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

CourtU.S. District Court — District of Delaware
Writing for the CourtGIBBONS, Circuit , WRIGHT and LAYTON, Senior
Citation416 F. Supp. 328
PartiesBrenda EVANS et al., Plaintiffs, v. Madeline BUCHANAN et al., Defendants.
Docket NumberCiv. A. No. 1816,1822.
Decision Date19 May 1976

416 F. Supp. 328

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

Civ. A. Nos. 1816, 1822.

United States District Court, D. Delaware.

May 19, 1976.


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Louis L. Redding, Irving Morris, and Joseph A. Rosenthal, of Morris & Rosenthal, Wilmington, Del., for individual plaintiffs

Louis R. Lucas, of Ratner, Sugarmon & Lucas, Memphis, Tenn., Richard Allen Paul, Wilmington, Del., for intervening plaintiffs, The Board of Education of the City of Wilmington.

William Prickett, and Mason E. Turner, of Prickett, Ward, Burt & Sanders, Wilmington, Del., Philip B. Kurland, Chicago, Ill., for defendants.

John P. Sinclair, and William Poole, of Potter, Anderson & Corroon, Thomas S. Lodge, of Connolly, Bove & Lodge, Sheldon N. Sandler, of Bader, Dorsey & Kreshtool, Samuel R. Russell, of Biggs & Battaglia, Edward W. Cooch, Jr., of Cooch & Taylor, Wilmington, Del., Jerome O. Herlihy, of Herlihy & Herlihy, Clifford B. Hearn, of Balick & Hearn, Christian White, Stephen R. Spiller, Aida Waserstein, Wilmington, Del., Oscar Garcia-Rivera, Richard J. Hiller, and Herbert Teitelbaum, New York City, James T. McKinstry, of Richards, Layton & Finger, James M. Tunnell, Jr., and Richard D. Allen, of Morris, Nichols, Arsht & Tunnell, Howard M. Handelman, of Bayard, Brill & Handelman, William H. Bennethum, Wilmington, Del., for intervenors and amici.

Before GIBBONS, Circuit Judge, WRIGHT and LAYTON, Senior District Judges.

OPINION

CALEB M. WRIGHT, Senior District Judge.

This case arises under the continuing jurisdiction of this Court to implement prior opinions finding unconstitutional segregation in the public schools in Delaware.1 The instant opinion concerns the choice of an appropriate remedy for constitutional violations in the operation of the schools of Wilmington and the surrounding suburban districts and the requirement of an inter-district remedy. In prior opinions, this Court ruled that the segregation of the Wilmington schools was never erased;2 and that this segregation resulted from a combination of factors, including demographic and housing patterns initiated and supported by state action; and the redrawing of school district lines during a period of consolidation and reorganization under the Educational Advancement Act, 14 Del.C. ?? 1001, et seq.3 Having found a violation which included inter-district effects, we ruled that under the guidelines laid down in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), hereinafter "Milliken" the Court could consider both inter- and intra-district remedies for the constitutional deprivation. 393 F.Supp. at 446-47, aff'd. per curiam, 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293, 44 U.S.L.W. 3299 (1975).

Following the ruling of this Court on the liability phase, the parties4 were directed to develop plans to remedy the violations found, using both inter- and intra-district methods. These plans were to be submitted

416 F. Supp. 335
through the State Board of Education and its staff, the Department of Public Instruction, for professional comment and evaluation. The State Board was then to recommend to the Court the proposals it thought best.5 These original suggestions, some nineteen in number were submitted to the Court in August, 1975.6

Three weeks of evidentiary hearings followed. During the course of those hearings, additions, changes and shifts in emphasis were made to many of the plans. Those presently before the Court, therefore, differ in several respects from those originally submitted. All the factual and legal issues have been briefed, and the matter is ready for decision.

