Coalition to Save Our Children v. State Board of Education

N.J., Roppe Inc. chael Halebian v. Rubber IV. (un- (D.N.J.1989) Corp., reasons, For foregoing respectfully I § 2-309, der U.C.C. refusal to continue to dissent.

supply goods in accordance with the terms of contract, an at-will contract terminates it).

not through breaches Termination con- may provide

duct not the reasonable notice

required by 12A:2-309(3), § but failure to

give reasonable notice does not mean the contract continues ad Rather the infinitum.

aggrieved party damages entitled to is aris- ing give from the failure reasonable notice. COALITION TO SAVE OUR Anderson, CHILDREN, Appellant, Ronald A. See Commer- Uniform (1982) (“When § cial Code 2-309:27 at 555 contract is terminable at time on notice STATE BOARD OF EDUCATION OF the notice, it without terminated the dam- DELAWARE; STATE OF Board of ages aggrieved party may which the recover Education the Christiana School limited those during sustained District; Board of Education period.”). notice Brandywine District; School Board case, pricing diverged Tuscan’s Education the Colonial School Dis trict; provision from the contractual Board of Education of the 1987 at the Red Clay District; School being latest. Delaware Ideal knew it was House charged a Representatives greater Committee on De amount than that by called for segregation. repeatedly contract complained. In re- sponse, Tuscan demonstrated —both No. 95-7452. by refusing pricing to change through its Appeals, United States specific Court comply statements-—-that it would not Third Circuit. with the 1985 Contract. Therefore the con- tract was terminated time. While Argued March Tuscan provide failed to Ideal with reason- July Decided termination, able notification of its consistent refusal to abide the terms of the contract terminated the contract. Agway v. Cf.

Ernst, (Maine 1978) (where 394 A.2d 774

buyer changes price was unaware of made seller, at-will contract was breached terminated). Ideal could have recovered

damages provide for Tuscan’s failure to rea- notification,

sonable it but filed suit after the

statute of had limitations run. I af- would

firm the entry summary district court’s

judgment on Ideal’s claim for breach of con-

tract.

III. implied

Because Ideal’s good covenant

faith and tortious interference with contract claim,

claims derive from its contract I would

grant summary judgment on those claims as

well.

755 Barr, (argued), D. David Boies

Thomas Goldstein, Forrest, Katherine B. Sandra C. Cravath, Moore, City, New York Swaine & (argued), Pace Thomas J. Henderson J. McConkie, Lawyers’ For Civil Committee Law, D.C., Rights Washington, Under Leon- Williams, DE, Wilmington, Appel- for ard L. lant. Dennis, Ronon, Stradley, L. Stevens

Andre PA, Mary Young, Philadelphia, B. Matter- & er, Ronon, Stradley, Young, Stevens & Wil- DE, City mington, for Amicus Curiae — Wilmington, DE. Ward, (argued), Andre Jr. G. Rodman Slate, Bouchard, Skadden, Meagher Arps, & Hindman, Flom, DE, Wilmington, B. John Justice, Dover, DE, Ap- Department of for pellee the State State Board Education of of DE. Grant, Pepper, Duncan Hamilton &

M. Scheetz, PA, D’Ange- Philadelphia, Alfred J. Folt, lo, Jr., Pepper, Hamilton & Daniel V. Scheetz, DE, Appellee for Red Wilmington, Clay School District. Consolidated Williams, Crowell, D. H. Barbara David Williams, Morris, James, & Wil- Hitchens DE, Brandywine, Appellees for mington, School Districts. Christiana and Colonial Shaw, Cooper (argued), J. Pitt- Charles D.C., man, Trowbridge, Washington, Potts & Representa- House of Appellee Delaware Desegregation. tives Committee NYGAARD, Before: SAROKIN ALDISERT, Judges. Circuit THE COURT OPINION OF TABLE CONTENTS OF I. Introduction.756 History .757 II. Procedural

756 Scope III. of Review. 758 Unitary IV. Status. 759 V. Green Factors. 761 Assignment A. Student . 761 766 Faculty B. Assignments.:. Staff C. Extracurricular Activities.'. 768 D. Remaining Green Factors.:. 769 Ancillary VI. Relief.... A. Training. In-service B. Reading and Communication Skills. C. Curriculum.'. Counseling D. and Guidance. E. Human Relations.:. F. Discipline.'.

VIL Areas of Concern to the District Court and Allocations of the Burden of Proof. VIII Conclusion. ALDISERT, Judge. Circuit tion”), representative the plaintiff of the class, appealed. has We will affirm. I. Introduction beyond dispute It is bigot- that racism and brings This case to a supervision close our ry continue to fragile tear at the social fabric of more than four litigation decades of de- of our communities, national and local and signed to desegregate public schools of that our best efforts as are needed to citizens Delaware. problem address this many at levels. How- ever, as However, the district court we do not observed in supervision end our hand, case at

hastily. court-supervised deseg- After the school Delaware schools’ rudi- regation alone mentary cannot attempts at eliminate racial desegregation dis- were crimination: by deemed insufficient court 1957, by 1960, years and [A]s this court in judges passed of this since I Brown circuit blazed jurisprudential new and II of Educ., [Brown v. Board trails in 347 U.S. by 483, requiring 686, 1975 (1954) 74 remedy. interdistrict S.Ct. 98 L.Ed. 873 and By 1978, 1977 of Educ., Brown v. judiciary 294, Board had fash- 349 U.S. 75 753, ioned detailed S.Ct. primary (1955)], orders for 99 and ancil- L.Ed. 1083 it has lary which, relief together apparent become with the desegre factors the school by gation set forth Supreme process Court in has Green v. been unable to elimi County Va., School Bd. nate or County, New Kent overcome racial discrimination in of 391 U.S. “myriad 88 S.Ct. 20 factors ‍​​​​​‌‌‌​​​‌‌‌​​​‌‌‌​‌‌‌‌​‌​​‌‌​​‌‌‌​​‌​​‌‌​‌​‌‌‍of L.Ed.2d 716 human existence” (1968), constituted marching outside the school orders for environment.... system. the school Coalition to Save Our Children v. State Bd. Del., Still, State 901 F.Supp. it was 823 years not until almost 20 .later of Educ. of of (1995) (and (quoting Swann v. years 35 Charlotte-Mecklen after this court announced Educ., burg 1, 22, Bd. 402 U.S. 91 dissatisfaction S.Ct. original with an plan that of 1267, 1279, (1971)). 28 L.Ed.2d 554 called for Or as grade-by-grade desegregation over succinctly the Court put init 12-year period) a Swann: “One that the district court could carry only vehicle can a limited amount announce that of marching orders had been baggage. It would not obeyed: important serve the system The school has achieved uni- objective of Brown I to seek to tary use school status complying good faith with desegregation purposes cases for beyond our desegregation detailed decrees and ” Swann, scope.... their 402 U.S. at eliminating 91 practicable to the extent the ves- S.Ct. at 1279. tiges jure of de segregation. This was the ruling of the district court embodied in light truth, a of this sobering it is all the judgment entered lengthy after a hearing. important more that we write the chap- final (“Coali- The Coalition to Save Our Children ter in long period supervision by compliance” toward full provisional and reasonable start release our federal courts and I and “to effectuate a transition and educators with Brown grip on the administrators nondiscriminatory system County, only in so racially a school Northern New Castle II, permit speed.” them to resume their ... with all deliberate Brown doing can we larger political social 75 S.Ct. full role 349 U.S. worthy of best make our nation effort to notwithstanding de jure Yet end length of the its members.1 The

ideals of City Wilmington segregation, the contin- one indication that follows but discussion many racially operate ued to identifiable sensitivity of the task importance Accordingly, the schools. fash- at hand. remedy to ioned an inter-district eliminate and, segregation faced History II. Procedural prolonged the state authorities’ adamant Historically, required public Delaware its discharge responsibilities, refusal their is- pupils segregated attend schools. sued a remedial decree 1978.3 Const, (1950) § 2 art. 10 and Rev.Code Del. assignment required 9-3 student Order ¶ However, land even before the 1935 2631. provided all plan, which students would mark in Brown v. Board Edu decision formerly predominantly attend “white” sub- cation, L.Ed. 347 U.S. S.Ct. urban school districts for maximum of nine (1954) (Brown I), the Delaware courts spend years years and would least three children ordered the admission black formerly “black” school districts. only by previously attended certain schools Gebhart, eight A.2d The 1978 Order also directed forms white children. Belton (Del.1952). 862,2 “necessary ancillary and essential to The Su relief A.2d aff'd vestige jure de ... overcome the effects of preme Belton with Brown Court consolidated (1) 686, affirmed, 483, including: 98 an in-service segregation,” I and 347 U.S. 74 S.Ct. (2) teachers; an 873, segregation training for affir- holding program L.Ed. that racial minority reading pro- and communication deprived the mative skills public school students (3) (4) offerings; a opportu gram; new curriculum group equal children of educational counseling nities, nondiscriminatory guidance Equal and in of the Protection violation (5) (6) I, 483, program; program; a human relations 347 74 S.Ct. Clause. See Brown U.S. (1954). 686, providing for again codes of conduct nondiscrimina- L.Ed. The Court 98 873 (7) tory reassignment of facul- discipline; in v. Belton v. Gebhart Brown affirmed (8) staff; 294, nondiscriminatory Education, ty and and Board 349 U.S. 75 S.Ct. (1955) (Brown II), 753, construction and maintenance guidelines re for 99 L.Ed. 1083 Buchanan, buildings. v. Evans 582 manding Supreme of Delaware of school to Court Cir.1978) (in banc). (3d 750, require prompt “a F.2d 770-774 proceedings for further history comprehensive litigation point, a of the of Learned 3.For 1. On this we are reminded Buchanan, thoughtful leading up v. Hand's words: to that decree see Evans (D.Del.1974). F.Supp. a 1220-21 Three I think I do know—that 379 [B]ut this much decision, society spirit is years that the of moderation so riven after that 1974 district court save; socieiy gone, a where no court can that in the status of Dela court reviewed banc affirmed, save; fluourishes, spirit modifications, no court need schools, ware and responsibility by society in evades its a which by the court. Ev ordered district remedies thrusting upon the courts the nature of (3d Buchanan, Cir. ans v. 555 F.2d 380-81 spirit perish. spirit, that in the end will (in ) 1977) (requiring state authorities to file banc Hand, Indepen- The Contributions Learned carry report of its efforts to out a "formal Civilization, Supreme Judiciary Court dent court,” modifying the but mandate of the district Bar Massachusetts of Massachusetts requirement on racial balance: strict numerical Aldisert, Assoc., Ruggero reprinted The Judi- in J. disapprove enroll expressly criterion, the 10-35% "We (2d Text, 147 cial ed.1996). Materials and Cases Process: specifically hold no and we ment school, required any in particular will be balance Seitz, opinion by classroom”). 2. That was authored Collins J. grade, or Chan- then the Delaware Court of Chancellor of cery currently Judge Circuit a Senior Judge of this Court. Chief Emeritus 758 later, permitted years upon

In the district court Four motion Dela- reorganize judicially-created state Board ware State of Education4 for a decla- four school district into the current dis- status,” “unitary ration of court Christiana, Brandywine, Colonial and concluded: tricts — Buchanan, Clay. F.Supp. 512 Evans v. Red good complied that the defendants have (D.Del.1981). doing, Judge In so 839 desegregation faith with the decrees issued that, notwithstanding Schwartz asserted litigation, in this that the defendants “problems may continued existence of unlikely segregative prac- to return to the jure vestige characterized as effects de predecessors, tices of their and that plan segregation, ... [the] four-district vestiges past discrimination been good respond viewed as faith effort to practicable. to the extent eliminated judicial repeated appropriate invitations for F.Supp. opin- at 823-824. authorities to with then- State come forward meaningful vexing prob- accompanying ion own solutions to the order set forth 308 However, (a) findings, compli- lems.” Id. at because factual which discussed: Judge [to have] Schwartz found the “effort ance with what have become known as Green (as short fallen of the mark in the critical area of originally suggested factors v. Green assignment,” days pupil Board, he deferred County School S.Ct. U.S. regarding order Board’s mo- (1968)) State 1689, 20 L.Ed.2d 716 as- —student desegregation tion for modification of the signment, faculty and staff assignment, encourage legis- decree order to “curative activities, transportation, extracurricular on the matter. lation” Id. at 872-74. (b) facilities; compliance ancillary with the provisions, relief endorsed this court sit- 1990, Judge specific Schwartz made banc, ting Buchanan, (Red see Evans v. Clay) that one of the districts (c) 769-74; achievement, F.2d at student comply good had failed to faith with the special rates, dropout education and which order. Coalition Our to Save Children Buchanan, labelled Con- “Areas of 587-93 (D.Del.1990). cern.” See at 818-22. Judge stated that Schwartz Appellant compliance prior conceded with two of segregation “the official (transportation the Green factors not] been eradicated and branch’ and facili- [had ‘root ties) ancillary Clay provisions from either the Red as a and one relief District whole (also facilities). concerning patterns.” from its assignment student Indeed, Judge Id. at 587. Schwartz found jurisdiction court The district had 28 under “replete record was ... with evi- (1988). § jurisdiction U.S.C. 1331 We have obfuscation, delay, of dence and recalcitrance (1988). pursuant § to 28 U.S.C. 1291 Appeal part Clay of the Red Board with 4(a), timely filed under Rule Federal respect remedying disparities” the racial Appellate Rules of Procedure. in that district. Id. at 592-93. 1991, that, Judge Schwartz stated not- Scope III. of Review withstanding Clay the Red District’s “techni- appeal orders,” presents The Coalition’s with compliance us cal with this court’s he questions again “very grave three fundamental concerning had consider- doubts first, Clay] ation: whether good compliance prop- Board’s the district court [Red faith erly spirit of concluded that the four desegregation,” with and thus school districts of finding Clay County could “not make a Northern New Castle that the Red achieved compliance unitary by operating complying good [was] District with status faith ” Equal desegregation Protection Clause.... Coalition decree and elimi- Educ., nating practicable vestiges to Save Our Children v. Bd. extent State to the of 328, (D.Del.1991). discrimination; second, 757 past 349-350 of whether moving 4. Although moving The defendants were the Board of Edu- lonial School Districts. not a ("State Board”), defendant, cation of the State of Representa- Delaware the Delaware House of Clay Desegregation Boards of the Red Education of tives Committee on was allowed (Consolidated), Brandywine, party Christiana Co- as a intervene defendant.

