Delaware State Board of Education v. Evans Brief in Opposition to Certiorari

    In The

iutjuTnu' Olxmrt xif tin' Hxtrtx>x» i>tatx>a
October Term, 1977

No.

Delaware State Board of Education, et al.,
Petitioners,v.

Brenda Evans, et al .,
Respo'iidents.

BRIEF IN OPPOSITION TO CERTIORARI

Louis L. Redding
1200 Farmers Bank Building 
Wilmington, Delaware 19801

Irving Morris
Joseph A. Rosenthal 

Morris & Rosenthal 
301 Market Tower Building 
Wilmington, Delaware 19899

Richard Allen Paul 
Paul & Lukoff 
1700 Wilmington Tower 
Wilmington, Delaware 19801

Louis R. Lucas 
Ratner, Sugarmon, Lucas, 

Salky & Henderson 
525 Commerce Title Building 
Memphis, Tennessee 38101

Paul Dimond 
O’Brien, Moran & Dimond 
210 East Huron Street 
Ann Harbor, Michigan 48108

W illiam L. Taylor
Catholic University Law School 
Washington, D.C. 20064

Counsel for Respondents

W i l s o n  - E p e s  P r i n t i n g  C o . .  In c . - R e 7 - 6 0 0 2  • W a s h i n g t o n . D . C .  2 0 0 0 1



TABLE OF CONTENTS
Page

Brief In Opposition to Certiorari ..... .......................... . 1
Opinions Below _______ _____ ____ __________________  1
Jurisdiction ____     2
Questions Presented ............ ...... ............. ...... ..................  2
Statement __________________________ „ _____________  2

A. Introduction ___      2
B. Prior Proceedings ____ __ ___________ _____ _ 3
C. The Character of the Inter-District Violation 

Previously Found by the Three-Judge Court.... 10
D. The Scope of the Interim Remedy Ordered by

the District Court and Affirmed by the Court of 
Appeals ...............................    15

Reasons Why the Writ Should Be Denied___________  21
1. Violation _____ _______________________ _____ 22
2. Remedy ...............      27

Conclusion __         31



II

TABLE OF AUTHORITIES
Cases Page

Alexander v. Holmes County Board of Education,
396 U.S. 19 (1969)__________________________  30

Bradley v. School Board of City of Richmond, 
Virginia, 462 F.2d 1058 (1972), aff’d by an
equally divided Court, 412 U.S. 92 (1973) ------23n.l5

Brown v. Board of Education, 347 U.S. 483 (1954)
349 U.S. 294 (1955) ________________________ passim

Carter v. West Feliciana Parish School Board, 396
U.S. 226 (1969)__________________________ __ - 30

Castaneda v. Partida, 45 L.W. 4302 (23 March
1977) „ ......... ............... - .................. - ------- ---------  26

Dayton Board of Education v. Brinkman, No. 76-
539, 45 L.W. 4910 (27 June 1977) ____14 n.9,18, 22,

26 n.18, 27, 28, 29
Edelman v. Jordan, 415 U.S. 651 (1974) -----------24 n.16
Evans v. Buchanan, 195 F. Supp. 321 (1961) ------ 3, 4
Evans v. Buchanan, 379 F. Supp. 1218 (1974)..3, 4, 10 n.4,

11,12, 14 n.9
Evans v. Buchanan, 393 F. Supp. 428 (1975) ....passim
Evans v. Buchanan, 423 U.S. 963 (1975) _______  1, 3, 6
Evans v. Buchanan, ------  F. Supp. ------  (D. Del.

Aug. 5, 1977) (C.A. No, 1816-1822) ....18 n.12, 20 n.14
Hicks v. Miranda, 422 U.S. 332 (1975) ________24n.l6
Hills v. Gautreaux, 425 U.S. 284 (1976) _______  19
Hunter v. Erickson, 393 U.S. 385 (1969) _______  13, 25
Insurance Group v. Denver and Rio Grande

Western R. Co., 329 U.S. 607 (1946) ________ 24
Keyes v. School District No. 1, 413 U.S. 189

(1973) _____________ 12, 18 n.12, 22, 26 n.18, 27, 28, 29
Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y.

1970), aff’d, 402 U.S. 935 (1971) __________ _ 25
McGinnis v. Royster, 410 U.S. 263 (1973) _____ 26 n.18
Milliken v. Bradley, 418 U.S. 717 (1974) -------- passim
Reitman v. Mulkey, 387 U.S. 369 (1967) _____14 n.9, 25
State Board of Education v. Evans, ------  U.S.

------ , 45 L.W. 3394 (29 November 1976) 8



Ill

TABLE OF AUTHORITIES— Continued
Page

Swann v. Charlott e-Mecklenburg Board of Educa­
tion, 402 U.S. 1 (1971) ______11,12, 15, 17, 18, 28, 29

United States v. Scotland Neck City Board of
Education, 407 U.S. 484 (1972) __________14 n.9, 24

Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252, 97
S. Ct. 555 (1977) ________ 14 n.9, 22, 25, 26, 26 n.18, 27

Washington v. Davis, 426 U.S. 229 (1976) ....14 n.9, 22,
25, 26, 26 n.18, 27

Wright v. Council of the City of Emporia, 407 U.S.
451 (1972) ______ ______________ ____ ....14 n.9, 24, 25

Statutes
14 Del. C. §§ 1004(c) (2), 1004 (c) (4), and 1005.... 4
20 U.S.C. § 1701 et seq _____________ 15 n.9, 21, 26 n.18
28 U.S.C. § 1253 ____________ _________ _____ __ 6
28 U.S.C. § 1254(1) __________________________  2
28 U.S.C. §2281 _____________________________  4



In The

Ihij.tnw (Exmrt of %  MmM BtaUB
October T e r m , 1977

No.

D ela w a r e  State  B oard of E du cation , et a l .,
Petitioners,

B renda  E v a n s , et  a l .,
Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals for the Third Cir­
cuit is reported at 555 F.2d 373 (1977) and is also set 
out as Appendix A of the Petition for Writ of Certiorari 
in Delaware State Board of Education, et al v. Brenda 
Evans, et al., No. 77-131. The May 19, 1976 Opinion and 
June 15, 1976 Interim Remedy Judgment of the United 
States District Court for the District of Delaware are 
reported at 416 F. Supp. 328 and are set out as Appendix 
B of the State Board’s Petition for Writ of Certiorari. 
The prior inter-district violation Ruling and Judgment of 
the District Court are reported at 393 F. Supp. 428 
(D. Del. 1975), aff’d 423 U.S. 963 (1975).1

1 References to the Court of Appeals’ opinion and to the District 
Court’s Interim Remedy Ruling will be to the Appendix in the 
State Board’s Petition for Writ of Certiorari, in the form, for 
example, of A. 16. Citations to the other opinions and orders in 
this cause will be in the form, for example, of 393 F. Supp. at 430.



2

JURISDICTION

The Opinion of the Court of Appeals was entered on 
May 18, 1977. This Court’s jurisdiction is invoked under 
28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether any issue worthy of reexamination by this 
Court is presented by the District Court’s application of 
Milliken v. Bradley, standards to find an inter-district 
constitutional violation in the operation of the public 
schools of northern New Castle County.

2. Whether any issue warranting this Court’s review 
is presented by the Court of Appeals’ affirmance of the 
District Court’s judgment: (a) delineating, in advance of 
the submission of an acceptable plan for reassigning stu­
dents, the geographical area within which desegregation 
must take place for the scope of the remedy to match the 
scope of the violation; and (b) establishing a mechanism 
for organizing the public schools of northern New Castle 
County into a unitary system which is to become opera­
tive only if the State does not prescribe its own mechanism.

