Evans v. Ennis

Citation281 F.2d 385
Decision Date19 July 1960
Docket NumberNo. 13018-13024.,13018-13024.
PartiesMary Ann EVANS, an Infant, by Helen Evans, Her Guardian ad Litem, et al., Appellants, v. Jane ENNIS, Vincent A. Theisen, Marvel O. Watson, Roy A. Wentz, Ralph Grapperhaus, Harold B. English, Members of the State Board of Education, George R. Miller, Jr., State Superintendent of Public Instruction, Richard W. Comegys, Harry W. Moor, G. Francis Downs, Mary W. Jarrell, Members of the Board of Trustees of Clayton School District No. 119. Eugene HARRIS, an Infant, by Thomas Harris, His Guardian ad Litem, et al., Appellants, v. Jane ENNIS, Vincent A. Theisen, Marvel O. Watson, Roy A. Wentz, Ralph Grapperhaus, Harold B. English, Members of the State Board of Education, George R. Miller, Jr., State Superintendent of Public Instruction, Max R. Corder, E. Crerar Bennet, Jr., Ernest C. Macklin, George A. Robbins, Members of the Board of Education of the Milford Special School District. Julie COVERDALE, an Infant, by Annie E. Coverdale, Her Guardian ad Litem, et al., Appellants, v. Jane ENNIS, Vincent A. Theisen, Marvel O. Watson, Roy A. Wentz, Ralph Grapperhaus, Harold B. English, Members of the State Board of Education, George R. Miller, Jr., State Superintendent of Public Instruction, Wilbur C. Root, Norman C. Hamsted, Harry Webb, Majorie Baker, Members of the Board of Trustees of Greenwood School District No. 91. Eyvonne HOLLOMAN, an Infant, by Flossie Holloman, Her Guardian ad Litem, et al., Appellants, v. Jane ENNIS, Vincent A. Theisen, Marvel O. Watson, Roy A. Wentz, Ralph Grapperhaus, Harold B. English, Members of the State Board of Education, George R. Miller, Jr., State Superintendent of Public Instruction, Howard T. West, John T. Fisher, Norman Clifton, Albert Lank, Members of the Board of Trustees of Milton School District No. 8. David CREIGHTON, an Infant, by Josephine Creighton, His Guardian ad Litem, et al., Appellants, v. Jane ENNIS, Vincent A. Theisen, Marvel O. Watson, Roy A. Wentz, Ralph Grapperhaus, Harold B. English, Members of the State Board of Education, George R. Miller, Jr., State Superintendent of Public Instruction, Ford M. Warrington, Otis P. Carmine, Clarence J. Evans, Homer L. Disharoon, Jr., Members of the Board of Education of the Laurel Special School District. Marvin DENSON, an Infant, by Clarence Denson, His Guardian ad Litem, et al., Appellants, v. Jane ENNIS, Vincent A. Theisen, Marvel O. Watson, Roy A. Wentz, Ralph Grapperhaus, Harold B. English, Members of the State Board of Education, George R. Miller, Jr., State Superintendent of Public Instruction, Robert H. Stamm, Irene F. Larrimore, Oscar W. Allen, Jr., John C. Rawlins, Members of the Board of Education of The Seaford Special School District. Thomas J. OLIVER, Jr., an Infant, by Thomas J. Oliver, His Guardian ad Litem, et al., Appellants, v. Jane ENNIS, Vincent A. Theisen, Marvel O. Watson, Roy A. Wentz, Ralph Grapperhaus, Harold B. English, Members of the State Board of Education, George R. Miller, Jr., State Superintendent of Public Instruction, Raymond Townsend, George H. Bunting, William B. Chandler, Jr., Roland V. Cobb, Members of the Board of Trustees of John M. Clayton School District No. 97.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Louis L. Redding, Wilmington, Del., for appellants.

Januar D. Bove, Jr., Wilmington, Del. for State Board of Education and State Superintendent of Public Instruction.

James M. Tunnell, Jr., Wilmington, Del. (Morris, Nichols, Arsht & Tunnell, Wilmington, Del., on the brief), James H. Hughes, III, Dover, Del., for Local Boards of Milford, Seaford, Laurel and Greenwood, for respondent.

Everett F. Warrington, Georgetown, Del., for Board of Trustees of Milton School Dist. No. 8.

Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.

BIGGS, Chief Judge.

