Evans v. Buchanan , 379 F. Supp. 1218 ( 1974 )

OPINION

LAYTON, District Judge:

This case is the most recent stage of the litigation concerning desegregation of the public schools of Delaware. The plaintiff class, Negro school children, and the intervening plaintiff, the Wilmington Board of Education, have instituted this action against the State Board of Education and the State Superintendent of Public Instruction. The plaintiffs contend, in a three-part cause of action, that black children in Wilmington are being compelled to attend segregated schools. First, plaintiffs allege that the defendants maintain a racially discriminatory dual public school system ip, New Castle County, including Wilmington, in violation of the Fourteenth Amendment’s equal protection clause and of the outstanding orders of this Court. Second, they contend that the Educational Advancement Act of 1968, 14 Del.C. § 1001 et seq., which provides for school district consolidation and boundary changes in Delaware,^* unconstitutionally confines Wilmington students to attendance at schools within the city limits. Plaintiffs allege that the statute both unconstitutionally classifies the City of Wilmington as a single school district and prevents the State Board from implementing its duty under the orders of this Court to dismantle the dual school system. Interwoven into the above contentions is a third argument, that the State of Delaware through its laws, customs, usages and policies has enforced, approved of, or acquiesced in public and private discrimination resulting in segregated schools.¹

This Court has retained jurisdiction over the case in order to implement its orders designed to dismantle the dual school system in Delaware. See, Evans v. Ennis, 281 F.2d 385, 391 (3rd Cir. 1960). Plaintiffs further assert jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). This three-judge court was empanelled pursuant to 28 U. S.C. § 2281 because plaintiffs seek to have a state statute declared unconstitutional.

Background

Historically, Delaware required its public school pupils to attend segregated schools. Prior to the landmark decision m Brown v. Board of Education, 347 U. S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), (Brown I), the Delaware Supreme Court ordered the immediate admission of black children to certain schools previously attended only by white children. Gebhart v. Belton, 33 Del.Ch. 144, 91 A.2d 137 (Del.S.Ct. 1952). On appeal to the United States Supreme Court, the decision was consolidated with Brown I, and the Supreme Court found that racial segregation of public school students deprives the minority group children of equal educational opportunities in violation of the equal protection clause. Gebhart was affirmed in Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), (Brown II), and remanded 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.” 349 U.S. at 300-301, 75 S.Ct. at 756.

During the interim between the two Brown decisions, the State Board of Education formulated a policy looking toward the gradual desegregation of the public schools. See Steiner v. Simmons, 35 Del.Ch. 83, 111 A.2d 574, 581-582 (Del.S.Ct.1955). The Delaware Supreme Court approved of this policy for the interim period and held that no school district could lawfully desegregate more rapidly than the State Board permitted. Steiner v. Simmons, supra.

In 1957, the plaintiff class petitioned this Court for relief from the failure of the Clayton School District to admit Negro students on a racially nondiscriminatory basis or to submit a desegregation plan to the State Board of Education. This Court permanently enjoined both the State Board of Education and the Clayton School District to admit members of the class and further ordered the State Board to submit a plan for the integration of the Clayton school in question. Evans v. Members of the State Board of Education, 149 F.Supp. 376 (D.Del.1957).

In Evans v. Buchanan, 152 F.Supp. 886 (D.Del.1957), this Court consolidated six cases, found that no appreciable steps had been taken to effectuate compliance with Brown I and II, and granted the plaintiffs’ motions for summary judgment against the State Board of Education, the Superintendent of Public Instruction, and various individual districts. The Court permanently enjoined the individual school districts from refusing to enroll members of the plaintiff class. The Court further ordered the State Board to submit a plan of desegregation “providing for the admittance, enrollment and education on a racially nondiscriminatory basis, for the Fall Term of 1957, of pupils in all public school districts of the State of Delaware which heretofore have not admitted pupils under a plan of desegregation approved by the State Board of Education.” 152 F. Supp. at 889. On appeal, the decision was affirmed, Evans v. Buchanan, 256 F.2d 688 (3rd Cir. 1958).