STATEMENT

A. Introduction
For the third time in two years, the Delaware State 

Board of Education and other Petitioners seek to invoke 
this Court’s jurisdiction to review lower court rulings that 
the State of Delaware has violated the constitutional 
rights of black Respondents and that a remedy must be 
adopted that is commensurate with the scope of the viola­
tion found. All of these efforts have been undertaken in 
advance of the adoption of any plan of student assignment 
to cure the violation found.



3

As in their last effort to obtain a review, Petitioners 
persist both in regarding no issue in this case as having- 
been settled by this Court’s prior dispositions and in in­
dulging in sweeping mischaracterizations of the findings 
and conclusions of the lower courts.

It is Respondents’ position that the holdings of the 
courts below through the Court of Appeals’ affirmance 
(555 F.2d 373, A. 1) with modification of the Three-Judge 
Court’s interim remedy ruling (416 F. Supp. 328, A. 32) 
are in accord with the decisions of this Court dealing both 
with the violation and standards for framing a remedy.

We also believe that the existence of an inter-district 
violation has already been settled by this Court’s affirm­
ance (423 U.S. 963) of the District Court decision finding- 
such a violation (393 F. Supp. 428) and that there is no 
occasion for this Court to reexamine its prior disposition. 
A summary of the violation found and remedial standards 
applied below may assist this Court in determining 
whether Petitioners present any issue worthy of review.

B. Prior Proceedings

This is simply the latest phase of a lawsuit begun in 
1957 whose “object was to eliminate de jure segregation 
in Delaware schools” , including those of New Castle 
County as well as other districts. 393 F. Supp. at 430. 
Although a plan for desegregation of Delaware schools 
was accepted in 1961, the Court approved the plan “only 
to the extent that it [would prove] effective” , 379 F. Supp. 
1218, 1223 (1974), and retained jurisdiction, 195 F. Supp. 
321, 325 (1961). The plan did not prove effective in 
New Castle County. 379 F. Supp. at 1223 and 1228-30; 
393 F. Supp. at 433, 437-8.

The inter-district violations later found were rooted in 
circumstances existing at the time of Brown v. Board of 
Education. Local school districts in Delaware at that time



4

were “not meaningfully ‘separate and autonomous’ ” , 893 
F. Supp. at 437, but rather were subordinate to the State 
system of segregation with boundaries that were dual and 
overlapping, permeable, or disregarded for the purpose of 
imposing racially segregated schooling. To deal with this, 
the District Court’s 1961 decree ordered that as part of 
the plan for desegregation, the State Board submit a re­
vised school code to the legislature, including a reorganiza­
tion of the “crazy quilt-pattern of [school] districts and 
laws governing education.” 195 F. Supp. at 325.

In belated response, the legislature in 1968 enacted the 
Educational Advancement Act which explicitly excluded 
the Wilmington school district from the discretion vested 
in the State Board to reorganize all districts in the state, 
expressly providing that the boundaries for this “reor­
ganized school district shall be the City of Wilmington 
with the territory within its limits.” 14 Del. C. .§§ 1004 
(c) (2), 1004(c) (4), and 1005.

In 1971, plaintiffs, by amended complaint, petitioned the 
District Court for supplemental relief; challenged the 
constitutionality of the 1968 Act and redistricting; and 
requested that the continuing inter-district segregation in 
New Castle County be finally and effectively dismantled. 
A three-Judge Court was convened pursuant to 22 U.S.C. 
2281. On July 12, 1974, following a lengthy evidentiary 
hearing, briefs and argument, the District Court found 
continuing de jure violations within Wilmington, but re­
served ruling on the claims of inter-district segregation 
including the constitutionality of the 1968 Act. 379 
F. Supp. 1218.

After this Court issued its opinions in Milliken v. 
Bradley, 418 U.S. 717 (1974) the District Court promptly 
invited the reorganized school districts of New Castle 
County to intervene and present evidence on all the issues 
raised by plaintiffs’ 1971 Petition for Supplemental Relief



5

and Amended Complaint. Suburban school districts inter­
vened as parties defendant;2 they elected to adopt the 
State Board pleadings and to stand on the evidence already 
of record and to submit briefs on the inter-district viola­
tion issues and the impact of Milliken. Primary issues 
litigated by the parties included the alleged continuing 
nature of the historic inter-district dual system; the pur­
pose and effect of acts following Brown, including a state­
wide reorganization of school districts, alleged to be either 
independent constitutional violations or ineffective means 
of eliminating the continuing effects of the inter-district 
de jure segregation; and the extent to which the existing 
racial disparity in enrollments between Wilmington and 
suburban NewT Castle County school districts resulted 
from the inter-district effect of any constitutional viola­
tions rather than other causes. On March 27, 1975, the 
District Court, Judge Layton dissenting, issued its Opin­
ion. Applying the Milliken legal standards to the evidence 
adduced, the District Court found significant inter-district 
de jure segregation throughout New Castle County. 393 
F. Supp. at 431-2, 438, 445, 447. Specifically, the District 
Court found an inter-district violation based on “ (a) a 
historic arrangement for inter-district segregation within 
New Castle County; (b) significant governmental in­
volvement in inter-district discrimination; and (c) uncon­
stitutional exclusion of Wilmington from consideration 
for consolidation by the State Board of Education pur­
suant to reorganization powers now lapsed.” 393 F. Supp. 
at 445. The District Court further found the inter-district 
violation “responsible to a significant degree for the in­
creasing disparity in residential and school populations 
between Wilmington and its suburbs in the past two 
decades.” 393 F. Supp. at 438. See also, 393 F. Supp. at 
444-5. Accordingly, the Court directed the parties to sub­

2 The Wilmington school district had previously intervened as 
a party plaintiff and joined in the Petition and Amended Complaint.



6

mit alternative inter-district and intra-district desegrega­
tion plans. 393 F. Supp. at 447.

The State Board appealed the inter-district violation 
Judgment and Order invoking this Court’s jurisdiction 
under 28 U.S.C. 1253. In its Jurisdictional Statement, the 
Appellant State Board argued that the findings of a sub­
stantial inter-district violation were incorrect. Appellees 
filed a Motion to Dismiss or Affirm, arguing that there 
were substantial grounds for either disposition. This 
Court summarily affirmed, Rehnquist, J. joined by Burger, 
C. J., and Powell, J., dissenting, on grounds that the ap­
peal did not lie under 28 U.S.C. 1253 within the Supreme 
Court’s jurisdiction because the case was not one required 
to be heard by a three-judge court. 423 U.S. 963.

In August 1975, the parties submitted desegregation 
plans to the District Court. There followed three weeks 
of evidentiary hearings during which defendants again 
had the opportunity to present proof that the public 
school segregation existing in New Castle County, beyond 
that already determined to be the product of de jure acts, 
was not attributable to a discriminatory purpose or the 
reciprocal effect of the deliberately discriminatory actions 
already adjudicated. On May 19, 1976, the District Court, 
Judge Layton dissenting in part, issued its Interim 
Remedy Ruling, followed by the Interim Remedy Order 
on June 15, 1976.