759 Dinan, tiary Krasnov v. 465 F.2d Appellant data.” properly allocated court district (3d Cir.1972). 1298, 1302 racial proving that certain the burden proxi- disparities performance in student plenary ques We have review all segregation; and mately jure to de related of law. This includes a district court’s tions third, properly court whether choice, interpretation application of the testimony expert proffered excluded certain Epstein to the Louis W. law historical facts. by Appellant.5 Family Partnership Corp., v. Kmart 13 F.3d (3d Cir.1994). 762, Accordingly, 765-66 this court from the appeal The plenary undertakes review the dis very a declaring unitary status tracks order trict allocation of the burdens of court’s compass. narrow Because proof. finding that the school districts Finally, we review the district court’s de- factual, review unitary status is our achieved admissibility of expert tes- termination clearly finding to the erro is limited timony for abuse of discretion. United Vaughns Bd. Vaughns by v. standard. neous 587, Theodoropoulos, v. 866 F.2d 590 States County, F.2d George’s 758 Educ. Prince Cir.1989). (3d of 983, (4th Cir.1985); v. 990 United States (5th 504, Agency, F.2d 506 Texas Educ. 647 Unitary Status IV. 1143, Cir.1981), denied, 102 454 U.S. cert. legal primary issue us is before (1982); 1002, Keyes v. 71 L.Ed.2d 295 S.Ct. County Northern New Castle whether the 1, Denver, Colo., F.2d No. 895

School Dist. districts havе fulfilled their affirmative school denied, (10th Cir.1990), 659, cert. sys duty to eliminate the former dual school 951, 112 L.Ed.2d 1040 111 S.Ct. U.S. brought end to be about tem. ultimate Branch, (1991); v. Du NAACP Jacksonville remedy unitary, “a desegregation is Board, 883 F.2d County val School system public education.” nonracial Cir.1989). (11th A of fact is n. 3 Green, at A at U.S. 88 S.Ct. “the only if the court has erroneous system unitary achieves this status school that a mistake definite and firm conviction longer it between when no discriminates has been committed.” United States race. id. children on the basis of See school Co., Gypsum 333 U.S. United States sys And school S.Ct. (1948). 525, 542, L.Ed. 746 S.Ct. among longer no discriminates tem Further, ap responsibility of an is “[i]t it affirma children on the basis race when accept the ultimate factual pellate court to tively has all of state- eliminated 435, 437-38, of the fact-finder unless determination imposed segregation. Id. at (1) (school completely either devoid board determination 1693-94 S.Ct. evidentiary support displaying duty to charged minimum with affirmative eliminate (2) branch”); no ra discrimination “root and credibility, or bears racial some hue of (“the Swann, 15, at 402 1275 relationship supportive to U.S. 91 S.Ct. the eviden- tional terms, County. the Appel- Castle 4. Whether Although phrased duplicative in Northern New in "1. six in their brief: placing lants enumerate issues in the of district court erred burden failing find erred in to Whether the district court proof prove that certain ves- on the Coalition to System has not the the School restored tiges segregation eliminated. 5. of have been posi- the victims the constitutional violation to of failing in to Whether district court erred the had they have been in the violative tion would requirements good apply appropriate legal the of occurred, failing and in to find conduct not compliance desegregation decrees. faith vestig- System the the has not eliminated School expert exclusion of the Coalition’s Whether the segregation. 2. Whether the district court es of testimony upon cross-examination rebuttal based failing legal apply erred in to the standard during produced first time and material for the programs insuf- that race neutral are establishes cross-examination, that would have undermined complied defendants-appellees to have ficient for de- methodology and of three of the conclusions obligations desegregate with their affirmative experts, fendants-appellees' whom the formerly jure segregated aspects all de making findings, was upon in its court relied system. district court erred 3. Whether the testimony should have altered error when such legal failing apply appropriate the standard in Appellant’s 2-3. trial.” Br. at vestiges segregation outcome of the of what determine objective today (7) remains to eliminate from nondiscriminatory discipline; the reas- public vestiges (8) all state-imposed staff; schools of signment faculty of nondis- task, segregation”). simply put, Thus our criminatory guidеlines for construction and to determine whether the district court clear buildings. maintenance of school Evans v. ly in vestiges erred of de Buchanan, 582 F.2d 769-74. Thus we will jure segregation have been eliminated survey compliance ancillary with these relief Christiana, Brandywine, Colonial and Red measures as well. Green, Clay 435, school districts. 391 U.S. at By considering both the Green factors and 1692-93; 88 S.Ct. at see also Missouri v. eight ancillary measures of relief ordered — Jenkins, -, -, U.S. by 1978, court in this we honor the mandate 2038, (1995). S.Ct. 132 L.Ed.2d 63 by Supreme set forth Court in Dowell A starting point identifying critical that a supervision school board under federal vestiges degree discrimination is the precise “is entitled to a rather statement of racial imbalance in the school districts. This obligations.” its Bd. Education Okla. fundamental, inquiry is because under the Schools, City Public Indep. School Dist. No. jure regime, former de racial exclusion was Dowell, County, Oklahoma Okl. v. both the policy means and the end of a 237, 246, 630, 636, U.S. 111 S.Ct. 112 L.Ed.2d of, by disparagement hostility motivated (1991) (citing City Pasadena Bd. of towards, the disfavored race. The Court’s Spangler, Educ. v. 427 U.S. 96 S.Ct. opinion squarely Green addressed (1976)). 49 L.Ed.2d Together, issue, noting pattern sepa “[t]he ancillary Green factors and the remedial re- ‘Negro’ rate “white’ and ... schools estab lief obligations, measures constitute these compulsion lished under pre of state laws is precisely inquiry and thus frame our as we cisely pattern segregation to which determine whether the district proper- I Brown and Brown II particularly were ly ordered the supervi- withdrawal of federal Green, addressed.” 391 U.S. at 88 S.Ct. sion. The inquiry recently essence of that However, at 1693. the Green Court also Supreme articulated Court: examining problem made clear that in whether the [constitutional violator] ha[s] schools, racial imbalance our we are to complied good faith with desegrega- just composition look “not to the of student entered, tion decree since it was ... every bodies but to opera facet of school past whether the discrimination staff, faculty, transportation, extracur tions— been practi- ha[ve] eliminated to the extent Id.; ricular activities and facilities.” see also cable. Swann, (the 402 U.S. at 91 S.Ct. at 1277 Pitts, 467, 492, 112 Freeman v. 503 U.S. S.Ct. “among Green factors are impor the most 1430, 1446, 118 (1992). L.Ed.2d 108 tant indicia segregated system.”) of a Be compliance cause with Green factors is a Given the Court’s recent assertion that precedent status, unitary condition we will supervision federal of local school districts “ survey each of those factors here. temporary ‘was intended as a measure to — discrimination,”’ remedy past Jenkins, Nevertheless, factors, the Green at -, U.S. 115 S.Ct. at (quoting Do imbalance, which address racial are not the well, 637), U.S. 111 S.Ct. at criteria which we are to evaluate phrase underscore that “to the extent whether the school districts have achieved practicablе” implies a reasonable limit on the unitary status. We must also consider the Indeed, duration of that supervision. federal eight programs “ancillary of remedial relief” supervision to extend federal court indefinite prescribed by this court in including: ly desirable, practicable, is neither prop nor (1) an training program in-service for teach er. (2) ers; reading affirmative and communi (3) program; cation skills keenly that, new curriculum We are long aware for as (4) offerings; nondiscriminatory a counseling imposed we have supervision federal on local (5) guidance and program; boards, a human relations school those bodies have suffered the (6) program; providing codes of conduct for defining loss of their function —control over mind, teachings present mat these we turn now With own schools. Thus their analysis the school ease. citizens of New Castle to the district ter the nearly 20 denied for have been districts as the

years what the Court has described V. The Green Factors autonomy tradition” of “local “vital national the The fundamental issue before district Freeman, 503 at districts.” U.S. of school desegregation was whether the mea- court 490, 112 Dayton (quoting Bd. at S.Ct. of taken the school districts had effec- sures Brinkman, 406, 410, 97 v. 433 U.S. Educ. tively practicable to the extent the eliminated (1977)). 2766, 2770, 53 L.Ed.2d 5.Ct. system. of former the dual school Additionally, appreciate the extended so we issue, addressing this the court In district that burdens continued cial economic began by scrutinizing various fac- educational impose generations of supervision would initially by the Court in tors identified Green: children and their families. innocent school staff, faculty, assignments, student facilities reality clear these burdens becomes of resources, transportation, and extra-cur- child who we consider a entered when Green, 435, 88 ricular activities. 391 U.S. at grade in one of Northern New Cas first the the at 1692-93. We address S.Ct. County under school districts tle of each of these factors old, court’s consideration years supervision now 26 federal court in turn. child his or possibly parent a with a of judicially-controlled same her own in the system.6

school Assignment A. Student autonomy local for the of Our concern original Because the crux constitu- systems consis and their members is legalized system of tional violation was the jurisprudence of tent with the established schools, remedy segregated traditional purpose our desegregation: a fundamental desegregate for the violation to system dual has mandate to eliminate the through reassignment. student Ac- schools encourage local school districts inde been cordingly, we ordered the consolidation provide high-quality educational pendently to urban suburban school districts. See students, a of af opportunities for all state Buchanan, at v. 582 F.2d 759 n. 5 Evans only unitary, possible made in “a nonra fairs Buchanan, (quoting Evans Green, system public cial education.” omitted)). (D.Del.1977)(footnotes 832, 838-39 at 1693. we U.S. 88 S.Ct. Were have Board and districts The State supervision to continue after allow federal requirements of our student adhered school districts com have order, attempted assignment but also mandate, desegregation plied with our we by consolidating maintain racial balance effectively preclude those school dis would districts, zones, and redrawing attendance sum, achieving goal. from we tricts instituting busing of thousands of stu- prospect of indefinite cannot reconcile dents. supervision of local school districts federal Indeed, hearing below on supervi after purpose the ultimate of that status, autonomous, unitary dis- for Appellees’ motion sion'—to foster creation in these According court the schools racially systems. trict found balanced school “among racially bal- the most ly, Supreme will attentive to the districts were remain in the United States.” Coali- su anced schools repeated instructions such Court’s tion, at 799. The court’s conclu- pervision “temporary” and “transitional.” — at -, See, Jenkins, support in the record from ample finds e.g., 115 S.Ct. sion U.S. desegregation expert 2049; Dowell, testimony of school 498 U.S. at 111 S.Ct. Using an “index Dr. Christine Rossell. 636-37. Indeed, Although alone could not every system these facts ‍​​​​​‌‌‌​​​‌‌‌​​​‌‌‌​‌‌‌‌​‌​​‌‌​​‌‌‌​​‌​​‌‌​‌​‌‌‍presently in the dence. student supervision every year justify the supervision removal federal been has under here, life, they genera- concerned serve two entire school districts of his or her school through eight potential the entrenchment grades illustrate the for from one tions students desegregation putatively scheme. superinten- transitional been federal court school under evidentiary dissimilarity,”7 compared pletely sup- Dr. Rossell the ra- devoid of minimum ”).8 cial balance in the four districts to a national port displaying credibility ... some hue districts, sample analyzing both of 76 similar Appellant does not contest in percentage of students schools with schools,9 among of racial balance but percentage and the certain variances argues segregation persists nonetheless schools themselves within certain variances. buildings, within in those classrooms and that, Dr. as measured Rossell observed programs. specifically, Appellant More con index, four against this Northern New over-represent tends that black students County school districts have achieved Castle classes, special ed in certain such as edu Further, perfect racial balance.” “close to cation, others, under-represented such analysis, Dr. the basis of her full Rossell gifted placement and advanced classes. much concluded that these districts “are less However, we are mindful that Milliken v. racially ... national [the] imbalanced than 717, 740-41, 3112, Bradley, 418 U.S. 94 S.Ct. 568; group.” comparison JA see also Coali- 3125, (1974), 41 L.Ed.2d 1069 the Court held tion, F.Supp. at 797. Because the dis- require that the Constitution “does not finding racial trict court’s balance' rests on school, particular grade racial balance in each analysis, thorough Dr. Rossell’s it is not or classroom.” Krasnov, See also Oliver Kalamazoo erroneous. See 465 F.2d Educ., (6th Cir.1980) (an Bd. 640 F.2d appellate “accept court must (rejecting system notion that ultimate factual determination of the fact- school is not unitary ... if finder unless determination is com- black students are over- under- Dissimilarity Clay 7. The Index of indicates how races b. Red instituted a new feeder pattern brought formerly in a distributed school district are across which all the schools. imba- “0,” representing perfect elementary The scale extends from ± lanced schools within the 10% balance, "1," representing complete minority racial ra- percentage. elementary figure represents actual opened cial imbalance. The school was in 1991 and fell outside the proportion School, who just year. of black students would have to variance for 1 bilingual The Lewis schools, reassigned assuming education, to white no still center for fell out- reassigned, whites were in order to achieve the ± side the variance in JA 10% 1993. 655. proportion schools, same in each school as in the district Clay c. Of the 5 Red middle Thus, example, Clay peaked as a whole. Red Conrad Middle School fell ± outside the 10% imbalance, with over a .2 ratio of racial while through variance from 1986 1990. The H.B. balance, Colonial had the best racial indicated duPont Middle ± School fell outside the 10% Dissimilarity its scant .05 Index of between 1983 through variance from 1984 JA 1990. 6504- Armor[,] and 1986. See JA 6199-6200 n. 3. expert,] OS. [Another Coalition Dr. attributes the increase in the Conrad Middle Stevens, 8. We note also that Dr. Leonard demographic School to the same shift that Coalition, expert called conceded that Baltz, i.e., large affected a sudden increase in schools, respect Brandy- to "traditional” minority population in that area. JA 655. wine, Christiana, complied and Colonial have reconfiguration pat- Since the of the feeder currently ± with the used, variance standard 10% terns both schools have been within building and have "attained enrollments ± variance. Id. 10% racially that are not ... [and] identifiable sus- Clay high d. 2 of the 4 Red schools have period tained them over a of time.” JA 1094. ± remained within the variance since 10% Dr. Stevens conceded as well that no federal 1981. JA 6506. adopted unitary ± court has standard in a 10% High e. The A.I. duPont School was below hearing, he status and that never has testified in ± variance from 1983 to with the 10% unitary hearing support status of such a exception of 1988. Id. 1099; standard. JA Wilmington High f. School has been within 799. ± variance ... since 1993. Id. 10% Although findings, argued Clay at 799. These Dr. Stevens that "Red (b), particularly Clay respond affirmatively indicate that the Red [district] has failed to ... orders,” respond affirmatively district has made efforts to to the court this assertion does desegregation comport to the court with the district mandates. court’s statements quoted part: here in relevant Clay elementary argument, Appellants a.3 Red schools fell out of 9.At oral conceded that the 1980’s, during demographic finding regarding balance due to district court’s racial balance (in changes Baltz) buildings “clearly the case of Richardson Park and within the district school presence bilingual right you forget and the edu- [i]f [Intensive ... about the program Learning Argument cation in the Lewis School. JA 654- Transcr. Oral Centers].”

