APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 71-0538)
Before Gibbons, Hunter and Garth, Circuit Judges.
This decision is the ninth chapter in the history of this decade-old school desegregation case.*fn1 The plaintiff class consists of parents of children who attend public schools in the General Braddock Area School District ("GBASD") in Allegheny County, Pennsylvania. Defendants are the Commonwealth of Pennsylvania, the Pennsylvania State Board of Education (the "State Board"), the Allegheny Board of Education (the "County Board," later succeeded by the "Intermediate Unit"), and several of the Boards' officers. Plaintiffs filed a complaint on June 9, 1971, alleging that the consolidation of various school districts in Allegheny County by the Commonwealth of Pennsylvania, acting through the State and County Boards, had resulted in the creation of racially segregated schools. The district court, in Hoots II, held that the creation of GBASD by the State and County Boards was "an act of de jure discrimination in violation of the Fourteenth Amendment." Hoots II, 359 F. Supp. at 823. Various plans were considered by the district court as possible remedies for the continuing violations of plaintiffs' constitutional rights. In March 1981, the court decided which of numerous school districts could be included in any multidistrict remedy under the guidelines of Milliken v. Bradley, 418 U.S. 717, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974). Hoots VI, 510 F. Supp. at 619. In April 1981, the district court approved the consolidation plan presently under appeal.*fn2
Defendants' present appeal is based on two contentions. First, they argue that Hoots II, in which the district court found a constitutional violation, was incorrectly decided, in that the district court did not find intentional or purposeful segregative acts on the part of state officials. Second, defendants contend that the district court erred in fashioning the multidistrict remedy that it ultimately chose.
We find defendants' arguments unpersuasive and we affirm the rulings of the district court.
I. FACTS AND PROCEDURAL HISTORY
The facts of this case, especially those which lead to the initial filing of the complaint in this action, are ably and extensively set forth in the district court's May 1973 opinion. See Hoots II, 359 F. Supp. 807. The procedural posture of the case has been recited on numerous occasions by this court: Hoots IV, 587 F.2d 1340; Hoots V, 639 F.2d 972. Here, we will summarize those accounts and then supplement them with a recital of subsequent events leading to the instant appeal.
During the 1960's, the Commonwealth of Pennsylvania on three occasions enacted legislation to reorganize the school districts in Pennsylvania's public school system. The 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 a plan of organization of school districts for the county for review by the State Board of Education. This Act was superseded, although not substantively altered, by the Act of August 8, 1963, P.L. 564, No. 299, 24 P.S. § 2-290 et seq. ("Act 299"), and the Act of July 8, 1968, P.L. 299, No. 150, 24 P.S. § 2400.1 et seq. ("Act 150"). Act 299 instructed the county boards to prepare on or before July 1, 1964 a plan of organization of school districts for the county and directed the State Board of Education to review organization plans prepared by the county boards and to approve such plans as it deemed wise and in the best interest of the educational system of Pennsylvania.
Acts 299 and 150 provided for the plans of organization of school districts to conform to standards which were to be prepared by the State Board. In preparing these standards, the State Board was instructed to take into account: 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, 2400.2; 24 P.S. §§ 2-291, 2-292. Both Acts also stipulated that no school district should, as a general rule, have a pupil population of fewer than 4,000 students.*fn3
The State and County Boards, pursuant to these statutes, established GBASD (63% black) on July 1, 1971, in the central eastern area of Allegheny County, east of Pittsburgh and north of the Monongahela River. The boards also created the predominately or all-white school districts of Turtle Creek (98.1% white), Swissvale (87.3% white), and Churchill (99.2% white), which border on GBASD, and the Edgewood School District (97.8% white), which is situated within approximately one mile of the GBASD. Appendix at 3233a. GBASD served the area consisting of the geographic limits of the Boroughs of Braddock, North Braddock and Rankin. Braddock, North Braddock and Rankin are economically depressed, declining communities. The residents of these municipalities are poor and less educated than those of the other school districts in question. The recreational and shopping facilities within these communities have been rapidly declining and becoming increasingly older in average age. The boroughs of Braddock, North Braddock and Rankin have no characteristics that will attract or retain persons who have the financial means and opportunity to live elsewhere. Finally, the populations of these three communities are becoming increasingly non-white at an accelerated pace. Hoots II, 359 F. Supp. at 814 (Findings of Facts 20-27).
Plaintiffs filed this action on June 9, 1971. In December 1971, the district court denied defendants' motion to dismiss the complaint for failure to state a cause of action, concluding that "allegations of deliberate creation of racially segregated school districts state a cause of action." Hoots I, 334 F. Supp. 820, 822.
The district court also rejected motions by defendants seeking to join involuntarily as defendants the five school districts discussed in the complaint. However, the court stated that it would permit the school districts to intervene voluntarily in the action if they so desired. Hoots I, 334 F. Supp. at 823. The school districts did not do so. After the district court "instructed (the Commonwealth) to give notice" of the suit to those school districts, and after the Attorney General of Pennsylvania wrote the five districts urging them "to intervene in this action immediately," the districts informed the court that they had "no interest in being" in the lawsuit, and were "deliberately not intervening." See Hoots II, 359 F. Supp. at 821; Hoots III, 495 F.2d at 1097; Appendix at 56a-61a, 614a-618a, 2712a, 3383a, 3389a.
