Coalition to Save Our Children v. BD. OF EDUC., Civ. A. No. 1816-1822 MMS.

• Citation: 757 F. Supp. 328
• Decision Date: 01 February 1991
• Docket Number: Civ. A. No. 1816-1822 MMS.
• Court: United States District Courts. 3th Circuit. United States District Court (Delaware)
• Parties: COALITION TO SAVE OUR CHILDREN, (formerly Brenda Evans, et al.), Plaintiffs, v. STATE BOARD OF EDUCATION OF the STATE OF DELAWARE, The Board of Education of the Brandywine School District, The Board of Education of the Christina School District, The Board of Education of the Colonial School District, and the Board of Education of the Red Clay Consolidated School District (formerly Madeline Buchanan, et al.), Defendants.

757 F. Supp. 328

COALITION TO SAVE OUR CHILDREN, (formerly Brenda Evans, et al.), Plaintiffs, v. STATE BOARD OF EDUCATION OF the STATE OF DELAWARE, The Board of Education of the Brandywine School District, The Board of Education of the Christina School District, The Board of Education of the Colonial School District, and the Board of Education of the Red Clay Consolidated School District (formerly Madeline Buchanan, et al.), Defendants.

Civ. A. No. 1816-1822 MMS.

United States District Court, D. Delaware.

February 1, 1991.

Irving Morris, and Kevin Gross, of Morris, Rosenthal, Monhait & Gross, P.A., Wilmington, Del., of counsel: William L. Taylor, Washington, D.C., and Leonard L. Williams, Wilmington, Del., for plaintiffs.

Bertram S. Halberstadt, of Wier & Halberstadt, Wilmington, Del., for Intervening Hispanic plaintiffs.

David H. Williams, and Barbara D. Crowell, of Morris, James, Hitchens & Williams, Wilmington, Del., for defendants Brandywine School Dist., Christina School Dist., and Colonial School Dist.

Alfred J. D'Angelo, Jr., and Judith E. Harris, of Pepper, Hamilton & Scheetz, Wilmington, Del., for defendant Red Clay School Dist.

Mason E. Turner, Jr., of Prickett, Jones, Elliott, Kristol & Schnee, and Marcia Rees, Deputy Atty. Gen., Dep. of Justice, Wilmington, Del., for defendant State Bd. of Educ.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

This desegregation litigation traces its origins to 1956, when suit was filed as an outgrowth of the landmark decisions of the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I) and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II). The case was reactivated in 1971. In the mid-1970's, a three-judge court determined that the Wilmington schools, which had been de jure black schools prior to Brown I, continued to be racially identifiable and that Wilmington's dual school system had not been eliminated. Evans v. Buchanan, 379 F.Supp. 1218, 1223 (D.Del.1974). In a subsequent opinion, the three-judge court found inter-district de jure segregation involving eleven school districts in northern New Castle County. Evans v. Buchanan, 393 F.Supp. 428, 438 (D.Del.), aff'd, 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975).

After three weeks of evidentiary hearings, the three-judge court rejected remedial plans proposed by the parties and ordered the schools in the segregated districts to be desegregated and reorganized. The responsibility for implementing the court's order was given to the State authorities. Evans v. Buchanan, 416 F.Supp. 328 (D.Del.1976), aff'd, 555 F.2d 373 (3d Cir.), cert. denied, 434 U.S. 880, 98 S.Ct. 235, 54 L.Ed.2d 160 (1977).

Upon the State's failure to submit a plan which would effectively eliminate the dual school system and the vestiges of de jure segregation, this court entered an order ("1978 order") consolidating the affected school districts into a single district (the "desegregated area"). After considering several desegregation plans, the court addressed pupil assignment in the 1978 order by requiring all students to attend schools in the former predominantly white districts for nine years and schools in the former predominantly black districts (the "City schools") for a minimum of three consecutive years ("9-3"). The court also required that a full 1-12 grade span be maintained within the City of Wilmington (the "City") and that at least one of the three former predominantly black high schools be used as a 10-12 grade center. Evans v. Buchanan, 447 F.Supp. 982 (D.Del.), aff'd, 582 F.2d 750 (3d Cir.1978), cert. denied, 446 U.S. 923, 100 S.Ct. 1862, 64 L.Ed.2d 278 (1980) (cited hereinafter as "Evans 1978").

