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. e du/thir dc ir c uit_1996/110UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________________

No. 95-7452

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COALITION TO SAVE OUR CHILDREN,

Appellant

v.

STATE BOARD OF EDUCATION OF THE STATE DELAWARE;

BOARD OF EDUCATION OF THE CHRISTIANA SCHOOL D ISTRICT;

BOARD OF EDUCATION OF THE BRANDYWINE SCHOOL D ISTRICT;

BOARD OF EDUCATION OF THE COLONIAL SCHOOL DI STRICT;

THE BOARD OF EDUCATION OF THE RED CLAY SCHOOL DISTRICT;

DELAWARE HOUSE OF REPRESENTATIVES COMMITTEE ON D ESEGREGATION

__________________

Appeal from the United States District Co urt
for the District of Delaware (D.C. Civil No. 56-01816)

__________________

Argued: Tuesday, March 12, 1996

Before: NYGAARD, SAROKIN and ALDISERT, Circuit Judges

(Filed July 24, 1996)

__________________

Thomas D. Barr David Boies (argued )

Sandra C. Goldstein

Katherine B. Forres t CRAVATH, SWAINE & M OORE

Worldwide Plaza 825 Eighth Avenue New York, New York 10019

Thomas J. Henderson (argued)

Pace J. McConkie

LAWYERS' COMMITTEE FOR CIVIL

RIGHTS UNDER LAW 1450 G Street, N.W. Washington, D.C. 2 0005Leonard L. Williams

1214 King Street Wilmington, DE 1 9801

ATTORNEYS FO R APPELLANT

Andre L. Dennis
STRADLEY, RONON, ST EVENS & YOUNG

2600 One Commerce S quare Philadelphia, PA 1 9103-7098

Mary B. Matterer STRADLEY, RONON, ST EVENS & YOUNG One Rodney Square, 8th Floor

P.O. Box 2170 Wilmington, DE 198 99-2170

ATTORNEYS FO R

AMICUS CURIA E - CITY OF WILMINGTON, DELAWARE

Rodman Ward, Jr. (a rgued)

Andre G. Bouchard
SKADDEN, ARPS, SLAT E,

MEAGHER & FLOM One Rodney Square

P.O. Box 636 Wilmington, Delawar e 19899

John B. Hindman Department of Justi ce 45 The Green Sykes Building Dover, DE 19901

ATTORNEYS FO R APPELLEE

STATE BOARD OF EDUCATION

OF THE STATE OF DELAWARE

M. Duncan Grant PEPPER, HAMILTON & SCHEETZ

18th & Arch Streets 3000 Two Logan Squa re Philadelphia, PA 19103

Alfred J. D'Angelo, Jr.
Daniel V. Folt
PEPPER, HAMILTON & SHEETZ

1201 Market Street

Suite 1401 Wilmington, DE 1 9801

ATTORNEYS FO R APPELLEERED CLAY CON SOLIDATED

SCHOOL DISTR ICT

David H. Williams

Barbara D. Crowell
MORRIS, JAMES, HITC HENS &

WILLIAMS

222 Delaware Avenue

P.O. Box 2306 Wilmington, Delawar e 19899

ATTORNEYS FO R APPELLEES
BRANDYWINE, CHRISTIANA

AND COLONIAL SCHOOL

DISTRICTS

Charles J. Cooper ( argued)
SHAW, PITTMAN, POTT S &

TROWBRIDGE 2300 N Street, N.W. Washington, D.C. 2 0037

ATTORNEYS FO R APPELLEE

DELAWARE HOU SE OF

REPRESENTATI VES COMMITTEE

ON DESEGREGA TION

__________________

OPINION OF THE COURT

__________________

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . 4

II. Procedural History . . . . . . . . . . . . . . . . . . . 6

III. Scope of Review. . . . . . . . . . . . . . . . . . . . .11

IV. Unitary Status . . . . . . . . . . . . . . . . . . . . .13

V. Green Factors. . . . . . . . . . . . . . . . . . . . . .18

A. Student Assignment . . . . . . . . . . . . . . . .18 B. Faculty and Staff Assignments. . . . . . . . . . .32

C. Extracurricular Activities . . . . . . . . . . . .37 D. Remaining Green Factors. . . . . . . . . . . . . .39

VI. Ancillary Relief . . . . . . . . . . . . . . . . . . .39

A. In-service Training. . . . . . . . . . . . . . . .41 B. Reading and Communication Skills . . . . . . . . .44C. Curriculum . . . . . . . . . . . . . . . . . . . .48

D. Counseling and Guidance. . . . . . . . . . . . . .50

E. Human Relations. . . . . . . . . . . . . . . . . .52 F. Discipline . . . . . . . . . . . . . . . . . . . .53

VII. Areas of Concern to the District Court and

Allocations of the Burden of Proof. . . . . . . . . .57

VIII. Conclusion . . . . . . . . . . . . . . . . . . . . . . .64

ALDISERT, Circuit Judge

I. Introduction This case brings to a close our supervision of more than four decades of litigation designed to desegregate the public

schools of Delaware. However, we do not end our supervision hastily. After the Delaware schools' rudimentary attempts at desegrega tion were deemed insufficient by the district court in 1957, and by this court in 1960, judges of this circuit blazed new ju risprudential trails in 1975 by requiring an interdistrict remedy . By 1977 and 1978, the judiciary had fashioned detailed orders f or primary and ancillary relief which, together with the factors s et forth by the Supreme Court in Green v. County School Bd. of New Kent County, Va., 391 U.S. 430 (1968), constituted the m arching orders for the school system. Still, it was not until almost 20 years later ( and 35 years

after this court announced dissatisfaction with an original plan that called for grade-by-grade desegregation over a 12-year period) that the district court could announce that the marching orders had been obeyed: The school system has achi eved unitary status by complying in good faith with our detaileddesegregation decrees and by eliminating to the extent practicabl e the vestiges of de jure segregation. This was the ruling of the district court embodied in a judgment entered after a length y hearing. The Coalition to Save Our Students ("Coalition"), t he representative of the plaintiff class, has appealed . We will

