,

ps

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

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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.

a

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).

s%

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

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

*%

7

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

V.

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 —

X%

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
V.
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1678%3A2. Public record. Not legal advice.