The opinion of the court was delivered by: NEWCOMER
This is an action for declaratory judgment and injunctive relief, brought under 42 U.S.C. §§ 1981 and 1983 by the parents of public school children within Delaware County, Pennsylvania, challenging the reorganization of certain school districts in that county in 1968. The plaintiffs charged that as a result of such reorganization by the above-named defendants, they have been forced to attend schools within racially and economically segregated districts and accordingly, have been deprived of rights, privileges and immunities secured by the Constitution and laws of the United States. The plaintiffs pray for an injunction, altering and revising or ordering defendants to alter and revise the Delaware County School Reorganization Plan, declaratory relief as to the unconstitutionality of said plan in its present configuration, an injunction restraining the levy of taxes by the defendants without equalization of assessment ratios and declaratory relief as to the unconstitutionality of public school financing which places substantial dependence upon local property taxes.
All defendants filed answers, generally denying the allegations contained in plaintiffs' causes of action and raising new matter.
By opinion and order dated May 22, 1973, this Court held that plaintiffs' complaint did state a claim upon which relief could be granted; that the plaintiffs did have the standing to raise the racial issues contained in the first cause of action; that the second cause of action that alleged that the Delaware County Plan of School Reorganization created severe economic imbalance, thus denying plaintiffs' equal educational opportunities, was actionable under 42 U.S.C.A. § 1983; that the fourth cause of action that alleged that the method of school financing employed by defendants with its substantial dependence on local property taxes creating discrimination was actionable under 42 U.S.C.A. § 1983; but that this particular issue should be referred to a three judge federal court; that this court did have jurisdiction over the subject matter of the third cause of action; that all parties necessary had been joined as defendants; and that this was not the proper time to raise the issue of res judicata.
On January 17, 1973, this court entered an order under which the time in which the plaintiffs were required under Local Rule 45 to file a Motion for Class Action Determination was extended for ninety (90) days from the date of this Court's determination on defendants' motions to dismiss plaintiffs' complaint. On February 23, 1973, the plaintiffs filed a motion for determination of class pursuant to said local rule. By memorandum and order dated May 22, 1973, this Court determined that this suit was properly maintainable as a class action under Rule 23(b) (2).
Trial of the plaintiffs' causes of action was held as scheduled on Monday, November 19, 1973, and continued through Tuesday, November 20, 1973. Before and during this trial all parties submitted certain stipulations and exhibits, all of which have been made part of the record. All parties had an opportunity to offer testimony in their behalf. The trial was concluded with the request by this Court for all parties to submit requests for findings of fact and conclusions of law. Additionally, this Court requested that all parties submit memoranda regarding the issue of res judicata. Such memoranda were tendered by all parties. The defendants also submitted requests for findings of fact and conclusions of law on the issue of res judicata as distinguished from the requests for findings and conclusions on the merits of plaintiffs' causes of action.
On April 29, 1974, this Court and all parties agreed that this Court would await the Supreme Court's decision in Milliken v. Bradley before this Court rendered its decision in this case.
On July 25, 1974, the Supreme Court rendered its decision in Milliken, and the parties in the instant case submitted briefs to this Court on the impact of Milliken by September 12, 1974.
On December 11, 1974, this Court issued sua sponte an order giving plaintiffs thirty (30) days to submit a memorandum outlining any additional evidence they desired to present concerning the relative economic and administrative feasibility of alternative reorganization plans to that chosen by Delaware County in 1968, but by letter of January 7, 1975, counsel for plaintiffs advised this court that plaintiffs desired to present no additional evidence and would stand on the record.
1. Plaintiffs are: Harry N. Husbands and Sharon E. Husbands, his wife, individually and as parents of their minor child, Tomi R. Husbands; Joan Green, individually and as mother of her minor children, Diana Green and Edgar Green; Vincent R. Bartholf and June C. Bartholf, his wife, individually and as parents of their minor children, Debbie Bartholf, Brenda Bartholf and Dawn Bartholf; Joseph G. Derrickson and Bertha I. Derrickson, his wife, individually and as parents of their minor children Danita Derrickson and Joseph Derrickson; Nelson B. Sabean and Marjorie Sabean, his wife, individually and as parents of their minor children, Mark Sabean and Michele Sabean; Charles Rovane and Irene Rovane, his wife, individually and as parents of their minor children Joan Rovane and Victoria Rovane; Filmore Ott and Carol Ott, his wife, individually and as parents of their minor children, Philip Ott, Joanne Ott, John Ott, Carole Ott, Michael Ott and Patricia Ott; Joseph J. Nolan and Mary E. Nolan, his wife, individually and as parents of their minor children Joseph J. Nolan, Matthew Nolan, Steven Nolan and Andrew Nolan; John E. Fitzgerald and Joanne M. Fitzgerald, his wife, individually and as parents of their minor child, Debra Fitzgerald; David W. Clifton and Florence Clifton, individually and as parents of their minor children, Robert Clifton, James Clifton and Raymond Clifton; Francis Grant and Helen Grant, his wife, individually and as parents of their minor children, Daniel Grant, Paul Grant, Eric Grant, Maureen Grant, Mary Beth Grant and Francis Grant; Donald Hartnett and Virginia Hartnett, his wife, individually and as parents of their minor children, Donald Hartnett and Craig Hartnett; Wilmer Bowers and Jean Bowers, his wife, individually and as parents of their minor child, Donna Bowers; Richard Larkin and Jeanette Larkin, his wife, individually and as parents of their minor children, Richard Larkin, Jr., Michael Larkin and Mary Patricia Larkin.