affirm. It is beyond dispute that racism and bigotry co ntinue to tear at the fragile social fabric of our national a nd local communities, and that our best efforts as citizens are needed to address this problem at many levels. However, as t he district court observed in the case at hand, court-supervise d school desegregation alone cannot eliminate racial discrim ination: [A]s the years have passed since Brown I and II [Brown v. Board of Educ., 347 U.S. 483 (1954) and Brown v . Board of Educ., 349 U.S. 294 (1955)], it has become appa rent that the school desegregation process has been unable to eliminate or overcome racial discrimination in the "myriad f actors of

human existence" outside the school environment

. . . . Coalition to Save Our Children v. State Bd. of Educ . of State of Del., 901 F. Supp. 784, 823 (1995) (quoting Swann v . CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 22 (1971)). Or as the Court succinctly put it in Swann: "One vehicle can carry only alimited amount of baggage. It would not serve the important

objective of Brown I to seek to use school desegreg ation cases for purposes beyond their scope . . . ." Swann, 40 2 U.S. at 22. In light of this sobering truth, it is all the more important that we write the final chapter in this l ong period of supervision by the federal courts and release our p rovisional grip on the administrators and educators of Norther n New Castle County, for only in so doing can we permit them to resume their full role in the larger social and political effort to make our nation worthy of the best ideals of its members. T he length of

the discussion that follows is but one indication o f the importance and sensitivity of the task at hand.

II. Procedural History Historically, Delaware required its public scho ol pupils to attend segregated schools. Del. Const. art. 10  2 (1950) and

Rev.Code 1935  2631. However, even before the landmark decision in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I),

the Delaware courts ordered the admission of black children to certain schools previously attended only by white c hildren. Belton v. Gebhart, 87 A.2d 862, aff'd 91 A.2d 137 ( Del. 1952). The Supreme Court consolidated Belton with Brown I and affirmed, 347 U.S. 483, holding that racial segregation of pu blic school students deprived the minority group children of eq ual educational opportunities, in violation of the Equa l Protection Clause. See Brown I, 347 U.S. 483 (1954). The Cou rt again

affirmed Belton v. Gebhart in Brown v. Board of Edu cation, 349 U.S. 294 (1955) (Brown II), remanding to the Suprem e Court of Delaware for further proceedings to require "a prompt and reasonable start toward full compliance" with Brown I and "to effectuate a transition to a racially nondiscrimina tory school system . . . with all deliberate speed." Brown II, 349 U.S. at

300-01. Yet notwithstanding the end of de jure segregat ion, the City of Wilmington continued to operate many racially id entifiable schools. Accordingly, the district court fashioned an interdistrict remedy to eliminate the vestiges of segreg ation and, faced with the state authorities' adamant and prolo nged refusal to discharge their responsibilities, issued a remed ial decree in 1978. The 1978 Order required a 9-3 student assign ment plan, which provided that all students would attend forme rly predominantly "white" suburban school districts for a maximum of nine years and would spend at least three years in the formerly

"black" school districts. The 1978 Order also directed eight forms of anc illary relief "necessary and essential to . . . overcome the vest ige effects of de jure segregation," including: (1) an in-service training program for teachers; (2) an affirmative reading an d communication skills program; (3) new curriculum of ferings; (4) a nondiscriminatory counseling and guidance program; (5) a human relations program; (6) codes of conduct providing f or nondiscriminatory discipline; (7) the reassignment of faculty and staff; and (8) nondiscriminatory guidelines for con struction and maintenance of school buildings. Evans v. Buchanan , 582 F.2d750, 770-774 (3d Cir. 1978) (in banc).

In 1981, the district court permitted the state to reorganize the judicially-created school district i nto the current four districts -- Brandywine, Christiana, C olonial and Red Clay. Evans v. Buchanan, 512 F. Supp. 839 (D. Del. 1981). In so doing, Judge Schwartz asserted that, notwiths tanding the continued existence of "problems that may be charac terized as vestige effects of de jure segregation, . . . [the] four-district plan is viewed as a good faith effort to respond to repeated judicial invitations for appropriate State authorit ies to come forward with their own meaningful solutions to vexi ng problems." Id. at 863, 874. However, because Judge Schwartz f ound the "effort [to have] fallen short of the mark in the c ritical area of pupil assignment," he deferred for 60 days any o rder regarding

the State Board's motion for modification of the de segregation decree in order to encourage "curative legislation" on the

matter. Id. at 872-74. In 1990, Judge Schwartz made a specific finding that one of the districts (Red Clay) had failed to comply in go od faith with

the 1978 order. Coalition to Save Our Children v. Buchanan, 744 F. Supp. 582, 587-93 (D. Del. 1990). Judge Schwart z stated that "the vestiges of prior official segregation [had no t] been

eradicated 'root and branch' from either the Red Cl ay District as a whole or from its student assignment patterns." Id. at 587. Indeed, Judge Schwartz found that the record was "r eplete . . . with evidence of delay, obfuscation, and recalcitra nce on the part of the Red Clay Board with respect to remedyin g the racial disparities" in that district. Id. at 592-93. In 1991, Judge Schwartz stated that, notwithsta nding the Red Clay District's "technical compliance with this cou rt's orders," he again had "very grave doubts concerning the [RedClay] Board's good faith compliance with the spirit of desegregat ion," and thus could "not make a finding that the Red Clay Distric t [was] operating in compliance with the Equal Protection C lause . . . ."

Coalition to Save Our Children v. State Bd. of Educ ., 757 F. Supp. 328, 349-350 (D. Del.1990). Four years later, upon motion by the Delaware S tate Board of Education for a declaration of "unitary status," th e district

court concluded: that the defendants have complied in good faith with the desegregation decrees issued in this litiga tion, that the defendants are unlikely to return to t he segregative practices of their predecessors, an d that the vestiges of past discrimination have been eliminated to the extent practicable.

