APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil Nos. 1816-1822) ON PETITION FOR WRIT OF MANDAMUS
Before Aldisert, Adams, Rosenn, Hunter, Weis, Garth and Higginbotham, Circuit Judges.
ON PETITION FOR WRIT OF MANDAMUS
The consolidated appeals by the Delaware State Board of Education and nine school districts from the district court's ordering of a desegregation plan in the suburban New Castle County public schools require us to decide if the district court misused its discretion when it rejected a state-designed plan and adopted another plan designed to remedy constitutionally defective segregated schools in eleven public school districts. Evans v. Buchanan, 447 F. Supp. 982 (D.Del.1978). We conclude that the court did not act improperly and, accordingly, affirm.
Although Delaware state court proceedings addressed this very serious constitutional problem as far back as 1952, this case has continuously commanded the attention of the federal courts the district court, this court, and the Supreme Court since 1957. Its history up until 1974 is discussed comprehensively in Evans v. Buchanan, 379 F. Supp. 1218, 1220-21 (D.Del.1974), in which a three-judge court determined that the Wilmington schools which had been De jure black schools prior to the Supreme Court's decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (Brown I ), continued to remain identifiably black, and that the dual school system in Wilmington had not been eliminated. In a subsequent opinion, the three-judge court found Inter-district, de jure segregation throughout Northern New Castle County, and ordered submission of both Wilmington-only and inter-district plans to remedy that segregation. Evans v. Buchanan, 393 F. Supp. 428 (D.Del.1975). This judgment was summarily affirmed by the Supreme Court. Buchanan v. Evans, 423 U.S. 963, 96 S. Ct. 381, 46 L. Ed. 2d 293 (1975) (three Justices dissenting).
Thereafter, the district court conducted three weeks of evidentiary hearings on remedial plans submitted by the parties, specifically affording appellants the opportunity of demonstrating whether the impact of the inter-district violations was limited. At the conclusion of testimony, the court found that the inter-district violations had "a substantial, not a de minimis, effect on the enrollment patterns of the separate districts," and that racially discriminatory acts of the State and its subdivisions were "a substantial and proximate cause of the existing disparity in racial enrollments in the districts of Northern New Castle County." Evans v. Buchanan, 416 F. Supp. 328, 339 (D.Del.1976). Reiterating its finding of Inter-district violations,*fn1 the court considered the various submitted plans, finding Wilmington-only plans unacceptable, Id. at 343-44, and rejecting the specific inter-district remedies proposed by the parties.*fn2 Rather, on June 15, 1976, the district court ordered that Delaware schools in the area north of the northern line of the Appoquinimink School District*fn3 be desegregated and reorganized into a new or such other new districts as would comply with the court's opinion, which set the date for full compliance with constitutional requirements on all grade levels as September 1978. Id. at 361. In ordering reorganization or consolidation of school districts, the district court placed the laboring oar in developing an acceptable plan squarely in the possession of State authorities. See id. at 357.
Certain appellants took an appeal from this order to the Supreme Court which, on November 29, 1976, dismissed the appeal on jurisdictional grounds. 429 U.S. 973, 97 S. Ct. 475, 50 L. Ed. 2d 579, (1976). An appeal to our court followed. We affirmed the basic concept of the remedy ordered by the district court. Our opinion was filed on May 18, 1977, Evans v. Buchanan, 555 F.2d 373 (3d Cir. 1977) (in banc), and the Supreme Court denied Certiorari on October 3, 1977. 434 U.S. 880, 98 S. Ct. 236, 54 L. Ed. 2d 160 (1977) (three Justices dissenting).
In order to set the stage for our consideration of the present appeal, it is important to emphasize what we did when this case was before us last year. First, we viewed ourselves as precluded by the Supreme Court's summary affirmance of the district court's 1975 order from re-examining the existence of substantial inter-district violations. See 555 F.2d at 377-78. We adhere to the fundamental law of the case principle in the present appeal.*fn4
More important for present purposes, we also "affirm(ed) the basic concept of the remedy ordered by the district court." Id. at 380. It bears reemphasis that this basic concept called for "the State Legislature and the State Board of Education (to) take such steps as are not violative of constitutional rights to change the pattern set here," Id. at 380, Quoting 416 F. Supp. at 357, thus placing the primary responsibility for correcting the violations on the State and not on the district court or a court-created board. We adhere to, and reiterate the fundamental philosophy of this court: court-designed plans, or plans created by a new board were Not to be effectuated unless the State failed in its responsibility to come forward with an effective solution to the problem. A new board to operate the schools was authorized only on a stand-by basis, "for so long as the State takes no action." Id. at 380.
