MURRAY M. SCHWARTZ, District Judge.
Presently before the Court are two motions filed by the Delaware State Board of Education ("State Board").
As discussed more fully infra,
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.
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,
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
II. CURRENT FACTUAL AND PROCEDURAL BACKGROUND
Prior opinions detail the history of this 20 year litigation,
On May 19, 1977, this Court entered the order delineated in the Third Circuit majority opinion. The Third Circuit's order replicated much of the order originally entered by the three-judge court, and from which the appeal had been taken. The Third Circuit mandate also directed that the State Board of Education (or other appropriate authority) was to file a "formal report in accordance with Part IV [Governance] of the Opinion of the Court of Appeals of the Third Circuit within 60 days from May 18, 1977." Evans v. Buchanan, supra, 555 F.2d at 381.
On July 14, 1977, defendant State Board of Education filed a formal report as required by the order. The report disclosed that the only concrete measure which had been taken since entry of the three-judge court remedy order was passage of legislation authorizing majority to minority voluntary transfers. This would permit transfers of black students from the Wilmington and DeLaWarr
At the request of the Court and so that the State Board's proposed plan could be considered in an appropriate procedural context, the State Board filed a motion seeking adoption of its plan by the Court. The motion was filed under objection by the State Board, and with reservation of its opposition to adoption of any interdistrict remedy.
Argument on the State Board's application for stay was held on July 18, 1977 and hearings were held on the State Board's plan from July 19-25, 1977. Plaintiffs vigorously opposed acceptance of the State Board's plan and granting of the stay. They also sought to introduce their own plan, labeled Plan Q. The Court did not accept the plan into evidence, although it permitted plaintiffs to make an offer of proof on the record concerning Plan Q.
At the hearings, counsel for the suburban school districts indicated that they viewed the voluntary transfer legislation to be sufficient to vindicate the constitutional rights of plaintiffs which had been infringed. If the Court did not agree with that proposition, the suburban school districts indicated that the State Board's plan was acceptable as a second choice. Counsel for the suburban
In summary, in the fourteen months between issuance of the three-judge court remedy opinion and commencement of the July, 1977 hearings, the only steps taken by the State to devise and implement school desegregation was passage of the voluntary transfer legislation as previously rehearsed and proposal of a plan by the State Board which it had no power to implement. Attention is now turned to the State Board's proposal.
III. STATE BOARD'S PROPOSAL
The proposal submitted by the State Board of Education would require that all black students in Wilmington in grades 7 through 12 be assigned to suburban school districts for the school year 1977-78.
In its report to the Court,
The State Board's proposal recommends the assignment of black students residing in Wilmington and enrolled in grades 7 through 12 to suburban school districts for the 1977-78 school year. As part of this process, attendance zones are to be drawn in the City of Wilmington corresponding to the various suburban districts.
The State Board's proposal contains additional provisions covering the varied responsibilities of the various school districts including tuition payments, the establishment of local grievance procedures for parents, and transportation. The proposal also sets out a procedure whereby Wilmington teachers displaced by the exodus of students to the suburbs can seek employment with suburban districts. Basically the proposal requires each suburban district to hire one Wilmington teacher for each state unit of pupils transferred from Wilmington to its district, assuming a sufficient number of qualified Wilmington teachers apply.
The absence of implementing legislation creates the need for an order by this Court before the State Board's proposal can be put into operation. That fact raises an issue of serious concern. Paragraph 2 of the mandate of the Third Circuit orders the schools in Northern New Castle County to be "desegregated in accordance with the Opinion of the Court of Appeals for the Third Circuit" and to be "reorganized into a new or such other new districts as shall be prescribed by the state legislature or the State Board of Education. . . ." (emphasis added) Paragraph 4 of that mandate provides: "The State Board of Education shall, if the state legislature or the State Board of Education do not promptly comply with paragraph 2 of this Order [appoint the New Board] . . . to oversee the operation of the schools of the area as defined in ¶ 2 of this Order. . . ." It must be determined whether the mandate permits consideration of a State Board proposal that requires a federal court order for implementation or, alternatively, only gave the State of Delaware the opportunity to formulate its own desegregation plan which was to be self-executing and thus without need for further judicial action.
The State Board argues that the use of the word "or" in paragraphs 2 and 4 of the mandate is critical. Its position is that the Third Circuit was well aware that the State Board has no power to reorganize school districts or to reassign students; that power resides exclusively with the legislature. By its use of the word "or," the State Board contends the Third Circuit clearly intended to permit two possible courses of action: (1) the legislature could act to reorganize the school districts and pupil assignment patterns; (2) the State Board could submit to this Court a plan to desegregate the relevant school districts which, if satisfactory, would then be implemented by court order.
