Evans v. Buchanan

• Decision Date: 15 March 1978
• Docket Number: Civ. A. No. 1816-1822.
• Citation: 447 F. Supp. 1041
• Parties: Brenda EVANS et al., Plaintiffs, v. Madeline BUCHANAN et al., Defendants.
• Court: U.S. District Court — District of Delaware

447 F. Supp. 1041

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

Civ. A. Nos. 1816-1822.

United States District Court, D. Delaware.

March 15, 1978.

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., for intervening plaintiffs; Louis R. Lucas, Ratner, Sugarmon, Lucas, Salky & Henderson, Memphis, Tenn., Paul R. Dimond, of O'Brien, Moran & Dimond, Ann Arbor, Mich., William L. Taylor, Center for National Policy Review, Washington, D. C., of counsel.

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

Richard R. Wier, Jr., Atty. Gen., State of Delaware, and Regina M. Small, Asst. Atty. Gen., State of Delaware, William Prickett, and Mason E. Turner, Jr., of Prickett, Ward, Burt & Sanders, Wilmington, Del., Philip B. Kurland, Chicago, Ill., 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 Districts.

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 Allen, of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for Mount Pleasant School Dist.

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.

Henry N. Herndon, Jr., and Edward M. McNally, of Morris, James, Hitchens & Williams, Wilmington, Del., for New Castle County Planning Bd. of Ed., a non-aligned party.

Leonard L. Williams, and George E. Evans, Wilmington, Del., for Wendell Howell, member of New Castle County Planning Bd. of Ed.

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

Clifford B. Hearn, of the law firm 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 two motions: a "Motion for Injunction Pendente Lite"¹ filed by the New Castle County Planning Board of Education ("NCCPBE") and a "Motion that the Court Modify its Order of January 9, 1978"² filed by defendant Delaware State Board of Education ("State Board").³ The subject matter to which both motions relate are Delaware Senate Bill 456 and the "Plan for the Reorganization and Desegregation of Designated School Districts in New Castle County, Delaware" ("Four District Plan") passed pursuant thereto. In essence, the NCCPBE seeks to preliminarily enjoin any efforts towards implementation of the Four District Plan until final resolution of the State Board's Motion. The State Board desires the Court to modify a previous Order in this case to embody the Four District Plan.

This Opinion, constituting the Findings of Fact and Conclusions of Law necessary pursuant to F.R.Civ.P. 52 and the reasons in support of issuance of a preliminary injunction pursuant to F.R.Civ.P. 65, reaches two principal conclusions: (1) a preliminary injunction must be granted because the relevant criteria for issuance are abundantly fulfilled; and (2) the Court at the present time lacks jurisdiction to entertain the State Board's motion. Further, if the State Board's motion is considered as a motion seeking to have the Court indicate to the Third Circuit Court of Appeals its willingness to take additional evidence, to the extent the Court is so empowered, that motion will be denied.

I. NCCPBE's Motion for a Preliminary Injunction

A. Current Procedural Background

On January 9, 1978, after hearings,⁴ this Court entered a final order⁵ in this school desegregation case. Over the objections of defendant State Board of Education and defendant predominantly white districts which argued that the desegregation area lacked the capacity to support a 9-3 pupil assignment plan,⁶ the Court ordered the NCCPBE to proceed forthwith in developing a 9-3 plan. Advising only that the NCCPBE fully avail itself of the flexibility afforded by a single district and mandating certain minimal guidelines, the Court announced its view that details of the desegregation plan and its underlying educational objectives were within the purview of the NCCPBE and not that of the Court.

Following the Court's January 9 Order, defendant State Board and other defendants lodged a timely appeal with the Third Circuit, which granted an expedited briefing schedule and an en banc hearing scheduled for May 11 or 12, 1978. Meanwhile, the NCCPBE, which had stressed it was fully prepared to implement the Court's Order, continued to plan for desegregation. This represented a continuation of the NCCPBE's efforts since appointment in August 1977 to make desegregation a reality by September 1978. The NCCPBE hired a superintendent for the single district and made appointments to other key posts within the central administration. It also timely set a school tax rate on February 23, 1978 for the fiscal year commencing July 1, 1978. Further, the task forces responsible to the NCCPBE were deployed in a manner consistent with the Order. For example, the Pupil Assignment Committee undertook the task of assigning every student to a particular school, a job conservatively estimated to take eight weeks and not yet completed. Incident to the work of that Committee is the task undertaken by the Committee on School Closings which has been visiting and evaluating school facilities throughout the desegregation area to determine which schools should be closed.⁷ The Curriculum Committee of some seventy persons conducted an inventory of the resources available to the one district and constructed a core curriculum. On the administrative front, an area wide election was held to determine the teachers' choice of a collective bargaining agent. In summary, biweekly reports⁸ filed by the NCCPBE with the Court reflect substantial progress towards a one district school system.

In mid-February, well after planning for one district was underway, the Delaware Legislature enacted legislation, Senate Bill 456, approving a four district reorganization for the desegregation area. On February 17, defendant State Board pursuant to that legislation moved that the Court amend its January 9 Order, providing for one district under the control of the NCCPBE, by eliminating the NCCPBE and substituting four autonomous districts administered by four separate school boards.

B. Current Factual Background

The action by the Legislature came significantly later than would have been expected by the Court or, for that matter, by anyone remotely familiar with the case. That the courts have repeatedly implored the Legislature to speak its will is abundantly evident from prior opinions issued in this case. In May 1976, the three-judge court announced that a single district plan would be effective as of September 1977, absent appropriate legislative action. The Legislature declined to act. A year later in May 1977, when the Third Circuit reviewed the order of the three-judge court it provided sixty days within which State authorities could redress the constitutional violation and fashion an appropriate governance plan.

"We do not mandate any specific number of districts which the state may create within the area presently encompassed by the defendant districts nor do we require that all existing districts be reconstituted. We do caution that a `Wilmington only' plan will not be adequate. We add one additional provision. We shall require State authorities to file with the district court within 60 days from May 18, 1977 a formal report of its efforts to carry out the mandate of the district court."

555 F.2d at 381. No plan for either governance or pupil assignment was submitted by the State within the 60-day period. Indeed it is difficult to consider one without the other.⁹

Because of pending certiorari applications to the Supreme Court,¹⁰ implementation scheduled for September 1977 was postponed until September 1978.¹¹ In the interim, this Court, over four weeks in October, November and December, heard extensive testimony on pupil assignment plans suitable to a one district plan.¹² One of the principal themes dominating these hearings was the need for stability and certainty in the community. Thus all parties urged an early determination by the Court. At all times during the course of these proceedings, an effort was made to apprise the Legislature so "that there would be no misunderstanding as to the Legislature's state of knowledge at any particular point in time."¹³ Prior to issuance of the Court's January 9 Order, the Legislature again met to reconsider its stance and decided to recess without taking any action.

Acknowledging that "the Court, speaking generally, has, from the time it handed down its original decision, left considerable latitude for the Legislature to act if it wished,"¹⁴ the State Board during the fall hearings conceded that the longer the Legislature waited to act the greater the number of practical problems created.¹⁵ It is an understatement to say that when the Legislature acted in mid-February 1978, almost two years after the invitation of the three-judge court, it created practical problems. An element of uncertainty and confusion was added to a highly emotional subject already bewildering to even the...