The background of these appeals is stated in Evans v. Buchanan, D.C.Del. 1957, 152 F.Supp. 886, and 3 Cir., 1958, 256 F.2d 688. After our remand, the court below directed the defendant, the State Board of Education of Delaware, and the defendant, George R. Miller, Jr., State Superintendent of Public Instruction, to submit to it a plan of desegregation. A proposed plan was submitted and was approved with certain modifications. See Evans v. Buchanan, D.C., 172 F.Supp. 508, and D.C., 173 F.Supp. 891. On July 6, 1959, the court below entered a final order approving the plan. This is the order appealed from.

It is sufficient to state here that the plan as approved provides for the desegregation of the Delaware Public School System on a grade-by-grade basis over a period of 12 years beginning with all first grades at the Fall term, 1959. The plaintiffs-appellants object to this plan on two grounds. First, they assert that the plan is not in accord with the mandate of this court which they say in substance approved the order of Judge Leahy entered in the court below on July 15, 1957, and which in their view required immediate state-wide desegregation in all schools and at all grades. Cf. our opinion at 256 F.2d 688. The plaintiffs' second objection is that the plan as approved by the court below does not follow the intent and substance of the decisions of the Supreme Court in Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and 1955, 349 U.S. 294, 75 S.Ct. 753, 757, 99 L.Ed. 1083, in that the plan does not effect desegregation "with all deliberate speed" and is not a "reasonable start toward full compliance" with the ruling of the Supreme Court in its Brown opinion of May 17, 1954.

In its opinions the court below has reached the conclusion that the plan approved is a necessary and proper, if not the only feasible, one, and that integration at a more rapid rate would overcrowd the schoolrooms, overtax the teachers, and have a most undesirable emotional impact on some of the socially segregated communities of Delaware. The court below concluded in substance that desegregation at a more rapid rate than that approved by it would prove to be a disruptive and futile proceeding which might do great harm to the Delaware School System.

We cannot agree. We affirmed the decree of Judge Leahy which in plain terms required statewide integration of the public school system of Delaware in all classes by an adequate plan by the Fall term 1957, and which enjoined designated defendants from refusing admission to Negro children on a racially discriminatory basis. The plan approved by the court below is not in accordance with Judge Leahy's decree or with the mandate of this court. Desegregation of the Delaware public school system on a grade-by-grade basis over a period of 12 years, beginning as it did in the Fall of 1959, does not follow the intent and substance of the rulings of the Supreme Court in Brown v. Board of Education of Topeka, supra.

The plan and the evidence of many of its proponents seem to us to be fraught with unreality, though undoubtedly the witnesses, the defendants, and indeed all concerned, have acted in good faith. It appears from Exhibit No. 11, "Population by School Districts and High School Areas, January 1959", that the approximate number of Negro children available for desegregation in Delaware was 6,813 and that the number of Negro children eligible or available for desegregation in the first grades as of that date was approximately 1,000. The affidavit of June 10, 1959, of Superintendent Miller, states that the number of Negro children applying for entrance into the first grades of those "White Schools", which previously had not had plans for desegregation approved by the State Board of Education, amounted to only 25.1 Percentage-wise, therefore, the number of Negro children who registered for entrance into the first grades in the Fall of 1959 was approximately 2.5% of those available as set out in Exhibit No. 11.2 If the same percentage be applied to the 6,813 Negro children referred to in Exhibit 11: viz., if 2.5% of 6,813 be taken, 170 Negro pupils would have registered from grades 1 to 12 inclusive. Even if this number be trebled the number of Negro children involved if desegregation took place through grades 1 to 12 would barely exceed 500. Doubtless there would be some overcrowding in particular schools as suggested by State's Exhibit 14 and many temporary or permanent re-arrangements in school facilities relating to teachers, school houses, school rooms, and transportation would have to be made, but it is unrealistic to suggest that all Negro pupils now in segregated schools would immediately seek admission to desegregated schools. The fact that there must be deemed to be a diminution in the number of Negro children seeking integration, viz., in the number seeking immediate integration as estimated by some of the defendants, is indicated by the fact that of the 42 infant plaintiffs who originally sought relief, approximately 24 have ceased to be active plaintiffs and no longer seek to be integrated. Some of these 24 doubtless have graduated but even if we assume that the number graduating amounts to 10% of the total, it is clear that the number of active plaintiffs still seeking integration is approximately only 20. It has been the experience in school desegregation that a large number of Negro children do not seek integration even when offered the opportunity. This is common knowledge. We cannot conclude that the situation in Delaware will be noticeably different in this respect than in other critical areas the schools of which already have been successfully integrated. It is the fact that if the plan as approved by the court below be not drastically modified a large number of the Negro children of Delaware will be deprived of education in integrated schools despite the fact that the Supreme Court has unqualifiedly declared integration to be their constitutional right. We cannot believe that such a...

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