The State Board submitted a plan which provided for desegregation on a grade by grade basis over a period of 12 years. This plan was eventually rejected, and the Board was ordered to develop a “modified plan which will provide for full integration of all grades of the public schools of Delaware commencing with the Fall term 1961.” Evans v. Ennis, 281 F.2d 385, 390 (3rd Cir. 1960).

In 1961, this Court approved with certain modifications the revised plan submitted by defendants.

The mandate of the Court of Appeals envisages two separate but parallel streams flowing concurrently toward the same goal, a ‘wholly integrated’ school system in which all students compelled by law to attend Delaware public schools will receive education on a racially nondiscriminatory basis. Part (A) of the plan must allow Negro students desiring integration to transfer immediately to white or integrated schools as a matter of right subject only to the usual and nondiscriminatory processing of the school system. Part (B), however, looks to the future and must provide for the ingredients of a wholly integrated system. It must further look to the interim period when the number of Negro students desiring integration increases and provide adequate facilities and procedures to accommodate them. Evans v. Buchanan, 195 F.Supp. 321, 322-323.

Pursuant to part (B) of the Plan, the defendants were to submit and recommend a proposed new school code to the General Assembly of the State of Delaware. 195 F.Supp. at 325.² The desirability of a new school code, including provisions for consolidation of school districts, had long been recognized. See, Steiner v. Simmons, 111 A.2d at 580. Although a new school code was recommended to the General Assembly, no legislation ensued in the early 1960’s. Tr. 2026-39, 2589-90.

Most recently, this Court held in Evans v. Buchanan, 207 F.Supp. 820 (1962), that where the plaintiffs make a prima facie case of racially discriminatory school attendance zones, the local and state school boards have the burden of demonstrating that no discrimination has taken place. In that case, the State Board of Education and the Rose HillMinquadale Board failed to justify the attendance zones they had promulgated, and the Court ordered the admission of minority children to a school outside their established attendance zone.

Proper Party Defendant

The threshold question at this stage of the case is whether the State Board of Education is the proper party defendant. The Board has raised this issue at virtually every stage of the desegregation process and each time the issue has been resolved against it. The State Board of Education has historically had a broad responsibility for maintaining the statewide system of free public schools. Steiner v. Simmons, 35 Del.Ch. 83, 111 A.2d 574 (Del.S.Ct.1955). In Steiner v. Simmons, the Delaware Supreme Court noted that desegregation began in the Wilmington School District only after the “necessary permission” was granted by a resolution of the State Board. 111 A.2d at 581. Since that time, this Court and the Court of Appeals have repeatedly held that the duty to desegregate Delaware Schools rests primarily with the Board. Evans v. Members of the State Board of Education, 149 F.Supp. at 378 (D.Del.1957); Evans v. Buchanan, 152 F.Supp. at 887 (D.Del.1957), aff’d, 256 F.2d 688, 693-694 (3rd Cir. 1958); 281 F.2d 385, 391 (3rd Cir. 1960); Evans v. Buchanan, 207 F.Supp. at 825 (D.Del.1962). Recently, the Legislature reaffirmed this broad authority of the State Board in the Educational Advancement Act and Sections 121 and 122 of the revised code. 14 Del.C. §§ 121, 122.

Accordingly, it is well established that to the extent that any schools in the state are in violation of Brown and its progeny or of this Court’s orders, the State Board must bear primary responsibility. The fact that the Wilmington Board of Education is an intervening plaintiff and alleges discrimination which it, as well as the State Board, was empowered to alleviate does not diminish the constitutional obligation of the defendants to provide a nondiseriminatory system of education for the children of this state.

Defendants’ Duty

Under Brown, the Board’s duty was to “effectuate a transition to a racially nondiscriminatory school system.” 349 U.S. at 301, 75 S.Ct. at 756. To this end, it has the affirmative duty to eliminate from the public schools “all vestiges of state-imposed segregation.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971). The goal is a unitary school system, a “system without a ‘white’ school and a ‘Negro’ school, but just schools.” Green v. County School Board of New Kent County, 391 U.S. 430, 442, 88 S.Ct. 1689, 1696, 20 L. Ed.2d 716 (1968). When this Court accepted with certain modifications the proposed plan presented by the State Board, it made clear an additional requirement — that the plan would carry out the Board’s constitutional duty only to the extent that it was effective. 195 F.Supp. at 325.³ It is against these standards that the desegregation of the schools in New Castle County must be measured.

