651 F.2d 183 (3rd Cir. 1981), 80-2237, Mitchell v. McCunney

Docket Nº:80-2237.
Citation:651 F.2d 183
Party Name:MITCHELL, Velma and Mitchell, Garry and Clark, Marlene and Clark, Sharlene, a minor by her mother and natural guardian Marlene Clark, and Frazier, Hattie and Clark, Norman and Clark, Jr., Norman, a minor by his father and natural guardian Norman Clark and on behalf of themselves and on behalf of others similarly situated, Appellants, v. Mark A. McC
Case Date:May 29, 1981
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 183

651 F.2d 183 (3rd Cir. 1981)

MITCHELL, Velma and Mitchell, Garry and Clark, Marlene and

Clark, Sharlene, a minor by her mother and natural guardian

Marlene Clark, and Frazier, Hattie and Clark, Norman and

Clark, Jr., Norman, a minor by his father and natural

guardian Norman Clark and on behalf of themselves and on

behalf of others similarly situated, Appellants,

v.

Mark A. McCUNNEY, individually and as President of the Board

of School Directors, Southeast Delco School District,

William A. Cubit, individually and as Vice President of the

Board of School Directors, Southeast Delco School District,

John H. Alexander, individually and as a member of the

school Board of Directors, Southeast Delco School District,

Harry A. Dunlap, individually and as a member of the School

Board of Directors, Southeast Delco School District, Angelo

M. LaBuono, individually and as a member of the School Board

of Directors, Southeast Delco School District, Wilford L.

Ottey, individually and as a member of the School Board of

Directors, Southeast Delco School District, Barbara L.

Whitsett, individually and as a member of the School Board

of Directors, Southeast Delco School District, Franklin A.

Yeager, individually and as a member of the School Board of

Directors, Southeast Delco School District, and School Board

of Directors, Southeast Delco School District, Defendants I,

v.

Peter A. LeDONNE, individually and as Superintendent of the

Southeast Delco School District, Defendants II,

v.

Robert G. SCANLON, Secretary of Education, Commonwealth of

Pennsylvania, Defendants III,

v.

Terrel H. BELL, Secretary of Education, Defendant IV.

No. 80-2237.

United States Court of Appeals, Third Circuit

May 29, 1981

Argued May 19, 1981.

Page 184

Roland J. Atkins, Philadelphia, Pa., for appellant.

Page 185

Philip A. Ayers, Counsel for Dept. of Ed., Michael A. Davis, Chief Counsel, Pennsylvania Dept. of Ed., Harrisburg, Pa., for appellee Robert G. Scanlon, Secretary of Ed., Commonwealth of Pennsylvania.

James P. Turner, Acting Asst. Atty. Gen., Walter W. Barnett, Marie E. Klimesz, Department of Justice, Washington, D. C., 20530, for federal appellee.

Peter J. Nolan, Nolan & Semeraro, Media, Pa., for defendant I & II.

Before GIBBONS, HUNTER and GARTH, Circuit Judges.

OPINION

GIBBONS, Circuit Judge.

A plaintiff class of black elementary school students and their parents residing in the southern portion of Darby Township appeals from a decision of the district court following a nonjury trial. The court rejected plaintiffs' claim that the Southeast Delco School District desegregation plan places an unconstitutionally undue burden on black students. Plaintiffs objected that the closing of the only elementary school in a predominately black neighborhood disproportionately affects black students, and therefore demonstrates that racial animus motivated the school board's decision to close the school. The district court held the school district had been de jure segregated prior to adoption of the disputed plan. It placed the burden on the school board to prove that its decision to close the school was not racially motivated. The court held the school board's evidence of age, physical deterioration, and unsafe conditions in and surrounding the school building, as well as the closing of a school in a predominantly white neighborhood, and the plan's provisions for reassigning both white and black students, satisfied the board's burden. We affirm.

I.

The Southeast Delco School District is located in Delaware County, Pennsylvania. It comprises the boroughs of Collingdale, Folcroft, Sharon Hill, and Darby Township. Darby Township includes two noncontiguous divisions. The northern portion of Darby Township is located in the northwest corner of the District; the southern portion is located in the southeast corner. The boroughs of Collingdale and Sharon Hill separate the two portions of Darby Township. Southern Darby is predominantly black. The three boroughs and all of Northern Darby, with the exception of the Okeola area, are almost exclusively white. Before 1972, the boroughs and Darby Township maintained separate school systems.

In 1968, a Pennsylvania Common Pleas court order mandated desegregation of the Darby Township school system. Under the order, all students in grades 1-4 attended Darby Township Elementary School in northern Darby; students in grades 5-6 attended the Studevan School in southern Darby; high school students attended Darby Township High School in northern Darby.

A merger of the Collingdale, Folcroft, Sharon Hill, and Darby school systems in 1972 established the Southeast Delco School District. White students in the District continued to attend schools in their respective boroughs. Black students continued to be bussed from one end of Darby Township to the other, thus bypassing the schools located in the central white boroughs.

In 1977, the...

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