At first blush, the defendant's argument has certain appeal, especially since the crucial
Prior to the issuance of its May 19, 1976 Opinion, the three-judge court solicited and received nineteen proposed plans to remedy the violations found by that Court. The proposals included both interdistrict and Wilmington-only plans. After having been submitted to the Department of Public Instruction for professional comment and evaluation, the three-judge court held three weeks of hearings, during which many of the proposals underwent modification. Evans v. Buchanan, supra, 416 F.Supp. at 334-35. After this extensive exposure to a wide variety of plans, the three-judge court declined to adopt any of the proposed plans and ordered the implementation of a plan based on the concept of one district. However, the Court stressed that its remedy would not take effect if the State Legislature and State Board were to act to implement their own constitutional desegregation plan. Evans v. Buchanan, supra, 416 F.Supp. at 357. Clearly, the three-judge court was not inviting the submission of a new desegregation plan that would require entry of a court order before implementation could take effect. Rather, the Court was indicating its continued willingness to defer to the legislative process in developing a remedy so long as the remedy passed constitutional muster.
Similarly, the Third Circuit mandate did not anticipate the submission of a new proposal that would form the basis of a judicially ordered remedy. In Part IV of its Opinion, the majority expressly affirmed and approved the three-judge court's decision to permit the State Legislature and State Board to act so as to pre-empt the need for a judicial remedy. When viewed in the light of all that has preceded the current posture of this case and Part IV of the Third Circuit majority opinion,
Accordingly, the Court concludes that it may not consider the merits of the State Board's proposal. The mandate of the Third Circuit contemplates only two possibilities: (1) action by the State enacting its own plan for desegregation; or (2) appointment of the New Board and implementation of the one-district plan. As the State has not acted, this Court must.
Even if this Court were permitted to consider the State Board's proposal, the result in this case would be no different. I find the proposal unacceptable as an equitable remedy for the constitutional violations found by the three-judge court. The most obvious and significant flaw is that the proposal places the entire burden of the remedy on those whose rights have been violated. In formulating a remedy for constitutional violations, this Court must exercise its equitable powers. One would find it difficult to create a more graphic paradigm of an inequitable remedy than one which assigns to those who have been wronged the responsibility of correcting those wrongs. The uncontroverted testimony
Additionally, if every black student accepted his or her assignment, the resulting effect on the Wilmington School District would be the creation of a virtually all white public school system with the exception of certain specialized schools and kindergartens which would remain substantially all black.
This Court also is charged with the responsibility of supervising a desegregation plan that "promises realistically to work now." Green v. County School Board, supra, 391 U.S. at 439, 88 S.Ct. 1689. See also Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965). A basic problem with the State Board's proposal is that no one knows what the plan promises to accomplish. Indeed witnesses from the State Department of Public Instruction expressly declined to predict the results of implementing the plan and disclaimed that any conclusions could be inferred from the history of the voluntary transfer program.
At bottom, the State Board's proposal, dubbed "reverse volunteerism" by its proponents, is based on the concept of "freedom of choice," even though the initial assignment of the students is involuntary. Such a proposal viewed in the context of its proponents being unable to represent it will work and the more than twenty year delay in the dismantling of an interdistrict dual school system simply is unacceptable as an equitable remedy and inconsistent with the mandate of the Supreme Court in Green. Green v. County School Board, supra, 391 U.S. at 439, 88 S.Ct. 1689.
Having concluded that the State Board's proposal is unacceptable for procedural, equitable and substantive reasons, it follows that unless a stay motion is granted, the school districts of Northern New Castle County will be desegregated in the fall of 1977 with governance in a single district in accordance with the Opinion of the Court of Appeals for the Third Circuit. Accordingly, attention is now turned to the motion for stay.
IV. MOTION FOR STAY
A motion for a stay is addressed to the sound discretion of the Court. Coppedge v. Franklin County Board of Education, 293 F.Supp. 356, 362 (E.D.N.C.1968). The burden of the State Board and the suburban school districts in the case at bar is to make: (1) a showing that they will suffer irreparable injury if the stay is denied; (2) a strong showing they likely will succeed on the merits of their appeal; (3) a showing the plaintiffs will not be substantially harmed by the stay; and (4) a showing no harm will be done to the public interest. Reserve Mining Co. v. United States, 498 F.2d 1073, 1076-1077 (8th Cir.), application to vacate stay denied, 419 U.S. 802, 95 S.Ct. 287, 42 L.Ed.2d 33 (1974).