The Desegregation Process in Wilmington

The Wilmington Public Schools presently have an enrollment of 14,688 pupils, of whom 83% are black and 14% are white. Of the 22 schools in the city, 11 have virtually all-black (94-100%) enrollments and one has a virtually all-white (89%) enrollment. When the desegregation process began 20 years ago, the Wilmington schools had an enrollment of 12,875 pupils, of whom 28% were black and 72% white.⁴ In short, schools in Wilmington, as in many other American cities have experienced the phenomenon of “white flight” during the past two decades.

Following Brown I and the authorization from the State Board “to proceed with the development of plans for the integration of city schools,” the Wilmington Board of Education began a three-step program of desegregation. DX 11. For the 1954-55 school year, geographic attendance zones were established around each elementary school and the existing policy of allowing, if space were available, transfers to schools outside the attendance area at the request of parents was continued. ⁵ Provisions were also made for desegregation of the summer school, practical nursing, and evening school programs, and limited desegregation was adopted for special education and high school vocational education. DX 11. For the 1955-56 school year, the Wilmington Board established attendance areas around the junior high schools for the seventh grade, while eighth and ninth grade pupils continued on in the same schools in which they had originally enrolled. DX 21.⁶ For the 1956-57 school year, high school students were required to attend the school within their attendance area. Tr. 1426. The bulk of the official desegregation program in Wilmington was thus completed by the 1956-57 school year. Defendants contend that this program fulfilled any duty under Brown, that the dual system was thereby dismantled, and that a unitary system has been established in Wilmington. They point out that Wilmington was one of the first, if not the first school district in Delaware to desegregate, and that many school officials proceeded under the assumption that the dual system had been abolished.⁷

Despite the fact that the Wilmington Board adopted facially neutral geographic attendance zones, Wilmington continued to have many racially identifiable schools. Under the desegregation plan implemented by the Wilmington Board, all of the pre-Brown colored schools that remained open continued to be operated as virtually all-black schools. As the following chart indicates, in the period from 1956 to 1973, no de jure black school had a black enrollment of less than 91% in any year.⁸

The presence of racially identifiable schools in a formerly de jure system is always constitutionally suspect. Swann v. Charlotte-Mecklenburg, 402 U.S. at 18, 26, 91 S.Ct. 1267. It is apparent not only that all of the de jure black schools in Wilmington have remained identifiably black, but also that these schools constitute a substantial proportion of the 22 public schools in Wilmington. This Court can only conclude that the presence of these schools is a clear indication that segregated schooling in Wilmington has never been eliminated and that there still exists a dual school system. Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 200-201, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), United States v. Texas Education Agency, 467 F.2d 848, 888 (5th Cir. 1972). The desegregation plan for Wilmington has not been effective, and this Court must conclude that a unitary school system has never been established.⁹ Consequently, the defendants will be required to come forward with plans to remedy the existing segregation, as set forth below.

Having found a violation of the rights of the plaintiff class, we need not now consider whether Sections 1004, 1026 and 1027 of the Educational Advancement Act are violative of the Equal Protection Clause and whether, as plaintiffs also charge, the State of Delaware through its laws, customs, usages and policies has enforced and approved of both public and private racial discrimination resulting in racially segregated schools.

Moreover, we find premature plaintiffs’ remaining contention that the just mentioned sections of the Educational Advancement Act are per se unconstitutional because, in result, they defeat any attempt to formulate an effective system of unified education within the boundaries of the district. It is now clearly established that a state legislature cannot impose any restriction upon a school board’s authority to create a unified system of education in the public schools.

“ . . . if a state-imposed limitation on a school authority’s discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual system, it must fall; . . . ” Board of Education v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 1286, 28 L.Ed.2d 586 (1971).