We summarized in our prior opinion, and reiterate now, some basic legal precepts relating to the extent of remedies a federal court may order:
A court is not at liberty to issue orders merely because it believes they will produce a result which the court finds desirable. The existence of a constitutional violation does not authorize a court to seek to bring about conditions that never would have existed even if there had been no constitutional violation. The remedy for a constitutional violation may not be designed to eliminate arguably undesirable states of affairs caused by purely private conduct (De facto segregation) or by state conduct which has in it no element of racial discrimination. This much is settled by Milliken v. Bradley, (418 U.S. 717, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974)). See also Spencer v. Kugler, 404 U.S. 1027, 92 S. Ct. 707, 30 L. Ed. 2d 723 (1972), Affirming 326 F. Supp. 1235 (D.N.J.); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450. Nor may a remedial desegregation order require "as a matter of substantive constitutional right, any particular degree of racial balance or mixing" ( . . . ) Swann v. Board of Education, supra, 402 U.S. 1 at 24, 91 S. Ct. 1267 at 1280, 28 L. Ed. 2d 554 . . . (See also ) Milliken v. Bradley, 418 U.S. 717, 94 S. Ct. 3112, 41 L. Ed. 2d 1069. . . . These are limitations by which a trial court must abide.
The task of a remedial decree in a school desegregation case is simply to correct the constitutional violation and to eradicate its effects. "As with any equity case, the nature of the violation determines the scope of the remedy." Swann v. Board of Education, supra, 402 U.S. at 16, 91 S. Ct. at 1276.
Subsequent to our 1976 decision, the Supreme Court summarized these Same precepts in Dayton Board of Education v. Brinkman, 433 U.S. 406, 419-20, 97 S. Ct. 2766, 2775, 53 L. Ed. 2d 851 (1977):
The power of the federal courts to restructure the operation of local and state governmental entities "is not plenary. It "may be exercised "only on the basis of a constitutional violation." " (Milliken v. Bradley ), 418 U.S. 717 at 738, 94 S. Ct. 3112, at 3124, 41 L. Ed. 2d 1069 quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16(, 91 S. Ct. 1267, 1276, 28 L. Ed. 2d 554 ). See Rizzo v. Goode, 423 U.S. 362, 377(, 96 S. Ct. 598, 46 L. Ed. 2d 561). Once a constitutional violation is found, a federal court is required to tailor "the scope of the remedy' to fit "the nature and extent of the constitutional violation.' 418 U.S., at 744 (, 94 S. Ct. at 3127, 41 L. Ed. 2d at 1091); Swann, supra, at (402 U.S.) at 16(, 91 S. Ct. at 1276, 28 L. Ed. 2d at 566)." Hills, supra, at 293-294 (96 S. Ct. at 1544). See also Austin Independent School Dist. v. United States, 429 U.S. 990, 991(, 97 S. Ct. 517, 50 L. Ed. 2d 603) (1976) (Powell, J., concurring).
Thus when these proceedings were remanded to the district court for the action giving rise to the present appeal, the case had assumed the following jurisprudential posture:
A. The existence and character of substantial inter-district violations had been adjudicated and were no longer open to review.
B. The geographic scope of the remedy was fixed as all districts north of the northern line of the Appoquinimink School District.
C. We had determined that the district court had not misused its discretion in rejecting certain voluntary plans proposed by appellants to cure the violation.
D. The primary responsibility to fashion a remedy was placed on the State of Delaware, through its legislature or its Board of Education.
E. State authorities were required to file with the district court within 60 days a formal report of their efforts to carry out the mandate of the district court.
Appellants first argue that, after our remand, the district court erred in rejecting the plan submitted by the State Board pursuant to the mandate of this court.
The "plan" submitted by the State Board was included in a report filed July 14, 1977, during the time span between our opinion and the Supreme Court's denial of Certiorari. Dubbed "reverse volunteerism," the proposal would have required that all Wilmington black students in grades 7 through 12 be assigned to the suburban districts for the school year 1977-78, and that in subsequent years, grades 1 through 6 be incorporated into the plan. Each student so reassigned, however, would have retained the right to remain in his or her Wilmington school.*fn5 Presumably, this "plan" was intended to complement state legislation which had been enacted subsequent to the three-judge court's remedy order. Authorizing majority to minority voluntary transfers, this legislation was also offered in the State Board's Report as evidence of the State's compliance with the federal court mandates.*fn6 The actual "plan" contained in the July 14 report, however, had not been adopted by the State legislature and had no implementing legislation to support it.
After a week of hearings on the reverse volunteerism plan, on August 5, 1977, in its opinion granting a limited stay pending the Supreme Court's disposition of the petition for Certiorari, the district court rejected the State Board's proposal. Evans v. Buchanan, 435 F. Supp. 832 (D.Del.1977). After determining that the absence of implementing legislation precluded adoption of the state plan, the court stated, in the alternative:
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 from State Board of Education personnel adduced at the hearings established that: no white student, suburban or city, would be assigned to a different school district, but every black student in Wilmington would be reassigned.
Id. at 840-41 (footnote omitted).
Bolstering these conclusions was the district court's finding regarding the ineffectiveness of the legislative voluntary transfer program:
For the 1977-78 school year, somewhere between 746 and 1,194 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.
