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Coalition to Save Our Children v. State Bd. of Educ. of State of Del.

July 24, 1996

COALITION TO SAVE OUR CHILDREN,

APPELLANT

v.

STATE BOARD OF EDUCATION OF THE STATE DELAWARE; BOARD OF EDUCATION OF THE CHRISTIANA SCHOOL DISTRICT; BOARD OF EDUCATION OF THE BRANDYWINE SCHOOL DISTRICT; BOARD OF EDUCATION OF THE COLONIAL SCHOOL DISTRICT; THE BOARD OF EDUCATION OF THE RED CLAY SCHOOL DISTRICT; DELAWARE HOUSE OF REPRESENTATIVES COMMITTEE ON DESEGREGATION



Appeal from the United States District Court for the District of Delaware

(D.C. Civil No. 56-01816) Argued: Tuesday, March 12, 1996

Before: NYGAARD, SAROKIN and ALDISERT, Circuit Judges

ALDISERT, Circuit Judge

(Filed July 24, 1996)

OPINION OF THE COURT

I. Introduction

This case brings to a close our supervision of more than four decades of litigation designed to desegregate the public schools of Delaware.

However, we do not end our supervision hastily. After the Delaware schools' rudimentary attempts at desegregation were deemed insufficient by the district court in 1957, and by this court in 1960, judges of this circuit blazed new jurisprudential trails in 1975 by requiring an interdistrict remedy. By 1977 and 1978, the judiciary had fashioned detailed orders for primary and ancillary relief which, together with the factors set forth by the Supreme Court in Green v. County School Bd. of New Kent County, Va., 391 U.S. 430 (1968), constituted the marching orders for the school system.

Still, it was not until almost 20 years later (and 35 years after this court announced dissatisfaction with an original plan that called for grade-by-grade desegregation over a 12-year period) that the district court could announce that the marching orders had been obeyed: The school system has achieved unitary status by complying in good faith with our detailed desegregation decrees and by eliminating to the extent practicable the vestiges of de jure segregation. This was the ruling of the district court embodied in a judgment entered after a lengthy hearing. The Coalition to Save Our Students ("Coalition"), the representative of the plaintiff class, has appealed. We will affirm.

It is beyond dispute that racism and bigotry continue to tear at the fragile social fabric of our national and local communities, and that our best efforts as citizens are needed to address this problem at many levels. However, as the district court observed in the case at hand, court-supervised school desegregation alone cannot eliminate racial discrimination:

[A]s the years have passed since Brown I and II [Brown v. Board of Educ., 347 U.S. 483 (1954) and Brown v. Board of Educ., 349 U.S. 294 (1955)], it has become apparent that the school desegregation process has been unable to eliminate or overcome racial discrimination in the "myriad factors of human existence" outside the school environment . . . . Coalition to Save Our Children v. State Bd. of Educ. of State of Del., 901 F. Supp. 784, 823 (1995) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 22 (1971)).

Or as the Court succinctly put it in Swann: "One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to seek to use school desegregation cases for purposes beyond their scope . . . ." Swann, 402 U.S. at 22.

In light of this sobering truth, it is all the more important that we write the final chapter in this long period of supervision by the federal courts and release our provisional grip on the administrators and educators of Northern New Castle County, for only in so doing can we permit them to resume their full role in the larger social and political effort to make our nation worthy of the best ideals of its members. *fn1 The length of the discussion that follows is but one indication of the importance and sensitivity of the task at hand.

II. Procedural History

Historically, Delaware required its public school pupils to attend segregated schools. Del. Const. art. 10 Section(s) 2 (1950) and Rev.Code 1935 2631. However, even before the landmark decision in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), the Delaware courts ordered the admission of black children to certain schools previously attended only by white children. Belton v. Gebhart, 87 A.2d 862, *fn2 aff'd 91 A.2d 137 (Del. 1952). The Supreme Court consolidated Belton with Brown I and affirmed, 347 U.S. 483, holding that racial segregation of public school students deprived the minority group children of equal educational opportunities, in violation of the Equal Protection Clause. See Brown I, 347 U.S. 483 (1954). The Court again affirmed Belton v. Gebhart in Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II), remanding to the Supreme Court of Delaware for further proceedings to require "a prompt and reasonable start toward full compliance" with Brown I and "to effectuate a transition to a racially nondiscriminatory school system . . . with all deliberate speed." Brown II, 349 U.S. at 300-01.

