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

• Decision Date: 05 August 1977
• Docket Number: Civ. A. No. 1816-1822.
• Citation: 435 F. Supp. 832
• Parties: Brenda EVANS et al., Plaintiffs, v. Madeline BUCHANAN et al., Defendants.
• Court: U.S. District Court — District of Delaware

435 F. Supp. 832

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

Civ. A. Nos. 1816-1822.

United States District Court, D. Delaware.

August 5, 1977.

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

Richard Allen Paul of Paul, Lukoff & Hurley, Wilmington, Del., of counsel, Louis R. Lucas, Ratner, Sugarmon, Lucas, Salky & Henderson, Memphis, Tenn., Paul R. Dimond of O'Brien, Moran & Dimond, Ann Arbor, Mich., for intervening 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, H. James Conaway of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for defendant State Bd. of Ed.

Edward W. Cooch, Jr., of Cooch & Taylor, Wilmington, Del., for Marshallton-McKean School Dist.

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

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

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

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

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

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

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

Aida Waserstein, Wilmington, Del., for intervening Hispanic plaintiffs.

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

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

MURRAY M. SCHWARTZ, District Judge.

I. INTRODUCTION

Presently before the Court are two motions filed by the Delaware State Board of Education ("State Board").¹ The first is a motion to stay all proceedings in this case pending a determination by the Supreme Court of the State Board's petition for a writ of certiorari.² The second motion urges that the Court adopt as a plan for desegregating the public schools of Northern New Castle County the proposal contained in the State Board's report submitted to the Court on July 14 pursuant to a mandate of the Court of Appeals for the Third Circuit. On their face, these motions appear analytically and legally distinct. Closer examination, however, reveals that the issue of the acceptability of the State Board's plan is inextricably bound up with the issue of the propriety of a stay.

As discussed more fully infra,³ one of the factors a court must weigh in considering a motion for a stay is whether the movants will suffer irreparable injury if the stay is not entered. The mandate of the Third Circuit which affirmed, with certain modifications not relevant here, the June 15, 1976 Order of the three-judge court ("June 15, 1976 Order"), designated September, 1977 for the initial implementation of a desegregation remedy. The injury defendants allegedly will suffer, absent a stay, derives basically from the residual effects of implementing a remedy that may be vacated and remanded or reversed. Therefore, it is essential that this Court attempt to determine if there is a meaningful quantum difference in such injury between the remedy proposed by the State Board and that developed by the three-judge court and affirmed as modified by the Third Circuit.⁴ If there is a substantial difference in impact upon defendants, it must then be determined what remedy will take effect if a stay is not entered.

The proposal of the State Board now before the Court constitutes that Board's proposed remedy. If the Court finds the proposal unacceptable, then the State Board, pursuant to the mandate of the Third Circuit, must appoint a five-member "New Board" and that New Board is charged with the responsibility of planning and implementing a desegregation remedy. Because questions have been raised regarding the precise responsibility assigned to the New Board, a brief digression is necessary.

Some confusion has arisen over whether the New Board is intended to devise an entirely new desegregation plan, including governance, or merely is to complete the planning and administrative work necessary to implement the one district plan outlined by the three-judge court in its May 19, 1976 opinion. See Evans v. Buchanan, 416 F.Supp. 328, 352-358 (D.Del.1976). The text of Paragraph 4 of the mandate is virtually a verbatim restatement of Paragraph 3 of the Order of June 15, 1976. Subsequent to the entry of the three-judge court Order, a five member Board ("Interim Board") was appointed. The membership was expanded to thirteen members by the Delaware Legislature.⁵ The Interim Board labored over the past 13 months to devise a desegregation plan and apparently understood their powers to include the development of an entirely new plan that did not use the one-district concept. Evidence of this approach is found in their report submitted to the State Board of Education. (Doc. 528A) That report suggested the retention of the 11 existing school districts during a two year transition period, but also recommended that the school districts be supervised by a board composed of representatives from the 11 school districts. This governance structure is clearly inconsistent with the June 15, 1976 Order which required transfer of full authority to the Interim Board and abolition of the existing 11 school districts no later than September 1, 1977.⁶ The approach taken by the Interim Board may have been due in part to the fact that the State Board appears to have shared that interpretation of the June 15, 1976 Order.⁷

Because the Third Circuit was concerned only with the June 15, 1976 Order and the May 16, 1976 Opinion, conceivably and perhaps probably it was unaware of this history that was not made a part of the record in this case and thus did not realize that the adoption of the language of the June 15, 1976 Order carried with it a substantial historical gloss. In any event, notwithstanding what interpretation the Interim Board or the State Board placed on the June 15, 1976 Order, the Third Circuit mandate, when read in light of Part IV of the Third Circuit Opinion of May 18, 1977,⁸ contemplates that the New Board will concern itself with the development of a desegregation plan only in the context of the one district governance concept described by the three-judge court.

Thus, the Court is faced with two possibilities. If the State's proposal is accepted, it will be implemented in September, 1977, and will have certain effects on the current structure and operation of the affected Northern New Castle County school districts. If the State's plan is not accepted, the New Board will be appointed and, in the absence of a stay, the one district plan will be implemented in the fall of 1977, with the concomitant demise of the eleven affected districts.

The question of what injury the movants will suffer in the absence of a stay pending determination of their application for certiorari involves primarily an examination of the effects of the plan that is implemented. The one-district plan would require at a minimum the abolition of the ten suburban and Wilmington school districts as distinct entities, a substantial reorganization of the administrative internal structure, certain major decisions involving adjustments to the tax rates and teacher salaries in the now separate districts, as well as a wholesale reorganization of pupil and teacher assignments. The State Board's proposal does not contemplate the vast administrative reorganization involved in the one-district plan, but potentially could lead to major changes in pupil and teacher assignments.

Substantial disruption of the educational process in the affected school districts would occur if either plan is implemented and the Third Circuit subsequently is reversed. However, clearly the disruption caused by the disengagement of the one-district plan would be more substantial and severe than if disengagement of the State Board's proposal were required.⁹ Because of this difference, it is impossible for the Court to evaluate accurately the factor of irreparable injury without first determining which plan is to go into effect absent a stay. Accordingly, after a brief recitation of the current factual and procedural background pertinent to a determination of the present motions, consideration will be given to the acceptability of the State Board's proposal prior to examining the merits of the Motion for a Stay.

II. CURRENT FACTUAL AND PROCEDURAL BACKGROUND

Prior opinions detail the history of this 20 year litigation,¹⁰ including the proceedings since 1971 on plaintiffs' amended complaint. For present purposes, it is only necessary to review what has transpired subsequent to the May 19, 1976 three-judge court remedy decision which was preceded by a Supreme Court summary affirmance of the three-judge court Order emanating from its two opinions in which it found the constitutional rights of plaintiffs had been violated. Following the three-judge court remedy decision, the State Board of Education and intervening defendant school districts filed a direct appeal to the United States Supreme Court, as well as a protective appeal to the Third Circuit Court of Appeals. Defendants' protective measure proved necessary as the Supreme Court dismissed the direct appeal for want of jurisdiction. Delaware State Board of Education v. Evans, 429 U.S. 973, 97 S.Ct. 475, 50 L.Ed.2d 579 (1976). Thereafter, the Third Circuit sitting en banc¹¹ affirmed the decision of the three-judge court with certain modifications in an Opinion dated May 18, 1977. Evans v. Buchanan, supra, ...