APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (Civil Action No. 71-538)
Before Gibbons, Hunter and Garth, Circuit Judges.
Plaintiffs, mothers of children who attend public schools in the General Braddock School District in Allegheny County, Pennsylvania, brought this action on behalf of themselves and other parents of children attending those schools,*fn1 alleging that the consolidation of various school districts in that county had created racially segregated schools. The district court, in an opinion and order filed on May 15, 1973, held that the creation of the General Braddock School District by the Pennsylvania State Board of Education was an act of de jure discrimination in violation of the fourteenth amendment.*fn2 The defendants were ordered to prepare and submit to the court a plan for desegregation which was to include modifications in the boundary lines of the General Braddock School District and, "as appropriate, of adjacent and/or near-by school districts."*fn3 A plan designated as Plan "22-W" was submitted in 1973 but was rejected by the court after a hearing. Thereafter, in 1975, the Commonwealth filed a plan (Plan "A") for the consolidation of the General Braddock School District with neighboring districts. In an opinion and order filed on November 18, 1977, the district court denied the Commonwealth's motion for approval of Plan A. The district court's order reads as follows:
And Now, November 18, 1977 the Motion of Defendant Commonwealth of Pennsylvania for approval of its Reorganization Plan (Plan A) filed September 30, 1975 in this matter (Docket No. 178) is hereby Denied and any necessary injunctive order to implement such plan is likewise Denied, without prejudice to the right of any party to submit further plans or proposals and evidence in support thereof. Any such plan involving the joinder or consolidation of school districts not now parties of record must be accompanied by the necessary joinder of such parties.
Because we hold that the district court's order of November 18, 1977 is neither a final order nor an appealable interlocutory order which can vest this Court with appellate jurisdiction, we are obliged to dismiss plaintiffs' appeal.
Prior to 1971, the area presently included in the General Braddock School District was served by the school districts of the Boroughs of Braddock, North Braddock and Rankin.*fn4 In 1968, the Pennsylvania legislature, pursuant to its longstanding policy of consolidating school districts, enacted Pub.L. 299, No. 150, Pa.Stat.Ann. tit. 24, § 2400.1 et seq. (Purdon Supp.1978) ("Act 150"), which directed the county school boards to prepare and submit to the state board of education plans for the reorganization of their constituent school districts.*fn5 The state board promulgated standards for the approval of such plans.*fn6 The standards provided for consideration of, Inter alia, pupil population, community characteristics, and facilities; however, race was not to be a factor in the formulation of any plan.*fn7
After considering plans which would have consolidated the schools in the Boroughs of Braddock, North Braddock and Rankin with the school districts in neighboring municipalities which have predominantly white enrollments,*fn8 the county board, on October 7, 1968, approved a plan which created the General Braddock School District as the school system for the three boroughs. The adjacent Turtle Creek and Swissvale Area School Districts and the nearby Edgewood School District were created under that plan as well. The state board approved the formation of the General Braddock School District on May 9, 1969, and the new district came into being on July 1, 1971.*fn9
On June 9, 1971, the plaintiffs' complaint in this action was filed. As thereafter amended, it alleged two causes of action under the equal protection clause of the fourteenth amendment and under 42 U.S.C. §§ 1981, 1983 (1970). In Count I, the plaintiffs alleged that the defendants, the Pennsylvania State Board of Education and the Allegheny Intermediate Unit Board of School Directors,*fn10 had intentionally and knowingly established the boundary lines of the General Braddock School District so as to create a racially segregated district. Count II alleged that the school district so established lacked the economic resources to provide educational opportunities comparable to those available to pupils attending public schools in the surrounding districts. After trial, the district court filed an opinion and order on May 15, 1973, in which, after recording its findings of fact and conclusions of law, it held that the demarcation of the boundaries of the General Braddock School District by the county and state boards was "an act of De jure discrimination in violation of the Fourteenth Amendment."*fn11