Yet notwithstanding the end of de jure segregation, the City of Wilmington continued to operate many racially identifiable schools. Accordingly, the district court fashioned an inter-district remedy to eliminate the vestiges of segregation and, faced with the state authorities' adamant and prolonged refusal to discharge their responsibilities, issued a remedial decree in 1978. *fn3 The 1978 Order required a 9-3 student assignment plan, which provided that all students would attend formerly predominantly "white" suburban school districts for a maximum of nine years and would spend at least three years in the formerly "black" school districts.

The 1978 Order also directed eight forms of ancillary relief "necessary and essential to . . . overcome the vestige effects of de jure segregation," including: (1) an in-service training program for teachers; (2) an affirmative reading and communication skills program; (3) new curriculum offerings; (4) a nondiscriminatory counseling and guidance program; (5) a human relations program; (6) codes of conduct providing for nondiscriminatory discipline; (7) the reassignment of faculty and staff; and (8) nondiscriminatory guidelines for construction and maintenance of school buildings. Evans v. Buchanan, 582 F.2d 750, 770-774 (3d Cir. 1978) (in banc).

In 1981, the district court permitted the state to reorganize the judicially-created school district into the current four districts -- Brandywine, Christiana, Colonial and Red Clay. Evans v. Buchanan, 512 F. Supp. 839 (D. Del. 1981). In so doing, Judge Schwartz asserted that, notwithstanding the continued existence of "problems that may be characterized as vestige effects of de jure segregation, . . . [the] four-district plan is viewed as a good faith effort to respond to repeated judicial invitations for appropriate State authorities to come forward with their own meaningful solutions to vexing problems." Id. at 863, 874. However, because Judge Schwartz found the "effort [to have] fallen short of the mark in the critical area of pupil assignment," he deferred for 60 days any order regarding the State Board's motion for modification of the desegregation decree in order to encourage "curative legislation" on the matter. Id. at 872-74.

In 1990, Judge Schwartz made a specific finding that one of the districts (Red Clay) had failed to comply in good faith with the 1978 order. Coalition to Save Our Children v. Buchanan, 744 F. Supp. 582, 587-93 (D. Del. 1990). Judge Schwartz stated that "the vestiges of prior official segregation [had not] been eradicated 'root and branch' from either the Red Clay District as a whole or from its student assignment patterns." Id. at 587. Indeed, Judge Schwartz found that the record was "replete . . . with evidence of delay, obfuscation, and recalcitrance on the part of the Red Clay Board with respect to remedying the racial disparities" in that district. Id. at 592-93.

In 1991, Judge Schwartz stated that, notwithstanding the Red Clay District's "technical compliance with this court's orders," he again had "very grave doubts concerning the [Red Clay] Board's good faith compliance with the spirit of desegregation," and thus could "not make a finding that the Red Clay District [was] operating in compliance with the Equal Protection Clause . . . ." Coalition to Save Our Children v. State Bd. of Educ., 757 F. Supp. 328, 349-350 (D. Del.1990).

Four years later, upon motion by the Delaware State Board of Education *fn4 for a declaration of "unitary status," the district court concluded:

that the defendants have complied in good faith with the desegregation decrees issued in this litigation, that the defendants are unlikely to return to the segregative practices of their predecessors, and that the vestiges of past discrimination have been eliminated to the extent practicable. Coalition, 901 F. Supp at 823-824.

The opinion accompanying the order set forth 308 factual findings, which discussed: (a) compliance with what have become known as Green factors (as originally suggested in Green v. County School Board, 391 U.S. 430 (1968)) -- student assignment, faculty and staff assignment, transportation, extracurricular activities, and facilities; (b) compliance with the ancillary relief provisions, endorsed by this court sitting in banc, see Evans v. Buchanan, 582 F.2d at 769-74; and (c) student achievement, special education and dropout rates, which the district court labelled "Areas of Concern." See Coalition, 901 F. Supp. at 818-22. Appellant conceded compliance with two of the Green factors (transportation and facilities) and one of the ancillary relief provisions (also concerning facilities).