763 courses). special to evaluations of education students various academic represented in Moreover, actually they regular made 19 determine when can return to concerning mandatory, of stu- findings the circumstances classes. Id. Placement is not classrooms, assignments junctures, conclud- parents em- dent because at several are throughout the ing that classroom balance powered reject the school’s recommenda- exemplary. 901 districts special in place tion their child education (measured against a national F.Supp. at 800 Moreover, note classes. JA 832-33. we in imbalance Northern sample, classroom Appellee State Board has created one-half County was New Castle one-third special numerous statewide education task schools). We these find- of other review forces; comprehensive five has authorized ings for clear error. education; relating to special studies investigated thoroughly has intervention First, findings although the district court’s strategies, mainstreaming the application special racial balance exclude of classroom 1223,1243. procedures. of selection JA classes,10 there no clear error. is education express- desegregation order we In our 1978 Appellees’ improve racial efforts to presently attending ly excepted “students these programs balance within not are may special ... in future attend and who commendable, Indeed, but in successful. facilities, such other education school districts, four imba- three of the racial presently special facilities as school similar Although might lances have declined.12 may hereafter established....” exist or hope expect this imbalance will —even —that (Evans Buchanan, F.Supp. JA fact disappear,13 soon the mere that black (D.Del. 1978)). The ratio- Jan. over-represented special in students remain compel- exception for this is obvious and nale clearly education classes does not make erro- not ling: white —should students —black finding unitary neous the district court’s (ie., special edu- be mainstreamed denied Reschly, in status. Given Dr. summariz- learning special cation meant to address analysis, ing comprehensive his concluded problems) merely to effect racial needs “special edu- in thеse districts balance. separate cation not used a means to is unpersuasive asserting in Appellant is also race,” Coalition, students placed special in education that students are 821; accept the find- JA we will court’s (such learning programs as “intensive cen- Krasnov, ing F.2d at on this issue. See ters”) simply they Al- because are black. (standard review). per- in four though each of the districts Similarly, Appellant argues that the dis- centage special education black students regard trict to class- percentage of blacks in programs exceeds the assignment erroneous be- room population,11 the record the overall student under-represented cause students are black classify that the school districts demonstrates argu- classes. This neutral, non-special education non-diseriminato- students based alia, on, inter the district court’s ment relies JA 829-34. ry state and federal criteria. “[tjhere among Additionally, 47: is evidence that periodic make re- the districts See, experienced a from about e.g., findings has decline 12% 31 and 32 of district 10. court, Coalition, although approximately And 1981-88 to 10%. at 799-800. gap Clay the Red district has remained 17%, nearly percentage of minori- constant percentage Brandywine Clay, and Red In pro- ty special who education students leave the programs special education of black students in percentage gram the total is about the same as population more exceeds overall student program. 3477- all who leave that JA students Christiana, percentage is about than 17%. 78; 1460-61; 2005-06. Colonial, higher. percentage And in 12% higher. approximately 10% expert Dr. court noted witness 13.The district, Reschly's opinion "that with better Brandywine Daniel J. this imbalance has 12. In gap poverty [between ... races measures of from more than in 1981-88 less fallen 21% reduced, district, special further if per- education] would be than In the Christiana 18%. F.Supp. at 821 centage nearly dropped from in 1981- eliminated.” has 17% 837-38, 848, 45; approximately n. 88 to The Colonial district 12%.

high among possible who school students achieve identical choose inferences from the scores, data; rather, testing inquire black students were more we are to whether the likely placed to in the lower level be class district court’s determination of the districts’ Coalition, unitary than were white students.” status was erroneous. To (footnote omitted); 1385; value, F.Supp. finding proper at 801 JA accord this its there- 4249; sure, fore, JA 4305-07. To JA be this it must be considered in the context of finding other, potentially troubling, suggesting findings. is related This the district Indeed, may face that its black students have been court did. in view of the district research, segregated equal from copious white students of test- we that are assured However, ing aptitude. interpreted we must finding prop- consider the court this finding in full in light determining this context which it was er in that the districts have presented by unitary examined and thе district court. achieved status. in Thus we must consider that footnote urging At Appellant, we also have accompanies finding, which this the district carefully finding examined the district court’s comparison apparent- court noted that “[t]he 36, which states that to “[t]he extent which ly does not include academic achievement as elementary and middle school students are performance, measured course or whether placed in according ability classes to their is placement requested required.” such or Coalition, unclear from the record.” comparison Id. Because this relied on test- 800; F.Supp. finding at 4214-21. JA This alone, ing aptitude rather than considering as own, represents means little on its for it important

well factor of academic merely uncertainty that there is in the record performance, achievement based on course elementary about how and middle school stu- place- and because it is not clear whether the placed according dents are in classes to their requested required, ment at issue was we Indeed, ability. amplifica- without further do not finding consider 47 to that be evidence tion, persuaded we are not to conclude black equal op- students have not received against this statement cuts the court’s deter- portunity, reasonably nor can we conclude regarding good mination the districts’ faith court, upon its careful exami- jure segregation. efforts to eliminate de nation, clearly erred. Again, required place finding this context, finding We observe also which in bearing states in mind that because few hand, percentage other “[o]n the elective classes or courses are available to minorities enrolled in honors AP elementary classes students at the and middle school levels, percentile who scored over process the 75th read- the selective for students is ing spring slightly or math in the meaningful of 1993 is far high more at the school level. greater than that of whites in all 4 finding school Thus we must in light consider Coalition, 801; districts.” F.Supp. JA 40 and 45. could, Although finding urged as Finding high 39 describes the school class by Appellant, give rise to an inference that process involving presen- selection as “class perform blacks higher must at a level than counselors, by guidance tations with booklets placed

whites in order to honors and descriptions, course application by students classes, that AP is not the sole inference that family, guid- consultation with individual limited, could be drawn from so and thus counselors, guidance ance from and teacher malleable, Indeed, sample. on the basis of 800; input.” finding may just 48 alone we reasonably 755-56, 851-54, 863-66. Not something quite infer different: high school product class selection the good desegre- school districts’ faith efforts to deliberations, but, according these various gate paid improved off terms of the finding parents “[t]he and student havе testing performance of black students. say the ultimate in the level to which the any event, our task here is not assigned.” student is engage speculation, 800; in such broad nor JA1383.14 Oakes, expert Appellant, 14. Dr. process, parents Jeannie the course selection because has system,” testified that she is "not comfortable about” who are not "comfortable usu- enough nor although finding that the definitive substantial to show 36 indicates And elementary and how is unclear on error the district court’s determina- record clear placed in classes students are middle school unitary tion of status. mere ability, finding when according to their exists “that lower levels of instruc- evidence entirety, provides in detailed its considered may encourage not tion achievement placement high the class of information about adversely may ability of a student affect margin.15 in set forth school students as id., college,” attend does not establish to Finding anything specific putative whether that Accordingly, consider about when we disparate other find- problem in the context of these relevant is to educational related that unavailing find the contention ings, we according to race. opportunity treatment provides significant that finding 36 evidence course, finding is obvious and indis- Of this equal minority not students have received goes: far it students putable as as when in pertinent opportunity succeed instruction, they receive lower levels of are multiple districts. The district court’s school encouraged likely to achieve and less feel suggest particular on this issue likely college. Yet thus will be less to attend “every facet of the court did indeed consider merely truism serves to underscore the this operations” determining in question issue here —on more fundamental unitary have achieved status. districts placed in “lower what basis are students Finally, finding 49 of the district we note already have of instruction”?' As we levels is opinion, states that “[t]here which clear, racially made that basis was not dis- may levels of instruction evidence lower criminatory; support does the record not encourage may adverse- achievement not claim that students of one race are afforded ability to attend ly affect of student (advanced college preparation opportunities 801; PX college.” classes, counseling, help prepar- in placement 82; foregoing PX 2265. As with the exams) college placement that stu- ing for although finding may findings, this be consid- face, troubling of another race are not.16 on its alone it is neither dents ered minorities, unlikely challenge a dents who in advanced social studies are ally are are English. also in advanced recommendation. school's However, 28; f.More of students not in honors at 800 JA 1383. absent than 80% n. assertion, Dr., not in classes in support it classes in science are honors Oakes' evidence are in conjecture, not Less than of students who and thus math. 60% remains unsubstantiated in purposes analysis. advanced are also advanced math. persuasive for of our science at 801. Id. Finding 45 reads: “Ability report, Expert titled Jeannie Oakes’ Approximately non- a. of students in 81% Segrega- Grouping, Tracking and Within-School college prep English are also in non- classes Schools,” County presents in New tion Castle Approximately college prep math classes. 80% “[sjtudents placed in low- who are evidence English college prep in students in are also of disproportionately African er-level courses— college prep math. consistently demonstrate American students — Approximately in non- b. 81% students gains their in achievement over time than lesser college prep classes are also in non- math placed high-level 2262 at peers courses.” PX in college prep Approximately classes. science here, disputed That is not 81-86. observation college prep also of students in math are 79% the district court's statement and is basis of college prep in science. finding 49. in c. More than of students in non-col- 80% However, make the uses this evidence to Oakes prep lege also in non- social studies classes are sweeping the re- that this condition is assertion college prep classes. than science More 80% "discriminatory placement practices.” sult college prep studies are of students in social carefully Ms. at 85-86. We have examined Id. college prep in science. also report find her assertion devoid Oakes’ not in honors d. More than students 90% Indeed, support. evidence that absent factual in studies are not in honors classes social "discriminatory specifically these substantiates Less than of students classes science. 80% practices,” is mere- placement Oakes’ contention who are in advanced social studies are also in conclusory, placement of a ly presuming that the advanced science. given lower track on the basis in honors student in a e. More than of students not 90% However, ability per our discrimination. in honors se classes social studies not minority poor and stu- English. stu- focus is not on whether [sic] classes in Less that 80% although suggested that “lower lev- ment: “[w]e Thus have never may encourage achieve- els of instruction equal measure here is ultimate outcomes.”19 problematic, especially when ment” is viewed everyone trag- That does not finish even is isolation, yet when considered relevant ic, course, but it does not amount to a context, this statement socio-economic constitutional violation. Nor does it violate possibility regarded proof mere cannot be regarding the school districts’ mandate stu- that the district court erred deter- under Green. assignment Accordingly, dent mining that the school districts have achieved properly we conclude that the district court unitary dutifully The district status.17 that, assignment, determined as to student presented finding in combination with unitary through the districts achieved status and, many carefully analyzing others after good compliance requirements faith with the totality, in these their declared that linking any of the 1978 Order. “there is no credible evidence racially conditions to the current identifiable (footnote omitted). prior violation” Id. at 823 Faculty Assignments B. and Staff This, too, Although must be said. consolidation, Before the 1978 the vast ma- requires Constitution that all of its citizens jority of black administrators and teachers education, equal pursuit have access to the of predominantly served two black In districts. they given equal and that breaks while September reassigned the districts fac- school, attending they it does not insist that ulty, administrative and other certificated proper all finish even. The test under the staff in all eleven districts.20 The evidence equality opportunity, Constitution is not of presented at trial demonstrated the dis- point this do results. On we would well to tricts now have balanced their faculties to a pithy recall Edmund Burke’s formulation: degree virtually unprecedented among that is equal rights, equal men have but not to “[A]ll indeed, things.” Appellant country those school districts in And articulated principle argu- operate its commitment to this at oral under court orders.21 The district difficulty achieving denls continue to have The Court: school, goal [I]s the of our but on whether these school districts interest this field equality equality opportunity? jure results or vestiges segregation have removed the of de (Co-Counsel Coalition): Mr. Henderson for the practicable. to the extent Our exhaustive review honor, simply [e]quality Your it is a matter of of the record that the convinces us district court opportunity. properly found the districts to have school done The Court: so. Right. Mr. Henderson: may 17. That African-American children achieve suggested We have never that the measure sub-standard levels school indeed the equal here is ultimate outcomes. product many complex socio-economic fac- Arg. Transcript Oral 23. See, (Dr. e.g., Reschly tors. JA 837 Daniel J. citing report a 1991 from the Children's Defense 20. The district court's 52 indicates that relationship poverty Fund on the between "psychologists, speech certificated staff includes "developmental delays hearing and disabilities” in chil- therapists, diagnosti- educational dren); also, Hacker, generally pupil support see Andrew per- Two cians and other instructional 802; (1992). Again, reviewing Nations our focus as a sonnel.” JA 602. necessarily court narrow and here is constrains addressing unitary typ 21. Courts status motions pursuing larger political us from these social and ically ± have considered faculties within questions. percentage point minority of the district-wide Indeed, composition racially to be balanced. Bickel, Quoted Morality in Alexander M. 18. recognizing difficulty achieving perfect (1975). principle of Consent 20 This was reiter- balance, particularly elementary with small ated William J. at the 1990 Clinton Democrat- faculties, applied some courts have Leadership ic Conference: "We believe the See, percentage points. ± e.g., standard of promise equal opportunity, of America is not Potts, (N.D.Tex. Flax v. 326-29 equal Reprinted Henry, outcomes." in W. 1989), (5th Cir.1990). aff'd, 915 F.2d 155 (1994). Defense of Elitism 195 County The New Castle districts have exceeded standards, achieving unusually high these gree de- following colloquy place took at oral ar- every of racial balance in their faculties. In gument: year since each district has met the strict minority closely monitor the districts hired candidates that the found districts composition faculties greater of their to four times than the the racial rates two transfers and block regional do not hesitate percentage available of minorities seniority overriding reassignments, make pools. JA is attrib- and national 6566. This racial necessary, to ensure diverse where part to the extensive affirmative utable Coalition, 901 at each school. representation minority recruitment efforts of each testimony of F.Supp. at 802-04. The record example, four school districts. For each of officials from senior administrative Brandywine sought expand district has its findings.22 supports districts these the four minority by recruiting pool potential hires degree who teachers have received a the dis does not either Appellant refute 4-year program, from a but in education its conclusion trict court’s calculations or their B.A. or faculties, teachers who received among but none racial balance degrees find in fields other than education argues that B.S. theless jure segregation teaching ing prior experience. that the of de and have practica eliminated to the extent attempted have been to re- The Christiana has the overall erroneous because ble is minority by sending cruit teachers announce- minority within percentage of teachers historically predominantly and ments by percent three has declined two or districts universities, by days attending career black This Appellant’s Br. at 10. 1982. since universities, predominantly black and error, clear gradual decline does not indicate as hiring paraprofessionals. minorities JA however, minority shortage of because the a 603. The Colonial district has assembled a four is not in the school districts teachers faculty repre- minority force to address task in jure segregation Northern vestige of de Clay JA 633.23 And the Red sentation. County, manifesta rather a New Castle but district, occasionally faculty position a will be contemporary national tion of unfortunate open minority until a is found. hеld candidate Indeed, expert testi Appellant’s even trend. record, Based on this the court did JA 624. shortage is a of black that there critical fied school err public JA 1167-68 teachers schools. good had faith efforts districts demonstrated (the graduating of number black students integrate the faculties of the schools. colleges in the with bach from United States has degrees in the of education elor field then, turn, among to the We racial balance Pitts, declined); see also Freeman staff, “non-professional” “classified” or 482-83, 112 1430, 1441-42, 118 S.Ct. U.S. aides, drivers, secre- includes bus bus which (1992). L.Ed.2d 108 positions, paraprofession- tarial and clerical als, employees, food service that, custodial and further notwith- The record reveals undisputed rec- faculty, standing available workers.24 evidence shortage (Testimony Superintendent Ad- point approximate- of Assistant for percentage ±10 standard Christiana); every JA 633 Services for ly percent of its And in ministrative schools. Superintendent (Testimony of Colo- of Assistant year four districts has since each of the nial); (Testimony commonly percentage and JA 625 of Director applied ± met Clay). Resources with Red percent Human point of its standard in better than 90 Coalition, 804; F.Supp. at JA schools. participate, but 6545. Coalition were invited to 23. The (1991 Indeed, Also, only years many one of the last 12 task force’s recom- declined. Clay) already implemented. have JA did four districts in Red been mendations single ± and that a more than school outside 633. occurred, part, one of the at least in because (what two in that district as one schools served “Nonprofessional” or staff 24. "classified” centers, bilingual staff") and county-wide education are to court labeled "classified Hispanic staff,” disproportionate number of thus had a which distinguished from "certificated 804; JA speech psychologists, teachers. teachers as well includes diagnosti- hearing therapists, 662-63. educational support pupil cians and other "instructional 802; F.Supp. at personnel.” (Testimony Director of Admin- 22.See JA 619 Brandywine); JA 602 Services for istrative that the school districts have C. Extracurricular Activities ord establishes hiring process to im- attempted to use the Appellant that the districts contends on staff as new prove racial balance jure of de have not eliminated example, openings have materialized. For segregation activi from their extracurricular minority through Brandywine recruits staff however, undisputed, ties. It is that all ex channels, community focusing community within tracurricular activities the four dis centers, neighborhood churches and commu- open of all All tricts are to students races.26 nity groups minority areas. JA 621. Sim- race-neutral, eligibility requirements are ilarly, through community recruits Christiana students, encourage district officials all re newsletters, centers, community race, gardless participate in a wide “word of mоuth.” JA 603. range of extracurricular activities.27 Nevertheless, Appellant argues Appellant concedes the districts have efforts, any racial argues districts must also eliminate identi- made such but that the dis- fiability that exists within each of these activ- reassigned tricts have not the staff to maxim- 98-100, 109-110, ities. 118 and ize facial balance.25 The district court found that, the district court indicated un- impractical that it would be for the districts fortunately, there exist substantial number reassign employees these in order to at- racially identifiable extracurricular activi- greater agree. tain racial balance. We throughout ties the four districts. We can- workers, example, Food service earn not, however, expect a school district to com- approximately per year, work- $3200-$4300 deny pel participation student in non- ing approximately day. three hours JA compulsory merely extracurricular activities Generally, employees these work close to effect a racial balance. they Transferring to where live. them to a four districts have removed financial workplace require long distant would a transportation participation. and barriers to simply salary commute is not feasible for the Moreover, JA 1164. each of the districts has they receive. Id. Secretarial and clerical good demonstrated faith efforts to reduce the personnel experience similarly nega- would identifiability through racial of their activities impact. Appellant’s Id. tive economic Even experimental programs. example, For expert acknowledged reassign- that forced Brandywine eighth graders district invites all part-time, low-wage employees ment of these parents high and their to the schools to meet hardships create could these workers with activities, 753; representatives from the JA care, time, respect commuting to child dis- upcoming Christiana announces activities expenses. tance from work and JA 1105. classes, physical and newsletters education Accordingly, it was not erroneous for 740; JA middle schoolers in Colonial are the court to conclude that the have districts participate in recruited to activities when practicable eliminated to the extent re- school, 743; they high enter JA and Red identifiability sidual racial in the schools with Clay, expose coaches recruit and students respect employees. to these sports through physical them to various curriculum, education JA carefully Appellant’s We have considered faculty respect contentions with and staff We believe that a school district’s extra- assignment, unitary they and we conclude that there was curricular if activities are “are findings. no clear error the district court’s to all within the students School available Appellant (Testimony 25. We hasten to note that first made 26. Sеe JA 753 Director of Edu- Leadership Brandywine); cational at JA 739 argument the instant motion was filed. after (Testimony Superintendent of Assistant for Plan- Indeed, the district court found that Christiana Christiana); ning Facility Management and JA complaint respect “never received a to its (Testimony Principal single high of the of the staff,” reassign decision not to classified and that district); (Testimo- school in the Colonial ny JA 679 complaints Colonial has heard in the "last Principal high of the of a school in the Red 803; year or two.” district). Clay 604, 646. Id. students, Singleton pluralism eultural and regardless of race.” District Dist., materials, Separate all instructional texts and Mun. Sch. Jackson (S.D.Miss.1981); curriculum aids shall see also other be free bias; Swann, 91 S.Ct. at 1277 racial 402 U.S. (“With as ... extra respect to such matters 4) institute an effective and nondiserimina- activities,” may enough “to it