A. Irreparable Injury
As noted earlier, the issue of irreparable injury in the context of this stay motion involves measuring the effect upon defendants of implementing a remedy during the pendency of the State Board's petition for writ of certiorari to the Supreme Court. The preceding section of this Opinion discussed the inadequacies of the State Board's proposal and the corollary conclusion that the one district plan, as modified on appeal, must be implemented. Thus, the issue is what irreparable injury, in the absence of a stay, implementation of the plan will cause the defendants.
The most cataclysmic change that will occur if a stay is not granted is the abolition of the eleven affected school districts as distinct political and administrative entities. The consequences of this major reorganization are similarly very serious. Affidavits submitted to the Court by various school administrators recited a litany of major decisions that would have to be made in order to convert from eleven districts to one.
At this late date, the various school districts through the governmental offices of New Castle County have completed sending statements to taxpayers which will lead to collection of tax revenues for the 1977-78 school year. Those taxes are collected on the basis of different rates determined by district operating expenses and debt service requirements.
As the central governing board for the new district, the New Board also would have to develop and implement a new administrative structure for the public schools in the eleven existing districts. Undoubtedly, this would require substantial changes
Finally, the New Board must develop a pupil assignment plan that desegregates the public schools of Northern New Castle County. Approximately 60,000 school children are affected by this litigation. Lasting harm would be done to the education of these children if they must endure the turmoil and uncertainty involved in reorganizing into one district and then must undergo the rigors of disestablishing the district if the defendants' petition to the Supreme Court were successful. There very likely also would be substantial disruption of teaching assignments,
Although each individual item described above may not constitute irreparable injury, when viewed as a whole, it is concluded that the defendants have shown that implementation of the one-district plan will cause irreparable injury if their petition is subsequently successful. Proof of irreparable injury is insufficient, however, to sustain a motion for stay, if the appeal is unlikely to be successful as that language is hereafter defined
B. Strong Showing on the Merits
According to the test accepted by virtually all courts, including this one,
Common sense dictates that a literal reading of the standard would lead most probably to consistent denials of stay motions, despite the immediate threat of substantial irreparable injury to the movant. The almost inescapable conclusion is that the standard cannot mean what its language would indicate.
The defendants cite numerous discrete issues as the basis for their certiorari petition. These various issues, however, can be distilled to one fundamental dispute between the parties: each side has characterized this current phase of the Evans v. Buchanan litigation radically differently.
The plaintiffs contend that this is and has been a "remedy" case, not a "violation" case. That is, what prompted the filing of an amended complaint in 1971 was the failure of the defendants to dismantle the interdistrict de jure segregation which had been found to exist in Delaware at the time of Brown v. Board of Education (Brown I).
The long process of desegregating the public schools of Delaware began in the State court system over 25 years ago.
Plaintiffs emphasize the finding of the three-judge court that the de jure system in effect in 1954 was a "cooperative venture involving both city and suburbs." Evans v. Buchanan, supra, 393 F.Supp. at 437. Further, that interdistrict de jure system was never completely eradicated. Id. at 437-38; Evans v. Buchanan, supra, 416 F.Supp. at 341 n. 43. Under this theory, the issue before the three-judge court was not whether a new de jure segregated educational system had been established, rather it was whether the State of Delaware had discharged its affirmative duty to desegregate the schools of northern New Castle County. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). Plaintiffs further assert that various additional violations found by the three-judge court constitute separate, independent constitutional violations and were also in furtherance of perpetuating the dual school system which has not been dismantled.
By contrast, the defendants urge that the only segregation which the district court found had not been remedied since Brown I
These competing characterizations do raise vexing legal questions. This Court has no difficulty in concluding that the three-judge court was correct in its rulings. Rather, what is troublesome is that the summary affirmance by the Supreme Court in this case preceded the decisions in all of the cases heavily relied upon by the defendants. Thus, the concern is whether and to what extent the principles expressed in those subsequent decisions have any application to a case such as this where the trier of fact found that the vestiges of an interdistrict de jure segregated school system had not been completely dismantled.