The district court had jurisdiction under 28 U.S.C. Section(s) 1331 (1988). We have jurisdiction pursuant to 28 U.S.C. Section(s) 1291 (1988). Appeal was timely filed under Rule 4(a), Federal Rules of Appellate Procedure.

III. Scope of Review

The Coalition's appeal presents us with three fundamental questions for consideration: first, whether the district court properly concluded that the four school districts of Northern New Castle County achieved unitary status by complying in good faith with the desegregation decree and by eliminating to the extent practicable the vestiges of past discrimination; second, whether the district court properly allocated to Appellant the burden of proving that certain racial disparities in student performance are proximately related to de jure segregation; and third, whether the district court properly excluded certain expert testimony proffered by Appellant. *fn5

The appeal to this court from the order declaring unitary status tracks a very narrow compass. Because the district court's finding that the school districts have achieved unitary status is factual, our review of that finding is limited to the clearly erroneous standard. Vaughns by Vaughns v. Bd. of Educ. of Prince George's County, 758 F.2d 983, 990 (4th Cir. 1985); United States v. Texas Educ. Agency, 647 F.2d 504, 506 (5th Cir. 1981), cert. denied, 454 U.S. 1143 (1982); Keyes v. School Dist. No. 1, Denver, Colo., 895 F.2d 659, 666 (10th Cir. 1990), cert. denied, 498 U.S. 1082 (1991); Jacksonville Branch, NAACP v. Duval County School Board, 883 F.2d 945, 952 n.3 (11th Cir. 1989). A finding of fact is clearly erroneous only if the court has "the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). Further, "[i]t is the responsibility of an appellate court to accept the ultimate factual determination of the fact-finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data." Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972).

We have plenary review of all questions of law. This includes a district court's choice, interpretation and application of the law to the historical facts. Louis W. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d Cir. 1994). Accordingly, this court undertakes plenary review of the district court's allocation of the burdens of proof.

Finally, we review the district court's determination of the admissibility of expert testimony for abuse of discretion. United States v. Theodoropoulos, 866 F.2d 587, 590 (3d Cir. 1989).

IV. Unitary Status

The primary legal issue before us is whether the Northern New Castle County school districts have fulfilled their affirmative duty to eliminate the former dual school system. The ultimate end to be brought about by a desegregation remedy is "a unitary, nonracial system of public education." Green, 391 U.S. at 436. A school system achieves this unitary status when it no longer discriminates between school children on the basis of race. See id. at 442. And a school system no longer discriminates among school children on the basis of race when it affirmatively has eliminated all vestiges of state-imposed segregation. Id. at 435, 437-38 (school board charged with affirmative duty to eliminate racial discrimination "root and branch"); Swann, 402 U.S. at 15 ("the objective today remains to eliminate from the public schools all vestiges of state-imposed segregation"). Thus our task, simply put, is to determine whether the district court clearly erred in finding that the vestiges of de jure segregation have been eliminated in the Brandywine, Christiana, Colonial and Red Clay school districts. Green, 391 U.S. at 435; see also Missouri v. Jenkins, ___ U.S. ___, 115 S. Ct. 2038, 2055-56 (1995).

A critical starting point in identifying vestiges of discrimination is the degree of racial imbalance in the school districts. This inquiry is fundamental, because under the former de jure regime, racial exclusion was both the means and the end of a policy motivated by disparagement of, and hostility towards, the disfavored race. The Court's 1968 opinion in Green squarely addressed this issue, noting that "[t]he pattern of separate `white' and `Negro' schools . . . established under compulsion of state laws is precisely the pattern of segregation to which Brown I and Brown II were particularly addressed." Green, 391 U.S. at 435. However, the Green Court also made clear that in examining the problem of racial imbalance in our schools, we are to look "not just to the composition of student bodies . . . but to every facet of school operations -- faculty, staff, transportation, extracurricular activities and facilities." Id.; see also Swann, 402 U.S. at 18 (the Green factors are "among the most important indicia of a segregated system.") Because compliance with Green factors is a condition precedent to unitary status, we will survey each of those factors here.