The court chose the 9-3 plan over a 10-2 plan favored by State authorities because the 9-3 plan minimized the burden on minority students both in terms of the number of years those students would be transported away from neighborhood schools and in terms of the number of city schools which could remain open under each plan:¹

What is open to question is whether a plan to provide a unitary racially non-discriminatory school system can, without reciting any underlying justification, transport black children a greater number of years than is necessary to accomplish the goal and simultaneously eliminate most grades in predominantly black districts when a practical alternative appears to exist. The answer arising out of principles of equity is no. At the very least, fundamental fairness demands that decisions that have the effect of maximizing the burden on black students be supported by justifications of a non-racial nature.

Evans 1978, 447 F.Supp. at 1004 (footnote omitted). By adopting the 9-3 plan, the court attempted to ensure that the class of minority students whose rights had been violated by previous state-supported segregation would not bear the full burden of the remedy.

In 1981, after the Delaware General Assembly passed legislation empowering the Delaware State Board of Education ("State Board") to ensure compliance with the parameters set forth in the 1978 order, this court approved division of the single consolidated district into four component school districts.² Evans v. Buchanan, 512 F.Supp. 839 (D.Del.1981) (cited hereinafter as "Evans 1981"). Defendant Red Clay Consolidated School District ("Red Clay District" or "the District") is one of the four component districts. In May 1989, defendant State Board suggested to the Red Clay District that it bring the racial composition of its student populations at each District school to within +/- 10% of the minority percentages for each grade level in the District by Fall 1991, a goal which was adopted by the Red Clay Consolidated School Board ("Red Clay Board" or "the Board"). PX 1-47.³

After a series of delays, the Red Clay Board submitted to the State Board on or about March 30, 1990 a plan to achieve compliance with the State Board's request. The plan described a fully developed student reassignment component ("mixed feeder plan") and a "choice" or "magnet school" component to be developed and submitted to the State Board by September 1, 1990. The Plan contemplated implementation of both components in September 1991. PX-3.

The Coalition to Save Our Children (the "Coalition" or "plaintiffs"), representative of the black plaintiff class in this case, filed a motion in May 1990 seeking a court order directing implementation of the student reassignment component in September 1990. The court conducted a bench trial on June 12-15, 1990, in which the Plaintiffs presented substantial evidence that the feeder patterns then in place, although technically in compliance with 9-3, had not resulted in progress toward eradication of vestiges of past segregation. At trial, the Red Clay Board admitted that the mixed feeder plan could be implemented at the high school level with relative ease but that implementation at grades K-8 required much planning. The Board urged the impracticalities of implementing the mixed feeder plan on short notice. Both the Red Clay Board and the State Board assured the court that changes would be implemented in September 1991 to remedy the racial disparities among the Red Clay schools.

Upon the conclusion of the bench trial and briefing by the parties, the court denied plaintiffs' motion in an opinion and order issued on July 2, 1990 ("July 1990 opinion"). Coalition to Save Our Children v. Buchanan, 744 F.Supp. 582 (D.Del. 1990). The court found that the Red Clay Board's technical compliance with the 9-3 plan had not resulted in progress toward full racial desegregation of the Red Clay schools. In the July 1990 opinion, the court addressed the contention of the Red Clay Board that, so long as the Board technically complied with the 1978 and 1981 orders, the court could not order further remedial measures. The court held that if compliance with the 1978 and 1981 orders does not result in progress toward the eradication of the vestiges of prior segregation "root and branch," the court can and should order further remedial actions.

The court also stated in July 1990 and in previous opinions that it would not order remedial measures over the objection of educational authorities in the absence of a finding that those authorities had abdicated their responsibility to eradicate the remnants of de jure segregation and to return the District to a state of full compliance with the Equal Protection Clause of the United States Constitution. Although the court did not find in July 1990 that the Red Clay Board had abdicated its responsibilities under the desegregation orders, it did state that "obviously, the six-year history of failure to develop and implement a satisfactory reassignment plan could well be considered an abdication of responsibility by the State and local education authorities if it appeared there would not be implementation in September 1991." Coalition to Save Our Children, 744 F.Supp. at 593.

From September 1, 1990 — December 14, 1990, the Red Clay Board submitted to the State Board for its approval a series of proposals regarding implementation in September 1991 of what has become known to all participants in this litigation as Red Clay's "CHOICE" plan. At least two of these submissions were presented in the form of applications to the Title VII Magnet Schools Assistance Program for funding in the amount of $6.07 million dollars for implementation of the CHOICE plan ("magnet school applications"). In order to make CHOICE available to all students in the District, it is necessary for the Red Clay Board to obtain modification of the 9-3 requirement. On December 20, 1990, the State Board issued an order ("State Board order") approving the CHOICE proposal conditioned upon the Red Clay Board fulfilling certain requirements spelled out in that order. SB-23-6. An eight-day hearing held January 2-11, 1991 resulted in part from the Red Clay Board's motion seeking ...