Hoots v. Com. of Pennsylvania, No. 80-2116

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Before HUNTER, GARTH and HIGGINBOTHAM; JAMES HUNTER, III; A. LEON HIGGINBOTHAM, Jr.; Garth; The plaintiffs appealed this order. Judge Garth, writing for a divided court, held that there was no appealable order and dismissed the appeal. Hoots IV. Inte
• Citation: 639 F.2d 972
• Parties: Dorothy HOOTS, individually and as mother of her children Janelle Hoots and Jamie Hoots; Mrs. Addrallace Knight, individually and as mother and natural guardian of her children Ronald Knight, Loretta Knight, Terrance Knight, Marc Knight and Byron Knight; Barbara Smith, individually and as mother and natural guardian of her children Tawanda Smith, Tevela Smith, Joseph Smith, Wesley Smith and Eric Smith; on behalf of themselves and all others similarly situated, Appellants, v. COMMONWEALTH OF PENNSYLVANIA; Edward X. Hallenberg, President of the Allegheny County Board of School Directors; The Allegheny County Board of School Directors; W. Deming Lewis, Chairman of the Pennsylvania State Board of Education; The Pennsylvania State Board of Education; Michael Sullivan, President of the School District of the Borough of Braddock; The School District of the Borough of Braddock; Andrew Lisyak, President of the School Board of the School District of the Borough of Rankin; The School District of the Borough of Rankin; Leo Campbell, President of the School Board of the School District of the Borough of North Braddock; and The School District of the Borough of North Braddock; The Allegheny Intermediate Unit Board of School Directors and Edward X. Hallenberg, as President of the Allegheny Intermediate Board of School Directors, Appellees.
• Docket Number: No. 80-2116
• Decision Date: 26 February 1981

Page 972

639 F.2d 972 Dorothy HOOTS, individually and as mother of her children
Janelle Hoots and Jamie Hoots; Mrs. Addrallace Knight,
individually and as mother and natural guardian of her
children Ronald Knight, Loretta Knight, Terrance Knight,
Marc Knight and Byron Knight; Barbara Smith, individually
and as mother and natural guardian of her children Tawanda
Smith, Tevela Smith, Joseph Smith, Wesley Smith and Eric
Smith; on behalf of themselves and all others similarly
situated, Appellants,
v.
COMMONWEALTH OF PENNSYLVANIA; Edward X. Hallenberg,
President of the Allegheny County Board of School Directors;
The Allegheny County Board of School Directors; W. Deming
Lewis, Chairman of the Pennsylvania State Board of
Education; The Pennsylvania State Board of Education;
Michael Sullivan, President of the School District of the
Borough of Braddock; The School District of the Borough of
Braddock; Andrew Lisyak, President of the School Board of
the School District of the Borough of Rankin; The School
District of the Borough of Rankin; Leo Campbell, President
of the School Board of the School District of the Borough of
North Braddock; and The School District of the Borough of
North Braddock; The Allegheny Intermediate Unit Board of
School Directors and Edward X. Hallenberg, as President of
the Allegheny Intermediate Board of School Directors, Appellees. No. 80-2116. United States Court of Appeals,
Third Circuit. Argued Nov. 3, 1980.
Decided Jan. 26, 1981.
Opinion on Denial of Rehearing Feb. 25, 1981.
As Amended Feb. 26, 1981.

Page 974

James S. Liebman (argued), Bill Lann Lee, Jack Greenberg, Thomas J. Henderson, Neighborhood Legal Services Ass'n, New York City, for appellants.

Allen C. Warshaw (argued), Alton Arnold, Harvey Bartle, III, Harrisburg, Pa., for Commonwealth of Pennsylvania.

J. Robert Maxwell (argued), Maxwell & Huss, Pittsburgh, Pa., for Churchill Area School Dist.

John J. Hickton (argued), James R. Duffy, Hickton & Dean, Pittsburgh, Pa., for Swisvale Area School Dist.

G. N. Evashavik (argued), Evashavik, Capone, Evans & Della Vecchia, Pittsburgh, Pa., for Turtle Creek Area School Dist.

Carl W. Brueck, Jr., Brueck & Houck, Pittsburgh, Pa., for Edgewood School Dist.

J. Frank McKenna, III and William M. Wycoff, Thorp, Reed & Armstrong, Pittsburgh, Pa., for East Allegheny School Dist.

Donald C. Fetzko, Pittsburgh, Pa., for Steel Valley School Dist.

Before HUNTER, GARTH and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

This is the fifth published chapter in the long history of this litigation. ¹ The factual history and procedural posture of the case were ably recited by Judge Garth in this court's October, 1978 opinion. ² Here, we will briefly summarize that account and then supplement it with a recital of subsequent events leading to the instant appeal.

I.

Plaintiffs, mothers of children who attend public schools in the General Braddock Area School District ("GBASD") in Allegheny County, Pennsylvania, filed a complaint on June 9, 1971, alleging that the consolidation of various school districts in that county had resulted in the creation of racially segregated schools. ³ The district court, in an opinion and order filed on May 15, 1973, held that the creation of the GBASD by the Pennsylvania State Board of Education and the Allegheny Intermediate Unit Board of School Directors was "an act of de jure discrimination in violation of the Fourteenth Amendment." ⁴ Defendants were given forty-five days to prepare and submit a comprehensive plan for school desegregation in the central part of eastern Allegheny County. ⁵

Page 975

In September, 1973, defendants filed Plan "22-W" with the district court. The most prominent feature of the Plan was the consolidation of seven adjacent school districts, including GBASD, into two. The school districts affected by "22-W" were permitted to intervene to offer evidence on the Plan. In an order and memorandum opinion filed on May 7, 1975, the district court rejected Plan 22-W. ⁶ Defendants were ordered to submit another plan.