Nevertheless, the Green factors, which address racial imbalance, are not the only criteria by which we are to evaluate whether the school districts have achieved unitary status. We must also consider the eight programs of "ancillary remedial relief" prescribed by this court in 1978, including: (1) an in-service training program for teachers; (2) an affirmative reading and communication skills program; (3) new curriculum offerings; (4) a nondiscriminatory counseling and guidance program; (5) a human relations program; (6) codes of conduct providing for nondiscriminatory discipline; (7) the reassignment of faculty and staff; and (8) nondiscriminatory guidelines for construction and maintenance of school buildings. Evans v. Buchanan, 582 F.2d at 769-74. Thus we will survey compliance with these ancillary relief measures as well.

By considering both the Green factors and the eight measures of ancillary relief ordered by this court in 1978, we honor the mandate set forth by the Supreme Court in Dowell that a school board under federal supervision "is entitled to a rather precise statement of its obligations." Bd. of Education of Okla. City Public Schools, Indep. School Dist. No. 89, Oklahoma County, Okl. v. Dowell, 498 U.S. 237, 246 (1991) (citing Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976)). Together, the Green factors and the ancillary remedial relief measures constitute these obligations, and thus precisely frame our inquiry as we determine whether the district court properly ordered the withdrawal of federal supervision. The essence of that inquiry recently was articulated by the Supreme Court:

whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable. Freeman v. Pitts, 503 U.S. 467, 492 (1992).

Given the Court's recent assertion that federal supervision of local school districts "`was intended as a temporary measure to remedy past discrimination,'" Jenkins, ___ U.S. ___, 115 S. Ct. at 2049 (quoting Dowell, 498 U.S. at 247), we underscore that the phrase "to the extent practicable" implies a reasonable limit on the duration of that federal supervision. Indeed, to extend federal court supervision indefinitely is neither practicable, desirable, nor proper.

We are keenly aware that, for as long as we have imposed federal supervision on local school boards, those bodies have suffered the loss of their defining function -- control over their own schools. Thus in the present matter the citizens of the New Castle school districts have been denied for nearly 20 years what the Court has described as the "vital national tradition" of "local autonomy of school districts." Freeman, 503 U.S. at 490 (quoting Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 410 (1977)). Additionally, we appreciate the extended social and economic burdens that continued supervision would impose on generations of innocent school children and their families. The reality of these burdens becomes clear when we consider that a child who entered first grade in one of the Northern New Castle County school districts in 1976 under federal court supervision is now 26 years old, and possibly a parent with a child of his or her own in the same judicially-controlled school system. *fn6

Our concern for the autonomy of local school systems and their members is consistent with the established jurisprudence of desegregation: a fundamental purpose of our mandate to eliminate the dual system has been to encourage local school districts independently to provide high-quality educational opportunities for all students, a state of affairs made possible only in "a unitary, nonracial system of public education." Green, 391 U.S. at 436. Were we to allow federal supervision to continue after a finding that the school districts have complied with our desegregation mandate, we would effectively preclude those school districts from achieving that goal. In sum, we cannot reconcile the prospect of indefinite federal supervision of local school districts with the ultimate purpose of that supervision -- to foster the creation of autonomous, racially balanced school systems. Accordingly, we will remain attentive to the Supreme Court's repeated instructions that such supervision be "temporary" and "transitional." See, e.g., Jenkins, ___ U.S. ___, 115 S. Ct. at 2049; Dowell, 498 U.S. at 247.

With these teachings in mind, we turn now to the district court's analysis in this case.

V. The Green Factors

The fundamental issue before the district court was whether the desegregation measures taken by the school districts had effectively eliminated to the extent practicable the vestiges of the former dual school system. In addressing this issue, the district court began by scrutinizing various educational factors initially identified by the Court in Green: student assignments, faculty, staff, facilities and resources, transportation, and extra-curricular activities. Green, 391 U.S. at 435. We address the district court's consideration of each of these factors in turn.