Moreover, there are complicating factors which this Court must consider in evaluating whether the defendants have made a showing sufficient to warrant entry of a stay. The three-judge court in this case issued two opinions on the question of whether the State Board and other intervening defendants were guilty of constitutional violations. Evans v. Buchanan, supra, 379 F.Supp. 1218; Evans v. Buchanan, supra, 393 F.Supp. 428. The Order entered pursuant to those opinions was summarily affirmed by the Supreme Court. Evans v. Buchanan, supra, 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (Rehnquist, J., joined by Burger, C. J. and Powell, J., dissenting). Subsequently, the three-judge court issued an Opinion on the remedy to be imposed to redress the violations. Evans v. Buchanan, supra, 416 F.Supp. 328. This ruling was affirmed with modifications by the Third Circuit in a 4 to 3 decision. Evans v. Buchanan, supra, 555 F.2d 373. Against this background must be juxtaposed the continued active interest displayed by the Supreme Court in school desegregation cases.
These "complicating" factors do not bear directly on the issue of the probability of the defendants' petition being successful, as
C. Harm to the Plaintiffs
The obvious and irreparable harm that the individual plaintiffs would suffer from entry of a stay is the continued delay in the vindication of their constitutional right to attend a unitary school system. The intervening Wilmington School Board similarly would be prevented from administering a unitary system. This Court has noted in the context of an earlier stay motion how serious it considers this injury.
Plaintiffs do have the opportunity under the liberalized provisions of the voluntary transfer program to attend any other school system in the county except DeLaWarr.
When the conceded injury to the plaintiffs, viewed in light of this factor, is weighed against the showing made by the defendants of irreparable injury and the existence of substantial and difficult questions of law in this complicated and sensitive area of the law, the balance is a close one. Before resolving it, attention must be addressed to the final factor — the public interest.
D. Public Interest
The fourth factor to be evaluated in ruling on the motion for a stay is the public interest. Obviously, the individual plaintiffs are part of the public. Further, it cannot be gainsaid that every school child, white or black, should have the right to attend a unitary school system. The effects of de jure segregation are felt keenly by white students, although perhaps not as severely as black students feel them. But this does not end the analysis, for there are other considerations.
One is the interest of the public in a stable educational system. The right to attend a unitary school system is in part an end in itself, mandated by the Constitution. It is also, however, grounded in the premise that the educational interests of a child are best served by going to a desegregated school. The interests of a child, black or white, are not served, however, by subjecting his educational experience to the uncertainties of the judicial process. There can be little doubt of the significant disruption, both personally and educationally, that would occur if the one-district plan were reversed after implementation had begun. It is a cost incapable of accurate measurement, but it must be considered, however, crudely, in this Court's balancing process.
A related but distinct factor is the interest of the public in certainty. No one need be reminded of the sensitivity and social importance of the issues at stake in this litigation. Part of the tension and uneasiness that has afflicted this community during the past several years derives from the uncertainty about the practical effect this
When the showing of irreparable injury and the merits of their appeal made by defendants is weighed against the harm to the plaintiffs and the interest of the public, the result is, not surprisingly, an exceedingly close question. I conclude, however, on the basis of the particular facts and considerations recited in this opinion, that a limited stay is warranted at this time. It is emphasized that this decision is not reached because of the administrative problems the State Board has stated would make very difficult the implementation of a one-district plan this fall. After having 14 months to develop a plan for the transition to a one-district school system, this Court is scarcely impressed by such protestations.
I believe that a stay of implementation of the one-district plan for grades 7 through 11 is justified, pending disposition of the writ of certiorari by the Supreme Court.
The State Board will be ordered to appoint the members of the New Board forthwith and to submit those names to the Court no later than August 10, 1977. Consistent with this Opinion and the mandate of the Third Circuit, the New Board will be authorized to retain counsel to represent it in these proceedings and will be ordered to begin immediate development of a plan to desegregate grades 1 through 11 in the public schools of the 11 affected districts in September, 1978, and grades 1 through 12 in all subsequent years. The plan shall include both pupil and faculty assignments as well as the administrative hierarchy based on the one-district plan approved by the Court of Appeals. Evans v. Buchanan, supra, 555 F.2d 373. For the reasons expressed in the May 19, 1976 opinion of the three-judge court, rising seniors will be exempted from the plan during the first year of implementation. See Evans v. Buchanan, supra, 416 F.Supp. at 360. Similarly, the discrete groups of students exempted from any desegregation plan by the three-judge court will not be included in the plan developed by the New Board. Id. at 360-61.