curricular tory counseling guidance program. and distinctions.”). racial eliminate invidious counseling guidance program and equal partic not “show School districts need must insure students are counseled Educ. Mus ipation.” Lockett v. Board racially nondiscriminatory on a basis (M.D.Ga. at 55 Nov. cogee County, No. 991 concerning programs all available 18, 1994) Quarles Municipal (citing v. Oxford opportunities opportu- area of work and (5th Dist., Separate 868 F.2d School education; college nities for a Cir.1989)). Accordingly, conclude that 5) provide appropriate human relations find supports the record the district court’s program [designed] protect ... ing that the districts have eliminated to the dignity of individual students and teach- practicable from their extracurricular extent prevent myths racial ers and to past jure de discrim activities the prevailing stereotypes from in schools ination. undergoing desegregation; 6) develop rights respon- ... a code of Remaining Factors D. Green provid[ing] racially ... sibilities (Transportation and nondiscriminatory discipline ... Facilities) containing] provisions to insure each dispute among parties There is no desegregation pro- student in the area concerning remaining factors out- the two process and substantive cedural due re- Specifically, transportation lined Green.28 quired by existing law. Such code non-discriminatory provided on a basis. help provide equal will educational Additionally, successfully the districts opportunity by protect- to all students the facili- remedied the distinctions between unreasonable, ing from them discrimi- formerly formerly ties of the black and white rules; natory, arbitrary and the schools. on Board shall administer the code racially a selective or otherwise biased Ancillary Relief VI. basis; required The 1978 order of this court 7) reassign faculty, and oth- administrative specific implementation eight programs personnel to insure that schools er staff ancillary pupil assignment plan. to the 9-3 racial identi- do not retain their former required to: The order the districts racially faculty ty through identifiable 1) implement comprehen- formulate and assignments; [and] and staff training program for sive in-service 8) nondiscriminatory and enforce establish teachers, administrators and other staff construction, guidelines for new review personnel cope in order to train with building appropriate- needs and the desegregation process; proposed building project ness of each 2) reading and institute an affirmative closing. or school program, communication skills which 128-30; 1014; F.Supp. at see also 447 see JA resegregate pupils, in or- does not Buchanan, at 771-73. also Evans v. 582 F.2d remedy past of the der to the effects discrimination; more than 180 The district court offered 3) offerings pro- findings detailing factual the school dis- provide curriculum and ancillary relief

grams emphasize implementation and reflect the tricts’ of these which trial, parties agreed respect Green factors. The “that the tus with to two of the [Coali- 28. At and, are, one, two, oppose for tion] [the districts'] will not motion transportation, facilities.” two unitary status to the extent that defendants con- JA 647. they already unitary achieved sta- tend that alone, January In a team from districts years four In the first provisions. desegrega- listing manage- million federal several drafted statement more than $18.8 the, pay were used to for grants training project goals tion in-service ment for the liai- specialists, home-school human relations faculty, first staff and administration. sons, teachers and in-ser- reading resource instructional staff to goal orient the “[t]o— and The state the districts programs. vice process”— instructional the curricular and programs after the these even maintained through accomplished was the Center for desegregated system. And to a transition University Desegregation at the Conflict and unitary until significantly, sta- from Pittsburgh following month. JA 948- filed, com- Appellant tus never petition addition, 49, 4373, team 4376-77. any comply plained to the court failure responsible planning training in-service for ancillary provisions. relief Of goals, three other also realized at least undisputed, last is and the eight, the these Further, year.29 an Office of In- have addressed our discussion seventh we and Activities was established staffed Service Thus compliance on with the Green factors. .by all personnel, two JA and full-time the district court’s find- we will review here programs relating desegregation were ancillary ings six of these mea- on the first mandatory faculty, staff administra- sures. Finally, Appellant’s tors. JA even 961-62. programs expert that the in-service testified Training A. In-Service desegrega- offered state at the time court found that all four The district complied tion 1978 order. with the array a rich offered of in-service districts faculty, that, although programs for their programs longer is the focus of these no similarly supports the record all four continue to desegregatiоn, districts court’s that the districts have contin- training desegregation, offer in-service training programs ued since the in-service equity race and multieulturalism. example, the district 1978 order. For Appellant at 809. contends through heard evidence that from are erro the district court’s Brandywine workshops various offered Appellant’s experts because two of neous desegregation, equity courses race related to training that the in-service was inad testified Moreover, all new multieulturalism.30 equate. Br. at 25. But a review Appellant’s partici- Brandywine required teachers ing pick role is not to and choose pate program, in a 12-hour induction which Rather, snippets of evidence. isolated panel includes a on issues multi- discussion decide, viewing after as a must record culturalism. JA 931. whole, evidentiary support whether there is 1980s, Similarly, in various human rela- findings. sup for the district court’s Such specialists port accordingly, tions and administrators trained present; there is no clear is by Desegregation Assistance Race Cen- error. differences, prepare retaries the areas of cultural “[t]o Goal Two was the instructional 29. pro- implement building, bias/stereotyping staff to student orientation and team then con- gram.” place These orientation activities took ducting employees education for these in-service 950, 4373, spring of 1978. JA DX and fall accomplished in these areas. The former was at 84. 4, session, training a March latter at a 1978 prepare principals and 949, “[t]o Goal Three was 9, 4373, JA session held on June 1978. manage supervisors was instruction.” This training. 4380. All received this JA 949- staff conducting by achieved in-service education 50. supervisors program principals and on vari- for 949, April JA ous dates in March 1978. 19949; 19955; 19964-66; FL DX 53 at FL FL 30. 4373, 4378. 19903; 19885A, DX 54 at 20002-03, FL DX 55 at FL FL prepare the "[t]o Five was cafeteria work- Goal 20027; 56; 306, DX 57 at FL FL DX ers, custodians, bus and secretar- school drivers 375-76; 369, 372, 373, DX at FL FL FL FL 58 change.” deal with educational This was ies to 415; 462; 515, 455, at FL FL DX 59 FL FL 558; FL by preparing a cadre of trainers to achieved first 613; 605, 612, 60 FL DX at FL FL DX 62 in-service education for the cafeteria conduct FL 708-10. custodians, workers, school bus drivers and sec- University Pittsburgh good worked tricts nevertheless met the standard of at the ter compliance faith with the 1978 Clay faculty and Order. the Red staff with 635-36, diversity. DI area of cultural reading pro- The record indicates that a The record further reveals that from 1978, gram was instituted in the schools Clay through Red also has offered immediately following the issuance of the training multiculturalism. DX in-service on program remedial order. JA 967. The em- at FL FL FL FL teachers, ployed reading who 12313-14, 80; 81; DX DI FL DXC help worked with the classroom teacher to 1939 at 1806. The court’s with re- testing, interpretation of those data gard districts to the Christiana and Colonial tests, materials, from plan- selection of supported likewise are the record.31 ning program strategies for stu- anything dents who needed assistance and light foregoing, satisfiеd wanted, particular that [a] teacher to do to charges support no Appellant’s help the students within that classroom. record, and thus that the district court properly found that the schools have met the grades through JA 968. Students in two training. requirements of in-service provided nine were assistance under