Coalition, 901 F. Supp at 823-824. The opinion acc ompanying the order set forth 308 factual findings, which discuss ed: (a) compliance with what have become known as Green fac tors (as originally suggested in Green v. County School Boar d, 391 U.S. 430 (1968)) -- student assignment, faculty and staf f assignment, transportation, extracurricular activities, and fac ilities; (b) compliance with the ancillary relief provisions, en dorsed by this court sitting in banc, see Evans v. Buchanan, 582 F .2d at 769-74;and (c) student achievement, special education and dropout rates,

which the district court labelled "Areas of Concern ." See Coalition, 901 F. Supp. at 818-22. Appellant conce ded compliance with two of the Green factors (transportation and f acilities) and one of the ancillary relief provisions (also concer ning facilities). The district court had jurisdiction under 28 U. S.C.  1331 (1988). We have jurisdiction pursuant to 28 U.S.C.  1291 (1988). Appeal was timely filed under Rule 4(a), F ederal Rules of Appellate Procedure.

III. Scope of Review The Coalition's appeal presents us with three f undamental questions for consideration: first, whether the dis trict court properly concluded that the four school districts o f Northern New Castle County achieved unitary status by complying in good faith with the desegregation decree and by eliminating to the extent practicable the vestiges of past discrimination; se cond, whether the district court properly allocated to Appellant the burden of proving that certain racial disparities in student performance are proximately related to de jure segregation; andthird, whether the district court properly excluded certai n expert testimony proffered by Appellant.

The appeal to this court from the order declari ng unitary status tracks a very narrow compass. Because the d istrict court's finding that the school districts have achi eved unitary status is factual, our review of that finding is li mited to the clearly erroneous standard. Vaughns by Vaughns v. Bd. of Educ. of Prince George's County, 758 F.2d 983, 990 (4th C ir. 1985); United States v. Texas Educ. Agency, 647 F.2d 504, 506 (5th Cir. 1981), cert. denied, 454 U.S. 1143 (1982); Keyes v. School Dist. No. 1, Denver, Colo., 895 F.2d 659, 666 (10th Cir. 1990), cert. denied, 498 U.S. 1082 (1991); Jacksonville Branch, NAACP v. Duval County School Board, 883 F.2d 945, 952 n.3 (11th Ci r. 1989). A finding of fact is clearly erroneous only if the co urt has "the

definite and firm conviction that a mistake has bee n committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). Further, "[i]t is the responsibility of an appellate court to accept the ultimate factual determination of the factfinder unless that determination either (1) is comp letely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data." Krasnov v. Dinan, 46 5 F.2d 1298, 1302 (3d Cir. 1972). We have plenary review of all questions of law. This includes a district court's choice, interpretation and application of the law to the historical facts. Lo uis W. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 765 -66 (3d Cir. 1994). Accordingly, this court undertakes plenary review of the district court's allocation of the burdens of proof

. Finally, we review the district court's determi nation of the admissibility of expert testimony for abuse of disc retion. United States v. Theodoropoulos, 866 F.2d 587, 590 (3d Cir.1989).

IV. Unitary Status The primary legal issue before us is whether th e Northern New Castle County school districts have fulfilled t heir affirmative duty to eliminate the former dual schoo l system. The ultimate end to be brought about by a desegregation remedy is "a unitary, nonracial system of public education." Gr een, 391 U.S. at 436. A school system achieves this unitary stat us when it no longer discriminates between school children on the basis of race. See id. at 442. And a school system no long er discriminates among school children on the basis of race when it affirmatively has eliminated all vestiges of state- imposed segregation. Id. at 435, 437-38 (school board char ged with affirmative duty to eliminate racial discrimination "root and branch"); Swann, 402 U.S. at 15 ("the objective tod ay remains to eliminate from the public schools all vestiges of s tate-imposed segregation"). Thus our task, simply put, is to de termine whether the district court clearly erred in finding that the vestiges of de jure segregation have been eliminate d in the Brandywine, Christiana, Colonial and Red Clay schoo l districts. Green, 391 U.S. at 435; see also Missouri v. Jenkin s, ___ U.S. ___, 115 S. Ct. 2038, 2055-56 (1995). A critical starting point in identifying vestig es of discrimination is the degree of racial imbalance in the school districts. This inquiry is fundamental, because un der the former de jure regime, racial exclusion was both the means and the end of a policy motivated by disparagement of, and host ility towards, the disfavored race. The Court's 1968 opinion in G reen squarely addressed this issue, noting that "[t]he pattern of separate `white' and `Negro' schools . . . established under compulsion of state laws is precisely the pattern of segregation to which Brown I and Brown II were particularly addressed." Green , 391 U.S. at 435. However, the Green Court also made clear that in examining the problem of racial imbalance in our schools, we are to look "not just to the composition of student bodies . . . but to every facet of school operations -- faculty, staff, trans portation, extracurricular activities and facilities." Id.; s ee also Swann, 402 U.S. at 18 (the Green factors are "among the mo st important indicia of a segregated system.") Because complian ce with Greenfactors is a condition precedent to unitary status, we will survey each of those factors here. Nevertheless, the Green factors, which address racial imbalance, are not the only criteria by which we ar e to evaluate whether the school districts have achieved unitary status. We must also consider the eight programs of "ancillary remedial relief" prescribed by this court in 1978, including : (1) an inservice training program for teachers; (2) an affir mative reading and communication skills program; (3) new curriculu m offerings; (4) a nondiscriminatory counseling and guidance pro gram; (5) a human relations program; (6) codes of conduct provi ding for nondiscriminatory discipline; (7) the reassignment of faculty and staff; and (8) nondiscriminatory guidelines for con struction and maintenance of school buildings. Evans v. Buchanan , 582 F.2d at769-74. Thus we will survey compliance with these ancillary

relief measures as well. By considering both the Green factors and the e ight measures of ancillary relief ordered by this court in 1978, we honor the mandate set forth by the Supreme Court in Dowell th at a school board under federal supervision "is entitled to a r ather precise statement of its obligations." Bd. of Education of Okla. City Public Schools, Indep. School Dist. No. 89, Oklahom a County, Okl. v. Dowell, 498 U.S. 237, 246 (1991) (citing Pasaden a City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976)). Together, the Greenfactors and the ancillary remedial relief measures constitute these obligations, and thus precisely frame our inq uiry as we determine whether the district court properly order ed the withdrawal of federal supervision. The essence of that inquiry recently was articulated by the Supreme Court: whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the ex tent practicable. Freeman v. Pitts, 503 U.S. 467, 492 (1992).

