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Mitchell, Velma and Mitchell v. McCunney

decided: May 29, 1981.

MITCHELL, VELMA AND MITCHELL, GARRY AND CLARK, MARLENE AND CLARK, SHARLENE, A MINOR BY HER MOTHER AND NATURAL GUARDIAN MARLENE CLARK, AND FRAZIER, HATTIE AND CLARK, NORMAN AND CLARK, JR., NORMAN, A MINOR BY HIS FATHER AND NATURAL GUARDIAN NORMAN CLARK AND ON BEHALF OF THEMSELVES AN AND ON BEHALF OF OTHERS SIMILARLY SITUATED, APPELLANTS
v.
MARK A. MCCUNNEY, INDIVIDUALLY AND AS PRESIDENT OF THE BOARD OF SCHOOL DIRECTORS, SOUTHEAST DELCO SCHOOL DISTRICT, DELMAR DRIVE AND PRIMROSE AVENUE, FOLCROFT, PENNSYLVANIA, AND WILLIAM A. CUBIT, INDIVIDUALLY AND AS VICE PRESIDENT OF THE BOARD OF SCHOOL DIRECTORS, SOUTHEAST DELCO SCHOOL DISTRICT, DELMAR DRIVE AND PRIMROSE AVENUE, FOLCROFT, PA. AND JOHN H. ALEXANDER, INDIVIDUALLY AND AS A MEMBER OF THE SCHOOL BOARD OF DIRECTORS, SOUTHEAST DELCO SCHOOL DISTRICT, DELMAR DRIVE AND PRIMROSE AVENUE, FOLCROFT, PA. AND HARRY A. DUNLAP, INDIVIDUALLY AND AS A MEMBER OF THE SCHOOL BOARD OF DIRECTORS, SOUTHEAST DELCO SCHOOL DISTRICT, DELMAR DRIVE AND PRIMROSE AVENUE, FOLCROFT, PA. AND ANGELO M. LABUONO, INDIVIDUALLY AND AS A MEMBER OF THE SCHOOL BOARD OF DIRECTORS, SOUTHEAST DELCO SCHOOL DISTRICT, DELMAR DRIVE AND PRIMROSE AVENUE, FOLCROFT, PA. AND WILFORD L. OTTEY, INDIVIDUALLY AND AS A MEMBER OF THE SCHOOL BOARD OF DIRECTORS, SOUTHEAST DELCO SCHOOL DISTRICT, DELMAR DRIVE AND PRIMROSE AVENUE, FOLCROFT, PA. AND BARBARA L. WHITSETT, INDIVIDUALLY AND AS A MEMBER OF THE SCHOOL BOARD OF DIRECTORS, SOUTHEAST DELCO SCHOOL DISTRICT, DELMAR DRIVE AND PRIMROSE AVENUE, FOLCROFT, PA. AND FRANKLIN A. YEAGER, INDIVIDUALLY AND AS A MEMBER OF THE SCHOOL BOARD OF DIRECTORS, SOUTHEAST DELCO SCHOOL DISTRICT, DELMAR DRIVE AND PRIMROSE AVENUE, FOLCROFT, PA. AND SCHOOL BOARD OF DIRECTORS, SOUTHEAST DELCO SCHOOL DISTRICT, DELMAR DRIVE AND PRIMROSE AVENUE FOLCROFT, PA., DEFENDANTS I V . PETER A. LEDONNE, INDIVIDUALLY AND AS SUPERINTENDENT OF THE SOUTHEAST DELCO SCHOOL DISTRICT, DELMAR DRIVE AND PRIMROSE AVENUE, FOLCROFT, PA., DEFENDANTS II V . ROBERT G. SCANLON, SECRETARY OF EDUCATION, COMMONWEALTH OF PENNSYLVANIA, 206 STATE OFFICE BUILDING, PHILADELPHIA, PA., DEFENDANTS III V . TERREL H. BELL, SECRETARY OF EDUCATION, U.S. DEPARTMENT OF EDUCATION, 3535 MARKET STREET, PHILADELPHIA, PA., DEFENDANT IV (D.C. CIVIL NO. 79-02223)



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Before Gibbons, Hunter and Garth, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

A plaintiff class of black elementary school students and their parents residing in the southern portion of Darby Township appeals from a decision of the district court following a nonjury trial. The court rejected plaintiffs' claim that the Southeast Delco School District desegregation plan places an unconstitutionally undue burden on black students. Plaintiffs objected that the closing of the only elementary school in a predominately black neighborhood disproportionately affects black students, and therefore demonstrates that racial animus motivated the school board's decision to close the school. The district court held the school district had been de jure segregated prior to adoption of the disputed plan. It placed the burden on the school board to prove that its decision to close the school was not racially motivated. The court held the school board's evidence of age, physical deterioration, and unsafe conditions in and surrounding the school building, as well as the closing of a school in a predominantly white neighborhood, and the plan's provisions for reassigning both white and black students, satisfied the board's burden. We affirm.