reading program they year if one were level, reading more below as demonstrated Reading B. and Communication Skills by standardized test scores. JA 968. Stu- grades through dents in ten twelve were court found that an af The district provided they years assistance if were two reading program integrated firmative and supplemental reading below level. Id. And was instituted each of the four districts. provided daily instruction was for 30-45 min- Appellant at 809. utes, depending grade level. JA contends that the errone part, For the most this instruction occurred ous, because the districts “failed to show that groups in small within the classroom. Id. any reading program implemented for employed The districts combined have be- purpose remedying negative ef reading every tween 100 and 135 teachers jure segregation required fects of the de year year. the 1981-82 since Order, reading pro the 1978 or that the 4910-11. grams implemented not re- were did segregate Appellant’s students.” Br. at 26. Further, heard evidence and However, although reading program spe no pertaining reading pro- found facts students, cifically targeted grams black we conclude in each of the four districts. With district, regard Clay example, from our review of the record that the dis- to the Red year through sponsored 2-day 31. From the 1988-89 school In March Colonial year, 1994-95 school the record indicates that “Fostering workshop entitled Good Human Re- Program Christiana's Personalized Inservice has Culturally Settings.” Diverse lations in workshops relating offered various courses workshop teachers, administrators, by approximately was attended desegregation, equity race and multicultural- counselors, guidance (1989 ism. DX 63 FL 14902 instruction chairs, diagnosticians, department educational developing integrate course for thematic units to leaders, team student advisors and the chairs of curriculum); (1990 DX 64 at FL DX 41 at 5. In the Teacher Liaison Committees. "explor[ing] opportu- course the difficulties and participated 20 teachers in a series of 5 nities encountered in cross-cultural communica- Expec- workshops comprising the Gender/Ethnic diversity”); tion ... for the celebration of DX 65 develop- and Student Achievement staff tations (workshop focusing developing at FL 15011 "on program. goal program of the was to ment diversity increased awareness of ... and how "improving assist the teachers in the academic diversity utilize the human one can richness of performance promote understanding of all students.” DX 199 at FL better and communica- among through tion students and teachers in our school Colonial's 28764. And from 1992 ("using cоmmunity”); DX 66 at FL 15061 multi- Learning activ- Teacher Center offered in-service classroom”); elementary the cultural literature in including ities and courses in a number of areas (teaching through DX 67 at FL 15103-04 math multiculturalism, expectations, gender/ethnic literature); at FL 15147-48 multicultural DX 68 achievement, student and conflict resolution. (classes pertaining to the celebration of diversi- DX 76. ty)- testimony agree that of officials we cannot the districts’ remedial court credited the the resegregated reading programs that have stu- the district32 and found from dents; requirement good the basic of faith reading coordinate the resource teachers jure efforts remove the of de program (Help One Student to “HOSTS” segregation practicable to the extent have Succeed) writing-deficient reading- for and Accordingly, court did been met. program, Under the volunteer students. not err. work with individual children for tutors Appellant further that the contends per than stu- minutes week. More any “failed to ‘com- districts have show program. participate the dents program’ imple- skills was ever munications [Twenty parent educators hired five] Appellant’s the mented” in of districts. program as Parents Teachers teaches the However, meaningful Br. at is no 26. there parents first-time New Castle [sic] reading programs distinction between skills language County importance of and indeed, programs; and communication skills pre-school pro- reading for children. The of the 1978 mandates the creation Order since gram has been in existence 1987. singular reading “program” teach teenage was on 1993 and the focus Likewise, communication skills. JA 129. multiple parents and families with needs. point testimony from school on this officials (footnote omit- suggests that instruction both skills for is ted). progress similar found “reading Thus skills” and “com- combined.36 the other districts.33 synonymous pur- for munications skills” analysis poses Accordingly, on of our here. were programs Because these meant of foregoing basis of our discussion read- every reading problems of stu- address ing reject Appel- programs, skills and we dent, Appellant’s argument program that the argument lant’s the districts misguided. resegregated is Al- students complied with the 1978 Order. have not though the school districts excluded (or white) from the remedial black students C. Curriculum balance,34 racial reading programs to effect a pro- deploy required the districts do several different The 1978 Order one-on-one, grams group “emphasize as small curriculum the cultur such and reflect students,” reading pluralism al pull-out programs, remedial in which of the and that “all materials, reading teachers work inside the class- instructional texts and other cur either pull a free given room or student out of the riculum aids shall be of racial bias.” JA Appellant argues for attention.35 129. classroom individual Thus the school dis- See, 36.See, Testimony Curry, e.g., (Testimony e.g., JA 924-25 of of Suzanne di- delivery rector of standards instruсtional for Curry, of and in- Suzanne director standards Clay School Red District: Clay delivery structional for the Red School Dis- knowledge, Q. your there ever To has been trict, reading and former teacher and remedial any readings [sic] the establishment (Testi- teacher); also JA 941-42 coordination see program communication skills established in Tucker, designed mony program of Jean who comply Desegrega- order to the court’s kindergarten youngsters having ... who were for Order 1978? there ever tion Has been difficulty). up any reading program especially set for purpose reading programs or have (credit- 33. See at 809-10 fairly been constant? report ing statistical from Data Service Center at they’ve fairly A. I think been constant. District; 924-25; regarding Brandywine Testimony JA also Jean Tucker JA see testimony Christiana School District: Jean Tucker of Christiana Dis- Program trict, 940; [T]he ... Parents Teachers Staropoli, formerly JA and Charles parents; parents we first-time work with the District, 799-800). the Colonial JA three, visits, during child is until the home program. that is the core of that We focus on See, e.g., (Testimony Curry Suzanne development basically But child. Clay). of Red importance reading talk about lan- important guage and in the home how (Testimony of Jean gets ready 35. JA 940-41 Tucker of and how that for school. child District.) JA Christiana 941. counseling guidance program cur- [an] to show that inclusive and ... [to] tricts “failed required by the 1978 Order was riculum as insure that students are counseled on a ra- single actually taught in a classroom or ever cially nondiscriminatory concerning basis” anything were other than that efforts made post-secondary opportunities. Ap- JA 129. shortlived, sporadic or that the curriculum pellant argues that the districts “failed to any Appellant’s Br. achieved results at all.” any show effort had been made to en- sweeping at 27. This assertion does not counseling guidance pro- sure and comport with the record. grams attempted prevent resegregation required by students the classroom as The record indicates that the Delaware that, fact, 1978 Order or counseling Department of has estab- Public Instruction guidance programs did not become vehi- guidelines lished text selection for the dis- resegregation. System cles for The School conjunction to use in with their own tricts counseling guid- failed to show that the guidelines racially unbiased texts to ensure programs Depart- ance achieved results at all.” and instructional materials. The Appellant’s adopted Comprehensive Again, ment also has a Pol- Br. at 26. the record Education, icy published Appellant’s for Multicultural belies bold assertions. accompanying guidelines, sponsored multi- 1978, spring In the the New Castle adopted cultural multicultural education district formed a “to committee follow the See, e.g., DX 124 at curriculum standards. directive of the Court at the [ ] time to— 23147; April FL DX FL In 125 at develop nondiscriminatory developmental 1994, guidelines, consistent with these guidance program all for students.” JA 770. Department sponsored two-day Multicul- guidelines, The committee drafted which the tural DX 52. Education Institute. adopted in the Handbook Certi for Further, specific the ‍​​​​​‌‌‌​​​‌‌‌​​​‌‌‌​‌‌‌‌​‌​​‌‌​​‌‌‌​​‌​​‌‌​‌​‌‌‍district court made I Guidance Counselors. JA 770-71. fied acknowledged efforts in each of n1981, Department guidelines modified the the four districts to offer a multicultural cur- for district and statewide use in the Dela riculum. at 810-12. Handbook, K-12, ware Guidance which was of the record several Our review reveals Appendix itself revised in 1990 as B to the exemplary programs, including Brandy- Handbook K-12 Education. JA 770-71. history wine black curric- district’s extensive that, The record further establishes from schools;37 elementary ulum in the Christia- 1991, Department guidelines 1981 to these minority community in na’s inclusion of the governed counseling programs within the process;38 the textbook selection Colonial’s 1990, example, districts. For the state USA”;39 course entitled and Red “Minorities prepare directed each district to “a written Clay’s integration pluralism of cultural into plan describing guidance program for the studies, arts, English language the social art periodically district which is reviewed education and music education curriculum years.” updated every at least five DX 230 guides.40 Dat 1464. Plans for each district subse- light of this substantial record evidence 755, quently approved. were drafted and supporting findings, the district court’s 769-70, 852, 864, 232, DX DX DX are satisfied that the court did not err programs DX DX 234. The district complied when it found that the schools have academic, per- plans described in the include with the court order as to curricular reform. sonal, social, life-planning career and coun- seling. JA 1137. Counseling D. and Guidance required description pro- The court’s detailed The 1978 Order the districts to nondiscriminatory grams “institute an effective and established each of the districts also 10353; 8123; 37. DX 135. 40.DX 154 at FL DX 155 at FL DX 9135; at FL FL 157 at FL DX 10268; 10109; JA 781-82. FL DX 158 at FL DX 159 at FL 8086; 7932; FL DX 160 at FL DX 161 at 7121; 39. DX 148 at FL 21138-40. FL DX 162 at FL FL 7064. desegregation went 764-66. Because 901 JA by the record. supported is program soon of the smoothly, the focus mindful of Especially F.Supp. at 813-814. awareness, problem- multicultural Clay shifted to school in the Red disparities alleged functions. support solving other student and district, that the record emphasize these ser- continued 764. The districts JA court’s determination supports the district personnel tests, by retaining human relations aptitude vices district administers that that counselors, elementary guidance hiring and supplies ample resource provides speakers, workers, person- community outreach in various social material, participation offers advisors, teachers, stu- nel, visiting student an ex- and facilitates programs, achievement and other student specialists 772- dent relations program. JA college visitation tensive Coalition, 901 personnel. See support F.Supp. at 815-16. has sum, Board it clear that the State counseling guide- nondiscriminatory adopted Moreover, сourt described the district provided lines; all the districts that the four dis- in each of progress detail career, edu- post-secondary comprehensive the Red directing our focus to Again tricts. assistance; and that and vocational cational Clay district, em- Clay we note that “Red supplementa- support numerous the districts ployed specialists 16 human relations encourage mi- which ry counseling programs and 18 in in 1981-82 advisors home/school education. pursue post-secondary norities to special- human relations and “five 1982-83” any Moreover, instance Appellant fails to cite recently as advisors” as ists and home/school Accordingly, counseling. discriminatory F.Supp. at 816 1993-94. not err that the court did we conclude 111). (crediting Defendant’s Exhibit the remedial aspect that this determining (and necessary wel- Notwithstanding the was fulfilled. order come) human rela- shift the focus beyond “a clearly has lasted program, it tions Relations E. Human significant yielded duration” and has brief required the districts 1978 Order findings support Accordingly, these results. pro- appropriate human relations “provide an court’s determination desegrega- undergoing gram” for “schools court order complied with the school districts provision was intended tion.” JA 130. programs. human relations as to transitional, “the designed to address to be a result of which arise as pressures various Discipline F. Evans, F.2d at 769. desegregation.” System School argues “[t]he Appellant development required the The 1978 Order pro- any human relations failed to show “racially nondiscrimina- provide of a code actually implemented as written gram was “procedural tory discipline” and to ensure program any human relations ... or 130. In process.” JA and substantive due than a brief duration for more lasted adopted a district July the New Castle Appellant’s Br. at all.” results achieved by a “committee of conduct drafted code Nevertheless, supports the record at 24-25. gathered similar documents [which had] findings. large desegregated from Delaware 4436. Prior for review.” JA school districts responded to the order districts The school were reviewed adoption, drafts of the code involving more by implementing program a leaders, council groups, student spe- citizen and certified specially trained than 100 Association, and administra- the Teachers’ assigned to schools “bi- were cialists who adopted districts 4435-36. The high tors. Each school JA 763-64. racial teams.” 1981, and each dis- team, code in New Castle one junior high had at least periodically since revised the code trict has to serve were also directed and these teams then, development and through “process Id. These elementary schools. number involve- [the] includes revision that continual intervention assis- provided crisis specialists teachers, in- others, includes support pro- ment student implemented tance and administrators, process- and there counseling. cludes tutoring peer grams, such as

775 by greater disproportion rable or racial codes to be reviewed external es for the input.” and have JA those offenses for which Delaware law man- sources suspension, “very dates which Gordon called discipline expert concedes that Appellant’s offenses, objective” than for those offenses “discriminatory are not the districts’ codes objective. he viewed as less JA 726. Ac- And the district their face.” JA 1157’. reject cordingly, Appellant’s argument we in applied codes “are not court found that the schools have failed to reduce racial Coalition, discriminatory 901 fashion.” a discipline in disparities rates. however, argues, Appellant at 817. failed to reduce that the school districts have reject Appellant’s We likewise among disparities discipline in rates racial expert testimony contention that on this mat students, Appellant and that was denied rejected improperly by ter was testimony opportunity expert to admit judge’s testimony court. A trial exclusion of n However, support this claim. on this mat- appeal cannot be disturbed on a “absent clear supports the ter the record Santos, Semper abuse of discretion.” v. 845 findings, well exercise of discretion. as as its (3d Cir.1988); F.2d Fashauer v. discipline The district court’s Jersey Operations, New Transit Rail discriminatory fash- is not administered a (3d Cir.1995). In F.3d both Sem by testimony Dr. supported ion is Fashauer, per upheld the court the ex Achilles, expert. the school districts’ Charles testimony clusion of rebuttal because by dividing Dr. Achilles calculated indices pretrial to counsel’s failure adhere to a order. suspensions by percentage of black student 1238; Fashauer, Semper, 845 F.2d at 57 F.3d percentage. Based on the black enrollment at 1287. data, Dr. Achilles determined that the these Here, Appellant disregarded pretrial two suspension ra- districts’ indices reflected less requiring “specif- orders the disclosure of the from cial than indices calculated imbalance subject expert ic matter to which each will suspension compiled national data the Of- testify” provision expert reports and the Rights and Delaware arrest data. fice of Civil complying with Rule Federal Rules of 722-23. Dr. Achilles further illustrated Denying .Appellant’s Civil Procedure. mo- essentially the indices were consistent delay identity tion to disclosure of the of its the four districts —“a result difficult to across stressed, experts, the district court more nondiseriminatory equitable if codes achieve trial, than three months before “[t]his being applied equita- in an were not used and justice a where the interests of dictate case ble, nondiseriminatory manner.” public parties’ experts disclosure of 817; finally, see JA 724. And early any potential disputes re- resolution of “consistency in Dr. Achilles demonstrated garding any experts’ qualifications.” JA applied how the codes were administra- tors, regardless of the administrators’ race.” 817; F.Supp. at see JA 725. report shall con- “[t]he Rule 26 states light compelling testimony, of this opinions complete tain a statement of all conclude that the district court did not clear- expressed and the basis reasons that, ly determining discipline, as to err obligates party supple- a therefor” complied with the the school districts report if it “learns that in some ment the Krasnov, 465 F.2d at 1302 1978 Order. See respect the information disclosed is material review). (standard of incomplete or incorrect....” Fed.R.Civ.P. (e)(1). 26(a)(2)(B) rejecting Supplementation must Nor did the district court err & special promptness as the testimony Appellant’s discipline ex- be made “with 26(e), approaches.” pert, Dr. He could cite no trial date Fed.R.Civ.P. William Gordon. Advisory Exclusion of tes- study support literature to Committee Note. or authoritative timony for failure assumption ‘undiscipline’ appropriate is an sanction his “that or misbe- timely in a manner. See randomly supplement havior is distributed characteris- Inc., Enterprises, v. Fleetwood among groups_” tic racial JA 1161. And Freund Cir.1992). (1st fact, compa- F.2d statistical data demonstrate demonstrate, consistently has Appellant all of the Court knew As of November “determin[e] topics turned to the Green factors experts’ and meth- Board’s the State system dises- have, whether a dual school has been could but de- odologies. Appellant Education to, report tablished.” Columbus Board for ex- supplemental file a clined 2941, Penick, 449, 458-61, 9, 99 S.Ct. 443 U.S. as it de on December pert witness Leeuw (Green (1979) 48, 666 fac- 61 L.Ed.2d experts. Appellant three of other did for its 2947— tors). Davis Board Sch. See also v. its intent a result have as also could disclosed of 33, 37, County, Comm’rs Mobile 402 U.S. deposition at the of counsel’s comments of (1971) 1289, 1292, 28 91 S.Ct. L.Ed.2d 577 Instead, Appellant chose the December Dayton (pupil assignment); Bd. Educ. light In the surprise. of tactical route of 2971, Brinkman, 443 U.S. 99 S.Ct. discussion, conclude that the foregoing we (1979) assign- (pupil L.Ed.2d 720 in abuse its discretion district court did not construction). Indeed, the ment and school testimony. excluding surprise vestiges per have Green factors become se jure the focal segregation to the de therefore Areas District VII. of Concern —and point determining unitary status. Never- and Allocations the Court theless, performance disparities Proof enumer- Burden of the fac- by Appellant among ated are these not Aside from its examination tors. compliance school with the four districts’ Still, only factors are not the ancillary the Green factors relief mea Green and the disparities may vestiges as sures, classified acknowledged court also jure segregation. Depending of de on the performance disparities persist that certain case, particulаr trial circumstances of County no in the New Castle schools—most may court still exercise discretion to consider tably Clay perfor in the Red district. These Freeman, other factors. 503 U.S. disparities student achieve mance include ment, education, rates, 1446 — 47. dropout S.Ct. at The circumstances special court, However, prompted the instant case disputed here. be and are not eight ancillary to order remedial among not disparities these are cause factors, with the we in measures. As Green vestiges either Green or enumerated order, determine, compliance ancillary we must reviewed districts’ relief was a first, actually order and conclude that there disparities are whether these good vestiges so, faith effort to eliminate the segregation, if vestiges jure of de practicable. identified therein to the extent good whether school districts have however, Again, performance disparities practica faith to the extent eliminated them urged among here were not identified these Having taxonomy of dis ble. considered vestiges jure segregation. of de parities proffered by Appellant and reviewed legal pertinent precepts, the record and emphasize We that here we are not dis- Appellant properly hold that allocated cussing proving compliance the burden disparities prove that the were the burden Order, with the factors or Green vestiges, Appellant failed to acknowledge to which the school districts meet this burden. evidentiary bearing the burden. Our discus- here, sion and our allocation of the burden plain has made that cer Court proof Appellant, to the issue of limited disparities necessarily vestiges are of de tain proving performance that the dis- identified Identifying jure segregation. what would parities vestiges jure segregation. are de factors, become known as the Green propose performance disparities Court directed school boards to Because (or plans designed state-imposed by Appellant among are even to disestablish claimed not to) segregation “every opera vestiges facet of similar Green factors or the staff, Order, faculty, transportation, extracur identified the 1978 we will tions— Green, simply presume Appellant urges ricular us to activities and facilities.” —as Accordingly, vestiges jure segre- at 1693. U.S. S.Ct. do—-that these are of de gation. au- Appellant Appellant persuasive and as the cited offers relevant cases no (4th Cir.1987). link between The same result should establishing a causal thority for disparities past de achievement obtain here. present fact, one of the segregation. all but