Further, pursuant to that mandate, the State Board of Education, the Department of Public Instruction and the school districts shall provide the New Board with whatever technical or other assistance the New Board deems necessary
The mandate of the Third Circuit contemplates that the New Board will be responsible for developing the desegregation plan and that the State Board primarily will draw up a time-table for the smooth transfer of authority to the New Board. These tasks are too inter-related, however, to permit each to proceed without close coordination with the other. Further, the mandate of the Third Circuit expressly requires the New Board to consider any planning necessary for the transfer of power to it. Accordingly, the New Board shall submit its proposed plan to the State Board and Department of Public Instruction for professional evaluation and comments on its practical implementation. After receipt of that analysis, the New Board and State Board shall confer extensively and intensively to seek resolution of their differences. If no resolution is reached, the New Board shall submit its plan to the Court with a specification of the existing differences and reasons in support of its position. The State Board also shall specify its disagreement with the proposed plan and the reasons in support of its position. Both the plan and the list of differences and competing positions shall be filed no later than September 30, 1977.
Similarly, the State Board shall submit to the New Board its proposed time-table for the transfer of authority. After receipt of the New Board's comments, the two boards shall confer closely to resolve any differences. If any or all of the differences are not settled, the State Board shall submit to the Court its proposed time-table together with a list of the existing differences and the reasons for the position it has taken. The New Board also shall submit such a list and the reasons in support of its position. These submissions shall be made no later than September 30, 1977. Hearings on the New Board's plan and the State Board's time-table shall commence on October 18, 1977, unless the Supreme Court grants certiorari in the interim.
The stay granted herein shall remain in effect until the Supreme Court has acted on the defendants' petition and for such time thereafter as the Court shall deem necessary, after considering the recommendation of the New Board, to accomplish the transition to a one-district unitary school system. Of course, if the Supreme Court grants the petition for writ of certiorari, the stay granted herein would continue in effect.
All provisions of the mandate, except those specifically stayed by this Opinion and accompanying Order shall remain fully in effect.
Prior to the Third Circuit opinion, the legislation was recast only for the 1977-78 school year to require school districts "to accept all applications for transfers by applicants who are members of the race which is in the majority for the 1976-77 school year in the public school district in which they reside and which is in the minority for the 1976-77 school year in the school district to which they apply as transfers. . . ." 129th Gen. Assembly Sen. Bill No. 173. For the 1977-78 school year, somewhere between 746 (PX-3A) and 1,194 (DPI 50) or between approximately 6.6 and 10.5% of the black students from Wilmington have elected to transfer to a suburban district. In addition, 302 black students from DeLaWarr or approximately 17.5% of the DeLaWarr black student population elected to transfer to other suburban districts. In contrast to voluntary transfer of blacks, only 3 white students elected to transfer into Wilmington and none into DeLaWarr. DPI Ex. 50.
Of the remaining seven cases, one was the appeal from the three-judge court Order of June 15, 1976 in this case, which was dismissed 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). In the remaining six cases, certiorari was denied. None of the six involved findings of extensive constitutional violations, and only one concerned the propriety of a comprehensive desegregation remedy. Board of Education of Jefferson County v. Newburg Area Council, Inc., 429 U.S. 1074, 97 S.Ct. 812, 50 L.Ed.2d 792 (1977) (no abuse of discretion in remedying all vestiges of state-imposed segregation by requiring implementation of busing plan insuring that each elementary school in 20% black school system has black enrollment of between 12 and 40% and each secondary school of between 12.5 and 35%). Two of the cases were limited to discrete issues relating to remedies. McDonough v. Morgan, 429 U.S. 1042, 97 S.Ct. 743, 50 L.Ed.2d 755 (1977) (no abuse of discretion in appointment of temporary receiver to insure compliance with desegregation plan); and Cuthbertson v. Charlotte-Mecklenburg Board of Education, 429 U.S. 831, 97 S.Ct. 92, 50 L.Ed.2d 95 (1976) (complaint challenging pupil assignment based on race properly dismissed when assignments are product of remedial phase of school desegregation action). In one of the cases, no constitutional violation was found. Board of Education of Independent School District No. 53 v. Board of Education of Independent School District No. 52, 429 U.S. 894, 97 S.Ct. 253, 50 L.Ed.2d 176 (1976). The remaining two cases in which certiorari was denied presented procedural questions in conjunction with desegregation consent decrees. St. Louis Board of Education v. Caldwell, ___ U.S. ___, 97 S.Ct. 2987, 53 L.Ed.2d 1100 (1977) (intervention); and Young v. Midland Independent School District, 430 U.S. 983, 97 S.Ct. 1680, 52 L.Ed.2d 378 (1977) (mandamus).