Evans v. Buchanan, Civ. A. No. 1816-1822.

• Citation: 455 F. Supp. 715
• Decision Date: 22 June 1978
• Docket Number: Civ. A. No. 1816-1822.
• Parties: Brenda EVANS et al., Plaintiffs, v. Madeline BUCHANAN et al., Defendants.
• Court: U.S. District Court — District of Delaware

455 F. Supp. 715

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

Civ. A. Nos. 1816-1822.

United States District Court, D. Delaware.

June 22, 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, Deputy 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.

This opinion treats the latest in a series of stay motions filed by defendant Delaware State Board of Education ("State Board").¹ The instant stay motion seeks a stay of the denial of a permanent injunction which had been requested to preclude the New Castle County Planning Board of Education ("NCCPBE") from "fixing, levying or collecting a local tax for current operating expenses in excess of the limit established by applicable State law."² Specifically, the State Board authorized a maximum rate of $1.585, 9.5 cents less than the $1.68 rate previously adopted by the NCCPBE. Because the background leading to denial of the preliminary injunction has been detailed elsewhere,³ it will not be repeated in full. There follows only an account essential to understanding the issues.⁴

As early as May 1976, a predecessor three-judge court made clear that because reorganization was necessary to achieve a unitary school system within the desegregation area by September 1977, a single school district would replace the existing eleven component school districts unless a different governance structure for a unitary school district were timely developed by state authorities.

With time running out and State authorities still having refused to act responsibly, the Third Circuit Court of Appeals on May 18, 1977 provided Delaware authorities an additional sixty days in which to act.⁵ State authorities again declined to timely respond in an acceptable manner. Thereafter, on August 5, 1977, pending disposition by the Supreme Court of an application for certiorari, this Court stayed implementation of existing orders insofar as the same required an operating unitary school system by September 1977. At the same time, the Court directed that planning for implementation of a unitary school system with single district governance should proceed on the assumption there would be single district governance commencing July 1, 1978.

On October 3, 1977, the Supreme Court denied the petition for certiorari.⁶ On December 16, 1977, the Delaware Legislature expressly refused to act even though specially convened for the purpose of addressing desegregation.⁷ Consequently, after extensive hearings held during October, November and December of 1977, and faced with inaction on the part of State authorities, the Court addressed governance questions in its secondary remedial decree issued January 9, 1978.

To provide authorization and guidance for the NCCPBE, that decree fleshed out the details of governing the single district, a task necessitated by the legislative failure to enact a statutory governance framework. Specifically, the January 9 decree provided for local taxing authority and delineated a procedure for establishing a maximum tax rate for local current operating expenses. That the tax problem was of particular concern to the Court was reflected in these passages:

"Authorization to set a school tax rate is properly a product of the political process. For that reason, it is my view a federal court should not become involved failing a total abdication of responsibility over a period of time such that further delay significantly jeopardizes constitutional rights. . . .

"It is with deep seated reluctance overcome only by the pressing, immediate necessity and the realization that no other option is available to fill the legislative void that the Court becomes involved at all in matters of taxation. Were it not true that the desegregation process faces imminent peril unaddressed by any other practical alternative, the federal court would not intrude. If the political process had provided statutory machinery or a procedure for devising a tax rate for the single district, or if there were not an immediate need to act now, I would further defer the matter of local tax rate authorization.

"The Court is compelled, however, to order that a tax rate be established. This action is taken with the understanding that the Legislature can alter the parameters authorized. Because state political processes are preferred over even limited intervention by a federal court, the Delaware Legislature may raise or lower the tax authorization established here. The Court must caution, however, that any legislative action that lowers the established tax rate below a generally acceptable rate to a point at which the desegregation process would be imperiled will be received skeptically. Given the historical stance of the Legislature, if such a lowering occurs, the usual presumption of legislative regularity will not attach. If, as an alternative, the Delaware Legislature makes provision for replacement of the authorized revenue lost through reduced local school tax rates, the local school tax rate can be lowered to any level or even eliminated."⁸

The Court, following State law as closely as was feasible, established a top limit of $1.91 for the local current operating expense component of the local school tax rate.⁹ In addition, it required the NCCPBE to establish the local school tax rate by February 24, 1978 so that all real property owners in the desegregation area would have an opportunity to do the necessary planning to meet their tax obligations.¹⁰ Finally, it cautioned the upper limit would be binding in future years absent a successful referendum or legislative relief.¹¹

From the foregoing it is evident the Court responded to fiscal matters because: (1) of the absolute necessity to adequately provide the desegregation effort with financial support; and (2) time was of the essence in assuring that the public had prompt notice of its tax obligations. Nonetheless, once again deferring to the legislative will, the Court invited the Delaware Legislature to assume its responsibility to establish a tax mechanism for the single district, cautioning only that "any legislative action that lowers the established tax rate below a generally acceptable rate to a point at which the desegregation process would be imperiled will be received skeptically."¹²

Fully one month after the January 9 order, the Legislature acted. Rather than provide for a single tax rate, however, the Legislature took an entirely different tack. Specifically, on February 9, the General Assembly passed Senate Bill ("S.B.") 456 which "directed the State Board of Education to devise an alternative plan of governance to the judicial single district" to "be submitted by the State Board to a joint executive/legislative commission."¹³ A four-district reorganization plan was submitted and approved by the commission on February 15, 1978. At the same time, tax rates were established for each of the four districts pursuant to authority vested in the State Board by S.B. 457, companion legislation to S.B. 456.¹⁴

Although S.B. 457 also provided a mechanism for establishing a maximum tax rate for a single district, implementation of it was postponed and no rate was set.¹⁵ Instead, the State defendants geared their efforts toward promoting the four-district plan. That this plan was in conflict with the January 9 order was apparent at the outset and reluctantly conceded by representatives of the State defendants. Nonetheless, the State Board took the position that absent an injunction, it would proceed to implement a four-district plan. Further, it urged the Court...