jure Further, respect we must the Court’s point by Appellant on this relied on cases teaching that “a school board is entitled to irrelevant, thеy address Green- because precise obligations of its rather statement factors; not dis- Board does type the State desegregation decree” and to “a like under a proving the burden of pute that it carried for when “such a statement from the court” (to the extent good faith efforts to eliminate decree is to be terminated dissolved.” jure segrega- practicable) such of de Dowell, 111 S.Ct. at 636 U.S. tion. City Span (citing Pasadena Bd. Educ. v. solely Vaughns rely can on Appellant thus 424, 2697, gler, 427 U.S. 96 S.Ct. 49 L.Ed.2d by Vaughns v. Bd. Educ. Prince of (1976)). 599 Because we are reluctant (4th 983, F.2d 990-91 George’s County, 758 impose any obligation unstated on the school Cir.1985), which, review, supports upon our boards, prove allocate the burden to we Vaughns, because the district court. In Appellant. additional violation to the See unitary respect school district was not with — Jenkins, at -, U.S. 115 S.Ct. assignment, factor of student id. to the Green (to require remedy, a inferior stu 2055-56 Appeals for the the Court of proven dent must be to have achievement plaintiffs that the were Fourth Circuit held jure segregation); from see also resulted de disparities in presumption to a that entitled 1, Keyes v. School Dist. No. 902 gifted pro- talented special education and (D.Colo.1995) (“The 1274, opin 1282 Court’s segregation. More grams prior arose from plaintiffs’ ion in ... ... defeats the Jenkins important, Vaughns distinguished court compelling call action to inves additional “the from a sister circuit because decision tigate disparities and redress racial in stu [Appellants] in that ease burden shifted to dent achievement ... court has [when the] system had achieved because the school any findings never made that such differ assign- unitary regard with to student status by the ences are the result of discrimination Vaughns, ment.” 758 F.2d 991. District”).41 Here, however, have been uni the districts discussion, foregoing light assignments tary as to school since the carry Appellant conclude that failed to its Vaughns district sat order. Had the school per that burden. The district court’s factors as have the Delaware isfied Green performance disparities were sistent student us, Vaughns plaintiffs before districts by supported caused socioeconomic factors is prove performance would have had to F.Supp. at the record. jure segregation. disparities resulted from de de The district court cited various 818-19. Fourth Appeals The Court of for the Circuit the 1990 U.S. Census mographic data from subsequent Rich so held in two eases. See Report of Dela and the 1992 Vital Statistics City Bd. dick Riddick School in (4th gap” 521, Cir.), ware that illustrate a Norfolk, F.2d cert. “blaek/white in the four denied, geographic area contained 107 S.Ct. U.S. districts, County (1986); in New Castle City school L.Ed.2d 370 School Bd. Baliles, Richmond, generally, conditions.42 F.2d as to socioeconomic Va. v. JA 1454. 41. We that even if the school dis- note further proving tricts were to bear the burden seg- likely performance disparities as were 42. Black households are 2.54 times a. reporting regation, later would have house- white to have a as households high degree. bur- that the State Board sustained that school JA found holder who lacks a den: 6567. likely times as presented evidence con- Black households are 6.47 defendants substantial b. categorized poor perfor- trary households to have children plaintiff's contention that as white * * * jure being poverty. causally past JA related to de mance is many white constituting black students as segregation, evi- d. 4 times as thus sufficient participate eligible in the federal- carry persuasion plain- students dence to burden (sic) program. ly impose. subsided lunch tiff seeks to VIII. Conclusion “Blacks in the establishes The record position inferior area are desegregation af- setting reasons for task of forth whites, gap is economically [that] judgment would firming district court’s County than it is wider in New Castle considerably lightened have been —and whole.” nation as a benevolently more brief —had opinion made at 818. a scatter- not chosen to mount Coalition virtually every aspect of the gun Further, link attack supports a causal the record opinion. In- comprehensive district court’s factors and stu- socioeconomic between these years deed, nearly 20 portrays the Coalition four districts: across the dent achievement pub- supervision of Delaware of federal court consistency gap between “There is and sorrowful lic education as cheerless gap in achieve- with the status socioeconomic shown, how- has failure.43 As our discussion ment, Brandywine demon- statistics main, contentions, areas, ever, the Coalition’s in both greatest disparity strating conclusory language expressed in have been disparity.” Id. With such the least Colonial dis- record, neglects to demonstrate where the findings cannot these support in the appreciate the court erred and fails to Anchoring determi- trict its erroneous. by which we are unfortunate, of review uneontro- narrow standard but nation on these factors, verted, the court constrained. socioeconomic alia, found, environ- that “[b]ecause inter Moreover, repeatedly has the Coalition cumulative, strong, school is so ment outside impor- acknowledge the properly failed to varied, such cannot overcome schools pervasive socioeconomic conditions tance of among chil- [sic] environmental/differences discrepancies among the that account for agree. at 819. We dren.” Id. Indeed, performance. in races educational responsibility of the Coalition avoids the the district court’s Accordingly, we affirm carefully examining the roots of the continu- proof and its burden of allocation of the gap, a brutal performance ing achievement persistent that determination black/white in phenomenon first documented jure segre- national vestiges of de disparities are not in various recent 1960s44 and substantiated gation. likely Court: as whites to e. Blacks are 2.86 times as nothing you saying done? unemployed. that has been JA 6573. Are be are 3.21 households with children f. Black Mr. Henderson: Honor, likely children beyond building white households with times as as In enrollment, Your essence. by single parent. 6574. JA aspect to be headed only which was one * * * of the Green factor of Court's examination average a Cen- white student lives in m. The yes, say- assignment, what I’m that’s student of the adults have some sus tract where 51% ing, Your Honor. education; average college black student Argument Transcript at 15 and 17. As of Oral tract where lives in Census 33% shown, has the record be- our discussion above college education. 669-70. adults have some lies counsel’s assertion. desegregation area are in an n. Blacks in the minimum, extravagant Coalition’s lan- At a whites, economically position to and that inferior appropriate political guage would be more County gap than it is in is wider in New Castle advocacy. What is than as courtroom rhetoric JA 550. the nation as a whole. more, exaggeration, accept it we were to such if consistency gap between the o. There is to for us to allow such a debacle would be foolish gap with the in achieve- socioeconomic status ment, years court micro- If 20 of federal continue: demonstrating Brandywine statistics system management has been such of the school areas, greatest disparity Colonial the in both disaster, should, unmitigated without disparity. least JA 885-87. discussion, supervision of the return further officials, certainly following locally in the to elected 43. This attitude was reflected schools exchange argument: they at oral could do no worse. (Co-Counsel Appellant): for the Mr. Henderson Report,” the "Coleman 44. The district court cites unquestionably establishes evidence [T]he Opportunity,” "Equality titled of Educational segre- perpetuated ... that the districts have Rights the Civil "commissioned which was gation, inequality and educational harm.... studies of the per- and was one of first inequality Act of 1964 segregation has been The petuated opportunity coun- equality in the virtually of educational all within the schools try.” at 819 n. schooling. aspects of mates, in dispute if are not matters in this that socioeco- that “demonstrate studies45 equalized, litigation. are more characteristics nomic equalized.” more Co- levels are achievement at 823. Unfortunate- alition, F.Supp. at These studies ly, presentation repeated- in its the Coalition is difficult for children “[i]t conclude ly accept the fundamental has refused learning opportuni- equal advantage of

take concept scope review is advan- the initial and cumulative ties absent determining whether limited curriculum,” and tages stimulating of a home concluding erred thе environment outside “[b]ecause unitary school districts have achieved status. cumulative, varied, strong, so school is history jurisprudence of our contains cannot overcome such environmen- schools precedent micromanagement true for the no among children.” Id. tal/differenees systems by of school the federal courts. In- belief, support pre- our These conclusions deed, authority supervise our these school discussion, foregoing that none sented Anglo- districts does not stem from the arguments concerning spe- tradition, Coalition’s American common law in which the rates, education, discipline dropout cial judicial through reasoning law evolves based achievement, activi- extra-curricular instead, student legal principle; legitimacy on our college matriculation can disparities ties exclusively'from powers that here derives weighing seriously considered without jurisdiction, equity inhere “another stream demographic This impact of critical data. law, alongside the common flowed whose do, choosing in- has failed to Coalition discretionary royal were in the headwaters energies argu- primary focus its stead to prerogative. Equity pro- was a flexible more supervision of ing for continued federal court cess, initially unprincipled, quite ad more judge’s if order the schools—as a federal jurisprudential hoc.”46 Thus the basis for 20 eliminate, pen, of a could with the stroke years management of the North- of detailed problems. social broad County system ern New school has Castle been, remedy in simply, equity a framed to humans, acknowledge with melan- As desegregation enforce a decree. many fac- choly the fact that socioeconomic against completely play- a level tors militate and, definition, remedy equitable This however, ing society. judges, in our As field jurisprudential legitimacy, meant to its were social, powerless to alter formidable we are lifespan. remedy was have a limited demographic forces and condi- economic and only implement an for designed to serve legal precept no has control. tions over which monitoring guidance, permanent not as a and Moreover, fulfill an we are constrained to boards, for state and school substitute local obligation to address those constitution- indeed, in legislature. state Thus for the us, to questions properly presented al op- maximum educational our zeal to insure fealty appropriate standards of re- students, show portunities for all Delaware school view, judicial abandon the limits on lest we must bear in mind that the the federal courts political power give coherence our administering responsibility for the schools system. The district court articulated the locally ultimately belongs to elected officials. meaning institutiоnal limits for this of these Indeed, although acknowledge that we must case: supervise multi- proper it been for us to has generations in the service of ple of racial discrimi- of students continued existence

[t]he ideals, whole, process society we have nation in our as a and the unassailable multiple generations ability of elected of that discrimination on the also denied effect participate fully in equal officials the freedom of a black child to enter school on years government. For 20 representative footing privileged with more white school- "psycho- aptitude,” “student “instruction" "[t]he district court observes that record studies,” logical Id. at 819. including environments.” several [such] noted Walberg, Dr. Herbert which identifies nine fac- Bickel, Dangerous affecting productivity and di- 46. Alexander M. The Least tors educational (1962). categories— Branch 250 vides these factors into three broad years acknowledge colloquy Supreme Court to been constant between there has a segregation. judges political reality of these In one and officers federal institutions, years glorious history a which to most moments of the score Court, “with all desegregation judiciary, speaking achieve deliberate federal II, 294, voice, speed,” effectively repealed as ordered in Brown U.S. unanimous (1955). 757, 753, holding, 99 L.Ed. “separate equal” 75 S.Ct. but doctrine Education, Brown 347 U.S. v. Board of ruling that the school districts of North- 686, 692, (1954), L.Ed. 873 74 S.Ct. County long have at last New Castle ern public that “in the field of education the truly respected specific deseg- orders our place.” no ‘separate equal’ but has doctrine of court has cut umbil- regation, extending cord from the courtroom to ical Kansas, Topeka, Supreme Along with normally the classroom. Institutions considering the fates of Court in Brown was powers traditionally are free to exercise systems: three South Car additional (and alone) in granted them them the Ameri- olina, be Virginia, and Delaware. Delaware political process are free can now to assume part came after historic decision powers. has those The time come for Supreme state’s Court two districts ordered step courts to back. What Roscoe Pound jure to admit black children into de all-white century ago appro- almost a still is most said (Del. Belton, schools. v. 91 A.2d 137 Gebhart priate: demand too much of “[W]hen men 1952). appeal that decision It was the from law, they upon when to devolve it the seek Topeka that was consolidated with the case. control, they burden of whole social when straight unwavering no There was [school,] make it work of the seek to do the system march toward a color-blind school church, ... home and enforcement of law Brown, Rather, the aftermath of however. many to involve difficulties.”47 The comes desegregation Delаware and elsewhere declaring uni- judgment of district court “long, history,” tortured Evans has had a tary status will affirmed. Buchanan, (D.Del.), SAROKIN, (3d Judge, Cir.1978), denied, dissenting: aff'd, Circuit F.2d 750 cert. 100 S.Ct. 64 L.Ed.2d 278 U.S. years ago, hundred One United States (1980). to the mandate of Brown Resistance Supreme Court its back on turned the consti- fierce, at times violent. Then-Gov promise equal protection tutional George spoke ernor of Wallace Alabama country that this made to its African- law when, many standing steps on of the front American citizens the aftermath of the Tuscaloosa, University the of Alabama in he Plessy Ferguson, Civil War. 163 U.S. “illegal usurpation the of [state] denounced 537, 1138, (1896), 41 L.Ed. 256 16 S.Ct. power by and the Central Government” tried upheld constitutionality Court of laws to block admission of African-American segregation of requiring public the racial fa- youngsters university system.1 into the state schools, cilities, including public as “within competency legislatures,” of the state id. officials, well, proved Delaware less 544, 1140, at 16 S.Ct. and at validated responsive than to the constitutional mandate “separate equal.” infamous of doctrine but and, to state’s desegregate public schools (Harlan, J., 1144 id. at at See 16 S.Ct. result, compelled as a the federal courts were dissenting). ruling time, at a to enforce the mandate one truly desegregation at this culminating No one the time could be- with Court’s Buchanan, for one that there order in Evans v. 582 F.2d lieved instant was a shred 1978. (3d Cir.1978) (in denied, banc), equality systems serving of between the cert. children black children of dual U.S. 100 S.Ct. 64 L.Ed.2d 278 white (1980). systems. sixty Today it took close we are lift this order. Yet asked to Carter, Pound, George 1. Dan T. Pennsylva- Rage: Roscoe The Address Politics Before of Conservatism, Wallace, Association, Origins Bar Re- The the New Penna. Assoc. nia Bar of (1916). American Politics port 221 Transformation (1996). accurately Majority premises majority reflects the tor- under which the I history elapse operate. tured of this matter. The litigation supervi-

four decades of and court is, all, disagreement There first of no continuance, against militates its sion supervision “to extend federal court indefi- begrudging compli- it but is also evidence desirable, nitely practicable, is neither nor repeated desegre- court orders to ance proper,” Majority at and this is not what delay gate. I find it ironic that the in im- time, today. I advocate At the same plementing the orders of court to end this Supreme supervision by Court has held that segregation being justify is now utilized to should courts continue until “the Although the end of court intervention. it is past discrimination been ha[ve] eliminated judicial very tempting supervision end Pitts, practicable.” to the extent Freeman v. progress, the face of it would substantial 1430, 1446, 503 U.S. 112 S.Ct. just it of suc- unfortunate abandon short (1992). Appellees L.Ed.2d 108 Because the dissent, I not I cess. because conclude that requirement, have not met this I believe that any of the district court are supervision premature withdrawal of erroneous, accepting but rather because point. them causes me to conclude that some ves- any disagreement Nor is there between remain, tiges past may discrimination al- Majority and the Dissent that “[t]he though many I concede that have been elim- proper test under the equality Constitution is inated. opportunity, Majority not of results.” majority’s recognition I concur with the principal 766. To the extent that the issue the need to return control of schools to local placement this Dissent is the of African- communities, but if and when we are classes, American children in lower-level goals satisfied that the established some 18 to the extent the district court itself years ago substantially I have been met. may found that “lower levels of instruction challenge majority’s suggestion that the encourage may achievement and adverse court’s role these matters has “denied ly ability affect the of a student to attend multiple generations of elected officials the college,” Coalition to Save Our Children v. participate fully representative freedom to ¶ 784, 801, of Educ., Bd. State Majority government.” denial (D.Del.1995), opportunity it is their to suc occurred, participation, if of that it was not academically ceed that is at stake. judicial usurpation due to but rather arose Finally, Majority’s I share the “reluc- discriminatory from the and unconstitutional impose any obligation tan[ce] unstated many conduct of of those It elected officials. Majority the school boards.” at 777. At the delayed is not the courts who have the return time, impose same we should not or tolerate power, to local but it is those elected officials opportunity young limitations on the speed.” who failed to act “with all deliberate ], participate equally black students to in the Brown v. Board II [Broum Education of process educational and derive all of the ben- 294, 301, 753, 757, 349 U.S. 75 S.Ct. 99 L.Ed. efits therefrom. (1955). if Even we are to withdraw our juncture, at I supervision this see little need findings II. Factual apologize for the court’s intervention these matters. Without intervention such I now ‍​​​​​‌‌‌​​​‌‌‌​​​‌‌‌​‌‌‌‌​‌​​‌‌​​‌‌‌​​‌​​‌‌​‌​‌‌‍turn to the substantive of the review our separate First, schools would have remained agree ruling. district court’s I with unequal segment and a of our nation Majority’s vestiges that conclusion of rights opportu- would have been denied segregation with have been eliminated re- nities to which all are entitled. spect following to the areas: intra-district balance, 761-762; Majority

