555 F.2d 373 (3rd Cir. 1977), 76-2103, Evans v. Buchanan

Docket Nº:76-2103 to 76-2107.
Citation:555 F.2d 373
Party Name:Brenda EVANS et al., Plaintiffs, Board of Public Education of the City of Wilmington, Intervening Plaintiff, v. Madeline BUCHANAN et al., constituting all the members of the State Board of Education of the State of Delaware, Defendants, Alexis I. duPont et al., Intervening Defendants.
Case Date:May 18, 1977
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 373

555 F.2d 373 (3rd Cir. 1977)

Brenda EVANS et al., Plaintiffs,

Board of Public Education of the City of Wilmington,

Intervening Plaintiff,

v.

Madeline BUCHANAN et al., constituting all the members of

the State Board of Education of the State of

Delaware, Defendants,

Alexis I. duPont et al., Intervening Defendants.

Nos. 76-2103 to 76-2107.

United States Court of Appeals, Third Circuit

May 18, 1977

Page 374

[Copyrighted Material Omitted]

        Argued March 30, 1977.

Page 375

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

        James T. McKinstry, Richards, Layton & Finger, Wilmington, Del., for the Claymont School Dist. and the Stanton School Dist., appellant.

        David F. Anderson, Potter, Anderson & Corroon, Wilmington, Del., for New Castle-Gunning Bedford School Dist., appellant.

        Edward W. Cooch, Jr., Cooch & Taylor, Wilmington, Del., for Marshallton-McKean School Dist., appellant; Lino A. Graglia, Austin, Tex., of counsel.

        James M. Tunnell, Jr., Richard D. Allen, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., amicus curiae, Mount Pleasant School Dist.

        William Poole, Potter, Anderson & Corroon, Wilmington, Del., amicus curiae, Alfred I. duPont School Dist.

        Jerome O. Herlihy, Herlihy & Herlihy, Wilmington, Del., amicus curiae, Conrad Area School Dist.

        Samuel R. Russell, Biggs & Battaglia, Wilmington, Del., amicus curiae, Alexis I. duPont School Dist.

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

        Louis L. Redding, Joseph Rosenthal, Irving Morris, Morris & Rosenthal, Wilmington, Del., for appellees-plaintiffs.

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        Drew S. Days, III, Asst. Atty. Gen., Brian K. Landsberg, Vincent F. O'Rourke, Jr., Dept. of Justice, Washington, D. C., amicus curiae, United States of America.

        Richard R. Wier, Jr., Atty. Gen. of the State of Delaware, Regina M. Small, Deputy Atty. Gen. of the State of Delaware, Wilmington, Del., William Prickett, Mason E. Turner, Jr., Prickett, Ward, Burt & Sanders, Wilmington, Del., for the Delaware State Bd. of Ed., appellants; Philip B. Kurland, Chicago, Ill., of counsel.

        Before VAN DUSEN, ALDISERT, ADAMS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.

       OPINION

        ALDISERT, Circuit Judge.

        The major question presented in this review of a three-judge court's judgment ordering the Delaware Board of Education to desegregate its school system is the propriety of the court's inter-district remedy. As hereinafter modified, the district court's judgment will be affirmed.

        The present appeal is, we trust, the final chapter in an extensive series of proceedings initiated twenty years ago "to eliminate the de jure segregation in Delaware schools," Evans v. Buchanan, 393 F.Supp. 428, 430 (D.Del.1975), and to effectuate "a transition to a racially nondiscriminatory school system" as required by Brown v. Board of Education (Brown II), 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955). 1 A three-judge court was convened in 1971 in response to the plaintiffs' concern that Delaware's Educational Advancement Act of 1968, which gave the State Board of Education the power to reorganize existing school districts, 14 Del.C. § 1001, but excluded the Wilmington school district from reorganization, see id. §§ 1004(c) (2) and (4), 1005, 1021, 1026(a), offended the principles of Brown.