2. Plaintiffs are duly qualified electors, citizens, taxpayers and parents of school age children who reside within either Administrative Unit 4, 5, or 12, as these units are presently constituted within Delaware County, Pennsylvania. With the exception of the child of named Plaintiffs Harry N. Husbands and Sharon E. Husbands, one child of Vincent R. Bartholf and June C. Bartholf, and the two children of John E. Fitzgerald and Joan M. Fitzgerald, the school age children of the named plaintiffs attend the public schools within the administrative unit in which they reside. The Husbands' child, Tomi, although of the Methodist religion like his parents, attends St. Joseph's Roman Catholic School. The Bartholfs' child, Brenda, who would attend Chester High School if she were enrolled in the Chester-Upland School District, attends Chichester School District High School, where she was enrolled in September, 1972, the first school term after the merger of the City of Chester and Borough of Upland School Districts on July 1, 1972. The two school age Fitzgerald children, who reside in Darby Township, within Administrative Unit 5, attend St. Clement's Roman Catholic School.
3. This case involves questions of law and fact common to all the members of the plaintiff class. Named plaintiffs' claims are typical of the claims of the class and named plaintiffs will fairly and adequately protect the interests of the class.
4. The persons constituting the class of which plaintiffs are a part is in excess of 50,000, so numerous as to make it impracticable to join all as parties.
6. The named plaintiffs and all of their children are of the Caucasion race.
7. Plaintiffs did not at any time prior to instituting this suit consult with any minority persons or minority organizations concerning the basis for the legal action herein.
8. The named plaintiffs have annual earnings from a low of $9,464.00 to a high of $18,000.00. (Stipulation)
9. Defendants are: Commonwealth of Pennsylvania; John C. Pittenger, Secretary of Education of the Commonwealth of Pennsylvania; W. Deming Lewis, Chairman of the Pennsylvania State Board of Education; James M. Lambert, President of the Delaware County Intermediate Unit Board of School Directors; Delaware County Intermediate Unit Board of School Directors; Edward Grosse, President of Interim Operating Committee for Administrative Unit No. 4; Franklin A. Yeager, President of Interim Operating Committee for Administrative Unit No. 5; Interim Operating Committee for Administrative Unit No. 5; Clarence Roberts, President of Interim Operating Committee for Administrative Unit No. 12; and Interim Operating Committee for Administrative Unit No. 12.
10. Defendant Commonwealth of Pennsylvania has the duty under Article III, Section 14 of the Pennsylvania Constitution, P.S., to maintain and support a thorough and efficient public school system.
11. Defendant Commonwealth of Pennsylvania has the ultimate power, authority and responsibility to create school districts and to establish and alter boundaries of the areas served by said school districts.
12. Defendant, John C. Pittenger, is the duly appointed Secretary of Education for the Commonwealth of Pennsylvania.
13. Defendant Pennsylvania State Board of Education ("State Board") is a state administrative board charged with the general supervision and control of the educational interests of the Commonwealth. Defendant W. Deming Lewis was the Chairman of the Pennsylvania State Board of Education when this action was filed.
14. Defendant Delaware County Intermediate Unit Board of School Directors, pursuant to Pennsylvania Public School Code, as amended, (24 P.S. Section 9-951, et seq.) on July 1, 1971, became the successor to the Delaware County Board of School Directors. Said defendant is charged with providing the essential services formerly provided by the County Board and with the administration of the program of services of Intermediate Unit 25, comprising all school districts in the County of Delaware. Defendant James M. Lambert was President of the Delaware County Intermediate Unit Board of School Directors when this action was filed.
15. Defendants, Interim Operating Committee of Administrative Units No. 4, No. 5, and No. 12 were the duly appointed committees responsible for the organization of said units and became the Boards of School Directors for said reorganized school districts on July 1, 1972.
