Evans v. Buchanan

• Decision Date: 09 January 1978
• Docket Number: Civ. A. No. 1816 to 1822.
• Citation: 447 F. Supp. 982
• Parties: Brenda EVANS et al., Plaintiffs, v. Madeline BUCHANAN et al., Defendants.
• Court: U.S. District Court — District of Delaware

447 F. Supp. 982

Brenda EVANS et al., Plaintiffs, v. Madeline BUCHANAN et al., Defendants.

Civ. A. Nos. 1816 to 1822.

United States District Court, D. Delaware.

January 9, 1978.

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Joseph A. Rosenthal and Irving Morris, of Morris & Rosenthal, Wilmington, Del., and Louis L. Redding, Wilmington, Del., for individual plaintiffs.

Richard Allen Paul, of Paul, Lukoff & Hurley, Wilmington, Del., of counsel; Louis R. Lucas, Ratner, Sugarmon, Lucas, Salky & Henderson, Memphis, Tenn., Paul R. Dimond, of O'Brien, Moran & Dimond, Ann Arbor, Mich., William L. Taylor, Center for National Policy Review, Washington, D.C., for intervening plaintiffs.

Aida Waserstein, Wilmington, Del., for intervening Hispanic plaintiffs.

Richard R. Wier, Jr., Atty. Gen., Regina M. Small, Deputy Atty. Gen., State of Delaware, William Prickett and Mason E. Turner, of Prickett, Ward, Burt & Sanders, Wilmington, Del., Philip B. Kurland, Chicago, Ill., for defendant State Board of Education.

Edward W. Cooch, Jr., of Cooch & Taylor, Wilmington, Del., for Marshallton-McKean School Dist.

Samuel R. Russell, of Biggs & Battaglia, Wilmington, Del., for Alexis I. duPont School Dist.

William Poole, of Potter, Anderson & Corroon, Wilmington, Del., for Alfred I. duPont School Dist.

James T. McKinstry, of Richards, Layton & Finger, Wilmington, Del., for Claymont and Stanton School Dists.

John P. Sinclair, of Potter, Anderson & Corroon, Wilmington, Del., for Newark School Dist.

Jerome O. Herlihy, of Herlihy & Herlihy, Wilmington, Del., for Conrad Area School Dist.

Howard M. Handelman and Jeffrey M. Weiner, of Bayard, Brill & Handelman, Wilmington, Del., for New Castle County Vocational-Technical School Dist.

James M. Tunnell, Jr., and Richard Allen, of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for Mount Pleasant School Dist.

David Anderson, of Potter, Anderson & Corroon, Wilmington, Del., for New Castle-Gunning Bedford School Dist Thomas S. Lodge, of Connolly, Bove & Lodge, Wilmington, Del., for DeLaWarr School Dist.

Sheldon N. Sandler, of Bader, Dorsey & Kreshtool, Wilmington, Del., amicus curiae, Delaware State Education Assn.

Clifford B. Hearn, of Balick & Hearn, P.A., Wilmington, Del., amicus curiae, Wilmington Federation of Teachers AFT AFL-CIO.

Henry N. Herndon and Edward M. McNally, of Morris, James, Hitchens & Williams, Wilmington, Del., for New Castle County Planning Board of Education, a non-aligned party.

Leonard L. Williams and George E. Evans, Wilmington, Del., for Wendell Howell, member of New Castle County Planning Board of Education.

OPINION

MURRAY M. SCHWARTZ, District Judge.

This opinion treats the few and relatively narrow remedial issues that remain for decision in this twenty year litigation, the more recent phase of which was initiated in 1971.¹ Those issues are: (1) What inter-district pupil assignment concept should be employed to extirpate the de jure segregation and dual school system in Northern New Castle County, the constitutional violation and scope of remedy having been determined and all appeals on those issues exhausted; (2) What ancillary relief is required to overcome the "continuing conditions of inequality produced by the inherently unequal dual school system"² and vestige effects of de jure segregation never eradicated in Northern New Castle County; (3) What specific relief is required in the area of governance in light of past and continuing defaults by the State Legislature; (4) Whether this Court should retain continuing jurisdiction, and other future litigation matters. A summary of the procedural and factual background is necessary to place the matter presently before the Court in proper context.³

I. PUPIL REASSIGNMENT

A. Background

The genesis of this case can be attributed to a matter styled Gebhart v. Belton, 33 Del. 144, 91 A.2d 137 (1952). In that consolidated case, the Delaware Supreme Court ordered two districts⁴ to immediately admit black children plaintiffs into de jure all white schools. Upon review, the United States Supreme Court granted certiorari, combining Gebhart with other cases to formulate the historic Brown v. Board of Education saga.⁵ The Supreme Court affirmed but remanded Gebhart, mandating "a prompt and reasonable start toward . . a transition to a racially nondiscriminatory school system."⁶

In 1957, plaintiffs filed this action charging, inter alia, a failure to follow the mandate of Brown. Efforts to achieve the goal of Brown between 1958 and 1971 are chronicled elsewhere⁷ and will not be repeated here.