The Court reiterated its findings concerning the extent 
of the effects of the inter-district violation: “ [t]he acts 
described in the prior opinions were the acts of the State 
and its subdivisions and had a substantial not a de mini­
mis effect on the enrollment patterns of the separate dis­
tricts . . . The State Legislature and the State Board of 
Education . . . acted in a fashion that is a substantial 
and proximate cause of the existing disparities in racial 
enrollments in the districts in northern New Castle 
County.” (A. 52-3). The Court determined that a Wil­



7
mington-only plan would not satisfy its duty to place the 
victims of the violation in substantially the position they 
would have occupied had the violation not occurred and 
that this duty, when viewed in the light of the extent of 
the inter-district violation, required the inclusion of all but 
one of the twelve New Castle County districts in the area 
in which desegregation would take place. A, 55, 60, 78-82. 
Rather than selecting any of the various plans submitted, 
the Court established an interim framework for develop­
ing an effective remedy. A. 76-94. Contrary to appellants’ 
assertion that the Court provided “ that eleven of the 
twelve districts in New Castle County be collapsed into a 
single super-district . . . .,” (State Board Pet. p. 8), the 
Court simply required that desegregation take place in ac­
cordance with the Opinions of the Court and that the 
State Board of Education establish an interim board 
drawn from the local districts which would serve as a 
consolidated body, pursuant to the State law model, to 
implement a desegregation plan only if the State failed 
to take action to remedy the inter-district segregation 
flowing from the violation. A. 74-78, 85-88.

Petitioners again sought review in this Court, praying 
that the Court either note probable jurisdiction or, in the 
alternative, grant certiorari prior to judgment by the 
Court of Appeals. In their jurisdictional statements they 
again challenged the existence of the inter-district viola­
tion as well as the remedy ordered. The Solicitor General 
filed a memorandum for the United States as amicus 
curiae, arguing inter alia (1) that further review of the 
existence of an inter-district judgment, including the un­
constitutionality of the Educational Advancement Act “ is 
foreclosed in substantial measure by [the Supreme] 
Court’ summary affirmance of the judgment on the liabil­
ity question. . . .” (U.S. Memo, p. 1, n. 1) ; and (2) that 
the “ significant and continuing inter-district acts of racial 
discrimination between New Castle County school dis­
tricts . . . would [in any event] require a significant



8

inter-district remedy.” (P. 9). In the Solicitor’s view, it 
followed from this understanding of the posture of the 
case that direct appeal did not lie because the interim 
remedy judgment was not required to be entered by a 
three-judge court. On November 29, 1976, this Court dis­
missed appellants’ direct appeals, State Board of Educa­
tion v. Evans, ------  U.S. ------ , 45 U.S.L.W. 3394. (29
November 1976)

Appellants then pursued their appeals in the Court of 
Appeals for the Third Circuit under an expedited brief­
ing schedule. Following oral argument before the Court 
sitting en bane, on May 18, 1977 the Court issued its 
opinion and judgment, affirming the judgment below with 
certain modifications largely designed to give the State 
Legislature or the State Board of Education a further 
opportunity to prescribe the plan and method of reorga­
nization that would eliminate the dual system and the 
vestige effects of de jure segregation. A. 20-4. The court 
viewed itself as precluded by this Court’s summary affirm­
ance from reexamining the existence of a substantial in­
ter-district violation. A. 12-14. But, in reviewing the 
District Court’s decision concerning the scope of remedy, 
the Court of Appeals examined the extent of the inter­
district violation, for it recognized that “ [t]he existence 
of a constitutional violation does not authorize a court to 
bring about conditions that never would have existed even 
if there had been no constitutional violation . . . the school 
district and its students are to be returned, as nearly as 
possible, to the position they would have been in but for 
the constitutional violations that have been found.” A. 16- 
17. Having conducted this review, the court affirmed the 
District Court’s decision concerning the appropriate extent 
of the desegregation area along with other aspects of the 
remedial framework. The Court of Appeals, however, re­
fused to embrace the Three-Judge court’s description of 
“prima facie desegregated schools” as those having an



9

enrollment not substantially disproportionate to the over­
all inter-district racial enrollment insofar as it might be 
interpreted by others as imposing a racial quota. A. 18-19.

Judge Garth, joined by Judges Rosenn and Hunter, 
dissented on grounds that the majority had failed (1) 
to review the existence of inter-district violations and 
to identify them specifically; and (2) to assess the ef­
fects of the violations on the racial composition of schools 
in northern New Castle County. A. 25. They would 
have remanded the case to the District Court to require 
a precise finding of racially discriminatory intent with 
respect to each inter-district violation3 and a precise 
calibration of the extent to which segregation in north­
ern New Castle County was caused by the inter-district 
violations as against other, presumably nondiscriminatory 
factors. A. 38-41. The dissent, however, failed to state 
in what respect the specific findings of the Three-Judge 
Court concerning the nature of the inter-district viola­
tion and the extent of its impact on northern New Castle 
County fell short of meeting these requirements.

The State Board of Education and suburban school 
districts now petition for a writ of certiorari, seeking 
a plenary review of all material issues previously ad­
judicated by the lower courts.

3 The dissenters perceived eight inter-district violations, a num­
ber they apparently arrived at by regarding each element of dis­
crimination that underlay the findings of “ significant governmental 
involvement in inter-district discrimination” as a separate inter- 
district violation. They acknowledged, however, that the racially 
discriminatory motivation of several of these elements was obvious. 
A. 39. They neither mentioned or considered the historic inter- 
district violation and its impact on the analysis of subsequent acts 
and failures to act.



10

C. The Character of the Inter-District Violation 
Previously Found by the Three-Judge Court

The District Court’s finding of a continuing inter- 
district violation in New Castle County was based on a 
careful application of Milliken legal standards to the 
record evidence. The deliberate character and broad ex­
tent of the violation were detailed in the District Court’s 
1975 findings and may be summarized as follows:

1. At the time of Brown, and for some time there­
after, the state-imposed system of complete segregation 
“ in New’ Castle County was a cooperative venture in­
volving both [Wilmington] city and suburbs . . . [A]t 
that time, a desegregation decree could properly have 
considered city and suburbs together for the purpose of 
remedy. At that time, in other words, Wilmington and 
suburban districts were not meaningfully ‘separate and 
autonomous.’ ”  393 F. Supp. at 437. This ultimate find­
ing was based on subsidiary findings of fact that local 
districts were then subordinate and their boundaries dual 
or overlapping or simply breached in order to implement 
the basically monolithic Delaware system of school segre­
gation, with one state system of schooling for blacks and 
another for whites. Although the specifics of this unique 
system varied somewhat from place to place and time 
to time, 393 F. Supp. at 433, it was unmistakably “ a 
historic arrangement for inter-district segregation within 
New Castle County.” 4 393 F. Supp. at 447.

2. Far from effectively dismantling the system of 
state-compelled inter-district segregation, Delaware of-

4 Thus, for example, the State-mandated and State-financed black 
elementary, junior and senior high schools located within Wilming­
ton long served substantial numbers of black children who resided 
throughout New Castle County. 393 F. Supp. at 433. Likewise, de 
jure white schools located in Wilmington served substantial num­
bers of white children who resided in New Castle County. Id. See 
also, 379 F. Supp. at 1230-31 (Circuit Judge Gibbons, separate 
opinion).



11

ficials perpetuated and exacerbated the original viola­
tion. 379 F. Supp. 1230-2, 393 F. Supp. 432-445. Over 
the next two decades, there occurred, as the District 
Court found, “ significant governmental involvement in 
inter-district discrimination.” 5 6 393 F. Supp. at 447.
This involvement not only made the dismantling of the 
historic inter-district segregation of New Castle County 
much more difficult, 393 F. Supp. at 432-3 [Cf. Swann 
v. Charlotte-Mecklenburg Board, of Education, 402 U.S. 
1, 14 (1971)], but was also found by the District Court 
to be an independent constitutional violation under Milli- 
ken, significantly contributing to the marked inter-district 
segregation flourishing in New Castle County schools. 
393 F. Supp. at 438.

Through a series of specific public actions, govern­
mental authorities supported and encouraged pervasive 
practices of racial discrimination in suburban housing.* 
This government-sanctioned discrimination7 excluded

5 This discrimination occurred during a period of great popula­
tion growth and demographic change. From 1954 to 1973, the 
public school enrollment of suburban New Castle County expanded 
from 21,543 children (4 percent of whom were black) to 73,008 
(6 percent of whom were black). This large suburban population 
growth corresponded with the growth of Wilmington as an identi- 
fiably black school system, changing from 12,875 pupils in 1954 
(28 percent black) to 14,688 pupils in 1973 (83 percent black).