435 F. Supp. at 837 n.14 (citations omitted).
As we consider the propriety of the district court's rejection of the State Board's proposal, it is important to recognize that, as a reviewing court, we are not empowered to consider the matter De novo. The approval of a desegregation plan is committed to "the exercise of the district judge's discretion . . . (and) a school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right." Swann v. Board of Education, 402 U.S. 1, 15-16, 91 S. Ct. 1267, 1276, 28 L. Ed. 2d 554 (1971). The Supreme Court teaches that the exercise of discretion involves certain functional parameters: "Discretion imports not the court's "inclination, but . . . its judgment; and its judgment is to be guided by sound legal principles.' Discretion is vested . . . to allow the most complete achievement of the objectives . . . attainable under the facts and circumstances of the specific case." Franks v. Bowman Transportation Co., 424 U.S. 747, 770-71 (96 S. Ct. 1251, 1267, 47 L. Ed. 2d 444,) (1976), Quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (95 S. Ct. 2362, 45 L. Ed. 2d 280,) (1975). And, as we stated when these proceedings were before us in 1977, "an improper use of discretion exists only when the judicial action is arbitrary, fanciful, or unreasonable, or when improper standards, criteria, or procedures are used." 555 F.2d at 378.
Abiding by these precepts, we reject appellants' argument that the district court misused its discretion in refusing to accept the State Board's reverse volunteerism proposal as a satisfactory response to this court's mandate. The first obvious deficiency is the plan's failure to comport with our specific mandate: in affirming the three-judge court order, we directed that the school districts "be reorganized into a new or such other new districts as shall be prescribed by the state legislature or the State Board of Education," 555 F.2d at 381, and the State appellants failed to submit Any plan of mandatory reorganization. Second, the district court properly perceived as an unacceptable difficulty the State's failure to provide State executive or legislative action to implement its proposal. The plan could go into effect only if ordered by a federal court. Third, like its reference to the legislative voluntary transfer plan, in which only three white students took part, the State Board's "plan" carried with it the tacit assumption that only and that all black students benefit from transferring to a white environment, and not Vice versa. The district court properly refused to accept such an untenable assumption. In this regard, the State Board's solution simply failed to meet the standard for voluntary plans set forth in Green v. County School Board, 391 U.S. 430, 439, 88 S. Ct. 1689, 1694, 20 L. Ed. 2d 716 (1968): "The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work Now."
And finally, as stated by the district court, perhaps the most glaring weakness in the State Board's plan is that it would improperly shift the "entire burden of the remedy" onto "those whose rights have been violated." 435 F. Supp. at 840.*fn7 Precepts of equity lie at the heart of any desegregation remedy, and fairness and justice furnish the fiber and sinew of those precepts. The district court recognized this and we refuse to fault its judgment in perceiving what it considered to be the basic inequity in the Board's proposal: "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." Id. Indeed, neither by brief nor by oral argument have appellants supplied this court with an effective rebuttal to the district court's identification of this, the plan's most basic defect.
While appellants contest the district court's rejection of the State Board's proposal, they garner their major attack for the plan eventually approved by the district court.
After determining that the State had failed to meet its responsibility to submit a plan "eliminating the dual school system . . . and the vestige effects of de jure segregation," 555 F.2d at 381, the district court, in accordance with the decrees of both the three-judge court and this court, appointed members of a New Board (the "New Castle County Planning Board of Education", or "NCCPBE") to oversee the operation of schools in the relevant area, and to prepare a plan for the operation of unitary desegregated schools. The district court was presented with five plans; two came from the NCCPBE, three from the NCCPBE's Pupil Assignment Committee. Because building capacities vary appreciably among the different school districts,*fn8 under all plans schoolchildren in the predominantly black areas were reassigned for a greater number of years than their suburban counterparts.
The NCCPBE majority proposal was a "10-2 Concept," under which all students from the two predominantly black districts would be reassigned to the predominantly white districts for ten years, and all students from the predominantly white districts would be reassigned to the predominantly black districts for two consecutive years. The court rejected this proposal because, among other reasons, it would "(base) a decision adverse to black students on a grade fraction favorable to black students, (*fn9 ) reassign only black children in the tender elementary years, and fail to use any of the black high schools as 10-12 grade centers." 447 F. Supp. at 1002.
The NCCPBE minority plan, "Plan W," attempted to increase the number of years that black students would spend in their home districts. Noting that this plan was considered the least attractive alternative by the New Board, the State Board, and the defendant school districts, the district court stated that it "holds scant promise of satisfactory implementation." Id. at 1004. Among the plan's perceived weaknesses were its failure to keep students together during the course of their educations to the same degree possible under other plans, and its failure to assign a significant number of students from the predominantly white districts to the predominantly black districts for any amount of time at all.
Finally, the district court was presented by the Pupil Assignment Committee with three distinct 9-3 plans: the "S" configuration, the "IF" configuration, and the "G" concept. The court ...