Given the Court's recent assertion that federal supervision of local school districts "`was intended as a tempo rary measure to remedy past discrimination,'" Jenkins, ___ U.S. ___, 115 S. Ct. at 2049 (quoting Dowell, 498 U.S. at 247), we u nderscore that the phrase "to the extent practicable" implies a re asonable limit on the duration of that federal supervision. Indee d, to extend federal court supervision indefinitely is neither p racticable, desirable, nor proper. We are keenly aware that, for as long as we hav e imposed federal supervision on local school boards, those b odies have suffered the loss of their defining function -- con trol over their own schools. Thus in the present matter the citizens of

the New Castle school districts have been denied fo r nearly 20 years what the Court has described as the "vital na tional tradition" of "local autonomy of school districts." Freeman, 503 U.S. at 490 (quoting Dayton Bd. of Educ. v. Brinkma n, 433 U.S. 406, 410 (1977)). Additionally, we appreciate the extended social and economic burdens that continued supervis ion would impose on generations of innocent school children a nd their families. The reality of these burdens becomes cle ar when we consider that a child who entered first grade in on e of the Northern New Castle County school districts in 1976 under federal court supervision is now 26 years old, and possibly a parent with a child of his or her own in the same judicially-co ntrolled school system. Our concern for the autonomy of local school sy stems and their members is consistent with the established ju risprudence of desegregation: a fundamental purpose of our mandate to eliminate the dual system has been to encourage local school districts independently to provide high-quality educational o pportunities for all students, a state of affairs made possible only in "a unitary, nonracial system of public education." Gr een, 391 U.S. at 436. Were we to allow federal supervision to co ntinue after afinding that the school districts have complied wit h our

desegregation mandate, we would effectively preclud e those school districts from achieving that goal. In sum, we can not reconcile the prospect of indefinite federal supervision of l ocal school districts with the ultimate purpose of that supervi sion -- to foster the creation of autonomous, racially balance d school systems. Accordingly, we will remain attentive to the Supreme Court's repeated instructions that such supervision be "temporary" and "transitional." See, e.g., Jenkins , ___ U.S. ___, 115 S. Ct. at 2049; Dowell, 498 U.S. at 247. With these teachings in mind, we turn now to th e district court's analysis in this case.

V. The Green Factors

The fundamental issue before the district court was whether the desegregation measures taken by the school dist ricts had effectively eliminated to the extent practicable th e vestiges of the former dual school system. In addressing this issue, the district court began by scrutinizing various educat ional factors initially identified by the Court in Green: student assignments, faculty, staff, facilities and resources, transport ation, and extra-curricular activities. Green, 391 U.S. at 43 5. We address

the district court's consideration of each of these factors in

turn.

A. Student Assignment Because the crux of the original constitutional violation was the legalized system of segregated schools, the traditional remedy for the violation was to desegregate the sch ools through student reassignment. Accordingly, we ordered the consolidation

of urban and suburban school districts. See Evans v. Buchanan, 582 F.2d at 759 n.5 (quoting Evans v. Buchanan, 435 F. Supp. 832, 838-39 (D. Del. 1977) (footnotes omitted)). The St ate Board and districts not only have adhered to the requirements of our student assignment order, but also have attempted t o maintain a racial balance by consolidating districts, redrawin g attendance zones, and instituting the busing of thousands of s tudents. Indeed, after the hearing below on the Appellee s' motion for unitary status, the district court found that the s chools in these districts were "among the most racially balan ced schools in the United States." Coalition, 901 F. Supp. at 799 . The court's conclusion finds ample support in the record from t he testimony of school desegregation expert Dr. Christine Rossel l. Using an "index of dissimilarity," Dr. Rossell compared the racial balance in the four districts to a national sample of 76 similar districts, analyzing both the percentage of student s in schools with certain variances and the percentage of school s themselves

within certain variances. Dr. Rossell observed that, as measured against this index, the four Northern New Castle County school district s have achieved "close to perfect racial balance." Furthe r, on the basis of her full analysis, Dr. Rossell concluded t hat these districts "are much less racially imbalanced than . . . [the] national comparison group." JA 568; see also Coali tion, 901 F.Supp. at 797. Because the district court's finding of racial

