APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil Nos. 1816-1822).
Van Dusen, Aldisert, Adams, Rosenn, Hunter, Weis and Garth, Circuit Judges. Garth, Circuit Judge, with whom Judges Rosenn and Hunter join, dissenting.
The major question presented in this review of a three-judge court's judgment ordering the Delaware Board of Education to desegregate its school system is the propriety of the court's inter-district remedy. As hereinafter modified, the district court's judgment will be affirmed.
The present appeal is, we trust, the final chapter in an extensive series of proceedings initiated twenty years ago "to eliminate the de jure segregation in Delaware schools," Evans v. Buchanan, 393 F. Supp. 428, 430 (D. Del. 1975), and to effectuate "a transition to a racially nondiscriminatory school system" as required by Brown v. Board of Education (Brown II), 349 U.S. 294, 301, 99 L. Ed. 1083, 75 S. Ct. 753 (1955).*fn1 A three-judge court was convened in 1971 in response to the plaintiffs' concern that Delaware's Educational Advancement Act of 1968, which gave the State Board of Education the power to reorganize existing school districts, 14 DEL. C. § 1001, but excluded the Wilmington school district from reorganization, see id. §§ 1004(c)(2) and (4), 1005, 1021, 1026(a), offended the principles of Brown.
In its initial opinion, Evans v. Buchanan, 379 F. Supp. 1218 (D. Del. 1974), the court concluded that "segregated schooling in Wilmington has never been eliminated and that there still exists a dual school system," id. at 1223, and, accordingly, ordered the State Board of Education to submit plans to remedy existing segregation. Id. at 1224. The court postponed the date set for submission of the plans, however, after the Supreme Court issued its opinion in Milliken v. Bradley, 418 U.S. 717, 41 L. Ed. 2d 1069, 94 S. Ct. 3112 (1974). In its 1975 deliberations, having invited all affected school districts to present evidence on all issues before the court, and applying Milliken standards to the record evidence thus adduced, the court found significant inter-district, de jure segregation in New Castle County. Evans v. Buchanan, 393 F. Supp. 428, 431-32, 438, 445, 447 (D. Del. 1975). At this time, the court held unconstitutional those provisions of Delaware's Educational Advancement Act which excluded Wilmington from eligibility for reorganization, and again ordered submission of both Wilmington-only and inter-district plans to remedy the inter-district segregation. Id. at 447. The State Board of Education and the intervening suburban school districts (except DeLaWarr) appealed this judgment to the Supreme Court pursuant to 28 U.S.C. § 1253. On November 17, 1975, the Supreme Court summarily affirmed the district court. Buchanan v. Evans, 423 U.S. 963, 46 L. Ed. 2d 293, 96 S. Ct. 381 (1975).
On May 19, 1976, after three weeks of evidentiary hearings on the plans submitted by the parties, the district court reiterated its finding of an inter-district violation: "We establish here only that the remedy which we order may include the suburban districts, because their existence and their actions were part of the violations which lead to the remedy." Evans v. Buchanan, 416 F. Supp. 328, 341 n.43 (D. Del. 1976). In considering the various plans submitted, the court found Wilmington-only plans unacceptable, id. at 343-44, and rejected the specific inter-district remedies proposed by the parties. The latter included plans relying on voluntary transfer inducement ("magnet" plans), id. at 345-46, and several proposals utilizing cluster and pairing techniques, id. at 346-48, which the court determined to be "fraught with complex problems unsuitable for judicial determination" and which would "place the Court in the ongoing position of general supervisor of education in New Castle County." Id. at 347.
On June 15, 1976, the district court ordered that Delaware schools in the area north of the northern line of the Appoquinimink School District - the area presently comprised of the Alfred I. duPont, Alexis I. duPont, Claymont, Conrad, DeLaWarr, Marshallton-McKean, Mount Pleasant, Newark, New Castle-Gunning Bedford, Stanton, and Wilmington School Districts - be desegregated and reorganized into a new or such other new districts as would comply with the court's May 19, 1976 opinion. The May 19 opinion had set the date for full compliance with constitutional requirements on all grade levels as September 1978. 416 F. Supp. at 361.