The district court found that the percentage of non-white enrollment was "much greater" in the General Braddock School District than in any of the surrounding districts or in almost any other district in Allegheny County.*fn12 It further found that the school-age population of Braddock, North Braddock and Rankin was becoming increasingly non-white and that this trend had been accelerated by the establishment of the General Braddock School District.*fn13 It was the court's conclusion that the defendants knew or should have been aware of these facts in 1968-1969, and that they must have known that the establishment of General Braddock as a school district would "perpetuate, exacerbate and maximize segregation of school pupils."*fn14 The district court found that the board's purpose in forming the General Braddock School District was not to further any educational goals but was "to satisfy the desires of as many of the surrounding municipalities as possible to be placed in a school district which did not include Braddock and Rankin."*fn15 The district court, after finding that the school district boundaries in the central eastern area of Allegheny County bore no rational relation to any legitimate purpose, thereupon concluded that "race was a factor, at least indirectly, in the formation of the school district composed of Braddock, North Braddock and Rankin."*fn16
In the Order which was also filed on May 15, 1973,*fn17 the district court required the defendants Commonwealth of Pennsylvania, the state board and its chairman ("the Commonwealth defendants") to submit within forty-five days a comprehensive plan for school desegregation in the central eastern area of Allegheny County. The court directed that the plan was to go into effect as soon as possible and that it was to be an educationally sound and practicable mode of achieving the greatest possible degree of desegregation. The order also required that the plan "alter the boundary lines of the General Braddock Area School District and, as appropriate, of adjacent and/or near-by school districts."*fn18
Approximately one month after the May 15, 1973 Order had been entered and two years after the action had been commenced, two of the districts adjacent to the General Braddock district, Turtle Creek and Churchill, filed petitions to intervene as parties in interest. The district court denied the petitions but subsequently invited all districts (including Turtle Creek and Churchill) which would be directly affected by the Commonwealth's desegregation plans to intervene for the limited purpose of offering objections to those plans.*fn19 Turtle Creek and Churchill again sought to intervene generally (as distinct from the limited intervention allowed by the court).*fn20 Their petitions were denied, and each filed an appeal. This Court affirmed the district court's orders denying general intervention on the ground that, under NAACP v. New York,*fn21 it was within the district court's discretion to deny petitions which had not been timely made.*fn22
In compliance with the court's May 15, 1973 order,*fn23 the Commonwealth defendants filed Plan "22-W" in September, 1973. That plan, among other features, would have abolished the General Braddock School District and created two new school districts. One district would have included the Borough of Rankin with other districts with predominantly white enrollments, and the other new district would have included the Braddock and North Braddock schools with still other surrounding districts. The school districts affected by this plan were permitted to intervene to offer evidence regarding Plan 22-W.*fn24 In an order and memorandum opinion filed on May 7, 1975, the district court, after holding extensive hearings,*fn25 rejected Plan 22-W. The defendants were then ordered to prepare another plan which would comport with the evidence adduced at the hearing by the parties and the intervening school districts.*fn26
Thereafter, in September, 1975, the Commonwealth defendants submitted "Plan A". Although, in the opinion of the district court, Plan A constituted a "more moderate realignment" of school district boundaries,*fn27 the district court nonetheless denied the defendants' motion for approval of the plan. In its opinion of November 18, 1977, the district court concluded that the plan "would not be in the best interests of the students in the present General Braddock area school system."
The district court also questioned whether, under Milliken v. Bradley,*fn28 it had the power to order the proposed relief. The district court expressed its belief that Milliken "raises doubts about the application of an inter-district remedy to districts that have not been full participants in all proceedings." Accordingly, the district court required, in its order, that any school district included in a desegregation plan be joined as a necessary party.
The Order filed on November 18, 1977 thereupon denied the defendants' motion for approval of Plan A. It further denied "any necessary injunctive order to implement such plan . . . without prejudice to the right of any party to submit further plans or proposals and evidence in support thereof." It was from this order that the plaintiffs appealed.*fn29
The jurisdiction of the courts of appeals normally is confined to the review of final orders, 28 U.S.C. § 1291 (1976)*fn30 or to the classes of interlocutory orders described in 28 U.S.C. § 1292(a) (1976).*fn31 Here, the plaintiffs have taken the position that the November 18, 1977 Order is either "final" within the meaning of § 1291, or that it ...