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

• Decision Date: 10 April 1981
• 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

512 F. Supp. 839

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

Civ. A. Nos. 1816-1822.

United States District Court, D. Delaware.

April 10, 1981.

Irving Morris, Joseph A. Rosenthal, and Kevin Gross, Morris & Rosenthal, Louis L. Redding, Leonard L. Williams, Wilmington, Del., Louis R. Lucas, Picard, Canale, Caywood, Lucas & Watson, Memphis, Tenn., Paul R. Dimond, O'Brien, Moran & Dimond, Ann Arbor, Mich., William L. Taylor, Center for National Policy Review, Washington, D. C., for plaintiffs.

Nivea R. Castro Figueroa, and Paulette Sullivan Moore, Community Legal Aid Society, Inc., Wilmington, Del., for intervening Hispanic plaintiffs.

Henry N. Herndon, Jr., and P. Clarkson Collins, Jr., Morris, James, Hitchens & Williams, Wilmington, Del., for the New Castle County Bd. of Ed.

Richard S. Gebelein, Atty. Gen., State of Delaware, Regina M. Small, State Sol., and Roger A. Akin, Deputy Atty. Gen., State of Delaware, Wilmington, Del., for State of Delaware.

William Poole, James F. Burnett, and Vincent M. Amberly, Potter, Anderson & Corroon, Wilmington, Del., for Interim Bd. for Dist. 1.

James T. McKinstry, and Robert J. Katzenstein, Richards, Layton & Finger, Wilmington, Del., for Interim Bd. for Dist. 2 and Dist. 4.

Mason E. Turner, Jr., Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., Sp. Counsel to the Delaware State Bd. of Ed., for Interim Bd. for Dist. 3 and for State of Del.

OPINION

MURRAY M. SCHWARTZ, District Judge.

This opinion treats a distinct phase of this protracted desegregation litigation.¹ The Court must pass upon the merits of a school district reorganization adopted pursuant to state legislation that would divide a single court-created school district into four independent school districts.

During the latter part of June, 1980, the Delaware Legislature passed Senate Bill No. 593² relating to reorganization, governance and taxation of the public school system within the geographical desegregation area. Senate Bill 593 ("S.B. 593") authorized the defendant State Board of Education ("State Board") to implement the statutory objectives by formulation of a Plan or Rules and Regulations. Pursuant to that statutory authority, the State Board on November 20, 1980, promulgated regulations dividing the geographic desegregation area into four school districts governed by separate boards of education and addressing matters germane to the desegregation process, notably pupil assignment and ancillary relief. Defendant State Board now moves for modification of this Court's prior remedial decree "to permit implementation of the Reorganization." (Doc. No. 956). Plaintiffs, believing the plan will cause irreversible harm to the desegregation process, oppose the State Board's motion.

The Court concludes that division of the desegregation area into the four proposed independent districts would not, in itself, imperil desegregation. The reorganization proposal cannot be approved, however, unless legislation is passed codifying the power of the State Board to enforce the pupil assignment requirements incorporated in the State Board's Regulations. Rather than deny the State Board's motion, an interim order will be entered granting state authorities 60 days to adopt appropriate curative legislation. This solution is intended to accommodate the avowed preference of the State Board and the State of Delaware³ for smaller school districts, while foreclosing the potential for federal judicial intrusion into matters of educational policy that are properly the concern of state authorities.

The history of this litigation has been detailed elsewhere,⁴ and will not be repeated except insofar as is essential to an understanding of the issues presented by the State Board's motion. Pertinent factual details and findings will supplement the discussion on the merits. This Opinion shall constitute the Court's Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. BACKGROUND

A. Prior Proceedings

The United States Supreme Court summarily affirmed my predecessor three-judge district court in its findings of an unconstitutional dual school system and vestige effects of de jure segregation in the former Wilmington school district and ten suburban districts in Northern New Castle County. 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975). Following that decision, the three-judge court concluded after an evidentiary hearing that an inter-district remedy was necessary. It rejected all proffered plans and, in recognition of the administrative burdens that would arise were an inter-district remedy to be imposed upon an eleven district school system, ordered the State Board to reorganize or consolidate the eleven school districts as an essential part of any plan to effectuate the constitutionally required transition to a racially nondiscriminatory school system. 416 F.Supp. 328, 350 (D.Del.1976), aff'd, 555 F.2d 373, (3d Cir.), cert. denied, 434 U.S. 800, 98 S.Ct. 235, 54 L.Ed.2d 160 (1977).

