July 19, 1960
MARY ANN EVANS, AN INFANT, BY HELEN EVANS, HER GUARDIAN AD LITEM, ET AL., APPELLANTS,
JANE ENNIS, VINCENT A. THEISEN, MARVEL O. WATSON, ROY A. WENTZ, RALPH GRAPPERHAUS, HAROLD B. ENGLISH, MEMBERS OF THE STATE BOARD OF EDUCATION, GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, RICHARD W. COMEGYS, HARRY W. MOOR, G. FRANCIS DOWNS, MARY W. JARRELL, MEMBERS OF THE BOARD OF TRUSTEES OF CLAYTON SCHOOL DISTRICT NO. 119. EUGENE HARRIS, AN INFANT, BY THOMAS HARRIS, HIS GUARDIAN AD LITEM, ET AL., APPELLANTS, V. JANE ENNIS, VINCENT A. THEISEN, MARVEL O. WATSON, ROY A. WENTZ, RALPH GRAPPERHAUS, HAROLD B. ENGLISH, MEMBERS OF THE STATE BOARD OF EDUCATION, GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, MAX R. CORDER, E. CRERAR BENNET, JR., ERNEST C. MACKLIN, GEORGE A. ROBBINS, 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., APPELLANTS, V. JANE ENNIS, VINCENT A. THEISEN, MARVEL O. WATSON, ROY A. WENTZ, RALPH GRAPPERHAUS, HAROLD B. ENGLISH, MEMBERS OF THE STATE BOARD OF EDUCATION, GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, WILBUR C. ROOT, NORMAN C. HAMSTED, HARRY WEBB, MAJORIE BAKER, MEMBERS OF THE BOARD OF TRUSTEES OF GREENWOOD SCHOOL DISTRICT NO. 91. EYVONNE HOLLOMAN, AN INFANT, BY FLOSSIE HOLLOMAN, HER GUARDIAN AD LITEM, ET AL., APPELLANTS, V. JANE ENNIS, VINCENT A. THEISEN, MARVEL O. WATSON, ROY A. WENTZ, RALPH GRAPPERHAUS, HAROLD B. ENGLISH, MEMBERS OF THE STATE BOARD OF EDUCATION, GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, HOWARD T. WEST, JOHN T. FISHER, NORMAN CLIFTON, ALBERT LANK, MEMBERS OF THE BOARD OF TRUSTEES OF MILTON SCHOOL DISTRICT NO. 8. DAVID CREIGHTON, AN INFANT, BY JOSEPHINE CREIGHTON, HIS GUARDIAN AD LITEM, ET AL., APPELLANTS, V. JANE ENNIS, VINCENT A. THEISEN, MARVEL O. WATSON, ROY A. WENTZ, RALPH GRAPPERHAUS, HAROLD B. ENGLISH, MEMBERS OF THE STATE BOARD OF EDUCATION, GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, FORD M. WARRINGTON, OTIS P. CARMINE, CLARENCE J. EVANS, HOMER L. DISHAROON, JR., MEMBERS OF THE BOARD OF EDUCATION OF THE LAUREL SPECIAL SCHOOL DISTRICT. MARVIN DENSON, AN INFANT, BY CLARENCE DENSON, HIS GUARDIAN AD LITEM, ET AL., APPELLANTS, V. JANE ENNIS, VINCENT A. THEISEN, MARVEL O. WATSON, ROY A. WENTZ, RALPH GRAPPERHAUS, HAROLD B. ENGLISH, MEMBERS OF THE STATE BOARD OF EDUCATION, GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, ROBERT H. STAMM, IRENE F. LARRIMORE, OSCAR W. ALLEN, JR., JOHN C. RAWLINS, MEMBERS OF THE BOARD OF EDUCATION OF THE SEAFORD SPECIAL SCHOOL DISTRICT. THOMAS J. OLIVER, JR., AN INFANT, BY THOMAS J. OLIVER, HIS GUARDIAN AD LITEM, ET AL., APPELLANTS, V. JANE ENNIS, VINCENT A. THEISEN, MARVEL O. WATSON, ROY A. WENTZ, RALPH GRAPPERHAUS, HAROLD B. ENGLISH, MEMBERS OF THE STATE BOARD OF EDUCATION, GEORGE R. MILLER, JR., STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, RAYMOND TOWNSEND, GEORGE H. BUNTING, WILLIAM B. CHANDLER, JR., ROLAND V. COBB, MEMBERS OF THE BOARD OF TRUSTEES OF JOHN M. CLAYTON SCHOOL DISTRICT NO. 97.
Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
The background of these appeals is stated in Evans v. Buchanan, D.C.Del. 1957, 152 F.Supp. 886, and 3 Cir., 1958, 256 F.2d 688. After our remand, the court below directed the defendant, the State Board of Education of Delaware, and the defendant, George R. Miller, Jr., State Superintendent of Public Instruction, to submit to it a plan of desegregation. A proposed plan was submitted and was approved with certain modifications. See Evans v. Buchanan, D.C., 172 F.Supp. 508, and D.C., 173 F.Supp. 891. On July 6, 1959, the court below entered a final order approving the plan. This is the order appealed from.
It is sufficient to state here that the plan as approved provides for the desegregation of the Delaware Public School System on a grade-by-grade basis over a period of 12 years beginning with all first grades at the Fall term, 1959. The plaintiffs-appellants object to this plan on two grounds. First, they assert that the plan is not in accord with the mandate of this court which they say in substance approved the order of Judge Leahy entered in the court below on July 15, 1957, and which in their view required immediate state-wide desegregation in all schools and at all grades. Cf. our opinion at 256 F.2d 688. The plaintiffs' second objection is that the plan as approved by the court below does not follow the intent and substance of the decisions of the Supreme Court 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, 757, 99 L. Ed. 1083, in that the plan does not effect desegregation "with all deliberate speed" and is not a "reasonable start toward full compliance" with the ruling of the Supreme Court in its Brown opinion of May 17, 1954.
In its opinions the court below has reached the conclusion that the plan approved is a necessary and proper, if not the only feasible, one, and that integration at a more rapid rate would overcrowd the schoolrooms, overtax the teachers, and have a most undesirable emotional impact on some of the socially segregated communities of Delaware. The court below concluded in substance that desegregation at a more rapid rate than that approved by it would prove to be a disruptive and futile proceeding which might do great harm to the Delaware School System.
We cannot agree. We affirmed the decree of Judge Leahy which in plain terms required statewide integration of the public school system of Delaware in all classes by an adequate plan by the Fall term 1957, and which enjoined designated defendants from refusing admission to Negro children on a racially discriminatory basis. The plan approved by the court below is not in accordance with Judge Leahy's decree or with the mandate of this court. Desegregation of the Delaware public school system on a grade-by-grade basis over a period of 12 years, beginning as it did in the Fall of 1959, does not follow the intent and substance of the rulings of the Supreme Court in Brown v. Board of Education of Topeka, supra.
The plan and the evidence of many of its proponents seem to us to be fraught with unreality, though undoubtedly the witnesses, the defendants, and indeed all concerned, have acted in good faith. It appears from Exhibit No. 11, "Population by School Districts and High School Areas, January 1959", that the approximate number of Negro children available for desegregation in Delaware was 6,813 and that the number of Negro children eligible or available for desegregation in the first grades as of that date was approximately 1,000. The affidavit of June 10, 1959, of Superintendent Miller, states that the number of Negro children applying for entrance into the first grades of those "White Schools", which previously had not had plans for desegregation approved by the State Board of Education, amounted to only 25.*fn1 Percentage-wise, therefore, the number of Negro children who registered for entrance into the first grades in the Fall of 1959 was approximately 2.5% of those available as set out in Exhibit No. 11.*fn2 If the same percentage be applied to the 6,813 Negro children referred to in Exhibit 11: viz., if 2.5% of 6,813 be taken, 170 Negro pupils would have registered from grades 1 to 12 inclusive. Even if this number be trebled the number of Negro children involved if desegregation took place through grades 1 to 12 would barely exceed 500. Doubtless there would be some overcrowding in particular schools as suggested by State's Exhibit 14 and many temporary or permanent rearrangements in school facilities relating to teachers, school houses, school rooms, and transportation would have to be made, but it is unrealistic to suggest that all Negro pupils now in segregated schools would immediately seek admission to desegregated schools. The fact that there must be deemed to be a diminution in the number of Negro children seeking integration, viz., in the number seeking immediate integration as estimated by some of the defendants, is indicated by the fact that of the 42 infant plaintiffs who originally sought relief, approximately 24 have ceased to be active plaintiffs and no longer seek to be integrated. Some of these 24 doubtless have graduated but even if we assume that the number graduating amounts to 10% of the total, it is clear that the number of active plaintiffs still seeking integration is approximately only 20. It has been the experience in school desegregation that a large number of Negro children do not seek integration even when offered the opportunity. This is common knowledge. We cannot conclude that the situation in Delaware will be noticeably different in this respect than in other critical areas the schools of which already have been successfully integrated. It is the fact that if the plan as approved by the court below be not drastically modified a large number of the Negro children of Delaware will be deprived of education in integrated schools despite the fact that the Supreme Court has unqualifiedly declared integration to be their constitutional right. We cannot believe that such a result is a correct or just one.*fn3