A. Student Assignment

Because the crux of the original constitutional violation was the legalized system of segregated schools, the traditional remedy for the violation was to desegregate the schools through student reassignment. Accordingly, we ordered the consolidation of urban and suburban school districts. See Evans v. Buchanan, 582 F.2d at 759 n.5 (quoting Evans v. Buchanan, 435 F. Supp. 832, 838-39 (D. Del. 1977) (footnotes omitted)). The State Board and districts not only have adhered to the requirements of our student assignment order, but also have attempted to maintain a racial balance by consolidating districts, redrawing attendance zones, and instituting the busing of thousands of students.

Indeed, after the hearing below on the Appellees' motion for unitary status, the district court found that the schools in these districts were "among the most racially balanced schools in the United States." Coalition, 901 F. Supp. at 799. The court's conclusion finds ample support in the record from the testimony of school desegregation expert Dr. Christine Rossell. Using an "index of dissimilarity," *fn7 Dr. Rossell compared the racial balance in the four districts to a national sample of 76 similar districts, analyzing both the percentage of students in schools with certain variances and the percentage of schools themselves within certain variances.

Dr. Rossell observed that, as measured against this index, the four Northern New Castle County school districts have achieved "close to perfect racial balance." Further, on the basis of her full analysis, Dr. Rossell concluded that these districts "are much less racially imbalanced than . . . [the] national comparison group." JA 568; see also Coalition, 901 F. Supp. at 797. Because the district court's finding of racial balance rests on Dr. Rossell's thorough analysis, it is not clearly erroneous. See Krasnov, 465 F.2d at 1302 (an appellate court must "accept the ultimate factual determination of the fact-finder unless that determination . . . is completely devoid of minimum evidentiary support displaying some hue of credibility . . ."). *fn8

Appellant does not contest the findings of racial balance among schools, *fn9 but argues nonetheless that segregation persists within those buildings, in classrooms and programs. More specifically, Appellant contends that black students are over-represented in certain classes, such as special education, and under-represented in others, such as gifted and advanced placement classes. However, we are mindful that in Milliken v. Bradley, 418 U.S. 717, 740-41 (1974), the Court held that the Constitution "does not require any particular racial balance in each school, grade or classroom." See also Oliver v. Kalamazoo Bd. of Educ., 640 F.2d 782, 809 (6th Cir. 1980) (rejecting notion that school system is not unitary if black students are overor under-represented in various academic courses). Moreover, the district court actually made 19 findings concerning the circumstances of student assignments in the classrooms, concluding that classroom balance throughout the districts was exemplary. Coalition, 901 F. Supp. at 800 (measured against a national sample, classroom imbalance in Northern New Castle County was one-third to one-half that of other schools). We review these findings for clear error.

First, although the district court's findings of classroom racial balance exclude special education classes, *fn10 there is no clear error. In our 1978 desegregation order we expressly excepted "students presently attending and who in the future may attend . . . special education school facilities and such other similar special school facilities as presently exist or may be hereafter established . . . ." JA 128 (Evans v. Buchanan, Civil Action Nos. 1816-1822, Order at 11 (D. Del. Jan. 9, 1978)). The rationale for this exception is obvious and compelling: students -- black or white -- should not be mainstreamed (i.e., denied special education meant to address special learning needs and problems) merely to effect a racial balance.

Appellant is also unpersuasive in asserting that students are placed in special education programs (such as "intensive learning centers") simply because they are black. Although in each of the four districts the percentage of black students in special education programs exceeds the percentage of blacks in the overall student population, *fn11 the record demonstrates that the school districts classify students based on neutral, non-discriminatory state and federal criteria. JA 829-34. Additionally, the districts make periodic re-evaluations of special education students to determine when they can return to regular classes. Id. Placement is not mandatory, because at several junctures, parents are empowered to reject the school's recommendation to place their child in special education classes. JA 830, 832-33. Moreover, we note that the Appellee State Board has created numerous statewide special education task forces; has authorized five comprehensive studies relating to special education; and thoroughly has investigated intervention strategies, mainstreaming and the application of selection procedures. JA 1223, 1243.