student racial at special assignment, id. at education student principles I. Shared 762-763; faculty assign- and clerical staff ment, 766-768; my I activi- Before articulate the reasons for id. at extracurricular dissent, ties, 768; 769; transportation, I want the shared id. at id. at underscore id.; “gifted”

facilities, training, self-contained [the id. at 770- School in-service districts, skills, 771-772; at 771; program the 4 id. reading id. at curricu- student 27], lum, 772-773; counseling on exams guidance, 800 n. who scored above 85% id. 773-774; relations, 774; than other slightly greater human that for the id. id. discipline, groups. at 774-776. id. However, agree Majori- with I cannot 5¡í i¡: ‡ H: # # demonstrated, Appellees or ty that the concluded, percentages 46. A review of correctly taking college and groups racial who were elimi- segregation of been a) that: non-college prep classes illustrates following of respect to the facets nated with Brandywine’s of black a little over 50% assign- classroom operations: student taking grades 9-12 non- ment; assignment; students were and com- certified staff English, college prep I a little less programs. therefore whereas skills munications Brandywine’s than 20% of white students district court for fur- remand to the would b) taking English; level were of findings these three areas. regarding ther addition, black stu- little over 60% Christiana’s assignment classroom because achievement, grades taking 9-12 non- I dents in were would remand affects student college prep English, a little less regarding whereas findings further the so-called than white students Finally, 25% Christiana’s of concern.” because the dis- “areas c) taking English; level legal were apply trict court did not correct students little over 50% black regarding the exclusion of the testi- Colonial’s standard non-college in grades taking 9-12 were mony I experts, of one of the Coalition’s prep English, whereas than a little less findings further on this would remand for 35% white were tak- of Colonial’s students issue as well. d) ing English; a little over that level assignment Clay’s grades 40% of Red black students A. Student classroom English, taking non-college prep 9-12 were note, all, first “the I school districts a little less 17% of Red whereas than acknowledge bearing evidentiary burden” Clay’s taking white students that lev- were issue, other proving compliance English. el of Less than 5% of black factors 1978 Order. Ma- Green and the See students were enrolled in advanced En- jority at 776. districts; glish high in the schools of the however, over 20% of were white students findings district court’s at that level. and conclusions among high 47. There is evidence that Findings 30 to 49 of district court’s who test- school students achieve identical assign- concern classroom opinion student ing apparently comparison scores [“The at 799-801. ments. include does not academic achievement Findings through specifical- 49 focus more performance, course or measured i.e., “ability ly “tracking” grouping,” on placement requested or whether such assignment “to in- of students various required.” 30.], at 801 stu- Id. n. black ability.” the basis groups structional likely placed more dents were to be Among Id. at 800-01. than lower level class were white students. following: elementary which extent to hand, percentage other 48. On the the placed and middle in school students AP enrolled in honors and minorities ability according unclear classes to their is percentile scored over 75th classes who the from the record. reading spring in or math in of 1993 is the in all 4

slightly greater than thаt of whites school districts. percentage In minori- the in is that lower levels gifted ties the self-contained honors and 49. There evidence may encourage program Elementary Burnett not achieve- student at instruction Second, may adversely ability findings regarding affect the while the ment stu- college. tracking prove conclusively dent do not of a student to attend that the school districts discriminate in then- omitted). (citations Id. at 800-01 tracking race, practices they on the basis of together, findings these demon- Taken certainly support do not opposite the conclu- (1) that: African-American students strate i.e., that the districts do not discrimi- sion — likely assigned high-level to are less to be anything, nate on the basis of race. If counterparts, and classes than their white findings presumption court’s create a likely in placed to be low-level classes more might race be a factor in New Castle Coun- (2) 46]; disparate assignments these [¶ ty’s tracking practices. Since the burden part in for other are made at least reasons' regard including with to the Green factors — merit, than academic since black students assignments student Appellees to —is perform who as well as white students are prove vestiges segregation that the likely placed “more to be on the lower level eliminated, Appellees been and since the of- 47; [are] [¶ class than white students” see explanation disparities fered no for the ¶¶ 38, also the absence of alternative 48]. tracking, uncertainty the- as to the cause of explanations, findings permit infer- these disparities should be resolved favor of tracking prac- ence the four districts’ n Coalition, and therefore the district based, may part, at on racial tices least vestiges court’s conclusion that the have been Furthermore, considerations. the court’s eliminated, regards at least with to student findings disparate demonstrate these assignment, unsupported classroom tracking assignments may deprive African- premature. opportunity American students of the success, achieve the same level of academic Majority’s analysis 2. The admission, including college as their white Despite disparity counterparts between the court’s [¶ 49]. findings own of fact and its conclusions of made no find- The district court additional law, Majority affirms the conclu- ing regarding explanations of fact alternate Majority’s I position sion. believe that the “potentially troubling” findings, for these see review, wrong based on the standard Furthermore, Majority at 763. whereas it wrong allocation of burdens and unsus- conclude, regard was able to to school- reading evidentiary tainable of the record. assignments, based student 4 dis- “[t]he among racially most tricts are balanced (a) States,” see schools United n ¶ 799, 29, it reached no such First, Majority defines “our task” as regarding tracking-based assign- conclusion inquire “to whether the district court’s deter- ments. unitary mination of the districts’ status was Majority erroneous.” at 764. The legal conclude did matter unitary district court’s determination as to linking that “there is no credible evidence status, however, fact, is one not of which we racially current identifiable conditions error, law, would review clear but of see violation,” prior id. and that “the which as is past discrimination have been customary subject plenary review. practicable.” eliminated to the extent Id. at I 823-24. believe the evidence dis- (b) supra support conclu- cussed does sion. Second, again Majority time and dis- all, import fac- findings

First of the court’s own consti- misses the of the district court’s findings by resolving gaps in potentially linking tute “credible evidence” tual the evi- i.e., racially ambiguities dentiary one identifiable record and as to those condition — disparities assignment high-level Appellees, racial factual de- favpr acknowledg- prior spite fact that own low-level classes —to “the viola- the its ment, Appellees, Appellees that of bear tion.” inference, assuming Majority’s even vestiges of The showing the that the burden draw, appellate court could that it is one have been eliminated. discrimination is not unconvincing at the issue is best: (i) Majority dismisses The well, perform black students whether some “among high school stu- finding that court’s per- must rather whether black students but scores, testing identical who achieve dents placed in hon- to be form better than whites likely placed more to be students were black classes, the district court’s AP which ors and than were white level class in the lower case, any once clearly suggests. finding Coalition, students,” F.Supp. at legally errone- inappropriate again it is —and ¶ 47, that black stu- ... evidence “no[ ] as interpretation the Coalition’s ous—to dismiss opportunity.” equal have not received dents interpretation, more favor- because another Majority con- Majority at 763. While the bur- Appellees, possible is when able to troubling” finding “potentially that this cedes Appellees. den lies that black stu- might “suggest[ on its face ] white may segregated (iii) from have been Majority dents the district The dismisses testing aptitude,” id. equal students of finding that extent to which “[t]he court’s ground that rejects conclusion on the it are elementary and middle school students as well comparison “consider[] did not ability according to their is placed in classes achieve- important Coalition, factor of academic record,” from the unclear ¶ performance,” and that on course 800, 36, ment based “mean[ing] little on F.Supp. at placement not clear whether “it is own, merely that there is represents for it its required.” Id. at 763. requested issue uncertainty how elemen- in the record about placed are tary and middle school students course, evidentiary gaps that Of Majority ability.” according to their classes nullify import Majority not identifies do at 764. finding potential court’s as to of the district qualified equally stu- disparate treatment However, uncertainty about enough. True Furthermore, these on race. dents based merely placement demonstrates student party gaps not serve to exonerate should failed to meet their burden Appellees have uncertainty proof; bears the burden showing that of discrimination court’s significance of the district as to the suggest To otherwise have been eliminated. in fa- finding not be resolved factual should evidentiary burden. is to misallocate party that the burden. vor of the bears (iv) Majority the district The dismisses (ii) Majority dismisses “[ejvidence that lower lev- finding court’s percentage of minor- that “the may encourage achieve- els of instruction AP classes who enrolled in honors and ities ability may adversely affect the ment and reading or percentile in scored over the 75th college,” a student to attend slightly greater spring of 1993 is math in the 801, ¶49, establishing] F.Supp. at as “not districts,” that of whites in all than putative anything specific about whether 801, ¶48, F.Supp. at as “so disparate educational problem is related malleable, limited, Ma- sample,” and thus according to race.” opportunity or treatment allow number jority at as to Majority at 765. Majority Specifically, while the inferences. however, finding, significance ... of this acknowledges finding could that “this are that black students must not to demonstrate give to an inference blacks rise classes, if but that channeled to lower-level higher than whites perform at a level are, classes,” a deleterious effect they this would have and AP placed to be honors order achievement. This reasonably on their level of academic may just as suggests that “we it read in the context of finding, when something quite different: infer findings suggesting that other desegre- district court’s good faith efforts to school districts’ assigned to different levels improved students gate paid off terms race, is ominous and based on Id. instruction testing performance of black students.” poor performance of black suggests that the at 764. might not be reason for the district omission. number of areas in a students Therefore, I would remand to the court for factors. solely to socioeconomic related findings regarding vestiges whether

further regard with to certified staff have been elimi- (c) nated. Majority analysis, the of its At the end already have made

proclaims “[a]s skills C.Communication clear, are on which students [the basis required The 1978 Order the districts instruction] levels of was placed lower (which at the time were consolidated into a Majority discriminatory.” at 765. racially district) single “to institute affirmative fact, the district court’s neither program reading and communication skills Majority’s analysis supports nor even the Evans, resegregate pupils.” does not best, which they suggest At such a conclusion. dispute I at 1015-16. do not rеgarding is indeterminate the record Majority’s ... conclusion that “the districts lev- assigned to certain whether students good compliance faith i.e., met the standard of on the basis of els of instruction race — reading regarding with” the Order skills. have failed to establish that Appellees However, Majority at 771. the district See assignment, the the area of student single finding regarding court made not a to the have been eliminated of discrimination implementation aof communication skills practicable. extent program. See at 809- ¶¶ 168-185. 3. Conclusion Majority oversight contends that this reasons, I would remand foregoing For the inconsequential because “there is no mean- findings re- district court for further to the ingful reading pro- skills distinction between tracking. garding disparities racial grams programs,” skills and communication Majority “‘reading and that skills’ B.Certified staff synonymous skills’ are and ‘communications assignment, Regarding the issue of staff analysis purposes of our here.” Id. at staff is “[t]he the district court noted However, support 772. there is no administra- divided into three subsections: record to read the “communication skills” staff, staff, and classified staff.” tive certified I requirement surplusage. as mere cannot ¶ F.Supp. at 50. As the Majority’s suggestion, eigh- agree with the explained, staff includes “‘[certified fact, language years that the teen after personnel such as nonadministrative certified merely sloppy or redun- Order teachers, speech hearing psychologists, only suggestion This is not contra- dant. diagnosticians and therapists, educational analysis of the dis- diction with the careful pupil support person- other ‘instructional time, plain but also with the trict court at the ¶ Id., nel.’” Reading meaning words. and commu- human activi- different forms of nication are teachers, no Except for the court made There- ty, they involve different skills. identifiability of finding regarding the racial fore, the district court for I would remand to respect to the certified the schools findings in area. further Similarly, Majority discusses staff.2 faculties, regarding the Ma- districts’ efforts concern

jority “non-professional” or D.Areas and the only, but in “classified” staff id. the so-called Green factors In addition to way regard- no discusses the districts’ efforts ancillary outlined relief measures and the ing certified staff. district court court in of concern” for several “areas professionals these considered disputes No one Order, discriminatory practices: student possible I and see no were included Christiana, F.Supp. at continuously.” exception Coalition is in which 2. The sole 802, ¶ percentage the racial of such staff "monitors 786 education;