As we have indicated one of the main thrusts of the opinion of the court below is that the emotional impact of desegregation on a faster basis than that ordered would prove disruptive not only to the Delaware School System but also to law and order in some of the localities which would be affected by integration. We point out, however, that approximately 6 years have passed since the first decision of the Supreme Court in Brown v. Board of Education of Topeka, supra, and that the American people and, we believe, the citizens of Delaware, have become more accustomed to the concept of desegregated schools and to an integrated operation of their School Systems. Concededly there is still some way to go to complete an unqualified acceptance but we cannot conclude that the citizens of Delaware will create incidents of the sort which occurred in the Milford area some five years ago. We believe that the people of Delaware will perform the duties imposed on them by their own laws and their own courts and will not prove fickle to our democratic way of life and to our republican form of government. In any event the Supreme Court has made it plain in Cooper v. Aaron, 1958, 358 U.S. 1, 16, 78 S. Ct. 1401, 1409, 3 L. Ed. 2d 5, the so-called "Little Rock case", that opposition is not a supportable ground for delaying a plan of integration of a public school system. In this ruling the Supreme Court has acted unanimously and with great emphasis stating that: "The constitutional rights of respondents [Negro school children of Arkansas seeking integration] are not to be sacrificed or yielded to * * * violence and disorder * * *". We are bound by that decision.
Doubtless integration will cost the citizens of Delaware money which otherwise might not have to be spent. The education of the young always requires, indeed demands, sacrifice by the older and more mature and resolute members of the community. Education is a prime necessity of our modern world and of the State of Delaware. We cannot believe that the citizens of Delaware will prove unworthy of this sacred trust.
In Lucy v. Adams, 1955, 350 U.S. 1, 76 S. Ct. 33, 100 L. Ed. 3, the Supreme Court indicated, as we have never doubted, that individual plaintiffs in a class suit such as those at bar, have a personal right to immediate enforcement of their claims if such be feasible. We can perceive no reason why the individual infant plaintiffs who presently actively seek integration should not be granted that right immediately.
For the reasons stated we disapprove the plan insofar as it postpones full integration. The judgment appealed from will be vacated. The court below will be directed to enter an order requiring the State Board of Education of Delaware and the State Superintendent of Public Instruction to submit to the court below on or before December 1, 1960, for its approval a modified plan which will provide for full integration of all grades of the public schools of Delaware commencing with the Fall term 1961. The court below also will be directed to order the individual defendants, respectively members of the Boards of Trustees or of the Boards of Education in the School Districts as named above, to integrate commencing with the Fall term 1960, the respective individual infant plaintiffs who presently actively seek integration. The court below also will be directed to enter an order requiring, except as hereinbefore provided with respect to the individual infant plaintiffs, the continuation of the grade-by-grade integration presently in effect until the modified plan providing for full integration as contemplated by this opinion be put in operation.
GOODRICH, Circuit Judge (dissenting).
This is a difficult case to decide. Much harder, for instance, than to determine whether a given profit is ordinary income or capital gain. The reason that it is hard is because the test for its solution is not capable of being stated in categorical terms. The direction is to proceed with desegregation with all deliberate speed. The school authorities in this case may well be charged with proceeding with more deliberation than they have with speed.
Nevertheless, I am unable to join with my colleagues in the order which they propose. It would be better, perhaps, if the program submitted to the district judge and approved by him had provided for speedier integration. But a plan was submitted and a plan was approved and has been put into effect. While it will take a comparatively long time before it is completed it, neverthless, provides for steady progress. It seems to me that in view of the local social inertia against any plan at all that the one submitted and approved is as good ...
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