6 During this period, some time after Brown, suburban children 
were withdrawn from Wilmington schools, which “reduced, to an 
extent, the proportionate white enrollment” of Wilmington schools. 
393 F. Supp. at 434 n. 8. While the District Court did not find 
this to be an independent violation under Milliken, it. was a further 
step in the continuing separation of the races in New Castle 
County; and the District Court found that the contemporaneous 
splintering of the suburban districts from Wilmington failed to 
disestablish the inter-district dual system. 393 F. Supp. at 433, 
437-8, 379 F. Supp. at 1228-1230 (Circuit Judge Gibbons, separate 
opinion).

7 Governmental acts included policies advocating racially homo­
genous neighborhoods as a condition of government assistance, the 
continued recordation of racially restrictive covenants after they



12

black families from new housing opportunities in the 
suburbs, thus excluding them from the burgeoning and 
still virtually all-white suburban schools, and funneled 
them into Wilmington, 393 F. Supp. at 434-5. At the 
same time, state public housing authorities acted directly 
to impose racial segregation by concentrating low income 
housing for minority residents in the city of Wilmington 
and virutally excluding such units from the suburbs, 
thus excluding many black children from suburban 
schools. 393 F. Supp. at 435. In finding that this con­
duct constituted segregative action with inter-district 
effects, the District Court cited Mr. Justice Stewart’s 
concurrence in Milliken noting that an inter-district viola­
tion is established when state officials “had contributed 
to the separation of the races . . . by purposefully racially 
discriminatory use of state housing or zoning laws.” 418 
U.S. at 755.

In addition the Wilmington Board, with the sanction of 
the State Board, maintained five pre-Brown “colored” 
schools as virtually all-black schools and implemented dis­
criminatory policies (e.g., optional zones) to define addi­
tional schools as de jure black, with the effect of encourag­
ing white outmigration and discouraging white families 
from moving in to Wilmington. 393 F. Supp. at 436. 
See, also, 379 F. Supp. at 1223.8 Subsequently, the State 
also subsidized the transfer of substantial numbers of 
white Wilmington children to private schools in the sub­

were declared unenforceable by this Court, State publication of the 
discriminatory code of ethics of the real estate industry and sanc­
tion of restrictive real estate practices that denied minority home- 
seekers access to all but a handful of suburban listings. 393 F. 
Supp. at 434-5.

8 Thus were Wilmington schools “ earmarked” as the “black 
schools” to all who cared to see throughout New Castle County. Cf. 
Keyes V. School District No. 1, 413 U.S. 189, 202 (1973). (The 
District Court credited testimony that sales in the housing market 
are tied to the racial characteristics of the schools. 393 F. Supp. 
at 437. Cf. Swann, 402 U.S. at 20-21.)



13

urbs. This, too, “has undoubtedly served to augment the 
racial disparity between Wilmington and suburban public 
school populations.” 393 F. Supp. at 437. These findings 
of the District Court conformed closely to the standard 
set for an inter-district violation in Milliken that “ there 
has been a constitutional violation within one district 
that produces a significant segregative effect in another 
district.” 418 U.S. at 745.

Thus, during the decades after Brown, the Court found 
that the historic, county-wide arrangement for inter- 
district segregation, far from being dismantled, was con­
tinued and significantly exacerbated by this variety of 
racially discriminatory governmental conduct. Applying 
the Milliken standards, the District Court concluded that 
these inter-district segregation practices “ are responsible 
to a significant degree” for the marked disparity between 
Wilmington and suburban New Castle County school dis­
tricts, 393 F. Supp. at 432.

3. Finally, against this background of continuing in­
ter-district segregation the District Court found that the 
Educational Advancement Act and statewide reorganiza­
tion of school districts in 1968 “contributed to the separa­
tion of the races by . . . drawing or redrawing of school 
district lines” (Cf. Milliken, 418 U.S. at 755, Stewart 
J., concurring), thereby further isolating Wilmington’s 
basically black schools from their suburban and virtually 
all-white counterparts by discriminatory state action. 393 
F. Supp. at 445-6. The District Court based this declara­
tion of unconstitutionality on a careful analysis of the 
specific provisions and operation of the Act, as well as 
their historical context, immediate objective and ultimate 
effect. It found the exclusion of Wilmington in the cir­
cumstances to be a suspect racial classification of the 
kind invalidated by this Court in Hunter v. Erickson, 
393 U.S. 385 (1969). After considering the purported 
justifications and the alternatives proposed and studied,



14

the Court concluded that defendants had not met their 
burden of jusifying the statute’s disparate treatment of 
racial problems. 393 F. Supp. at 438-446. The Court 
found:

Accordingly, the language of the Act excluding 
Wilmington from consideration by the State Board 
for reorganization violates the Equal Protection 
Clause . . . [T]he reorganization provisions played a 
significant part in maintaining the racial identifia- 
bility of Wilmington and the suburban New Castle 
County school districts.

393 F. Supp. at 445-6.9 This inter-district school district

9 Given the prior history and continuing inter-district segregation 
and the outstanding 1961 court order to reorganize school districts 
state-wide to eliminate all vestiges of the historic dual system, the 
District Court’s evaluation of the 1968 Act and reorganization may 
be viewed as pursuant to Wright V. Council of the City of Emporia, 
407 U.S. 451 (1972) and United States v. Scotland Neck City Board 
of Education, 407 U.S. 484 (1972). See 379 F. Supp. at 1225 
et. seq. (separate opinion of Circuit Judge Gibbons); 393 F. Supp. 
at 445; A. 53-54. Under this remedial test, although the District 
Court found no dominant racial motive in the General Assembly 
(393 F. Supp. at 445), the Court quite properly held that the Act 
and reorganization both perpetuated and cemented the prior and 
continuing inter-district violation. 393 F. Supp. at 445. However, 
the District Court also found the 1968 Act and reorganization to 
be an “ independent constitutional violation.” 393 F. Supp. at 438- 
446. In this context, it is clear that the Court’s statement that the 
provisions excluding the Wilmington District “were [not] purpose­
fully racially discriminatory” refers to the dominant, subjective 
motivation of the General Assembly and individual legislators and 
not to a lack of intentional segregative action. 393 F. Supp. at 439. 
Cf. Washington V. Davis, 426 U.S. 242 (1976); Village of Arlington 
Heights v. MHDC, 429 U.S. 252, 97 S. Ct. 555, 563-565 (1977) ; 
Dayton Board of Education V. Brinkman, 45 U.S.L.W. 4910 (27 June 
1977). The District Court examined the proffered nonracial reasons 
for Wilmington’s exclusion (393 F. Supp. at 439), but found them 
unpersuasive, noting that the legislature fully appreciated the inter- 
district segregative effects of its action. 393 F. Supp. at 439. In 
the totality of the circumstances, the Court found that the Act 
amounted to “ unjustified” or “ invidious” racial discrimination. 393 
F. Supp. at 445-46 and n. 36. Cf. Reitman V. Mulkey, 387 U.S.



15

boundary violation affected all of New Castle County and 
implicated every New Castle County school district in the 
continuing inter-district segregation.

Based on the application of Milliken legal standards to 
the weight of the record evidence, the District Court 
found a substantial inter-district segregation violation 
significantly contributing to marked racial disparity be­
tween Wilmington and suburban New Castle County 
school districts. 393 F. Supp. at 438, 445.