I. Factual Background

There is no need to discuss here either the prior history of segregated schools in Delaware or New Castle County, nor to recount in detail the prior findings of this Court, since they are set out in prior opinions.7 Nonetheless, a short discussion of some of the facts found in prior opinions will aid in the understanding of the opinion.8

New Castle County, Delaware, is some four hundred forty-three square miles in area, and northern New Castle County, the area primarily concerned in the opinion, is some two hundred fifty-one square miles in area.9 This area of Northern New Castle

416 F. Supp. 336
County has a public school population of 80,678 of whom 63,370 or 78.5% are white; 15,722 or 19.4% are black; and the remainder of whom are other minorities including American Indian (89 or .1%), Hispanic (1,120 or 1.38%) and Oriental (377 or .46%).10 Within the area, 11,733 or 74.6% of the black students attend school in the Wilmington District. If the only other majority black school district in the area, DeLaWarr, is added to Wilmington, 13,473 or 85.6% of the black students in the northern County area attend school in those two districts

The apparent contrast can be made even plainer by comparing the Wilmington and DeLaWarr enrollments to the other Northern New Castle County districts. Wilmington Public Schools are 84.7% black; DeLaWarr Public Schools are 54.9% black. No other Northern New Castle District is less than 90% white, and most are significantly higher.11

Delaware has a long history of using small school districts, and it became apparent during the post-war period that many of these districts could not support a full educational program. In common with many other states, Delaware has, over the years, consolidated many of these smaller districts, some for financial reasons, others for purposes of required desegregation.12 A comparison of a map of the school districts comprising the northern County area shows some nineteen school districts in 195913 to twelve districts in the same area today (excluding the separate Vocational-Technical District). The last major reorganization, carried out under the Educational Advancement Act, as described in the last opinion, 393 F.Supp. at 438 passim, included the consolidation of several small districts into the presently existing districts.14 This Court ruled that the exclusion of Wilmington from the process of reorganization by statute was an unconstitutional racial classification, and "`contributed to the separation of the races by . . . redrawing school district lines.'"15

The variety of plans submitted as remedies may be grouped for analytical convenience into three broad categories. Certain of the plans submitted are "voluntary plans" of varying scope. These include so-called free transfer provisions, and magnet

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schools. A second category of plans calls for the reorganization of the districts in the area, dividing the black population among the new districts or attendance area and having new school boards make assignments of the students within the area. These plans range from one proposed by the State Board which would divide the area into five new districts; several variations which would include smaller or greater areas; and a county-wide plan designed to consolidate the whole area into one district. The last category is a set of mandatory assignment plans providing for the transfer and transportation of students among the existing districts. The plans vary in the area to be included, in the transportation, and in the amount of time students would actually spend in desegregated experiences

The Court has considered all these plans as well as the testimony adduced at the hearings, in the light of the requirements of Milliken16 and Swann17, and on that basis has determined the remedy to be followed here.

II. Class Representation

The State Board of Education urges that the present class plaintiffs are not properly before the Court. The motion was brought on two grounds: first, that the named representatives of the class had left or been graduated from the Wilmington School System, and therefore the issues were mooted as to them;18 second, that in any event, at least insofar as remedy was concerned, the named plaintiffs and their counsel did not fully, fairly and adequately represent the interests of the class, since (it was alleged) not all black school children and their parents in Wilmington desired particular forms of remedy favored by the representatives.19

Professor Moore lists four categories which the Court must consider before determining that the proposed representation is adequate: (1) whether the interests of all parties are "coextensive"; (2) whether the interests are "antagonistic"; (3) the proportion of the named representatives to the

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class as a whole; and (4) any facts bearing upon the ability of the named representative to speak for the class as a whole.20 In addition to those factors, the Court notes that the present action must continue in any event, since the Wilmington School Board intervened as a party plaintiff and has full right to pursue the action.21 Moreover, even if the named representatives were to be found to be "unrepresentative" of all Wilmington school children, they might well represent a substantial sub-class of the group. See Rule 23(c)(4)

Here it would appear that the interests are "coextensive", since all the potential plaintiffs have made clear that they desire an end to segregatory actions on the part of the State. The point pressed by the State is that because some Wilmington parents of black children do not support the plan favored by the named plaintiffs, "antagonistic" interests are present, and therefore, the class is improperly represented. First, it is not clear that in these circumstances, the exact nature of the remedy proposed is an interest which cuts to the subject matter of the suit. See generally, 3B Moore's Federal Practice ? 23.073 at 23-404. All potential representatives of plaintiffs who have appeared before the Court have agreed that some remedy is...