balance rests on Dr. Rossell's thorough analysis, i t is not clearly erroneous. See Krasnov, 465 F.2d at 1302 ( an appellate court must "accept the ultimate factual determinati on of the fact-finder unless that determination . . . is comp letely devoid of minimum evidentiary support displaying some hue of credibility
. . ."). Appellant does not contest the findings of raci al balance among schools, but argues nonetheless that segregat ion persists within those buildings, in classrooms and programs. More specifically, Appellant contends that black student s are overrepresented in certain classes, such as special edu cation, and under-represented in others, such as gifted and adv anced placement classes. However, we are mindful that in Milliken v. Bradley, 418 U.S. 717, 740-41 (1974), the Court hel d that the Constitution "does not require any particular racia l balance in each school, grade or classroom." See also Oliver v. Kalamazoo Bd. of Educ., 640 F.2d 782, 809 (6th Cir. 1980) (re jecting notion that school system is not unitary if black students are over- or under-represented in various academic courses). Mo reover, the district court actually made 19 findings concerning the circumstances of student assignments in the classro oms, concluding that classroom balance throughout the di stricts was exemplary. Coalition, 901 F. Supp. at 800 (measure d against a national sample, classroom imbalance in Northern Ne w Castle County was one-third to one-half that of other scho ols). We review these findings for clear error. First, although the district court's findings o f classroom racial balance exclude special education classes, t here is no clear error. In our 1978 desegregation order we ex pressly excepted "students presently attending and who in t he future may attend . . . special education school facilities an d such other similar special school facilities as presently exis t or may be hereafter established . . . ." JA 128 (Evans v. Bu chanan, Civil Action Nos. 1816-1822, Order at 11 (D. Del. Jan. 9, 1978)). The rationale for this exception is obvious and compell ing: students -- black or white -- should not be mainstreamed (i. e., denied special education meant to address special learning needs and problems) merely to effect a racial balance. Appellant is also unpersuasive in asserting tha t students are placed in special education programs (such as " intensive learning centers") simply because they are black. Although in each of the four districts the percentage of black students in special education programs exceeds the percentage o f blacks in the overall student population, the record demonstr ates that the school districts classify students based on neu tral, nondiscriminatory state and federal criteria. JA 829- 34. Additionally, the districts make periodic re-evalua tions of special education students to determine when they c an return to regular classes. Id. Placement is not mandatory, because at several junctures, parents are empowered to reject the school's recommendation to place their child in special educ ation classes. JA 830, 832-33. Moreover, we note that the Appelle e State Board has created numerous statewide special education ta sk forces; hasauthorized five comprehensive studies relating to s pecial

education; and thoroughly has investigated interven tion strategies, mainstreaming and the application of se lection procedures. JA 1223, 1243. The Appellees' efforts to improve racial balanc e within these programs not only are commendable, but succes sful. Indeed, in three of the four districts, the racial imbalanc es have declined. Although we might hope -- even expect -- that this imbalance will soon disappear, the mere fact that b lack students remain over-represented in special educati on classes does not make clearly erroneous the district court' s finding of unitary status. Given that Dr. Reschly, in summari zing his comprehensive analysis, concluded that in these sch ool districts "special education is not used as a means to separa te students by race," Coalition, 901 F. Supp. at 821; JA 839, we w ill accept the court's finding on this issue. See Krasnov, 465 F. 2d at 1302 (standard of review). Similarly, Appellant argues that the district c ourt's findings with regard to classroom assignment are cl early erroneous because black students are under-represen ted in nonspecial education classes. This argument relies on , inter alia,the district court's finding 47: "[t]here is evidence t hat among high school students who achieve identical testing scores, black students were more likely to be placed in the lower level class than were white students." Coalition, 901 F. Supp. at 801 (footnote omitted); JA 1385; JA 4249; JA 4305-07. To be sure, this finding is potentially troubling, suggesting o n its face that black students may have been segregated from w hite students of equal testing aptitude. However, we must consid er this finding in the full context in which it was examine d and presented by the district court. Thus we must cons ider that in footnote 30, which accompanies this finding, the di strict court noted that "[t]he comparison apparently does not in clude academic achievement as measured by course performance, or w hether such placement was requested or required." Id. Because this comparison relied on testing aptitude alone, rather than considering as well the important factor of academi c achievement based on course performance, and because it is not clear whether the placement at issue was requested or required, w e do not consider finding 47 to be evidence that black stude nts have not received equal opportunity, nor can we reasonably c onclude that the district court, upon its careful examination, c learly erred. We observe also finding 48, which states that " [o]n the other hand, the percentage of minorities enrolled i n honors and AP classes who scored over the 75th percentile in r eading or math in the spring of 1993 is slightly greater than that of whites in all 4 school districts." Coalition, 901 F. Supp. a t 801; JA 6259. Although this finding could, as urged by App ellant, give rise to an inference that blacks must perform at a higher level than whites in order to be placed in honors and AP classes, that

is not the sole inference that could be drawn from so limited, and thus malleable, a sample. Indeed, on the basis of finding 48 alone we may just as reasonably infer something qui te different: that the school districts' good faith efforts to de segregate havepaid off in terms of the improved testing performan ce of black

students. In any event, our task here is not to engage in such broad speculation, nor to choose among possible inference s from the data; rather, we are to inquire whether the distric t court's determination of the districts' unitary status was clearly erroneous. To accord this finding its proper value , therefore, it must be considered in the context of other, rela ted findings. This the district court did. Indeed, in view of th e district court's copious research, we are assured that the c ourt interpreted this finding in the proper light in det ermining that the districts have achieved unitary status. At the urging of Appellant, we also have examin ed carefully the district court's finding 36, which states that "[t]he extent to which elementary and middle school students are placed in classes according to their ability is unclear from the record." Coalition, 901 F. Supp. at 800; JA 4214-21. This f inding means little on its own, for it represents merely that th ere is uncertainty in the record about how elementary and middle school students are placed in classes according to their a bility. Indeed, without further amplification, we are not p ersuaded to conclude that this statement cuts against the court 's determination regarding the districts' good faith e fforts to eliminate de jure segregation. Again, we are requi red to place this finding in context, bearing in mind that becau se few

elective classes or courses are available to studen ts at the elementary and middle school levels, the selective process for students is far more meaningful at the high school level. Thus we must consider finding 36 in light of findings 39 , 40 and 45. Finding 39 describes the high school class sele ction process as involving "class presentations by guidance couns elors, booklets with course descriptions, application by s tudents in consultation with family, individual guidance from guidance counselors, and teacher input." Coalition, 901 F. Supp. at 800; JA 755-56, 771-72, 851-54, 863-66. Not only is hig h school class selection the product of these various deliberation s, but, according to finding 40, "[t]he parents and student have the ultimate say in the level to which the student is a ssigned." Coalition, 901 F. Supp. at 800; JA 1383. And although finding 36 indicates that the reco rd is unclear on how elementary and middle school students are pl aced in classes according to their ability, finding 45, whe n considered in its entirety, provides detailed information abou t the class placement of high school students as set forth in t he margin. Accordingly, when we consider Finding 36 in the context of these other relevant findings, we find unavailing t he contention that finding 36 provides significant evidence that minority students have not received an equal opportunity to succeed in the pertinent school districts. The district court's m ultiple findings on this particular issue suggest that the court did indeed consider "every facet of school operations" in determining that the districts have achieved unitary status. Finally, we note finding 49 of the district cou rt's opinion, which states that "[t]here is evidence that lower l evels ofinstruction may not encourage achievement and may a dversely