Thereafter, appellants took an appeal to the Supreme Court which, on November 29, 1976, dismissed the appeal on jurisdictional grounds. 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91, 45 U.S.L.W. 3399 (1976). The present protective appeals to this court were then pursued.
The Supreme Court's summary affirmance of the district court's 1975 order would appear to be binding on this court under the law of the case principle, which has been explained by the Supreme Court as follows:
When matters are decided by an appellate court, its rulings, unless reversed by it or a superior court, bind the lower court. Thus a cause proceeds to final determination. While power rests in a federal court that passes an order or decision to change its position on a subsequent review in the same cause, orderly judicial action, except in unusual circumstances, requires it to refuse to permit the relitigation of matters or issues previously determined on a former review.
Insurance Group Committee v. Denver & Rio Grande Western R.R., 329 U.S. 607, 612, 91 L. Ed. 547, 67 S. Ct. 583 (1947) (footnote omitted).
Under the rule of Hicks v. Miranda, 422 U.S. 332, 344-45, 45 L. Ed. 2d 223, 95 S. Ct. 2281 (1975), lower courts, being bound by summary decisions of the United States Supreme Court, may not reexamine constitutional questions necessarily decided in a summary affirmance. In cases of summary adjudication, of course, it is not always crystal clear what exactly was adjudicated by the Supreme Court, see Super Tire Engineering Co. v. McCorkle, 550 F.2d 903, 906 (3d Cir. No. 76-1869, Feb. 25, 1977, Slip Op. at 7), but in this case we conclude that the Supreme Court affirmed the finding of one or more inter-district constitutional violations. The district court found a constitutional violation and ordered the parties to submit both Wilmington-only and inter-district plans. Thus, in exercising its review function, the Supreme Court perforce considered both the constitutional violation and its inter-district character. Had the Court disapproved of these lower court findings, it would either have found no constitutional violation, thereby precluding the submission of any plan, or, alternatively, it would have prohibited the filing of an inter-district plan.
The dissent urges that we should determine which of the eight violations found by the district court were affirmed or not affirmed by the Supreme Court. In view of the doctrine of the law of the case and the very brief order by the Supreme Court, this would become a highly speculative exercise, if indeed, this court has the power to attempt a modification of the Supreme Court's judgment. If the defendants believe that some of the eight alleged violations were not affirmed, they should take, or perhaps previously should have taken, appropriate steps to obtain review of this matter, or a clarification, by the Supreme Court. To order a remand and further proceedings by the district court might well impose an unsolvable problem upon the district court.*fn2
The law of the case principle also precludes this court from entertaining appellants' suggestion that the Supreme Court's decision of November 17, 1975, was somehow altered by its June 7, 1976, decision in Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). The short answer is that it remains for the Supreme Court, not an "inferior" tribunal, to entertain this contention. Insurance Group Committee v. Denver & Rio Grande Western R.R., supra. Nor are we persuaded that the Davis decision constitutes an "unusual circumstances" exception to the law of the case, in view of the Supreme Court's own explanation that "the holding in Davis reaffirmed a principle well established in a variety of contexts. E.g., Keyes v. School District No. 1, 413 U.S. 189, 208, 37 L. Ed. 2d 548, 93 S. Ct. 2686 (1973) (schools); Wright v. Rockefeller, 376 U.S. 52, 56-57, 11 L. Ed. 2d 512, 84 S. Ct. 603 (1964) (election districting); Akins v. Texas, 325 U.S. 398, 403-404, 89 L. Ed. 1692, 65 S. Ct. 1276 (1945) (jury selection)." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450, 45 U.S.L.W. 4073, 4077 (1977). We hold, therefore, that one or more inter-district constitutional violations were found by the district court and affirmed by the Supreme Court. Those rulings now constitute the law of the case. Accordingly, we are precluded from re-examining them. Instead, our concentration must be upon the court-ordered remedy.