D. The Scope of the Interim Remedy Ordered by the 
District Court and Affirmed by the Court of Appeals

1. In its interim remedy ruling, the District Court 
began by analyzing the legal standards in Milliken and 
Swann that establish the proper scope for the exercise of 
equitable discretion to order a remedy for the inter­
district segregation previously found. A. 50-6. In par­
ticular the District Court, in adhering scrupulously to the 
teachings of Milliken and Swann, held that the nature and 
extent of the inter-district violation determine the proper 
scope of any inter-district remedy (A. 51) ; that an inter­
district violation must be substantial, not de minimis, and 
proximately related to the present disparity in enrollment 
patterns to require an inter-district remedy (A. 51-2) ; 
and that the relief ordered must place the victims of the 
violation in substantially the position they would have 
occupied in the absence of the violation by insuring that 
a racially non-discriminatory system of schools replaces 
the basically dual system. A. 55. The Court of Appeals 
confirmed that these were the appropriate constraints in 
fashioning a remedy, restating them (A. 15-17) and add­

369, 373 (1967). (In later evaluating the Act and reorganization 
under the “purpose” language of 20 U.S.C. 1715 and 1756, the Court 
held that it had found the requisite racially discriminatory purpose. 
A. 94-6.)



16

ing for emphasis that “ [t]he remedy for a constitutional 
violation may not be designed to eliminate arguably un­
desirable states of affairs caused by purely private con­
duct {de facto segregation) or by state conduct which 
has in it no element of racial discrimination.” A. 17.

2. Having provided the defendants with another op­
portunity during the remedial proceedings to demon­
strate that the impact of the inter-district violation was 
limited, the District Court weighed the evidence and again 
found that the inter-district violation “had a substantial, 
not a de minimis effect on the enrollment patterns of the 
separate districts.” (A. 52). The District Court did not 
deem it appropriate at that stage of the proceedings to 
seek to delineate remedy on a school-by-school basis. 
Rather, it sought to identify the geographical area within 
which a desegregation remedy would be required. Hav­
ing found that the racially discriminatory acts of the State 
and its subdivisions were “ a substantial and proximate 
cause of the existing disparity in racial enrollments in 
northern New Castle County” 1,0 (A. 52-3), the Court re­
jected all plans limiting the remedy to the confines of 
Wilmington on grounds that they fell far short of remedy­
ing the violations previously found. A. 58-60. While 
affirming that all districts in northern New Castle County 
were implicated in the violation, the District Court in 
exercise of its equitable discretion limited the districts 
to be included in further desegregation planning only to 
those necessary for continuing and effective relief from 
the violation. A. 78-82.10 11

10 The Court focussed primarily on the northern New Castle 
County area which comprises 251 square miles with twelve school 
districts (reorganized in 1968 from nineteen) and 80,678 public 
school students, 19.4 percent of whom are black. Wilmington 
schools are 84.7 percent black, while ten of the eleven suburban 
school districts are more than 90 percent white A. 45-6 and n. 9.

11 This resulted in the exclusion of the one school district (Appo- 
qunimink) most distant from Wilmington because, inter alia, its



17

While refraining from taking a school-by-school ap­
proach, the District Court did deem it appropriate to offer 
a guide to the desegregation planners. Based on its 
reading of Swann, the Court stated that it would consider 
any school whose enrollments in each grade ranged be­
tween 10 and 35 percent black to be a prima facie desegre­
gated school. A. 84. The Court made it clear that this was 
intended as a flexible starting point, a guide not a quota. 
Newark, for example, was left free to retain one-race 
schools not only by demonstrating that the Swann feasi­
bility standards limited desegregation, but also by show­
ing that “ the existence of one-race schools is not due to 
the maintenance of a dual system.” A. 82. The Court 
of Appeals, however, refused to embrace the 10-35 per­
cent enrollment range because of its view that this flexi­
ble range might be interpreted as a fixed requirement. 
A. 18-19.

Accordingly, the Court of Appeals, applying the re­
medial standard that “the school system and its students 
are to be returned, as nearly as possible to the position 
they would have been but for the constitutional violations 
that have been found” (A. 16-17), affirmed the District 
Court’s finding of a violation with area-wide impact call­
ing for an area-wide remedy. But the Court of Appeals 
opinion does not rule out an ultimate desegregation plan 
which leaves some facilities as one-race schools if it has 
been demonstrated that this was the distribution that 
would have existed even in the absence of any constitu­

inclusion would not have any impact on the overall effectiveness 
of any inter-district plan and its schools already were substantially 
integrated relative to the areawide racial composition. A. 79. 
Newark, the other district as to which there was substantial dis­
pute among the parties, was included because, inter alia “ consti­
tutional violations existed at the State level, and . . . the effects 
of the pre-Brown segregation to which Newark was a party have 
not yet been dissipated.” A. 80.



18

tional violation. See Dayton Board of Education v. Brink- 
man, No. 76-539, 45 L.W. 4910, 4914 (27 June 1977).12

3. In examining various inter-district plans that had 
been submitted by the parties, the District Court found 
the use of voluntary transfer plans “ as the sole means of 
system-wide desegregation . . . decidedly unpromising.” 
A. 64. While noting that “ cluster or center plans” pro­
posing mandatory reassignment between the existing 
Wilmington and New Castle school districts would be 
manageable and provide an effective remedy, the District 
Court found that the assignment of pupils across district 
lines would be difficult to administer and might require 
continuing judicial supervision to resolve disputes. A. 67. 
Seeking to follow a course that would require the least 
judicial intervention, the Court, in exercise of its equitable 
discretion, declined to order “ cluster and center plans.” 
A. 68.

12 Defendants, however, failed in the violation and remedy hear­
ings to adduce persuasive evidence that the existing racial disparity 
in enrollments between northern New Castle County school districts 
resulted from factors other than the constitutional violation found; 
their evidence failed to counter persuasive evidence offered by 
plaintiffs to the contrary. Most recently, on July 14, as the District 
Court has reported, the State took the position that “ it is not 
‘feasible’ to determine what the affected school districts and school 
populations would be today ‘but for’ the constitutional violation 
found by the Three-Judge Court and affirmed on appeal.” Evans V.
Buchanan, ---- - F. Supp. ------ - (D. Del. Aug. 5, 1977) (C.A. No.
1816-1822), Mimeo op. at 14. Whatever its utility in other situa­
tions, this representation by defendants in a case where a substan­
tial de jure violation has been determined hardly serves to meet 
their burden of proving that the segregation remaining in the 
area was not similarly caused. Keyes V. School District No. 1, 
412 U.S. 189, 208-209. This final default by defendants provides 
further justification for a conclusion that the segregative effects of 
the violation on the racial distribution in northern New Castle 
County are total and pervasive, requiring desegregation of every 
school in the area except where Swann feasibility limitations in­
trude. See Dayton Board of Education V. Brinkman, at 4914. No 
plan of student reassignment, however, is before this Court.



19

With respect to the various proposals to redistrict or to 
consolidate New Castle County districts,13 the District 
Court held that “the power of the Court to order a re­
organization would not appear to be in doubt,” given the 
nature and extent of the inter-district violation, particu­
larly in view of the unconstitutional reorganization in 
1968 which resulted in the very school districts before 
the Court as parties. A. 71-72. While redistricting pro­
posals could be implemented pursuant to existing state 
law provisions, the District Court was concerned about 
the lack of State Board criteria for determining how to 
redistrict and the lack of any final decision by the Board 
on how to accomplish the task A. 73. Accordingly, the 
District Court determined that any redistricting “ ought to 
be dealt with explicitly by State officials” (A. 73):

“ Absent such criteria, we feel that the more proper 
course is to create a situation which will not freeze 
the district lines by court order, but will create a 
framework within which the State can make a 
future determination of proper districts for the area, 
while insuring that actual desegregation will take 
place [in the interim]. A. 73. See also A. 77-78.