affect the ability of a student to attend college." Coalition, 901 F. Supp. at 801; PX 2262 at 82; PX 2265. As wi th the foregoing findings, although this finding may be co nsidered troubling on its face, alone it is neither definiti ve nor substantial enough to show clear error in the distr ict court's determination of unitary status. The mere finding that evidence exists "that lower levels of instruction may not en courage achievement and may adversely affect the ability of a student to attend college," id., does not establish anything s pecific about whether that putative problem is related to dispara te educational opportunity or treatment according to race. Of course, this finding is obvious and indisput able as far as it goes: when students receive lower levels of i nstruction, they are less likely to feel encouraged to achieve and thus will be less likely to attend college. Yet this truism merely serves to underscore the more fundamental question at issu e here -- on what basis are students placed in "lower levels of instruction"? As we already have made clear, that basis was not r acially discriminatory; the record does not support the cla im that students of one race are afforded college preparati on opportunities (advanced placement classes, counseli ng, help in preparing for college placement exams) that student s of another

race are not. Thus although the finding that "lower levels of instruction may not encourage achievement" is problematic, espe cially when viewed in isolation, yet when considered in relevan t socioeconomic context, this statement of mere possibilit y cannot be regarded as proof that the district court clearly e rred in determining that the school districts have achievedunitary status. The district court dutifully presented thi s finding in combination with many others and, after carefully a nalyzing these findings in their totality, declared that "there is no credible evidence linking any current racially identifiable conditions to the prior violation" Id. at 823 (footnote omitted). This, too, must be said. Although the Constitu tion requires that all of its citizens have equal access to the p ursuit of education, and that they be given equal breaks whil e attending school, it does not insist that they all finish eve n. The proper test under the Constitution is equality of opportun ity, not of results. On this point we would do well to recall Edmund Burke's pithy formulation: "[A]ll men have equal rights, bu t not to equal things." And indeed, Appellant articulated its commitment to this principle at oral argument: "[w]e have never suggested that the measure here is ultimate equal outcomes." That everyone does not finish even is tragic, o f course, but

it does not amount to a constitutional violation. Nor does it violate the school districts' mandate regarding stu dent assignment under Green. Accordingly, we conclude t hat the district court properly determined that, as to stud ent assignment, the districts achieved unitary status t hrough good faith compliance with the requirements of the 1978 Order.

B. Faculty and Staff AssignmentsBefore the 1978 consolidation, the vast majorit y of black

administrators and teachers served two predominantl y black districts. In September 1978, the districts reassi gned faculty,

administrative and other certificated staff in all eleven districts. The evidence presented at trial demonst rated that

the districts now have balanced their faculties to a degree that is virtually unprecedented among those school distr icts in this country that operate under court orders. The distr ict court found that the districts closely monitor the racial composition

of their faculties and do not hesitate to block tra nsfers and to make reassignments, overriding seniority where nece ssary, to ensure diverse racial representation at each school . Coalition, 901 F. Supp. at 802-04. The record testimony of se nior

administrative officials from each of the four dist ricts supports these findings. Appellant does not refute either the district c ourt's

calculations or its conclusion of racial balance am ong the faculties, but nonetheless argues that the district court's finding that the vestiges of de jure segregation ha ve been eliminated to the extent practicable is clearly err oneous because the overall percentage of minority teachers within the districts has declined by two or three percent since 1982. Appellant's Br. at 10. This gradual decline does not indicate clea r error, however, because the shortage of minority teachers in the four school districts is not a vestige of de jure segreg ation in Northern New Castle County, but rather a manifestat ion of an unfortunate contemporary national trend. Indeed, e ven Appellant's expert testified that there is a critic al shortage of black teachers in the public schools. JA 1167-68 ( the number of black students graduating from colleges in the Unit ed States with bachelor degrees in the field of education has decl ined); see also Freeman v. Pitts, 503 U.S. 467, 482-83 (1992). The record further reveals that, notwithstandin g the shortage of available faculty, the districts hired minority candidates at rates two to four times greater than the available percentage of minorities in regional and national p ools. JA 6566. This is attributable in part to the extensiv e affirmative minority recruitment efforts of each of the four sc hool districts. For example, the Brandywine district ha s sought to expand its pool of potential minority hires by recr uiting not only teachers who have received a degree in educati on from a 4- year program, but teachers who have received their B.A. or B.S. degrees in fields other than education and have pri or teaching experience. JA 620. The Christiana district has a ttempted to recruit minority teachers by sending announcements to predominantly and historically black universities, by attending career days at predominantly black universities, an d by hiring minorities as paraprofessionals. JA 603. The Colo nial district has assembled a task force to address minority facu lty representation. JA 633. And in the Red Clay distr ict, occasionally a faculty position will be held open u ntil a minority candidate is found. JA 624. Based on thi s record, the court did not clearly err in finding that the schoo l districts had demonstrated good faith efforts to integrate th e faculties ofthe schools.