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29 practice notes
  • Jenkins by Agyei v. State of Mo., R-5 and D
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 5, 1987
    ...a school district may suffer significant segregative effects for which interdistrict relief may be granted. 7 See Evans v. Buchanan, 416 F.Supp. 328, 340 (D.Del.1976), aff'd, 555 F.2d 373 (3d Cir.1977) (Milliken's "specification of the deliberate drawing of lines to achieve segregation was ......
  • Tinsley v. Palo Alto Unified School Dist.
    • United States
    • California Court of Appeals
    • April 13, 1979
    ...(D.Del.1974) 379 F.Supp. 1218, affd. Buchanan v. Evans (1975) 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293; Evans v. Buchanan (D.Del.1976) 416 F.Supp. 328, opns. dism. (1976) 429 U.S. 973, 97 S.Ct. 475, 50 L.Ed.2d 579, affd. (1977) Evans v. Buchanan (3d Cir. 1977) 555 F.2d 373, cert. den. (19......
  • U.S. v. Board of School Com'rs of City of Indianapolis, Ind., Nos. 78-1800
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 6, 1980
    ...with a nearly identical violation, that was the remedy ordered by a three judge district court in Delaware. Evans v. Buchanan, 416 F.Supp. 328 (D.Del.) aff'd 555 F.2d 373 (3rd Cir.) (en banc ), cert. denied, 434 U.S. 880, 98 S.Ct. 235, 54 L.Ed.2d 160 (1977); see also, Morrilton School Distr......
  • Evans v. Buchanan, Nos. 76-2103
    • United States
    • U.S. Court of Appeals — Third Circuit
    • May 18, 1977
    ...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......
  • Request a trial to view additional results
29 cases
  • Jenkins by Agyei v. State of Mo., R-5 and D
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 5, 1987
    ...a school district may suffer significant segregative effects for which interdistrict relief may be granted. 7 See Evans v. Buchanan, 416 F.Supp. 328, 340 (D.Del.1976), aff'd, 555 F.2d 373 (3d Cir.1977) (Milliken's "specification of the deliberate drawing of lines to achieve segregation was ......
  • Tinsley v. Palo Alto Unified School Dist.
    • United States
    • California Court of Appeals
    • April 13, 1979
    ...(D.Del.1974) 379 F.Supp. 1218, affd. Buchanan v. Evans (1975) 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293; Evans v. Buchanan (D.Del.1976) 416 F.Supp. 328, opns. dism. (1976) 429 U.S. 973, 97 S.Ct. 475, 50 L.Ed.2d 579, affd. (1977) Evans v. Buchanan (3d Cir. 1977) 555 F.2d 373, cert. den. (19......
  • U.S. v. Board of School Com'rs of City of Indianapolis, Ind., Nos. 78-1800
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 6, 1980
    ...with a nearly identical violation, that was the remedy ordered by a three judge district court in Delaware. Evans v. Buchanan, 416 F.Supp. 328 (D.Del.) aff'd 555 F.2d 373 (3rd Cir.) (en banc ), cert. denied, 434 U.S. 880, 98 S.Ct. 235, 54 L.Ed.2d 160 (1977); see also, Morrilton School Distr......
  • Evans v. Buchanan, Nos. 76-2103
    • United States
    • U.S. Court of Appeals — Third Circuit
    • May 18, 1977
    ...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......
  • Request a trial to view additional results

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