The Appellees' efforts to improve racial balance within these programs not only are commendable, but successful. Indeed, in three of the four districts, the racial imbalances have declined. *fn12 Although we might hope -- even expect -- that this imbalance will soon disappear, *fn13 the mere fact that black students remain over-represented in special education classes does not make clearly erroneous the district court's finding of unitary status. Given that Dr. Reschly, in summarizing his comprehensive analysis, concluded that in these school districts "special education is not used as a means to separate students by race," Coalition, 901 F. Supp. at 821; JA 839, we will accept the court's finding on this issue. See Krasnov, 465 F.2d at 1302 (standard of review).

Similarly, Appellant argues that the district court's findings with regard to classroom assignment are clearly erroneous because black students are under-represented in non-special education classes. This argument relies on, inter alia, the district court's finding 47: "[t]here is evidence that among high school students who achieve identical testing scores, black students were more likely to be placed in the lower level class than were white students." Coalition, 901 F. Supp. at 801 (footnote omitted); JA 1385; JA 4249; JA 4305-07. To be sure, this finding is potentially troubling, suggesting on its face that black students may have been segregated from white students of equal testing aptitude. However, we must consider this finding in the full context in which it was examined and presented by the district court. Thus we must consider that in footnote 30, which accompanies this finding, the district court noted that "[t]he comparison apparently does not include academic achievement as measured by course performance, or whether such placement was requested or required." Id. Because this comparison relied on testing aptitude alone, rather than considering as well the important factor of academic achievement based on course performance, and because it is not clear whether the placement at issue was requested or required, we do not consider finding 47 to be evidence that black students have not received equal opportunity, nor can we reasonably conclude that the district court, upon its careful examination, clearly erred.We observe also finding 48, which states that "[o]n the other hand, the percentage of minorities enrolled in honors and AP classes who scored over the 75th percentile in reading or math in the spring of 1993 is slightly greater than that of whites in all 4 school districts." Coalition, 901 F. Supp. at 801; JA 6259. Although this finding could, as urged by Appellant, give rise to an inference that blacks must perform at a higher level than whites in order to be placed in honors and AP classes, that is not the sole inference that could be drawn from so limited, and thus malleable, a sample. Indeed, on the basis of finding 48 alone we may just as reasonably infer something quite different: that the school districts' good faith efforts to desegregate have paid off in terms of the improved testing performance of black students.

In any event, our task here is not to engage in such broad speculation, nor to choose among possible inferences from the data; rather, we are to inquire whether the district court's determination of the districts' unitary status was clearly erroneous. To accord this finding its proper value, therefore, it must be considered in the context of other, related findings. This the district court did. Indeed, in view of the district court's copious research, we are assured that the court interpreted this finding in the proper light in determining that the districts have achieved unitary status.

At the urging of Appellant, we also have examined carefully the district court's finding 36, which states that "[t]he extent to which elementary and middle school students are placed in classes according to their ability is unclear from the record." Coalition, 901 F. Supp. at 800; JA 4214-21. This finding means little on its own, for it represents merely that there is uncertainty in the record about how elementary and middle school students are placed in classes according to their ability. Indeed, without further amplification, we are not persuaded to conclude that this statement cuts against the court's determination regarding the districts' good faith efforts to eliminate de jure segregation. Again, we are required to place this finding in context, bearing in mind that because few elective classes or courses are available to students at the elementary and middle school levels, the selective process for students is far more meaningful at the high school level. Thus we must consider finding 36 in light of findings 39, 40 and 45.