4. The District Court, therefore, set up a procedure 
which would give state officials the first oportunity to 
develop an effective reorganization plan. The Court made 
no “ final determination of the organization of the area 
and of the lines to be followed in setting up such an 
area . . . ” A. 74. Citing Milliken, 418 U.S. at 741-742 and 
Hills v. Gautreaux, 425 U.S. 284 (1976), the Court noted 
that “ [s]uch decisions are far better left to legislators 
and the process of compromise than to the rigors of 
judicial determination. 418 U.S. at 744.”  A. 75. It added 
that “ [d] eterminations of methods of governance, and

13 For example the State Board proposed a redistricting plan 
creating five new districts, each with one or more of the existing 
districts and one-fifth of Wilmington. A. 69.



20

the day-to-day operations of the schools will be left in the 
hands of appropriate local officials. This Court should 
have no need to interfere in those decisions, unless they 
violate federal law or constitutional provisions.” A. 75.

However, to avoid a stalemate and to insure the elimina­
tion of the inter-district segregation found, the District 
Court provided for an interim consolidation and interim 
board drawn from the local districts to begin planning and 
to insure implementation should the State fail to take 
prompt and effective action. A. 74, 85. To allow time for 
State officials to act with regard to the organizational 
structure and for the interim board to plan for necessary 
pupil reassignments, the Court stayed portions of its 
judgment until September, 1977. A. 97-8. If the State 
had not acted by that time under the decree the standby 
procedure already underway establishing an interim con­
solidated Board was to become fully effective. A. 74-5, 
77-8, 85, 87. The Court reiterated that this “ reorgani­
zation . . .  is effective only in the absence of proper State 
action to change it.” A. 75. In its general affirmance of 
the remedial framework, the Court of Appeals declared 
“ [w]e specifically affirm this governance plan and em­
phasize that prompt compliance by the State make action 
by the interim board unnecessary.” A. 19.“  14

14 The Court of Appeals ruling and mandate, entered by the 
District Court on May 19, 1977, directed that the State Board (or 
other appropriate State authority) file with the District Court 
“within sixty days [of May 18, 1977] a formal report of its efforts 
to carry out the mandate of the District Court.” A. 21. In an 
opinion issued on August 5, 1977, the District Court noted that the 
State Board report, submitted on July 14, “disclosed that the only 
concrete measure which had been taken since entry of the Three- 
Judge Court remedy order was passage of legislation authorizing 
majority to minority voluntary transfers,”  which would permit 
black students from the Wilmington and DeLa Warr Districts to 
enroll in other districts and white students in the other districts
to transfer to Wilmington or DeLa Warr. Evans V. Buchanan,------
F. Supp. ------  (D. Del. Aug. 5, 1977) (C.A. No. 1816-1822) Mimeo
op. at 9.

[Footnote continued on page 21]



21

5. Finally, the District Court evaluated its proposed 
remedial framework under the provisions of the Equal 
Educational Opportunity Act of 1974, 20 U.S.C. 1701, et 
seq. The District Court “ complied fully with the statu­
tory requirements applicable here.” A. 94. Of particular 
relevance, the Court held that its prior finding on inter­
district violations, including the 1968 Act and reorgani­
zation, were findings of the racially discriminatory pur­
pose and inter-district effect contemplated under 20 U.S.C. 
1715 and 1756. A. 96.

REASONS WHY THE WRIT SHOULD BE DENIED

Petitioners’ attempt to reshape the facts and holdings 
of this case to fit those of cases in which lower courts 
failed to apply proper legal standards does not withstand 
scrutiny of the opinions below. The holdings below dealing 
both with the nature of the violation and with the appro­
priate standards for framing a remedy are in accord with 
applicable decisions of this Court and are a manifestly 
correct application of those decisions. In this case the 
Three-Judge Court made the detailed factual inquiry and 
by specific fact findings traced the history of the inter- 14

14 [Continued]
The District Court found this action a totally ineffective remedy 

as only a small portion of the black students and almost no white 
students had exercised this option. The Court further found the 
State Board’s additional proposal of “ reverse voluntarism” , under 
which all Wilmington black students would be assigned to suburban 
districts in northern New Castle County with the absolute right to 
remain in or return to black schools in Wilmington, to be proced- 
urally flawed, substantively ineffective and racially inequitable. 
Having found the State Board in default, the District Court viewed 
its responsibility under the Third Circuit mandate as requiring 
the State Board to appoint a five-member New Board charged 
with the duty of planning and implementing a single-district remedy. 
In doing so, however, the District Court stayed the requirement 
that desegregation at the high school level begin in September, 1977, 
pending this Court’s disposition of the present Petitions for Cer­
tiorari.



22

district violation and the extent of its effects. Applying 
proper legal standards, the Three-Judge Court then pro­
vided for a remedy limited to the scope of the violation 
and that would intrude on legitimate State and local au­
thority as little as possible. The Court of Appeals care­
fully reviewed these findings and the record evidence in 
light of the applicable legal standards, rather than sub­
stituting its judgment for that of the District Court, and 
affirmed with modifications the Interim Remedy Ruling. 
Accordingly, the Third Circuit’s judgment presents no 
new or important issue worthy of review.

1. Violation. The Petitioners’ attack on the 1975 viola­
tion holdings of the District Court consists of two well- 
rehearsed claims. The first is that the District Court’s 
findings of “ significant governmental involvement in inter­
district discrimination” (393 F. Supp. at 447) were not 
supported by a showing of racial intent. (State Bd. Pet., 
p. 15). The second is that the Court’s finding that the 
Educational Advancement Act of 1968 and reorganization 
unconstitutionally excluded Wilmington contained a spe­
cific negation of discriminatory intent. (State Bd. Pet., 
p. 15).

a. In the Statement, supra, pp. 10-15, we have sum­
marized the detailed nature of the District Court’s 
findings concerning each of these assertions. The holding 
of significant governmental involvement in inter-district 
discrimination was not simply conclusory, but was based 
on a series of specific findings concerning public acts of 
deliberate discrimination. Statement, pp. 10-15. These 
acts clearly meet the standards of racial purpose estab­
lished by this Court in Keyes v. School District No. 1, 
and reaffirmed in Washington v. Davis, Village of Ar­
lington Heights V. MHDC, and Dayton Board of Educa­
tion v. Brinkman. Unlike the racial imbalance and recis- 
sion of a voluntary plan findings in Dayton, the govern­
mental practices found by the District Court here were



23

not arguably racially neutral or the results adventitious. 
The District Court also recognized that under Milliken 
findings of purposeful segregation alone would not be 
sufficient to sustain an inter-district remedy absent proof 
of inter-district eifect. Applying Milliken standards to 
determine the inter-district impact of the violation, the 
Court found these acts a proximate cause of the existing 
disparity in enrollments between Wilmington and sub­
urban New Castle County school districts, 393 F. Supp. 
at 438.

After carefully assessing the evidence, the District Court 
found that the deliberate acts of discrimination of govern­
ment officials, wholly apart from the Educational Ad­
vancement Act of 1968 and reorganization, met the 
standards for an inter-district violation set down in Mil­
liken in that (1) the discriminatory acts of school of­
ficials in Wilmington were a constitutional violation that 
produced a significant segregative effect in other districts 
(418 U.S. at 745) ; and (2) the purposeful racially dis­
criminatory use of State housing laws had contributed 
to the separation of the races in schools throughout 
northern New Castle County (418 U.S. at 755, Stewart, 
J., concurring). The District Court also determined 
pursuant to Milliken (418 U.S. at 744-745) that these 
and other acts, regardless of purpose, served to perpetuate 
rather than to dismantle the historic arrangement for 
inter-district segregation.15

15 These finding's are to be sharply distinguished from those of 
lower courts in Detroit and Eichmond where there were no findings 
of inter-district violations significantly affecting the racial composi­
tion of schools in either metropolitan area. In Detroit, the lower 
court findings focussed only on violations and effects within the 
Detroit School District. Milliken V. Bradley, 418 U.S. at 744-51. 
In Eichmond, racially discriminatory acts were not found to have 
contributed to the disparity in pupil enrollments between the 
historically separate Eichmond, Henrico and Chesterfield school 
districts. Bradley v. School Board of City of Richmond, Virginia, 
462 F.2d 1058, 1065-66 (1972).