        In its initial opinion, Evans v. Buchanan, 379 F.Supp. 1218 (D.Del.1974), the court concluded that "segregated schooling in Wilmington has never been eliminated and that there still exists a dual school system," id. at 1223, and, accordingly, ordered the State Board of Education to submit plans to remedy existing segregation. Id. at 1224. The court postponed the date set for submission of the plans, however, after the Supreme Court issued its opinion in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). In its 1975 deliberations, having invited all affected school districts to present evidence on all issues before the court, and applying Milliken standards to the record evidence thus adduced, the court found significant inter-district, de jure segregation in New Castle County. Evans v. Buchanan, 393 F.Supp. 428, 431-32, 438, 445, 447 (D.Del.1975). At this time, the court held unconstitutional those provisions of Delaware's Educational Advancement Act which excluded Wilmington from eligibility for reorganization, and again ordered submission of both Wilmington-only and inter-district plans to remedy the inter-district segregation. Id. at 447. The State Board of Education and the intervening suburban school districts (except DeLaWarr) appealed this judgment to the Supreme Court pursuant to 28 U.S.C. § 1253. On November 17, 1975, the Supreme Court summarily affirmed the district court. Buchanan v. Evans, 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975).

        On May 19, 1976, after three weeks of evidentiary hearings on the plans submitted by the parties, the district court reiterated its finding of an inter-district violation: "We establish here only that the remedy which we order may include the suburban districts, because their existence and their actions were part of the violations which lead to the remedy." Evans v. Buchanan, 416 F.Supp. 328, 341 n. 43 (D.Del.1976). In considering the various plans submitted, the court found Wilmington-only plans unacceptable, id. at 343-44, and rejected the

Page 377

specific inter-district remedies proposed by the parties. The latter included plans relying on voluntary transfer inducement ("magnet" plans), id. at 345-46, and several proposals utilizing cluster and pairing techniques, id. at 346-48, which the court determined to be "fraught with complex problems unsuitable for judicial determination" and which would "place the Court in the ongoing position of general supervisor of education in New Castle County." Id. at 347.

        On June 15, 1976, the district court ordered that Delaware schools in the area north of the northern line of the Appoquinimink School District the area presently comprised of the Alfred I. duPont, Alexis I. duPont, Claymont, Conrad, DeLaWarr, Marshallton-McKean, Mount Pleasant, Newark, New Castle-Gunning Bedford, Stanton, and Wilmington School Districts be desegregated and reorganized into a new or such other new districts as would comply with the court's May 19, 1976 opinion. The May 19 opinion had set the date for full compliance with constitutional requirements on all grade levels as September 1978. 416 F.Supp. at 361.

        Thereafter, appellants took an appeal to the Supreme Court which, on November 29, 1976, dismissed the appeal on jurisdictional grounds. 423 U.S. 1080, 96 S.Ct. 868, 47 L.Ed.2d 91 (1976). The present protective appeals to this court were then pursued.

       I.

        The Supreme Court's summary affirmance of the district court's 1975 order would appear to be binding on this court under the law of the case principle, which has been explained by the Supreme Court as follows:

When matters are decided by an appellate court, its rulings, unless reversed by it or a superior court, bind the lower court. Thus a cause proceeds to final determination. While power rests in a federal court that passes an order or decision to change its position on a subsequent review in the same cause, orderly judicial action, except in unusual circumstances, requires it to refuse to permit the relitigation of matters or issues previously determined on a former review.

        Insurance Group Committee v. Denver & Rio Grande Western R. R., 329 U.S. 607, 612, 67 S.Ct. 583, 585, 91 L.Ed. 547 (1947) (footnote omitted).

        Under the rule of Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), lower courts, being bound by summary decisions of the United States Supreme Court, may not reexamine constitutional questions necessarily decided in a summary affirmance. In cases of summary adjudication, of course, it is not always crystal clear what exactly was adjudicated by the Supreme Court, see Super Tire Engineering Co. v. McCorkle,550 F.2d 903, 906 (3d Cir. 1977), but in this case we conclude that the Supreme Court affirmed the finding of one or more inter-district constitutional violations. The district court found a constitutional violation and ordered the parties to submit both Wilmington-only and inter-district plans. Thus, in exercising its review function, the Supreme Court perforce considered both the constitutional violation and its inter-district character. Had the Court disapproved of these lower court findings, it would either have found no constitutional violation, thereby precluding the submission of any plan, or, alternatively, it would have prohibited the filing of an inter-district plan.

        The dissent urges that we should determine which of the eight violations found by the district court were affirmed or not affirmed by the Supreme Court. In view of the doctrine of the law of the case and the very brief order by the Supreme Court, this would become a highly speculative exercise, if indeed, this court has the power to attempt a modification of the Supreme Court's judgment. If the defendants believe that some of the eight alleged violations were not affirmed, they should take, or perhaps previously should have taken, appropriate steps to obtain review of this matter, or a clarification, by the Supreme Court. To order a remand and...

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