I.

The Southeast Delco School District is located in Delaware County, Pennsylvania. It comprises the boroughs of Collingdale, Folcroft, Sharon Hill, and Darby Township. Darby Township includes two noncontiguous divisions. The northern portion of Darby Township is located in the northwest corner of the District; the southern portion is located in the southeast corner. The boroughs of Collingdale and Sharon Hill separate the two portions of Darby Township. Southern Darby is predominantly black. The three boroughs and all of Northern Darby, with the exception of the Okeola area, are almost exclusively white. Before 1972, the boroughs and Darby Township maintained separate school systems.

In 1968, a Pennsylvania Common Pleas court order mandated desegregation of the Darby Township school system. Under the order, all students in grades 1-4 attended Darby Township Elementary School in northern Darby; students in grades 5-6 attended the Studevan School in southern Darby; high school students attended Darby Township High School in northern Darby.

A merger of the Collingdale, Folcroft, Sharon Hill, and Darby school systems in 1972 established the Southeast Delco School District. White students in the District continued to attend schools in their respective boroughs. Black students continued to be bussed from one end of Darby Township to the other, thus bypassing the schools located in the central white boroughs.

In 1977, the Pennsylvania Human Relations Commission requested the Southeast Delco School District to submit a desegregation plan. The District proposed a plan which included the option of closing the Pusey Elementary School in Collingdale, and the Studevan School in southern Darby. The Pusey School, built in 1914, is the District's oldest. The Studevan School is the only school in southern Darby. Built in 1929, it is the District's second oldest. The Commission approved a version of the plan which would have retained the Studevan School as a "magnet school" for exceptional children. After ascertaining that the "magnet school" feature of this version violated federal regulations, however, the Commission revoked its approval.

In spring 1979, the District school board voted to implement a desegregation plan closing both the Pusey and the Studevan schools. The school board maintains it determined to close these schools because of their age, and because of a drop in elementary school student population. The Studevan School, moreover, abutted a six-lane highway, shared a driveway with a bus depot, was 500 feet from a vermin-infested junkyard, and 1000 feet from petroleum storage tanks. The second floor of the school had been sealed off because of fire regulations. The exterior walls of the school were vandalized. The school's facilities were also inaccessible to the handicapped.

Although the Commission had not approved the 1979 plan, the plan's student assignment provisions substantially correspond to those in the plan the Commission had earlier approved. Under the enacted plan, most students from the boroughs continue to attend the same schools. Students from northern Darby attend Darby Township Elementary School (in northern Darby) for grades K-6, and Central Junior High School in Sharon Hill for grade 7. Southern Darby is divided into four assignment areas. Students from each area attend elementary and junior high schools in the boroughs nearest their area. Although the District affords bussing for elementary school students living more than 1.5 miles from their assigned schools, fewer students, both black and white, are bussed than were before implementation of the plan. Most students from southern Darby live within walking distance of their new schools.

II.

The district court found that from 1972 to 1978, the Southeast Delco School Board had created and maintained a dual school system. It held that the schools were racially identifiable both in composition of students and in assignment of teachers. The student assignment policy retaining the 1968 distribution of Darby students had the foreseeable effect of creating racial imbalance. Bussing black students from one end of the District to the other strongly suggested the school board's improper purpose, especially since black students in the busses passed by white schools within walking distance of their homes.*fn1 See generally Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 99 S. Ct. 2941, 61 L. Ed. 2d 666 (1979); Dayton Bd. of Ed. v. Brinkman (II), 443 U.S. 526, 99 S. Ct. 2971, 61 L. Ed. 2d 720 (1979).

The court held the 1979 plan in most respects satisfied constitutional and federal statutory standards.*fn2 Plaintiffs, however, maintained the plan placed an unconstitutional burden on black students. They contended that the school board's decision to close the only elementary school in predominately black southern Darby was racially motivated. The board asserted that economic and educational, rather than racial, factors prompted the decision. The court held that when de jure segregation has been proved, the school board bears the ...


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