24

b. Petitioners’ other claim as to violation is their re­
newed assault upon the District Court’s holding that the 
1968 Act and reorganization unconstitutionally excluded 
Wilmington from consolidation. This claim, of course, 
was necessarily disposed of in this Court’s summary af­
firmance of the Three-Judge court opinion holding the 
Act unconstitutional.16 While this Court is always free 
to reexamine its prior judgments, it will do so only in 
unusual circumstances. See, e.g., Insurance Group v. 
Denver and Rio Grande Western R. Co., 329 U.S. 607, 
611-612 (1946). The Petitioners’ well-rehearsed conten­
tion that the District Court’s holding of unconstitution­
ality was defective for a lack of finding of racially dis­
criminatory purpose presents no such circumstances be­
cause the contention lacks merit.

First, given the District Court’s findings of an his­
toric arrangement for inter-district segregation, a fail­
ure to eliminate the vestiges of the State system for im­
posing segregation and the continuing acts of discrimina­
tion in the two decades after Brown, the remedial stand­
ard of the Emporia and Scotland Neck cases are ap­
plicable. The issue was whether the 1968 Act and re­
organization maintained or effectively dismantled the 
prior and continuing inter-district segregation in New 
Castle County. See, 407 U.S. at 451, 460; 407 U.S. at 
489-490. In such circumstances, there was “no need to 
find [the 1968 Act] an independent constitutional viola­

16 Whatever the precedential meaning of such a. summary affirm­
ance for future cases (see, Edelman v. Jordan, 415 U.S. 651, 670- 
671 (1974), it is a decision on the merits dispositive of the inter- 
district liability issue in this, the same case. Hicks v. Miranda, 422 
U.S. 332, 344 (1975). Even if the scope of prior review was limited 
to whether the interlocutory relief ordered was an abuse of discre­
tion, the summary affirmance is still properly regarded as dispositive 
since it would have been a clear abuse of discretion for the District 
Court to order planning for inter-district desegregation if there 
were not a substantial inter-district violation.



25

tion.”  Washington V. Davis, 426 U.S. 229, 243, quoting 
from Emporia, 407 U.S. at 459.

Second, as set forth in the Statement, supra, pp. 13-14, 
the District Court found the 1968 Act and reorganiza­
tion an independent constitutional violation after a care­
ful analysis of “the totality of the relevant facts.” Wash­
ington v. Davis, 426 U.S. at 229, 242. The District Court 
“quite properly undertook to examine the constitutionality 
of the [Act] in terms of its ‘immediate objective’ and its 
‘historical’ context and the conditions existing prior to 
its enactment.” Reitman v. Mulkey, 387 U.S. 369, 373 
(1967). See, Village of Arlington Heights v. MHDC, 97 
S. Ct. 555, 564-5. Having conducted this examination 
the Court found that the Act was a “racial classification” 
of the kind invalidated by this Court in Hunter v. Erick­
son, 393 U.S. 385, in that it treated racial problems 
differently from related governmental interests.17 Cf. 
Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970), aff’d, 
402 U.S. 935 (1971). It thus found that plaintiffs had 
made out a prima facie case of unconstitutional racial 
discrimination, not just disproportionate racial “ impact” . 
The District Court therefore shifted “ the burden of proof” 
to the defendants to justify the 1968 Act and reorganiza­
tion. Id. The District Court’s finding that on balance 
the justifications proffered by Appellants were insufficient

17 The Education Advancement Act reorganized Wilmington along 
its existing lines and singled it out for exclusion from consideration 
at a time when: (a) the dual system within Wilmington’s borders 
had not yet been fully dismantled; (b) the Wilmington system, 
which contained nearly half the black children in the State had 
become identifiably black especially in contrast with surrounding 
suburban New Castle County districts; (c) racially discriminatory 
State policies had excluded black people from suburban New Castle 
County and contributed to the development of identifiably white 
schools; and (d) the effects of the historic inter-district system of 
segregation between Wilmington and suburban New Castle County 
school districts persisted. All of this was part of the “historical 
context and the conditions existing prior to enactment.”



26

to rebut the prima facie case and that portions, of the 
1968 Act and reorganization amounted to “ invidious dis­
crimination” (393 F. Supp. at 446 n. 36) was squarely 
the result of the “ sensitive inquiry” called for by Arling­
ton Heights to determine whether “ invidious discrimina­
tory purpose was a motivating factor.” 97 S. Ct. at 
564.18 See also Castaneda V. Partida, 45 L.W. 4302 (23 
March 1977). Thus, it is manifest that the District 
Court’s analysis and judgment of the 1968 Act and re­
organization were not based or “trigger [ed] ”  “ solely” on 
“ racially disproportionate impact,” Washington v. Davis,

18 While the District Court used the phrase “ invidious dis­
crimination” rather than “ racially discriminatory purpose” , this 
semantic distinction is of no moment. Nor is it of moment that 
the District Court stated that it could not conclude “that the pro­
visions excluding the Wilmington District from school reorganiza­
tion were purposefully racially discriminatory.”  393 F. Supp. at 439. 
In making this statement, the District Court was referring to 
the dominant “ subjective intent of the decisionmaker,” Washington 
V. Davis, 426 U.S. 229, 252 (Stevens, J., concurring), Dayton 
Board of Education, 45 U.S.L.W. at 4910, 4915 (Stevens, J., con­
curring), and not a “purpose” or “ intent” of the 1968 Act and 
reorganization in the Washington or Keyes sense. The District 
Court made clear that its judgment on the 1968 Act and reorgani­
zation included a finding of racially discriminatory or segregative 
“purpose” or “ intent” in this sense when applying the provisions 
of 20 U.S.C. 1715 and 1756 to the case. A. 96. Statement, supra 
note 9. As with many State actions, the purposes of the 1968 
Act and reorganization were diverse; here, however, one of the 
purposes was racial discrimination, “maintaining the racial identi- 
fiability of Wilmington and the suburban New Castle County school 
districts.”  393 F. Supp. at 495. Compare, Keyes, V. School District 
No. 1 , 413 U.S. 189, 210-214, where this Court noted that a State 
action “to . . . maintain” segregated schooling is de jure if  “ segre­
gative intent” is “ among the factors” that motivated the action in 
question. See, also, Arlington Heights, where this Court said that 
“ [rjarely can it be said that a legislature or administrative body 
operating under a broad mandate made a decision motivated solely 
by a single concern or even that a particular purpose was the 
‘dominant’ or ‘primary’ one” , and, quoting McGinnis v. Royster, 
410 U.S. 263, 276-277 (1973), “ [1]egislation is often multi-purposed; 
the removal of even a ‘subordinate’ purpose may shift altogether 
the consensus of legislative judgment supporting the statute.”



27

426 U.S. 229, 239-242. To the contrary, they adhered 
to the substance of this Court’s subsequent opinions in 
Washington and Arlington Heights.