achievement; supra, I special dropout explain As I believe that remand Coalition, F.Supp. appropriate at in the instant matter for fur- rates. 901 818-22. As is findings regarding assign- Majority acknowledges, there is no dis- ther classroom significant disparities along racial ment. If the district court were to сonclude pute that assigned various are lines remain these areas. See on remand that students race, Majority issue is whether these of based on at 776. The different levels education disparities legally cognizable vestiges Vaughns by Vaughns finding of a are under such jure presumption The district court con- a of segregation. de would create causal rela- “[tjhere tionship jure is no credible evidence between the de violation and cluded that achievement, demonstrating disparities that the differences between and the evi- dentiary Appellees. success in school and white children’s burden would shift black note, too, jure seg- presumption to the former de that can be attributed We would be regated system.” entirely 901 with district court’s school consistent at 828. own that “lower levels of instruction may may encourage achievement and sense, very In there can be no real doubt adversely ability affect the of a student many the condition of African-Ameri- college.” attend 901 society lasting legacy of a cans in our is ¶ 801, 49. people of color as a matter of law time when Because conclusion the court draws equality opportunity. How- were denied may regarding placement class affect its con- ever, Supreme Court has made it clear “[tjhere clusion is no credible evidence jure vestiges segregation that not all of de demonstrating that the differences between law,” are concern of the but those “the black and white children’s success in school jure link to the de that “have a causal viola- jure can seg- be attributed to the former de Pitts, being tion remedied.” Freeman v. 503 823, regated system,” id. at I would 467, 496, 1430, 1448, 112 S.Ct. U.S. regarding vacate the court’s conclusion (1992). L.Ed.2d 108 so-called areas of concern and remand for factors, regard causality With to the Green light reconsideration of the above. presumed. Majority explains, is As the “the per vestiges Green factors have become se testimony E. Exclusion de Jan Leeuw’s jure segregation.” Majority de at 776. argued appeal The Coalition on that the Causality presumed ancillary for is also improperly expert district court excluded tes- relief measures contained the 1978 Order. timony sought present it to rebut establishing causality But the is a issue experts, prej- defendant’ own and that it was difficult in the case more one identified by Majority udiced the exclusion. The cor- performance disparities. rectly judge’s notes that trial “[a] exclusion testimony appeal cannot be disturbed agree Majority I under the ” Major- ‘absent a clear abuse of discretion.’ “[bjecause scenario, typical performance ity Santos, (citing Semper at 775 v. 845 F.2d disparities Appellant claimed are not (3d 1233, Cir.1988); Fashauer v. New (or to) among even similar the Green factors Jersey Operations, Transit Rail 57 F.3d Order, vestiges or the identified (3d Cir.1995)). However, review simply presume ... we will not that these plenary when the district court’s evidentia- jure segregation.” Majori- of de ry ruling “implicates application ‘the of a Majori- ty agree at 776-777. I with the also ” Christos, legally Lippay set standard.’ however, ty, if the district court ulti- (3d Cir.1993) (quoting 996 F.2d mately to find that the school district were (3d Agriss, Savarese v. 883 F.2d status, unitary has not achieved the burden Cir.1989)). plaintiffs would shift and the would be enti- causality. presumption tled to a See id. 1. Factual (citing Vaughns by Vaughns v. Bd. of 2, 1994, County, George’s Educ. Prince 758 F.2d November the district court On (4th Cir.1985)). alia, setting up, 990-91 issued an order inter (or tion, marginal discovery. partic- the tables include condi- pre-trial framework tional) percentages. ular, November ordered the court designate which of party [should] “each (JA 4055). Report at 14 de Leeuw testify trial and the experts [would] its ex- subject as to which each specific matter system attorney for wrote to An to Our testify.” Coalition Save pert [would] protesting the court on December that “the Education, Board v. Delaware Children by expert reports provided Plaintiff were (D.Del. 1816-1822-SLR, slip op. at Nos. Ward, incomplete,” from Rodman Letter Jr. (JA 318). 1994) (Order) 2, (Dec. 1994) (JA Nov. 1, L. Judge to Sue Robinson “exchange ex- parties further ordered 362), asking provide that the Coalition and comply will reports, the content of which pert .fully “expert reports comply with Rule 26(a)(2)(B)” by November with Fed.R.Civ.P. 26(a)(2)(B)” Id.; by December 9. see also (JA 319).3 Id., slip op. at 5 23. Ward, D. from Rodman Jr. to Thomas Letter (Dec. 1995) (JA 384). The Coalition Barr experts list of submitted its The Coalition supplement Dr. de apparently did not Among listed was 17. those on November by report that date. Board’s Brief Leeuw’s Leeuw, Director of the UCLA Dr. de Jan at 55. Redesignation Consulting Center. Statistical Witnesses, to Save Our Expert Coalition deposed on December Dr. de Leeuw was Education, C.A. Board Children State being initially if 15. After asked he would be (D.Del. SLR, slip op. at 2 No. 1816-1822 matter,” any opinions in “offering he 1994) (JA 346). Dr. Leeuw was de Nov. responded, “Opinions, no. I have to describe expert witness to “be called as an construction, and I don’t think the database consultation, analysis, data of statistical fields any opinions.” Deposition of involves Id.4 and related matters.” (hereinafter Leeuw, de Dec. Jan (JA 1562). Deposition”) Howev- “de Leeuw Report on submitted his Dr. de Leeuw Henderson, er, counsel for the Thomas a (hereinafter of Database Creation and Use Coalition,5 during depo- later intervened Report”) on November Leeuw the “de notice “give counsel] Board’s [the sition exclusively report deals 4041. The may testify as to materi- Leeuw] de [Dr. construction of the preparation and with analyses, ... in the defendants als and data section, “Goal of One entitled database. 1563). (JA Describing reports.” Id. [sic] Analysis,” explains: problem,” “a Andre this intervention as real counsel, Bouchard, system’s providing expert the school analysis G. consists given notice if the Cо- depicted requested that he be The tables witnesses with tables. to testi- to call Dr. de Leeuw alition intended composition racial districts report.” “anything of his fy about outside regard to outcomes of inter- schools with ‘Well, I responded, Mr. Henderson provide the actual num- Id. est. These tables record, your request and it’s on the who fall heard percentages of students ber and I that.” Id. categories. In addi- and will consider each of these within states, argue 26(a)(2)(B) in their brief 4. The Board defendants inter alia: 3.Rule as "its by expert identified Dr. de Leeuw Except stipulated directed list otherwise shall, court, respect prove accuracy expert this disclosure of its statistical specially em- witness who is retained or a presentation.” Brief at 55. This char- Boards' testimony provide expert in the case ployed to expert is nowhere contained acterization employee party as an or whose duties Proposed Deponents List of Plaintiff's list or in expert testimony, regularly giving involve (JA 305). dated October prepared accompanied by report a written report signed by shall con- the witness. The erroneously transcript identifies the Coali- 5. The opinions complete all to be statement of tain a deposition D. at the as Thomas tion's counsel therefor; expressed and the basis reasons trial, Mr. Henderson Barr. In the course information considered the data or other forming opinions; any See JA 1229. ex- rectified the record. in used as a the witness summary support of or hibits to be for the opinions.... Dr. testi- day, argues informed the that exclusion of de Leeuw’s the Coalition The same mony not make sense since Dr. de intention to call three new “does of its defendants fashioned, testimony was and could of these witnesses was Leeuw’s experts. rebuttal One fashioned, Fisher, only have been after the cross- professor of econom- Dr. Franklin M.I.T., System’s testify on the examination of the School witnesses who was to ics at production analysis in the re- and the of data bases and disk methods used statistical Rossell, during trial.” Id. at 47- Dr. Armor and Dr. files that were made ports Dr. Finally, argues that Walberg, Board’s witnesses. JA 48. the Coalition three of the objected during hearing testimony excluded “would have demonstrat- The defense methodological analytical ground on the that Dr. ed a series of held on December fatally testimony simply “duplicate undermining flaws [the Coalition’s] would Fisher’s sup- testimony.” at 47. thought Mr. Deleeuw was Id. Because the district [it] [sic] what day, importance Dr. 860. The next the court failed to consider the posed to do.” JA objection proffered testimony, and excluded de Leeuw’s I would re- court sustained the testimony: mand. experts’ the new naming experts long

The deadline for is (a) general The context of defendants’ past. testimony experts’ methodology and used note, first, I that Rule 703 of the Federal by experts these should have been of no inapposite Rules of Evidence is to the dis- plaintiff. surprise to the Defendants states, pute at hand. Rule inter alia: prejudiced experts if would be these were particular upon “The facts or data the case testify. plaintiff And has not allowed expert opinion which an an bases infer- prejudice claimed the absence of their may perceived by ence be those or made testimony. expert known to the at or before the hear- 863). (JA did not Tr. 1572 The Coalition ing.” subject dispute The over Dr. de ruling. appeal the court’s testimony, Leeuw’s and the for his reason exclusion, scope expertise is the of his as 1995, 3, day January the of Dr. de On defined in the Coalition’s November 30 re- testimony, the Coalition’s counsel Leeuw’s port, specifically and more “whether at this what defendants handed to the defendants stage proceeding plaintiff late the pages “91 of charts and statistical describe as given opportunity present should be the data,” 56, signaled Board’s Brief by expert affirmative evidence an never be- it intended to call Dr. de Leeuw to offer qualified fore in” the area of student achieve- testimony regarding analyses of rebuttal (statement Court). by ment. JA 1230 defendants, experts three for the Drs. Ar- mor, Reschly. Boards’ Brief at Achilles and Similarly, by the cases cited the Coalition testimony sought The new from Dr. de evidencing practice as “normal com Leeuw was to be the same as that which the usage expert mon witnesses” are of no Fisher, Dr. expected to elicit from Coalition relevance the instant case. The issue in excluded December 28. expert an the first two cases was whether however, again, JA 1229. This time testify attending should be allowed to after testimony ground on the court excluded witnesses, testimony allegedly of other comply effort failed to the Coalition’s by excluding violation of an order the court previous the court’s orders and with during all witnesses from the courtroom trial. Rule 26. Crabtree, 1261, v. United States 979 F.2d (7th Cir.1992), denied, cert. 510 U.S. Legal analysis 878, 216, (1993); 114 S.Ct. 126 L.Ed.2d 173 Bramlet, 851, argues The court’s exclu- v. 820 F.2d Coalition United States (7th Cir.), denied, testimony of Dr. de Leeuw’s rebuttal cert. 484 U.S. sion (1987). contrary to Federal 98 L.Ed.2d 129 Nor does Rule 703 of the Rules S.Ct. Evidence, practice as as “normal and the the third ease cited well usage expert Appel- unreported opinion, common witnesses.” district court offer support argument. Laysears lant’s Brief at 47. The Coalition further its Corp., No. had all the data of November it Civ. A. 94- knew Schindler Elevator (E.D.Penn. Sept. scope methodology testimony 1995 WL 1995). presented by system. to be the school Therefore, certainly district court was

(b) acting within its discretion when it found that comply the Coalition failed to with its orders argues Dr. de next Coalition regarding Dr. testimony. de Leeuw’s belated testimony could have been Leeuw’s after cross-examination of the fashioned produсtion

Board’s witnesses and the of da- (c) during files There tabases and disk trial. analysis Our not end with the does argument. are two problems with finding, however. It has been the specific regardless first is that of when data position” “consistent “ of the Third Circuit that given the Coalition was to the importance testimony ‘the of the excluded system along aware all that the school would is one of the to be considered factors part present analyses as statistical of its deciding whether the trial court abused its argument, and it was aware late Novem- ” in excluding discretion a witness.’ Sowell analysis ber of areas for which statistical Inc., Singer, v. Butcher & 926 F.2d presented. problem would The second (3d Cir.1991) (quoting Meyers Pennypack chronology of has to the what infor- do with Assn., Ownership Woods Home 559 F.2d just mation and when. As was available (3d Cir.1977), 904 overruled on other noted, 30, the knew as of November Coalition Steel, grounds, Goodman v. Lukens F.2d subjects system’s the which the school on (3d Cir.1985), aff'd, 482 U.S. testify, experts various and would the extent (1987)).6 S.Ct. L.Ed.2d 572 Other they analysis. to which on statistical relied part factors include: “bad faith on the the experts, “anything specific JA 1289. As to seeking party call not listed in witnesses testimony Dr. on in his that Achilles relied memorandum,” pretrial Meyers, his 559 F.2d entirely appendix to the report was on 904; “ability party of the to have discover backup the the 30th in terms of all data for earlier,” id.; “validity ed the witnesses the Regarding his tables.” JA 1290. Dr. Resch- id.; by party,” excuse offered the “willfulness ly’s testimony, backup “the tables for all of party’s comply failure to the Reschly which data data on Dr. [the order,” id.; parties’ and “the intent to in the appendix relied] were all contained adversary.” confuse or his Id.. [sic] mislead system] [the delivered on Novem- explained, Meyers As the court in the follow Armor, Finally, Dr. ber 30th.” Id. as to it ing guide “basic considerations” should the appears system’s from the school uncontro- court’s decision: testimony methodology verted that “[h]is is (1) report. prejudice surprise anal- the or in fact of described his statistical party against ysis report. assump- is in his the excluded described whom witnesses (2) testified, regression ability of tions he made in his method- would have (3) carefully party ology fully prejudice, is described his cure the extent Therefore, report.” against calling Id. data that to which waiver of the rule disrupt missing specific was December 1 unlisted would the order- as of witnesses ‍​​​​​‌‌‌​​​‌‌‌​​​‌‌‌​‌‌‌‌​‌​​‌‌​​‌‌‌​​‌​​‌‌​‌​‌‌‍ly by census Dr. Armor in trial of the ease or other data used his work— efficient (4) court, may faith again, eases in bad but while the Coalition not have question- Semper, Majority suggest that "it is 6. None of the cases cited the court found Jersey testimony v. New otherwise. In Fashauer Transit would able whether the rebuttal Inc., (3d Cir.1995), Operations, Rail 57 F.3d materially Semper.... helped the trial [B]oth previously excluded undisclosed district court judge Appellate Division of District noting, expert testimony after mak- rebuttal "I'm significance pro- [the] Court discounted the ing judgment [Dr. Ehrenreich’s testimo- posed testimony." Sеmper, 845 F.2d ny] laughably ludicrous that I think so don’t The court the excluded testimo- further described you requires rebuttal." need—that it Id. at 1287. Semper’s ny "hardly 'strik[ing] at the heart' of (Dr. person testimony Ehrenreich is the whose case.” Id. rebut.) designed “surprise witness" was respond voluntarily comply imposed upon them and failing to with the willfulness of Brown. The courts’ to the commands court’s order. spring authority in these matters does not 904-05; DeMarines v. ELM see also Id. at arrogance, merely it “inhere in from nor does Airlines, 1201- 580 F.2d Royal Dutch equity jurisdiction.” Id. It is rooted in the Cir.1978). (3d Equal Protection Clause of the Fourteenth Furthermore, finding an “the likelihood of Amendment to the United States Constitu- impor affected abuse of discretion is tion. court’s decision to the tance of the district elapsed has it will have Much time since State the ease and the effect outcome of desegregate Delaware was first ordered to rights.” In re Paoli Railroad important (3d and, admittedly, much has been its schools Litigation, 35 F.3d Yard PCB Cir.1994) (citation omitted), until we can accomplished. But unless and cert. denied sub — past Ingram, be certain that all of the Electric Co. v. nom. General to the -, discrimination have been eliminated 131 L.Ed.2d 134 U.S. 115 S.Ct. (1995). supervision practicable, extent should not be Considering dealing that we are abandoned. in the record that the There is no evidence large here with the education and future of importance considered the district court leaders, to number of tomorrow’s trade addi- testimony proffered or sever- Dr. de Leeuw’s greater equality tional time for is not a bad Meyers. factors outlined in al of the other bargain. Therefore, I believe that we should vacate decision to exclude Dr. de Accordingly, the district court’s I would remand further testimony and remand to Leeuw’s belated consistent with consideration and complete con- court for the more opinion. testimony that sideration of Dr. de Leeuw’s demands.

the law of this Circuit

III. Conclusion young presence of a number of black America UNITED STATES of argument of this matter students at compelling to us serve as a reminder should sufficiency struggle over the that while we LAND, LESS, MORE OR 30.54 ACRES OF burdens, proof and allocation of our decision COUNTY, SITUATED IN GREENE today directly and fu- affects the education OF PENNSYLVA COMMONWEALTH many young people. ture of of these NIA Majori- join opinion I cannot As Filiaggi Josephine Filiaggi, above, James V. ty legal grounds on the outlined nei- Wife, Filiag Husband and Lawrence E. join ther can I the condemnation of Coali- Filiaggi, gi advocacy and Helen Husband and zealous tion’s counsel. Without the Wife, Equipment Company, L history, and & J throughout this case’s demonstrated Inc., Appellants.* accomplished in much of what has been past two decades would have been. Nos. 95-3296. Majority’s join I criticism of Nor can Appeals, States Court of United micromanagement [segregated] “the Third Circuit. systems by courts.” Ma- the federal jority at 779. The courts assumed their role Argued June unquenchable in these matters not out of July Decided upon power or a desire to intrude thirst others, province but because of the charged responsibili- with the failure of those

ty ending segregation to fulfill the duties 12(a),

*Pursuant to Rule F.R.A.P.

Case Details

Case Name: Coalition to Save Our Children v. State Board of Education

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 24, 1996

Citation: 90 F.3d 752

Docket Number: 95-7452

Court Abbreviation: 3rd Cir.