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Evans v. Buchanan

decided: May 28, 1958.

BRENDA EVANS, AN INFANT, BY CHARLES EVANS, HER GUARDIAN AD LITEM ET AL.
v.
MADELINE BUCHANAN, ET AL., MEMBERS OF THE STATE BOARD OF EDUCATION, AND GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, APPELLANTS, AND RICHARD W. COMEGYS, ET AL., MEMBERS OF THE BOARD OF TRUSTEES OF CLAYTON SCHOOL DISTRICT NO. 119. MADELINE STATEN, AN INFANT, BY HER GUARDIAN AD LITEM ELEANORA M. STATEN ET AL. V. MADELINE BUCHANAN, ET AL., MEMBERS OF THE STATE BOARD OF EDUCATION, AND GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, APPELLANTS, AND MAX CORDER, ET AL., MEMBERS OF THE BOARD OF EDUCATION OF THE MILFORD SPECIAL SCHOOL DISTRICT. JULIE COVERDALE, AN INFANT, BY ANNIE E. COVERDALE, HER GUARDIAN AD LITEM ET AL. V. MADELINE BUCHANAN, ET AL., MEMBERS OF THE STATE BOARD OF EDUCATION, AND GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, APPELLANTS, AND MARJORIE BAKER, ET AL., MEMBERS OF THE BOARD OF TRUSTEES OF GREENWOOD SCHOOL DISTRICT NO. 91. EYVONNE HOLLOMAN, AN INFANT, BY HER GUARDIAN AD LITEM, FLOSSIE HOLLOMAN ET AL. V. MADELINE BUCHANAN, ET AL., MEMBERS OF THE STATE BOARD OF EDUCATION, AND GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, APPELLANTS, AND JAMES L. BROOKS, ET AL., MEMBERS OF THE BOARD OF TRUSTEES OF MILTON SCHOOL DISTRICT NO. 8. DAVID CREIGHTON, AN INFANT, BY HIS GUARDIAN AD LITEM, JOSEPH CREIGHTON ET AL., V. MADELINE BUCHANAN, ET AL., MEMBERS OF THE STATE BOARD OF EDUCATION, AND GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, APPELLANTS, AND WILLIAM E. PRETTYMAN, ET AL., MEMBERS OF THE BOARD OF EDUCATION OF THE LAUREL SPECIAL SCHOOL DISTRICT. MARVIN DENSON, AN INFANT, BY HIS GUARDIAN AD LITEM, CLARENCE DENSON ET AL., V. MADELINE BUCHANAN, ET AL., MEMBERS OF THE STATE BOARD OF EDUCATION, AND GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, APPELLANTS, AND JACOB H. MOORE, ET AL., MEMBERS OF THE BOARD OF EDUCATION OF THE SEAFORD SPECIAL SCHOOL DISTRICT. THOMAS J. OLIVER, JR., AN INFANT, BY HIS GUARDIAN AD LITEM, THOMAS J. OLIVER ET AL., V. MADELINE BUCHANAN, ET AL., MEMBERS OF THE STATE BOARD OF EDUCATION, AND GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, APPELLANTS, AND RAYMOND E. TOWNSEND, ET AL., MEMBERS OF THE BOARD OF TRUSTEES OF JOHN M. CLAYTON SCHOOL DISTRICT NO. 97



Author: Biggs

Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.

BIGGS, Chief Judge.

The appeals at bar arise out of seven cases in the court below relating to the same subject matter and may be disposed of appropriately in one opinion. The jurisdiction of the court below was invoked under Section 1331, federal question and jurisdictional amount, under Section 1343, Civil Rights, Title 28 U.S.C. and under Section 1983, Title 42 U.S.C., and under the Fourteenth Amendment to the Constitution of the United States. No issue as to jurisdiction is presented.

The histories of these litigations are set out in some detail in the opinions of the court below, referred to from time to time hereinafter, and need not be repeated here.*fn1 It is sufficient to state that following the decisions of the Supreme Court of the United States in Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 and 1955, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, the Delaware State Board of Education requested the local school district boards to submit plans for the admission and education of Negro children into the public schools of the respective school districts on a racially non-discriminatory basis. There was prompt compliance by many school districts in Delaware but the local school district boards in Kent and Sussex Counties in general did not comply with the directions of the State Board of Education. Thereafter the minor plaintiffs, children residing within seven school districts, by guardians ad litem, brought the seven suits in the court below to compel compliance with the rulings of the Supreme Court of the United States in the Brown case.

All of the complaints allege that the minor plaintiffs are children resident within their respective school board districts and are entitled immediately to admission to the schools of their districts and would be accepted as students therein except for their race, color and ancestry. The seven suits are class actions brought on behalf of all children similarly situated to the minor plaintiffs, pursuant to Rule 23(a)(3) Fed.R.Civ.Proc., 28 U.S.C.*fn2

The defendants are members of the State Board of Education, the State Superintendent of Public Instruction and members of local school boards. The relief sought by the complaints was that the court below grant interlocutory and permanent injunctions declaring that the administrative orders, regulations and rules, practices or usages, pursuant to which the minor plaintiffs are segregated with respect to their schooling because of race, color or ancestry, violate the Fourteenth Amendment to the Constitution of the United States, and that the court below issue interlocutory and permanent injunctions requiring the defendants to admit the minor plaintiffs and all other children similarly situated to the public schools of their respective school districts on a racially non-discriminatory basis.