In September, 1975, the Commonwealth submitted a new plan, "Plan A," providing for the consolidation of General Braddock with neighboring school districts. On November 18, 1977, the district court denied the Commonwealth's motion for approval of Plan A even though it observed that the Plan involved a "more moderate realignment" of school boundaries than earlier plans. ⁷ The memorandum and order denying approval of the Plan also denied "any necessary injunctive order to implement such plan ... without prejudice to the right of any party to submit further plans or proposal in support thereof." ⁸

Plaintiffs appealed the district court's order withholding approval of Plan A to this court. We dismissed that appeal for want of appellate jurisdiction, noting that the district court's order was "neither a final order nor an appealable interlocutory order which can vest this Court with appellate jurisdiction." Hoots IV, 587 F.2d at 1342. In dismissing the appeal, however, we anticipated the speedy resolution of the dispute and the implementation of appropriate relief by the district court:

We are confident that, in light of the long history of this litigation and the sensitive, constitutional nature of the relief sought, the district court will require submission of a plan forthwith and certainly within the time limits of its original order, will expedite all further proceedings, and will give priority on its calendar to consideration and implementation of the plan. This being so, it would appear that an appropriate final order can be entered by year end which will grant plaintiffs the relief to which they are entitled under the district court's order of May 15, 1973.

587 F.2d at 1351. (footnote omitted).

Following the dismissal of the appeal, appellants, on January 25, 1979, asked the district court to order the Commonwealth to submit within forty-five days a desegregation plan that was "interdistrict in character" involving either a redistricting of GBSAD, or "the tuitioning of current school-age students in General Braddock Area School District to appropriate surrounding school districts ....," or both. Appendix for Appellants at 235a.

On February 6, 1979, the district court held a status conference at which "a wide range of possible remedies (was) discussed and "argued," including district consolidation, the tuition plan and a newly proposed "upgrade" plan for the internal improvement of the quality of GBASD's schools. Application for Writ of Mandamus, Hoots v. Weber, No. 79-1474, at 7-8, reprinted in Appendix for Appellants at 243a-244a. No order was issued by the district court at the conference.

On April 16, 1979, plaintiffs filed an application for Writ of Mandamus requesting this court to order the district court to "direct the state defendants to submit another interdistrict plan which would involve the use of tuition as a technique to remedy the problem presented by C.A. No. 71-538." Application for Writ of Mandamus, Hoots v. Weber, No. 79-

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1474, at 2 reprinted in Appendix for Appellants at 23a. We denied the application on May 2, 1979, "(i)n view of the answer of Chief Judge Weber, and specifically his statement that he plans to proceed promptly." Hoots v. Weber, No. 79-1474 (3d Cir. May 2, 1979), reprinted in Appendix for Appellants at 312a.

On May 17, 1979 the district court entered two orders: 1) it directed the Commonwealth to prepare and file a tuition voucher plan by August 15, 1979 for grades 7-12, or 10-12; ⁹ and 2) it added eight school districts as parties solely for the remedial phase of the case. ¹⁰ The newly joined school districts then filed motions to dismiss; and in response to that motion the court on June 12, 1979 ordered plaintiffs to brief the Milliken v. Bradley question of whether the named school districts could be included in a remedial plan. ¹¹

The Commonwealth filed a proposed tuition plan and moved for its approval on September 10, 1979. ¹² After a hearing on November 17, 1979, the district court denied the motion and orally ordered the Commonwealth to prepare a more detailed plan.

The Commonwealth filed its more detailed tuition plan on May 15, 1980 ("The Tuition Plan"). The plan provided that: 1) all the GBASD students in grades 7-12 would be transferred to eight surrounding school districts; 2) all the GBASD secondary schools would be closed; 3) all the students would be able to choose their new schools, subject to limitations on the number of students that would be assigned to each school district; 4) GBASD would pay the tuition of all of the transferred students on the basis of the average cost of educating a student in the receiving district; 5) only the GBASD students would be transported; and 6) there would be no transfer of elementary school students. ¹³

On May 22, 1980, the Commonwealth submitted a second plan, "a Metropolitan Desegregation Plan for General Braddock Area School District" ("The Metropolitan Plan"). Reprinted in Appendix for Appellants at 486a-516a. This plan called for the consolidation of GBASD with three surrounding school districts: Edgewood, Swissvale and Turtle Creek. ¹⁴

Page 977

On June 6, 1980, GBASD filed its "upgrade plan." This plan provided for an intradistrict remedy: GBASD would improve the quality of its schools' programs and facilities in order to attract parochial school students back to the public schools. Reprinted in Appendix for Appellants at 475a-485a.

The district court ordered all parties to file their objections to the various plans by June 16, 1980. Appellants argued for the rejection of the Tuition Plan because of its exclusion of elementary school pupils. All but one of the school districts not included in the Metropolitan Plan argued for its adoption and for the rejection of the Tuition Plan. All of the school districts supported the upgrade plan; appellants opposed it.

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