Before considering the specifics of the remedy ordered by the district court, it is important to emphasize that, as a reviewing court, we are not empowered to consider the matter de novo. The fashioning of a remedy is committed to "the exercise of the district judge's discretion . . . [and] a school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right." Swann v. Board of Education, 402 U.S. 1, 15-16, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971).*fn3
The Supreme Court teaches that this exercise of discretion involves certain functional parameters:
Discretion imports not the court's "inclination, but . . . its judgment; and its judgment is to be guided by sound legal principles." Discretion is vested not for purposes of "limit[ing] appellate review of trial courts, or . . . invit[ing] inconsistency and caprice," but rather to allow the most complete achievement of the objectives . . . attainable under the facts and circumstances of the specific case.
Franks v. Bowman Transportation Co., 424 U.S. 747, 770-71, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976), quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). And in a recent delineation of the proper appellate role for reviewing exercise of discretion, this court stated that an improper use of discretion exists only when the judicial action is arbitrary, fanciful, or unreasonable, or when improper standards, criteria, or procedures are used. Lindy Bros. Builders, Inc. v. American Radiator and Standard Sanitary Corp., 540 F.2d 102, 115-16 (3d Cir. 1976) (in banc).
Thus, our task on review is not to substitute the remedy we would have imposed had we been the district court; rather, it is to determine whether the district court observed promulgated guidelines.
The sound legal principles that govern the remedy in this case have been enunciated by the Supreme Court.*fn4 The Supreme Court's school desegregation opinions have consistently emphasized the basic and universal remedial purposes of a desegregation order as well as the intensely practical and unique character of each such order. At the same time the Court has set certain outer limitations upon the exercise of remedial discretion in school desegregation cases.
The guiding purpose of a remedial order in a case such as this is to eliminate unconstitutional racial discrimination "root and branch". Green v. County School Board, 391 U.S. 430, 438, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968). The school system and its students are to be returned, as nearly as possible, to the position they would have been in but for the constitutional violations that have been found.
While the purposes of such a remedy are broad, the details of its structure must necessarily be specific. The plan adopted should be one that promises "realistically to work" in overcoming the effects of discrimination. Green v. County School Board, supra, 391 U.S. at 439. "Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation . . .. The measure of any desegregation plan is its effectiveness." Davis v. Board of School Commissioners, 402 U.S. 33, 37, 28 L. Ed. 2d 577, 91 S. Ct. 1289 (1971). The realities and practicalities of each particular case are necessarily matters within the trial court's discretion.
While the unique character of every school system has prevented the Supreme Court from promulgating detailed rules concerning what a court must do to remedy a constitutional violation, the Supreme Court has specified what a court may not do in such a case. A court is not at liberty to issue orders merely because it believes they will produce a result which the court finds desirable. The existence of a constitutional violation does not authorize a court to seek to bring about conditions that never would have existed even if there had been no constitutional violation. The remedy for a constitutional violation may not be designed to eliminate arguably undesirable states of affairs caused by purely private conduct (de facto segregation) or by state conduct which has in it no element of racial discrimination. This much is settled by Milliken v. Bradley, supra. See also Spencer v. Kugler, 404 U.S. 1027, 30 L. Ed. 2d 723, 92 S. Ct. 707 (1972), affirming 326 F. Supp. 1235 (D. N.J.); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450, 45 U.S.L.W. 4073, 4077 and n.15, 4078-79 and n.21. Nor may a remedial desegregation order require "as a matter of substantive constitutional right, any particular degree of racial balance or mixing . . . . The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole." Swann v. Board of Education, supra, 402 U.S. at 24. If that language were not clear enough, the Supreme Court has more recently repeated that "the clear import of this language from Swann is that desegregation, in the sense of dismantling a dual school system, does not require any particular racial balance in each 'school, grade or classroom.'" Milliken v. Bradley, 418 U.S. at 740-41 (footnote omitted). These are limitations by which a trial court must abide.
The task of a remedial decree in a school desegregation case is simply to correct the constitutional violation and to eradicate its effects. "As with any equity case, the nature of the violation determines the scope of the ...