Finding 39 describes the high school class selection process as involving "class presentations by guidance counselors, booklets with course descriptions, application by students in consultation with family, individual guidance from guidance counselors, and teacher input." Coalition, 901 F. Supp. at 800; JA 755-56, 771-72, 851-54, 863-66. Not only is high school class selection the product of these various deliberations, but, according to finding 40, "[t]he parents and student have the ultimate say in the level to which the student is assigned." Coalition, 901 F. Supp. at 800; JA 1383. *fn14

And although finding 36 indicates that the record is unclear on how elementary and middle school students are placed in classes according to their ability, finding 45, when considered in its entirety, provides detailed information about the class placement of high school students as set forth in the margin. *fn15

Accordingly, when we consider Finding 36 in the context of these other relevant findings, we find unavailing the contention that finding 36 provides significant evidence that minority students have not received an equal opportunity to succeed in the pertinent school districts. The district court's multiple findings on this particular issue suggest that the court did indeed consider "every facet of school operations" in determining that the districts have achieved unitary status.

Finally, we note finding 49 of the district court's opinion, which states that "[t]here is evidence that lower levels of instruction may not encourage achievement and may adversely affect the ability of a student to attend college." Coalition, 901 F. Supp. at 801; PX 2262 at 82; PX 2265. As with the foregoing findings, although this finding may be considered troubling on its face, alone it is neither definitive nor substantial enough to show clear error in the district court's determination of unitary status. The mere finding that evidence exists "that lower levels of instruction may not encourage achievement and may adversely affect the ability of a student to attend college," id., does not establish anything specific about whether that putative problem is related to disparate educational opportunity or treatment according to race.

Of course, this finding is obvious and indisputable as far as it goes: when students receive lower levels of instruction, they are less likely to feel encouraged to achieve and thus will be less likely to attend college. Yet this truism merely serves to underscore the more fundamental question at issue here -- on what basis are students placed in "lower levels of instruction"? As we already have made clear, that basis was not racially discriminatory; the record does not support the claim that students of one race are afforded college preparation opportunities (advanced placement classes, counseling, help in preparing for college placement exams) that students of another race are not. *fn16

Thus although the finding that "lower levels of instruction may not encourage achievement" is problematic, especially when viewed in isolation, yet when considered in relevant socio-economic context, this statement of mere possibility cannot be regarded as proof that the district court clearly erred in determining that the school districts have achieved unitary status. *fn17 The district court dutifully presented this finding in combination with many others and, after carefully analyzing these findings in their totality, declared that "there is no credible evidence linking any current racially identifiable conditions to the prior violation" Id. at 823 (footnote omitted).

This, too, must be said. Although the Constitution requires that all of its citizens have equal access to the pursuit of education, and that they be given equal breaks while attending school, it does not insist that they all finish even. The proper test under the Constitution is equality of opportunity, not of results. On this point we would do well to recall Edmund Burke's pithy formulation: "[A]ll men have equal rights, but not to equal things." *fn18 And indeed, Appellant articulated its commitment to this principle at oral argument: "[w]e have never suggested that the measure here is ultimate equal outcomes." *fn19

That everyone does not finish even is tragic, of course, but it does not amount to a constitutional violation. Nor does it violate the school districts' mandate regarding student assignment under Green. Accordingly, we conclude that the district court properly determined that, as to student assignment, the districts achieved unitary status through good faith compliance with the requirements of the 1978 Order.

B. Faculty and Staff Assignments

Before the 1978 consolidation, the vast majority of black administrators and teachers served two predominantly black districts. In September 1978, the districts reassigned faculty, administrative and other certificated staff in all eleven districts. *fn20 The evidence presented at trial demonstrated that the districts now have balanced their faculties to a degree that is virtually unprecedented among those school districts in this country that operate under court orders. *fn21 The district court found that the districts closely monitor the racial composition of their faculties and do not hesitate to block transfers and to make reassignments, overriding seniority where necessary, to ensure diverse racial representation at each school. Coalition, 901 F. Supp. at 802-04. The record testimony of senior administrative officials from each of the four districts supports these findings. *fn22

Appellant does not refute either the district court's calculations or its conclusion of racial balance among the faculties, but nonetheless argues that the district court's finding that the vestiges of de jure segregation have been eliminated to the extent practicable is clearly erroneous because the overall percentage of minority teachers within the districts has declined by two or three percent since 1982. Appellant's Br. at 10. This gradual decline does not indicate clear error, however, because the shortage of minority teachers in the four school districts is not a vestige of de jure segregation in Northern New Castle County, but rather a manifestation of an unfortunate contemporary national trend. Indeed, even Appellant's expert testified that there is a critical shortage of black teachers in the public schools. JA 1167-68 (the number of black students graduating from colleges in the United States with bachelor degrees in the field of education has declined); see also Freeman v. Pitts, 503 U.S. 467, 482-83 (1992).