We turn, then, to the racial balance among the "nonprofessional" or "classified" staff, which includes bus drivers, bus aides, secretarial and clerical positions, para professionals, custodial employees, and food service workers. The undisputed

evidence of record establishes that the school dist ricts have attempted to use the hiring process to improve raci al balance on the staff as new openings have materialized. For e xample, Brandywine recruits minority staff through communit y channels, focusing on community centers, neighborhood churche s and community groups in minority areas. JA 621. Simil arly, Christiana recruits through community newsletters, community centers, and by "word of mouth." JA 603. Appellant concedes that the districts have made such efforts, but argues that the districts have not rea ssigned the

staff to maximize racial balance. The district cou rt found that it would be impractical for the districts to r eassign these employees in order to attain greater racial balance . We agree. Food service workers, for example, earn approxi mately $3200- $4300 per year, working approximately three hours a day. JA 605. Generally, these employees work close to where they live. Transferring them to a distant workplace that wouldrequire a long commute simply is not feasible for the salary they receive. Id. Secretarial and clerical personnel would exper ience a similarly negative economic impact. Id. Even Appe llant's expert acknowledged that forced reassignment of these part -time, lowwage employees could create hardships on these work ers with respect to child care, commuting time, distance fro m work and expenses. JA 1105. Accordingly, it was not clearl y erroneous for the court to conclude that the districts have e liminated to the extent practicable any residual racial identifi ability in the schools with respect to these employees. We carefully have considered Appellant's conten tions with respect to faculty and staff assignment, and we con clude that

there was no clear error in the district court's fi ndings.

C. Extracurricular Activities Appellant contends that the districts have not eliminated the vestiges of de jure segregation from their extr acurricular activities. It is undisputed, however, that all ex tracurricular activities within the four districts are open to st udents of all races. All eligibility requirements are race-neutr al, and district officials encourage all students, regardle ss of race, to participate in a wide range of extracurricular acti vities. Nevertheless, Appellant argues that the distric ts must also eliminate any racial identifiability that exists wi thin each of these activities. In findings 98-100, 109-110, 118 and 125-128, the district court indicated that, unfortunately, t here exist a substantial number of racially identifiable extracu rricular activities throughout the four districts. We canno t, however, expect a school district to compel or deny student participation in non-compulsory extracurricular activities merely to effect a

racial balance.

The four districts have removed financial and t ransportationbarriers to participation. JA 1164. Moreover, eac h of the

districts has demonstrated good faith efforts to re duce the racial identifiability of their activities through experimental programs. For example, the Brandywine district inv ites all eighth graders and their parents to the high school s to meet representatives from the activities, JA 753; Christ iana announces upcoming activities in newsletters and physical edu cation classes, JA 740; middle schoolers in Colonial are r ecruited to participate in activities when they enter high scho ol, JA 743; and in Red Clay, coaches recruit students and expos e them to various sports through the physical education curri culum, JA 680.

We believe that a school district's extracurric ular activities are unitary if they "are available to al l students within the School District regardless of race." Si ngleton v. Jackson Mun. Separate Sch. Dist., 541 F. Supp. 904, 908 (S.D. Miss. 1981); see also Swann, 402 U.S. at 18 ("With respect to such matters as . . . extracurricular activities," it may be enough "to eliminate invidious racial distinctions. "). School districts need not "show equal participation." Loc kett v. Board of Educ. of Muscogee County, No. 991 at 55 (M.D. Ga . Nov. 18 1994) (citing Quarles v. Oxford Municipal Separate School Dist., 868 F.2d 750, 757 (5th Cir. 1989)). Accordingly, w e conclude that the record supports the district court's findi ng that the districts have eliminated to the extent practicable from their extracurricular activities the vestiges of past de jurediscrimination.

D. Remaining Green Factors (Transportation and F acilities) There is no dispute among the parties concernin g the two remaining factors outlined in Green. Specifically, transportation is provided on a non-discriminatory basis. Additionally, the districts successfully have remed ied the distinctions between the facilities of the formerly black and formerly white schools.

VI. Ancillary Relief The 1978 order of this court required the imple mentation of eight specific programs ancillary to the 9-3 pupil assignment plan. The order required the districts to: 1) formulate and implement a comprehensive in -service training program for teachers, administrat ors and other staff in order to train personnel to cope with the desegregation process;

2) institute an affirmative reading and commu nication skills program, which does not resegregate the pupils, in order to remedy the effects of the past discrimination;

3) provide curriculum offerings and programs which emphasize and reflect the cultural plurali sm of the students, and all instructional materials, texts and

other curriculum aids shall be free of rac ial bias;

4) institute an effective and nondiscriminato ry counselingand guidance program. The counseling and guidance

program must insure that students are coun seled on a racially nondiscriminatory basis concernin g all programs available in the area of work opp ortunities and opportunities for a college education;

5) provide an appropriate human relations pro gram . . . [designed] to protect the individual digni ty of students and teachers and to prevent racia l myths and stereotypes from prevailing in schools und ergoing desegregation;

6) develop . . . a code of rights and respons ibilities . . . provid[ing] for racially nondiscriminato ry discipline and . . . contain[ing] provisions to insur e each student in the desegregation area procedur al and substantive due process required by existi ng law. Such a code will help to provide equal educatio nal opportunity to all students by protecting them from unreasonable, discriminatory, and arbitrar y rules; and

the Board shall not administer the code on a racially selective or otherwise biased basis;

7) reassign faculty, administrative and other staff personnel to insure that schools do not re tain their former racial identity through racially id entifiable faculty and staff assignments; [and]

8) establish and enforce nondiscriminatory gu idelines for new construction, review of building needs and the appropriateness of each proposed building project or school closing. JA 128-30; see also 447 F. Supp. at 1014; see also Evans v. Buchanan, 582 F.2d at 771-73.

The district court offered more than 180 factua l findings in detailing the school districts' implementation of t hese ancillary relief provisions. In the first four years alone, more than $18.8 million in federal desegregation project gran ts were used to pay for human relations specialists, home-school liaisons, reading resource teachers and in-service programs. The state and the districts maintained these programs even after the transition to a desegregated system. And significantly, from 1978 until the unitary status petition was filed, Appellant never complained to the court of any failure to comply with any of the ancillary relief provisions. Of these eight, the last is und isputed, and

the seventh we have addressed in our discussion on compliance

with the Green factors. Thus here we will review t he district court's findings on the first six of these ancillar y measures.