Accordingly, the District Court had ample basis for 
concluding that a further standard for establishing an 
inter-district violation set down in Milliken had been 
met, i.e., that district lines had been drawn to frustrate 
the “process of dismantling a dual school system” , 418 
U.S. at 744, “deliberately . . .  on the basis of race” , 418 
U.S. at 745, and so as to contribute to the separation of 
the races by drawing or redrawing school district lines” , 
418 U.S. at 755 (Stewart, J., concurring). See State­
ment, supra, pp. 13-15.

In sum, the District Court’s findings with respect to 
violation fully accord with the standards of racial pur­
pose or intent set down by this Court in Keyes, Wash­
ington, Arlington Heights and Dayton and with the stand­
ards for determining inter-district violations set down in 
Milliken.

2. Remedy. The petitioners’ attack on the remedial 
framework adopted by the District Court and affirmed 
with modifications by the Court of Appeals, while posed 
in the most amorphous terms (see e.g., State Pet. pp. 16- 
18), appears to be an assault on the lower courts’ delinea­
tion of the geographic area in which the remedy was to 
take place and upon the framework for governance. In 
both instances, the petitioners’ claims lack merit.

a. The District Court, having found a substantial 
inter-district violation significantly contributing to the 
existing racial disparity between Wilmington and subur­
ban New Castle County school districts (393 F. Supp. 
at 438, 445), then properly invited the parties to submit 
desegregation alternatives and evidence and arguments 
in support of any plan limiting the extent and geo­
graphical scope of an appropriate remedy. See State­



28

ment, supra, p. 16. Although under the principles of 
Keyes, 413 TJ.S. 189, 208-209, and Sivann, 402 TJ.S. at 
26, the burden clearly rested with the defendants to 
justify the exclusion of any segregated area of northern 
New Castle County as not being the product of segrega­
tive intent or the reciprocal effect of the deliberate viola­
tion already established, the defendants again failed to 
sustain their burden in view of the weight of the record 
evidence. See Statement, supra, pp. 16-18. The District 
Court had ample basis to conclude as it did that the 
racially discriminatory acts of the State and its subdi­
visions were “ a substantial and proximate cause of the 
existing disparity in racial enrollments in northern New 
Castle County.” A. 52-3. Because of the area-wide im­
pact of the violation, the District Court, affirmed by the 
Court of Appeals, properly required an equally extensive 
area-wide remedy.19 See Dayton v. Board of Education, 
45 U.S.L.W. at 4914.

This delineation of the appropriate geographical area 
for remedy left open the issue of the precise plan for 
reassignment and on this question, the District Court pro­
posed as a guide, a broad, flexible “ starting point” ratio 
specifically modeled after that approved in Swann, 402 
TJ.S. at 24-26. The Court of Appeals, however, disap­
proved of this portion of the opinion. Statement, supra, 
p. 17. Accordingly, the Court of Appeals opinion makes 
it clear that the plan for pupil reassignment does not

19 The Newark School District apparently believes that the Court 
of Appeals, despite the limited scope of review, was under an obli­
gation to explain in its Opinion why the District Court findings 
with regard to Newark were not in error (Newark Pet., p. 3). 
But no basis is offered for the suggestion that the Court of Appeals, 
in affirming the principal finding of area-wide impact of the vio­
lation, did not consider all arguments relating to the subsidiary 
finding that Newark was properly included because “constitutional 
violations existed at the State level and . . . the effects of the pre- 
Brown segregation to which Newark was a party have not yet been 
dissipated.” A. 80.



29

require racial balance or an application to individual 
schools of a remedy which goes beyond the scope of the 
violation. See, Statement, pp. 17-18 and footnote 12. 
See, also, Keyes v. School Board, No-. 1 of Denver, 413 
U.S. 189; Swann v. Charlotte-Mecklenburg School Board, 
402 U.S. 1; and Dayton Board of Education v. Brinkman, 
45 U.S.L.W. 4910, 4914.

b. As to the organizational structure of the remedy, 
the District Court considered three differing approaches 
presented in the plans: inter-district transfers utilizing 
existing districts, redistricting and redrawing boundary 
lines, and consolidation. See Statement, supra, pp. 18-19. 
The District Court’s decision to provide a framework for 
consolidation came only after a careful evaluation of the 
burdens and inconveniences of each alternative. See State­
ment, supra, pp. 18-19. Guided by this Court’s admonitions 
in Milliken to avoid as far as possible judicial entangle­
ment in policy-making or the day-to-day administrative 
responsibilities of school authorities, 418 U.S. at 744, the 
District Court found that to prescribe redistricting or 
inter-district transfers would require the Court either to 
make difficult policy judgments (A. 73, 77-8) or to re­
solve day-to-day administrative disputes between school 
districts (A. 66-8). In contrast, in providing a frame­
work for consolidation (pursuant to existing State law 
provisions as far as possible and subject to such reorgani­
zation and restructuring as the State may enact), the 
District Court need not intervene further in the operation 
of the schools. A. 75.

Thus, the District Court chose as a standby, the orga­
nizational structure requiring the least judicial inter­
vention, invited the State to substitute its own organiza­
tional structure (A. 75) and delayed and staggered imple­
mentation over a two-year period to give the State time 
to act and to permit cooperation and effective planning 
by all concerned. In its specific affirmance of this gov­



30

ernance framework, the Court of Appeals emphasized 
that prompt compliance by the State would make action 
by the interim board unnecessary (A. 19) and provided 
the State with yet another opportunity to shape the 
organizational structure by vesting it with responsibility 
to appoint a new board even after default. A. 21.

Petitioners nowhere specify in what respect this care­
ful deference to State authority runs afoul of principles 
declared by this Court in Milliken or other cases, and it 
is difficult to imagine how the courts below could have 
proceeded more scrupulously to afford the State Board 
the widest scope for fulfilling its “duty to prescribe ap­
propriate remedies.”  Milliken at 744.

*  *  *  *

In sum Petitioners have failed totally to demonstrate 
any departure by the courts below from this Court’s stand­
ards for determining violations and the appropriate scope 
of remedy. To the contrary, the opinions below reveal 
scrupulous attention to the standards of this Court and 
careful findings of fact after extensive evidentiary hear­
ings on each relevant issue. Nor do the Petitions demon­
strate any novel issue of law or conflict among the Cir­
cuits. Rather, Petitioners’ requests for certiorari appear 
to be predicated on the notion that a new decision by this 
Court standing by itself is a sufficient reason for invoking 
full review of all lower court school desegregation deci­
sions, for reexamining issues previously decided, and for 
substituting the judgment of this Court for that of the 
lower courts. Such a proposition is without any basis. If 
embraced in a case such as this where remedy has been 
so long delayed, far from promoting the orderly adminis­
tration of justice, it would serve to undermine the consti­
tutional entitlement of black children under Alexander v. 
Holmes County Board of Education, 396 U.S. 19 (1969) 
and Carter V. West Feliciana Parish School Board; 396 
U.S. 226; 290 (1969) to timely relief.



31

CONCLUSION

Wherefore, for the foregoing reasons, the Petition for a 
Writ of Certiorari should be denied forthwith.

Respectfully submitted,

Louis L. Redding 
1200 Farmers Bank Building 
Wilmington, Delaware 19801

Irving Morris
Joseph A. Rosenthal 

Morris & Rosenthal 
301 Market Tower Building 
Wilmington, Delaware 19899

Richard A llen Paul 
Paul & Lukoff 
1700 Wilmington Tower 
Wilmington, Delaware 19801

Louis R. Lucas 
Ratner, Sugarmon, Lucas, 

Salky & Henderson 
525 Commerce Title Building 
Memphis, Tennessee 38101

Paul Dimond 
O’Brien, Moran & Dimond 
210 East Huron Street 
Ann Harbor, Michigan 48108

W illiam L. Taylor 
Catholic University Law School 
Washington, D.C. 20064

Counsel for Respondents