In 1971, the present phase of this litigation was initiated. Subsequently the Wilmington Board of Education intervened as a party plaintiff with the State Board of Education and State Superintendent of Public Instruction remaining aligned as party defendants. In 1974, a three-judge court⁸ made detailed factual findings and unanimously held the State Board of Education had failed to eliminate the de jure segregated school system which had previously existed in Northern New Castle County.⁹ Concerned that suburban districts that might be affected by a final order lacked an adequate opportunity to be heard, the three-judge court invited them to intervene and present evidence on the issues raised by the amended complaint.¹⁰ Although virtually all suburban boards accepted the invitation,¹¹ the district boards presented no evidence, electing to adopt the State Board pleadings and stand on the existing record. Following briefing and oral argument, the three-judge court filed a second opinion¹² directing the submission of remedial schemes, including inter-district desegregation proposals. As earlier summarized by this Court, a majority of the three-judge court held that an:

"inter-district remedy would be appropriate, based on its findings that:

"1) there had been a failure to alter the historic pattern of inter-district segregation in Northern New Castle County;

"2) governmental authorities at the state and local levels were responsible to a significant degree for increasing the racial disparity in residential and school populations between Wilmington and the suburbs;

"3) the City of Wilmington had been unconstitutionally excluded from other school districts by the State Board of Education, pursuant to a withholding of reorganization powers under the Delaware Educational Advancement Act of 1968."

424 F.Supp. at 877. Defendants appealed to the Supreme Court, which summarily affirmed the three-judge court order.¹³

Following the Supreme Court summary affirmance, the three-judge court endeavored to develop a remedy to redress the inter-district constitutional violation. Three weeks of evidentiary hearings were held to evaluate the approximately nineteen proposals that were submitted.¹⁴ The schemes under consideration divided analytically into three groups: voluntary transfer, reorganization into different districts with a portion of the black minority population to be included within each district, and "mandatory assignment plans providing for the transfer and transportation of students among the existing districts."¹⁵ In May, 1976, after thorough consideration and articulation of additional findings of fact, the three-judge court rejected all proposals submitted.¹⁶ Recognizing that Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) ("Milliken I") "makes plain that the remedy to be ordered must be commensurate with the scope of the violation which has been found,"¹⁷ the three-judge court perceived that its "duty is to order a remedy which will place the victims of the violation in substantially the position which they would have occupied had the violation not occurred."¹⁸ The court also noted that "where the violation found resulted in the operation of a dual school system, the Court must order the `greatest possible actual degree of desegregation,' consistent with the practicalities of the situation . . .."¹⁹ Based primarily upon these Milliken I principles, the three-judge court stressed that the nature and scope of the constitutional violation required an inter-district remedy. It then defined the geographic area to be included within the desegregation scheme and noted that reorganization of the affected school districts would be required.

In the course of formulating its primary remedial decree, the three-judge court went to virtually unprecedented lengths to minimize federal court intrusion. In pursuit of its policy of nonintrusion, the district court deferred to the State Legislature to cure the constitutional violation both with respect to the scheme of reorganization and to issues of governance, noting that "such decisions are far better left to legislators and the process of compromise than to the rigors of judicial determination."²⁰ In the event the Delaware Legislature defaulted, the three-judge court provided that the affected desegregation area should be one county wide system²¹ governed on an interim basis by a five member board appointed by defendant State Board of Education and consisting of board members from the existing districts.²² To promote an orderly transition to a unitary system, the three-judge court afforded the parties a fifteen month delay. Finally, the three-judge court allowed whatever constitutional pupil assignment plan was adopted by responsible State authorities to become effective in two stages with the first step, grades 7-11,²³ to be accomplished by September, 1977, and full compliance to be achieved with the commencement of the September, 1978 school year.

Certain defendants appealed the three-judge court order to the Supreme Court, with a protective appeal being lodged with the Third Circuit. On November 28, 1976, the Supreme Court dismissed the appeal for want of jurisdiction.²⁴ Thereafter, the protective appeal was pursued before the en banc²⁵ Court of Appeals. The Third Circuit divided four to three in upholding the three-judge remedy order, except for one particular...