16. Defendants, Edward Grosse, Franklin A. Yeager, and Clarence Roberts at the time this action was filed were the duly elected Presidents of the respective defendant Boards of School Directors of School Districts No. 4, No. 5, and No. 12.
School Reorganization Legislation and Standards.
17. The Commonwealth of Pennsylvania does not maintain a dual racial system of education by legislative or constitutional requirement.
(a) the first Act -- Act of September 12, 1961, P.L. 1283, No. 561, 24 P.S. § 2 - 281 et seq. (Act 561) -- directed each county board of school directors to prepare on or before January 1, 1963 a plan of organization of administrative units for the County for review by the State Council of Education. 24 P.S. §§ 2-282, 2-283.
(b) Act 561 was superseded by the Act of August 8, 1963, P.L. 564, No. 299, 24 P.S. § 2 - 290 et seq. (Act 299). Act 299 directed each county board of school directors to prepare on or before July 1, 1964 a plan of organization of administrative units for the county and directed the State Council of Basic Education to review organization plans prepared by the county boards and to approve such plans as it deemed wise in the best interest of the educational system of the Commonwealth, provided that these plans met certain requirements specified in Act 299. 24 P.S. §§ 2-290, 2-293. In preparing reorganization plans pursuant to Act 299, the county boards were not bound by any proposals contained in reorganization plans prepared pursuant to Act 561. 24 P.S. § 2 - 292. In dealing with school districts which had previously entered into a written agreement for the establishment of a joint school or department, however, the county boards were prohibited from proposing any administrative units which in whole or in part comprised less than all of the school districts joined by such agreement. 24 P.S. § 2-292.
(c) Act 299 was superseded by the Act of July 8, 1968, P.L. 299, No. 150, 24 P.S. § 2400 et seq. (Act 150), (Supp. 1974). Act 150 directed each county board of education to prepare within 90 days a plan of organization of administrative units comprised of school districts which were not in an administrative unit established as a school district under Act 299. 24 P.S. § 2400.2. Act 150 provided, however, that the plan of administrative units could include the placement of one or more school districts in an administrative unit established as a school district under Act 299 if the school district established under that act agreed thereto. 24 P.S. § 2400.2(b).
19. Acts 299 and 150 both provided for the plan of organization of administrative units to conform to standards for approval of administrative units adopted by the State Board and directed the State Board to prepare such standards, taking into account the following factors: topography, pupil population, community characteristics, transportation of pupils, use of existing buildings, existing administrative units, potential population changes and the capability of providing a comprehensive plan of education. 24 P.S. §§ 2400.1 and 2400.2; 24 P.S. § 2-291.
20. Pursuant to the above provisions of Act 150, the State Board adopted Standards for Approval of Administrative Units. These standards, inter alia, provided that:
(a) An administrative unit shall be planned to offer a full program of instruction, kindergarten or grade one through twelve, and provide administrative leadership, supervision and instruction at a reasonable cost consistent with the local taxable wealth and State financial support available per pupil.
(b) An administrative unit shall make available an educational program and educational opportunities to meet the varying needs, aptitudes, abilities, and interests of individuals residing in the administrative unit.
(c) Consideration should be given to whether a geographic area has developed the characteristics of a community. Community, as used here, includes one or more municipalities and the surrounding territory from where people come for business, social, recreational, fraternal or similar reasons. Neither race or religion shall be a factor in determining administrative unit boundaries and differences in the social and economic level of the population shall not be a basis to determine these boundaries.
(d) Pupil population changes may be considered in the planning of administrative units where the changes are supported by reliable studies of area development showing past pupil population trends and future projections based on recognized statistical methods.
(e) Consideration shall be given to the capability of providing a comprehensive program of education which shall mean the ability to educate and train each child within his capacity to the extent demanded by the immediate requirements of his growth and his relationship to the strengthening of this Commonwealth and nation, and shall include, but not be limited to, wealth per pupil, qualifications of professional staff, enrollment and diversification of curriculum. (Exhibit P-2)
21. A letter from the Superintendent of the Department of Public Instruction advised the county boards, including the Delaware County Board, that the intent of the language of the last sentence of the above paragraph (c) was to prevent de jure segregation through the fixing of school district boundaries and that the language was not to be construed to permit de facto segregation on the basis of race, religion or national origin. (Exhibit P-43, N.T. 82, 83)
School Districts Established in Delaware County by the State and County Boards under Acts 299 and 150.
22. Under Act 299, the following Administrative Units within Delaware County were reorganized on August 11, 1965:
Administrative Unit 1 -- Radnor Township
Administrative Unit 2 -- Haverford Township
Administrative Unit 7 -- Ridley Park Borough, Ridley Park Township, and Eddystone Borough
Administrative Unit 9 -- Marple -- Newtown
Administrative Unit 10 -- Media Borough and ...