Having placed the responsibility for devising an inter-district plan for desegregation and reorganization or consolidation upon the State Board, my predecessor court also anticipated the state authorities' failure to have an acceptable plan operational by September, 1977. The court held that, in default of an adequate state plan, there would be a single school district for the desegregation area, which then comprised over 50% of Delaware's public school children. At the same time, it noted that the required change,

although initially setting up a large district, is not only subject to appropriate subdivision for local control over issues of policy in particular schools, or local initiative with regard to curriculum, etc., but is also subject to redivision into smaller governmental units by action of the State, so long as such subdivision does not result in the frustration of the desegregation objective.

416 F.Supp. at 352-53 (footnote omitted). The United States Court of Appeals for the Third Circuit affirmed the three-judge court order with minor modification. 555 F.2d 373 (3d Cir. 1977).

State authorities demonstrated continued unwillingness to discharge their responsibilities by responding to the Court's call for a desegregation plan with legislation permitting unrestricted voluntary transfer and a woefully inadequate "reverse volunteerism" pupil assignment plan adopted by the State Board.⁵ Rejecting the unsatisfactory proposals, this Court directed the parties to proceed with planning for the single district. At the same time a partial stay of implementation of the single district was ordered until the Supreme Court should act upon a petition for a writ of certiorari to review the affirmance by the Third Circuit Court of Appeals of the three-judge court's primary remedial decree. 435 F.Supp. 832 (D.Del.1977).

Faced with the state authorities' adamant and prolonged refusal to discharge their responsibilities, this Court, after an evidentiary hearing, issued a secondary remedial decree on January 9, 1978. That decree: (1) reorganized the eleven component districts of the desegregation area into one district; (2) addressed pupil assignment by requiring all students to attend schools in the former predominantly white districts for nine years and schools in the former predominantly black districts for three consecutive years ("9-3" plan), and requiring that a full 1-12 grade span be maintained within the City of Wilmington and that, at a minimum, one of the three former predominantly black high schools be utilized as a 10-12 grade center; and (3) provided for ancillary remedial relief. 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).

Following issuance of the secondary remedial decree, the Delaware Legislature, in February 1978, approved a four-district reorganization for the desegregation area. Unhappily, it was too little, too late. It failed to provide for pupil assignment or to assign responsibility for enforcement of the pupil assignment plan contained within the secondary remedial decree. Further, the 1978 legislation failed to address or implement ancillary relief and allocation of costs. For these and other reasons the Court enjoined implementation of the 1978 four-district plan. 447 F.Supp. 1041 (D.Del.1978). Significantly, no appeal was taken.

On or about July 1, 1978, full operating authority was transferred from the eleven component districts to the newly created governance unit, the New Castle County Board of Education ("NCCBE") for the reorganized single school district, the New Castle County School District ("NCCSD"). In accordance with this Court's order, the five members of the newly created governance unit were selected by defendant State Board from the membership of the then-existing eleven component district boards. See 555 F.2d 373, 381 (3d Cir. 1977); Doc. No. 530.

The NCCBE implemented the court ordered pupil assignment plan by creation of four Attendance Areas. In three of the areas⁶ a group of former predominantly white districts were paired with a portion of the predominantly black Wilmington district, while in the fourth area⁷ a predominantly white district was combined with a predominantly black district. In addition, school authorities, by agreement, assigned to Area II responsibility for bilingual education of eligible Hispanic children.⁸ This agreement was incorporated in this Court's January 9, 1978, Order. (Doc. No. 699, p. 10).

Since September 1978, public school children in the desegregation area have attended schools in the single, court-created district described above. On April 28, 1980, the Supreme Court of the United States denied certiorari petitions filed in October, 1978, requesting review of the secondary remedial decree as affirmed. On July 8, 1980, the Governor of the State of Delaware signed into law S.B. 593.

B. ...