The appellants, who are members of the State Board of Education and the State Superintendent of Public Instruction, filed joint answers in all seven cases asserting that the power to effect desegregation lies not in them but in the local school boards. The members of the boards of education of the school districts also filed joint answers. These answers are substantially the same and, briefly put, assert that the local boards do not possess the power or jurisdiction under the school laws of Delaware, or the available facilities, to effect the admission of the minor plaintiffs or other children similarly situated to the respective schools on a racially non-discriminatory basis.

The members of the Board of Trustees of Clayton School District No. 119, at C.A. No. 1816 in the court below, No. 12,375 in this court, answered also that they were "improper parties" to the action. The court below correctly held this contention invalid. D.C.Del.1957., 149 F.Supp. 376.

On January 21, 1957 the plaintiffs in the case involving the Clayton School District mentioned immediately above filed a motion for summary judgment pursuant to Rule 56(a), Fed.R.Civ.Proc., 28 U.S.C.*fn3 After argument, the court below on March 6, 1957, filed an opinion, 149 F.Supp. 376, holding that the members of the Board of Trustees of Clayton School District No. 119 were making no reasonable start toward the admissions of the minor plaintiffs and those similarly situated on a racially non-discriminatory basis. Following this opinion, on April 1, 1957, the court entered a decree enjoining members of the Board of Trustees of the Clayton School District "in accordance with further order" from refusing admission to children on account of race, color or ancestry and requiring the members of the Board of Trustees of the Clayton School District to submit to the State Board of Education, within 30 days, a plan for the admittance to, and the enrollment and education in the public school maintained by the Board of the minor plaintiffs and all other children on a racially non-discriminatory basis, and also requiring the members of the State Board of Education within 60 days to file a plan so providing with the court below.

An appeal from this decree was taken to this court but was not prosecuted and accordingly the record was returned to the court below. The decree of April 1, 1957 is presently outstanding.No other similar decree addressed to members of the local school boards was entered in the other six cases but it is in this respect only that the case involving Clayton School District No. 119 differs in substance from the other six cases involving the other local school boards. However, in view of the fact that the operation of the decree in the Clayton case was made contingent on a further order of the court below we are justified in treating and will treat this case as in pari passu with the other six cases.

On June 21, 1957, the plaintiffs in six of the seven cases, the case at No. 1816 in the court below involving Clayton School District No. 119 being excluded, moved for summary judgment against the members of the State Board of Education and the State Superintendent of Public Instruction. It should be noted that the defendants who are members of the local school boards were not included in these motions. On June 25, 1957, the plaintiffs in the six cases last referred to, the case at No. 1816 in the court below being excluded, moved to consolidate the six cases.

On July 25, 1957, the court below handed down an opinion, 152 F.Supp. 886, granting the motion to consolidate the six cases and the motions for summary judgment against the members of the State Board of Education and the State Superintendent of Public Instruction. The court below went further, however, and, apparently sua sponte, since no applicable like motions had been filed for summary judgment and for consolidation in respect to the suit at No. 1816 in the court below involving the Clayton School District No. 119, also granted summary judgment in that case against the members of the State Board of Education and the State Superintendent of Public Instruction and consolidated that case with the other six actions. The decree of the court below was an appropriate and proper one, and furnishes us with an additional reason for treating the appeal involving the Clayton School District No. 119 on a parity with the other six cases. The decree entered in all seven cases by the court below requires that the minor plaintiffs in all seven cases and children similarly situated should be admitted to their respective school districts on a racially non-discriminatory basis by the Autumn term 1957 and enjoins the designated defendants from refusing admission to these children. It also directs the State Board of Education and the Superintendent of Public Instruction to submit a plan to the court for the admittance, enrollment and education of the children on a racially non-discriminatory basis within 60 days and to serve copies of the plan upon the members of the local school boards involved within 45 days.*fn4 The appeals at bar, taken by the members of the State Board of Education and the Superintendent of Public Instruction, followed.

The State Superintendent of Public Instruction and the members of the State Board of Education assert that the exercise of two powers are essential for planning and effecting desegregation. They argue that to admit the children involved to the respective public schools involved, authority must be exercised to admit individual students to one school rather than to another and that to educate students it is necessary to possess the authority to employ and assign teachers and principals to the various schools. They assert also that the powers necessary to effect these results are vested by the pertinent Delaware statutes solely in the local district school boards. They point to the provisions of 14 Del.C. Sections 741, 944, 976, 1401 and 1410, which variously provide for the employment of teachers and principals of schools, for the fixing of their salaries and for the termination of their employment.

The appellants point also to 14 Del.C. Sections 902 and 941, providing for the establishment of Boards of Education in the local school districts*fn5 and specifying the duties of these boards, included among which is the determining of policies in relation to the maintaining of separate schools for white and colored children, and the settling of disputes and for property administering the public schools of the districts.The appellants also assert that they are without the authority to impose a plan for desegregation on the boards of education of the respective school districts because the members of these boards in Kent and Sussex Counties are elected by the voters of the school districts, 14 Del.C. Section 305, and that therefore they are without authority to ...


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