The record further reveals that, notwithstanding the shortage of available faculty, the districts hired minority candidates at rates two to four times greater than the available percentage of minorities in regional and national pools. JA 6566. This is attributable in part to the extensive affirmative minority recruitment efforts of each of the four school districts. For example, the Brandywine district has sought to expand its pool of potential minority hires by recruiting not only teachers who have received a degree in education from a 4-year program, but teachers who have received their B.A. or B.S. degrees in fields other than education and have prior teaching experience. JA 620. The Christiana district has attempted to recruit minority teachers by sending announcements to predominantly and historically black universities, by attending career days at predominantly black universities, and by hiring minorities as paraprofessionals. JA 603. The Colonial district has assembled a task force to address minority faculty representation. JA 633. *fn23 And in the Red Clay district, occasionally a faculty position will be held open until a minority candidate is found. JA 624. Based on this record, the court did not clearly err in finding that the school districts had demonstrated good faith efforts to integrate the faculties of the schools.

We turn, then, to the racial balance among the "non-professional" or "classified" staff, which includes bus drivers, bus aides, secretarial and clerical positions, paraprofessionals, custodial employees, and food service workers. *fn24 The undisputed evidence of record establishes that the school districts have attempted to use the hiring process to improve racial balance on the staff as new openings have materialized. For example, Brandywine recruits minority staff through community channels, focusing on community centers, neighborhood churches and community groups in minority areas. JA 621. Similarly, Christiana recruits through community newsletters, community centers, and by "word of mouth." JA 603.

Appellant concedes that the districts have made such efforts, but argues that the districts have not reassigned the staff to maximize racial balance. *fn25 The district court found that it would be impractical for the districts to reassign these employees in order to attain greater racial balance. We agree.

Food service workers, for example, earn approximately $3200-$4300 per year, working approximately three hours a day. JA 605. Generally, these employees work close to where they live. Transferring them to a distant workplace that would require a long commute simply is not feasible for the salary they receive. Id. Secretarial and clerical personnel would experience a similarly negative economic impact. Id. Even Appellant's expert acknowledged that forced reassignment of these part-time, low-wage employees could create hardships on these workers with respect to child care, commuting time, distance from work and expenses. JA 1105. Accordingly, it was not clearly erroneous for the court to conclude that the districts have eliminated to the extent practicable any residual racial identifiability in the schools with respect to these employees.

We carefully have considered Appellant's contentions with respect to faculty and staff assignment, and we conclude that there was no clear error in the district court's findings.

C. Extracurricular Activities

Appellant contends that the districts have not eliminated the vestiges of de jure segregation from their extracurricular activities. It is undisputed, however, that all extracurricular activities within the four districts are open to students of all races. *fn26 All eligibility requirements are race-neutral, and district officials encourage all students, regardless of race, to participate in a wide range of extracurricular activities. *fn27

Nevertheless, Appellant argues that the districts must also eliminate any racial identifiability that exists within each of these activities. In findings 98-100, 109-110, 118 and 125-128, the district court indicated that, unfortunately, there exist a substantial number of racially identifiable extracurricular activities throughout the four districts. We cannot, however, expect a school district to compel or deny student participation in non-compulsory extracurricular activities merely to effect a racial balance.

The four districts have removed financial and transportation barriers to participation. JA 1164. Moreover, each of the districts has demonstrated good faith efforts to reduce the racial identifiability of their activities through experimental programs. For example, the Brandywine district invites all eighth graders and their parents to the high schools to meet representatives from the activities, JA 753; Christiana announces upcoming activities in newsletters and physical education classes, JA 740; middle schoolers in Colonial are recruited to participate in activities when they ...


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