However, at this point, we are not in a position to say whether or not by the employment of such accepted techniques as a substantial realignment of student attendance and teacher and staff personnel ratios, more fully integrated student extra-curricular activities, and the like, a plan cannot be devised which, despite the heavy imbalance of black students in the Wilmington School District, would satisfy existing constitutional requirements.

Remedy

The answer to this important question must await the remedy stage. The central issue in that phase of the litigation will be whether an effective remedy for the continuing school segregation in Wilmington may be found within the existing boundaries of the Wilmington School District. Accordingly, the defendants will be required to submit to this Court not later than September 15th alternate desegregation plans (a) within the present boundaries of the Wilmington School District, and (b) incorporating other areas of New Castle County. The plaintiffs may also submit alternative desegregation plans within the same period.

In drawing up their plans, the parties are admonished to “make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.” Davis v. School Commissioners of Mobile County, 402 U.S. 33, 37, 91 S. Ct. 1289, 1292, 28 L.Ed.2d 577 (1971).

This opinion will be deemed to constitute findings of fact and conclusions of law. Because of the result here reached, we feel it unnecessary to pass upon the numerous objections to the admission of evidence made at trial and the question of where lies the burden of proof.

Submit order.

* The Educational Advancement Act was passed by the Delaware Legislature “to provide the framework for an effective and orderly reorganization of the existing school districts of this State. . . . ” 14 Del.C. § 1001. To that end, § 1004 provided a means whereby the State Board of Education could adopt and implement during 1968 a plan of reorganization of school districts. Section 1004(c)(4) specifically excluded Wilmington from being included in such plan. “The proposed school district for the City of Wilmington shall be the City of Wilmington with the territory within its limits.” Also, § 1004(c)(2) effectively excluded the Wilmington School District from the plan by limiting pupil enrollment in any proposed new district to 12,000, 3,000 less than in the district at that time. Section 1026 specifically excluded Wilmington from a provision setting out the mechanism for changing or altering boundary lines after the plan was adopted and implemented. Section 1027 sets out a referendum mechanism for consolidating reorganized school districts ; plaintiffs contend that it excludes the Wilmington School District by implication.

1 . At the pretrial conference this Court agreed with Counsel to dispose of this litigation in two phases, first whether there has been a violation of plaintiffs’ constitutional rights and, if so, a consideration of the possible remedies.

2 . Nothing in the opinion, or in the order approving the State Board’s plan as modified, DX-143, exempted the Wilmington schools from the requirement that all students receive education on a racially nondiscriminatory basis. It is true, however, that Exhibit B to the plan, a proposed list of school districts to be consolidated, did not provide for the consolidation of Wilmington with any other district.

3 . The Supreme Court similarly noted in Green v. County School Board, “whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed.” 391 U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716. Underlying the notion that the Court will retain jurisdiction pending an evaluation of the desegregation plan in practice is a recognition that the courts, and particularly the Supreme Court, are in an ongoing process of defining the duty to dismantle the dual school system and the remedial measures to be taken in the process. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. at 6, 91 S.Ct. 1267, 28 L.Ed.2d 557.

4 . PX 6.

5 . This “free transfer” policy continued throughout the desegregation process.

6 . However, the white pupils living in the attendance area of the Bancroft Junior High School, a de jure black school, were not required to, and evidently did not attend that school. PX 145, report by Superintendent of Wilmington Public Schools dated January 16,1956; PX 6.

7 . See, e. g., Muriel Crosby, An Adventure in Human Relations (1965), DX 165; Tr. 2583-84.

8 . The chart is derived from PX 6 and Tr. 1358-69. No statistics for the enrollment at individual schools are available for years prior to 1956.

% Black Pupils

Range,

School 1956 1973 1956-73

Elbert Elementary 91% 100% 91-100%

Stubbs Elementary 100% 98% 95-100%

Drew Elementary 99% 99% 93- 99%

Bancroft Junior High 98% 95% 95- 99%

Howard High 100% 97% 95-100%

9 . This is not the first time that this Court has made clear that allegedly neutral attendance zones having the probable result of continuing the dual school system are impermissible. See Evans v. Buchanan, 172 F. Supp. 508, 516 (1959); 173 F.Supp. 891 (1959), 207 F.Supp. 820, 825 (1962).