On May 15, 1973, the district court held that the State and County Boards' creation of the identifiably black GBASD and the identifiably white Churchill, Edgewood, Swissvale and Turtle Creek districts "constituted an act of de jure discrimination in violation of the Fourteenth Amendment." Hoots II, 359 F. Supp. at 823. The court ordered the defendants to submit promptly a desegregation plan, to take effect as early as possible, to achieve the greatest possible degree of desegregation within the public schools of the central eastern area of Allegheny County. Hoots II, 359 F. Supp. at 824-25. Specifically, the court ordered defendants to "prepare and submit to this Court within 45 days from the date of this Order a comprehensive plan of school desegregation" which "shall alter the boundary lines of the General Braddock Area School District and as appropriate of adjacent and/or nearby school districts." Id. at 824. Defendants did not appeal.
In April 1974, after the district court's violation finding in Hoots II, Churchill, Edgewood, Swissvale and Turtle Creek petitioned to intervene. The district court granted these petitions insofar as they sought prospective intervention, but denied them insofar as they sought retroactive intervention. Churchill and Turtle Creek appealed this partial denial of their motions. We affirmed the district court, holding that the retroactive intervention petitions were untimely. See Hoots III, 495 F.2d 1095, 1097 (3d Cir.), cert. denied, 419 U.S. 884, 95 S. Ct. 150, 42 L. Ed. 2d 124 (1974).
The defendants did not submit a comprehensive plan of school desegregation within 45 days. In the following years, after granting defendants numerous extensions of time within which to develop effective desegregation plans, the district court found it necessary to reject as inadequate six plans*fn4 submitted by the Commonwealth and the defendant districts. Five of the plans were interdistrict in nature, and four involved the consolidation of some or all of the school districts presently involved in this case into one or more new school districts. See Hoots IV, 587 F.2d at 1344-46; Hoots V, 639 F.2d at 975-77; id. at 984-86 (Higginbotham, J., concurring).
Plaintiffs appealed twice during the 1973-1980 period. On both occasions they asked this court for a remedial order ending school segregation in central eastern Allegheny County. We dismissed plaintiffs' first appeal in 1978 but we expressed "confidence that ... an appropriate final order" would "be entered by year end" 1978. Hoots IV, 587 F.2d at 1351. In August 1980, after the district court denied plaintiffs' motion for injunctive relief for the second school year since 1978, plaintiffs appealed again. On January 26, 1981, we stated:
We believe it to be essential that the district court afford relief to (plaintiffs) that will be effective in the fall of 1981. Under no circumstances should a new school year begin in the fall of 1981 without an acceptable remedial plan in place.
Accordingly, we order the district court to expedite its consideration of this case so that within ninety days of the issuance of the mandate of this court it shall:
1) complete all hearings and necessary proceedings on the merits of the competing remedial plans for the desegregation of GBASD;
2) decide the Milliken v. Bradley issue of which school districts may be included within an interdistrict remedy; and
3) enter an appropriate final order granting appellants the relief to which they are entitled under the district court's order of May 15, 1973, such relief to be effective and implemented by the beginning of the first semester of the school year in the fall of 1981.
Hoots V, 639 F.2d at 980-81 (footnotes omitted) (emphasis added).
On March 5, 1981, the district court entered an opinion and order reaffirming its 1973 interdistrict violation finding. It concluded that the violation involved seven central eastern area school districts (including the five districts involved in this appeal), and determined that a multidistrict remedy involving some or all of those districts was appropriate. Hoots VI, 510 F. Supp. at 619.
On April 6, 1981, the district court rejected two remedial plans filed by defendants-the Upgrade Plan and the Tuition Plan-because neither could "achieve effective desegregation." Hoots VII at 2, 4; Appendix at 1379a, 1381a. The court concluded that "only an interdistrict remedy is feasible here, and ... that only a single new district be formed from the consolidation because of the many difficulties presented by plans of consolidation into multiple new districts on which we have heard testimony in prior hearings." Hoots VII at 3; Appendix at 1380a. Accordingly, the court ordered hearings on the remedy to be held on April 20, 1981, "solely for the purpose of remedying the constitutional violations found to have been imposed on the plaintiffs here." Hoots VII at 4; Appendix at 1381a.
On April 28, 1981, the district court entered its first remedial order. Hoots VIII ; Appendix at 883a. The court found:
that a New School District composed of the present school districts of Churchill, Edgewood, Swissvale, General Braddock, and Turtle Creek would achieve desegregation of the General Braddock Area School District and would achieve the highest beneficial results over and above the results of any other plan submitted to this Court by any party during the whole period of this litigation.
Hoots VIII at 6; Appendix at 889a. The court accordingly ordered
"(t)he Secretary of the Pennsylvania Department of Public Instruction, or his designate, and the Allegheny County Intermediate Unit (to) meet with the Interim Operating Committee of the New School District on or before the 15th day of June, 1981, to design a plan of desegregation and provide for its implementation with the beginning of the 1981-82 school year, and (to) continue such planning until such plan is fully operational within the New School District."
Hoots VIII at 17; Appendix at 900a.
After further hearings, the district court entered two orders on July 23 and August 13, 1981, setting forth the details of a plan of desegregation of the New District. That plan was implemented on September 8, 1981. After more than a decade since the filing of the complaint, a remedy for the violation of plaintiffs' constitutional rights was granted them.*fn5
Defendants' present appeal is based on two grounds. First, defendants argue that the district court erred in holding that the defendants had violated the fourteenth amendment because, they argue, the district court found no intentional or purposeful segregation on the part of state officials. Second, defendants argue ...