Evans v. Buchanan

• Decision Date: 13 June 1978
• Docket Number: Civ. A. No. 1816-1822.
• Citation: 455 F. Supp. 705
• Parties: Brenda EVANS et al., Plaintiffs, v. Madeline BUCHANAN et al., Defendants.
• Court: U.S. District Court — District of Delaware

455 F. Supp. 705

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

Civ. A. Nos. 1816-1822.

United States District Court, D. Delaware.

June 13, 1978.

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. (Louis R. Lucas, Ratner, Sugarmon, Lucas, Salky & Henderson, Memphis, Tenn., of counsel), 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., State of Del., and Regina M. Small, Asst. Atty. Gen., State of Del., 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 District.

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

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

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

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

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

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

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

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

Thomas S. Lodge, of Connolly, Bove & Lodge, Wilmington, Del., for DeLaWarr School District.

Henry N. Herndon, Jr., 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.

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

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

OPINION

MURRAY M. SCHWARTZ, District Judge.

Presently before the Court are defendants' State Board of Education ("State Board") and suburban predominantly white school districts motions for a stay of this Court's January 9, 1978 secondary remedial decree¹ in this lengthy desegregation litigation.² The decree to which the stay motion is directed addressed the remedial issues of pupil assignment, governance of the reorganized district, ancillary relief and retention of jurisdiction. Following issuance of the January decree the parties engaged in expedited briefing and received an original en banc³ hearing before the Third Circuit Court of Appeals on May 10, 1978. On May 31, 1978 the instant motions were filed, requesting a stay of the secondary remedial decree pending completion of appellate review. Thereafter, responsive papers were served on June 7 and oral argument held on June 12.

Previous requests in this litigation⁴ for stays of remedial orders pending appeals have engendered the standard that "a stay may be appropriate in a case where the threat of irreparable injury to the applicant is immediate and substantial, the appeal raises serious and difficult questions of law in an area where the law is somewhat unclear and the interests of the other parties and the public are not harmed substantially."⁵ In addition, where the right vindicated by a judicial decision is of paramount constitutional significance, the showing which must be made for grant of a stay is necessarily increased. Thus in several school desegregation cases stays have been denied for want of a showing of exceptional or extraordinary circumstances.⁶

The applicant for a stay carries the burden of satisfying the standard. Reserve Mining Co. v. United States, 498 F.2d 1073, 1076-77 (8th Cir.), application to vacate stay denied, 419 U.S. 802, 95 S.Ct. 287, 42 L.Ed.2d 33 (1974). In assessing whether the movant has met its burden, no one factor can be isolated, but rather all criteria must be weighed. In so doing, "a court should not and perhaps cannot erect an artificial absolute standard; there are degrees of irreparable injury and probability of a successful appeal. The duty of this Court is to weigh the strength of these showings against each other and balance them against the potential harm to the interests of the plaintiffs and the public."⁷ In the procedural context of the instant matter, the interest of the movants must be balanced against the interests of plaintiffs, the New Castle County Planning Board of Education ("NCCPBE") and the public.

Irreparable Injury to the Movants

For present purposes, the criterion of irreparable injury involves assessing the effect upon defendants of permitting implementation of the January 9, 1978 decree pending final appellate review of that order. Defendants assert that if that secondary remedial decree is not stayed, the eleven component school districts comprising the desegregation area will go out of existence. They argue that should the January 9 order be reversed, an adverse effect would be visited upon the education of over 60,000 children if reorganization must be undone. Defendants then charge that the consequences of a change in governance to a single district include a redistribution of the tax burden and an inability to elect any school board member until 1980. Defendants further aver that if the reorganization is not stayed, a significant increase will occur in state and local educational costs and imposition of educational programs without local democratic control over financial cost or content of those programs. Finally, defendants state that if the January 9 Order is not stayed pending final appellate review, duly elected or appointed officials will have lost control over the tax setting process.

Most of the movant's alleged irreparable injury flows as a consequence of the reorganization scheme which replaces eleven districts with one entity. But did the January 9 secondary remedial decree eliminate the eleven component districts? A brief review of the pertinent factual and procedural history of this litigation indicates it did not.

Elimination of all the individual districts first surfaced in the three-judge court's May 1976 remedy opinion as a possible result in the event state authorities failed to act in timely fashion. Evans v. Buchanan, 416 F.Supp. 328 (D.Del.1976). On appeal the Third Circuit Court of Appeals on May 18, 1977 affirmed the governance scheme of the three-judge court including elimination of the eleven component districts but deferred to state authorities for an additional sixty days in which they could formulate and present a reorganization proposal. Despite the Third Circuit's invitation, the Legislature chose not to act with respect to reorganization. Instead defendant State Board presented a desegregation scheme dubbed "reverse volunteerism" which on August 5, 1977 was rejected on procedural, equitable and substantive grounds. Evans v. Buchanan, 435 F.Supp. 832 (D.Del.1977).

Also on August 5, pursuant to application of defendants, the Court partially stayed the operation of the three-judge court's primary remedial decree, the Third Circuit mandate and the order of this Court issued pursuant to that mandate.⁸ Specifically, this Court stayed implementation of the one district plan, transfer of authority to the NCCPBE and abolition of the eleven districts "pending disposition by the United States Supreme Court of the petition of the defendant State Board of Education for a writ of certiorari docketed July 25, 1977 and for such further time thereafter as this Court deems necessary."⁹ Following denial of certiorari by the Supreme Court,¹⁰ the Court on November 8, 1977:

"ORDERED that full implementation including pupil and staff assignment within a single district be accomplished by September 1978 and that all intervening steps necessary to achieve that goal proceed forthwith. To the extent consistent with this Order, plaintiffs' motion to vacate the stay entered on August 5, 1977 is granted."

After hearings the Court issued its secondary remedial decree on January 9, 1978. Thereafter, the Delaware General Assembly passed a four district reorganization plan. Implementation of the four district plan was preliminarily enjoined with no appeal taken.¹¹ Subsequently, defendant State Board determined to implement a bill¹² enacted on the same day as the four district reorganization bill. The latter bill had established a limit on the tax rate for local current operating expenses of the single district lower than the tax rate established by the NCCPBE on February 23, 1978. For reasons detailed elsewhere, it was concluded the legislative enactment as implemented by defendant State Board resulted in a taxation scheme likely to frustrate or imperil the desegregation process in the desegregation area. As a consequence, the Court denied defendant State Board's motion for a permanent injunction which it sought against the NCCPBE.¹³ The denial of that permanent injunction has been appealed. In addition, on June 2, 1978 defendant State Board filed an application for a partial stay from the denial of the permanent injunction.¹⁴

The above factual and procedural recital highlights that neither the upcoming demise of the eleven districts nor the creation of the single district...