A. In-Service Training

The district court found that all four district s offered a rich array of in-service programs for their faculty , and that, although the focus of these programs no longer is d esegregation,

all four districts continue to offer in-service tra ining ondesegregation, race equity and multiculturalism. C oalition, 901

F. Supp. at 809. Appellant contends that the distr ict court's findings are clearly erroneous because two of the Appellant's experts testified that the in-service training was inadequate. Appellant's Br. at 25. But a reviewing court's rol e is not to pick and choose isolated snippets of evidence. Rat her, we must decide, after viewing the record as a whole, whethe r there is evidentiary support for the district court's findin gs. Such support is present; accordingly, there is no clear error. In January 1978, a team from the districts draf ted a statement listing several management goals for the in-service training of the faculty, staff and administration. The first goal -- "[t]o orient the instructional staff to the curricular and instructional process" -- was accomplished thro ugh the Center for Conflict and Desegregation at the University of Pittsburgh the following month. JA 948-49, 4373, 4376-77. In addition, the team responsible for planning in-service training a lso realized at least three other goals that year. Further, in 1978, an

Office of In-Service Activities was established and staffed by two full-time personnel, JA 951-52, and all program s relating to desegregation were mandatory for faculty, staff and administrators. JA 961-62. Finally, even Appellan t's expert testified that the in-service programs offered by t he state at the time of desegregation complied with the 1978 or der. JA 1140,

1170. The record similarly supports the district cour t's finding

that the districts have continued in-service traini ng programs since the 1978 order. For example, the district co urt heard evidence that from 1981 through 1994, Brandywine of fered various workshops and courses related to desegregation, rac e equity and multiculturalism. Moreover, all new Brandywine tea chers are required to participate in a 12-hour induction prog ram, which includes a panel discussion on issues of multicultu ralism. JA

931. Similarly, in the 1980s, various human relation s specialists and administrators trained by the Race Desegregatio n Assistance Center at the University of Pittsburgh worked with the Red Clay faculty and staff in the area of cultural diversity . DI 1936 at 635-36, 642. The record further reveals that from 1992 through 1995, Red Clay also has offered in-service training on multiculturalism. DX 79 at FL 12295, FL 12299, FL 12302, FL 12304-11, FL 12313-14, DX 80; DXC 81; DI 1939 at 18 06. The court's findings with regard to the Christiana and Colonial districts likewise are supported by the record.

In light of the foregoing, we are satisfied tha t Appellant's charges have no support in the record, and thus tha t the district court properly found that the schools have met the requirements of in-service training.

B. Reading and Communication Skills

The district court found that an affirmative an d integrated reading program was instituted in each of the four districts. Coalition, 901 F. Supp. at 809. Appellant contends that thefinding is clearly erroneous, because the districts "failed to

show that any reading program was implemented for t he purpose of remedying the negative effects of the de jure segre gation as required by the 1978 Order, or that the reading pro grams that were implemented did not resegregate students." Ap pellant's Br. at 26. However, although no reading program specif ically targeted black students, we conclude from our revie w of the

record that the districts nevertheless met the stan dard of good faith compliance with the 1978 Order. The record indicates that a reading program was instituted in the schools in 1978, immediately following the i ssuance of the remedial order. JA 967. The program employed 110 reading teachers, who worked with the classroom teacher to help with testing, interpretation of those data from the tests, se lection of materials, planning of program and strategies f or students who needed assistance and anything that [a] par ticular teacher wanted, to do to help the students with in that

classroom.

JA 968. Students in grades two through nine were provided assistance under the reading program if they were o ne year or more below reading level, as demonstrated by standa rdized test scores. JA 968. Students in grades ten through tw elve were provided assistance if they were two years below le vel. Id. And supplemental reading instruction was provided daily for 30-45 minutes, depending on grade level. JA 969. For th e most part, this instruction occurred in small groups within th e classroom. Id. The districts combined have employed between 1 00 and 135 reading teachers every year since the 1981-82 schoo l year. JA

4910-11. Further, the court heard evidence and found fac ts pertaining to the reading programs in each of the four distric ts. With regard to the Red Clay district, for example, the c ourt credited the testimony of officials from the district and fo und that reading resource teachers coordinate the "HOSTS " program (Help One Student to Succeed) for readi ng- and writing-deficient students. Under the program,

volunteer tutors work with individual children for 45 minutes per week. More than 300 students parti cipate in the program.

[Twenty five] parent educators hired by the Par ents as Teachers program teaches [sic] first-time paren ts in New Castle County the importance of language an d reading for pre-school children. The program h as been in existence since 1987. In 1993 and 1994, the focus was on teenage parents and families with multip le

needs.

Coalition, 901 F. Supp. at 810 (footnote omitted). The court found similar progress in the other districts. Because these programs were meant to address th e reading problems of every student, Appellant's argument tha t the programresegregated students is misguided. Although the s chool

districts have not excluded black (or white) studen ts from the remedial reading programs to effect a racial balanc e, the districts do deploy several different programs such as one-onone, small group and pull-out remedial reading prog rams, in which reading teachers either work inside the classroom o r pull a given

student out of the classroom for individual attenti on. Thus we cannot agree that the districts' remedial reading p rograms have resegregated students; the basic requirement of goo d faith efforts to remove the vestiges of de jure segregati on to the extent practicable have been met. Accordingly, the district court did not clearly err. Appellant further contends that the school dist ricts have "failed to show that any `communications skills pro gram' was ever implemented" in any of the districts. Appellant's Br. at 26. However, there is no meaningful distinction between reading skills programs and communication skills programs; indeed, the 1978 Order mandates the creation of a singular "pro gram" to teach reading and communication skills. JA 129. Likewis e, testimony from school officials on this point suggests that i nstruction for both skills is combined. Thus "reading skills" and "communications skills" are synonymous for purposes of our analysis here. Accordingly, on the basis of our fo regoing discussion of reading skills and programs, we rejec t Appellant's argument that the districts have not complied with the 1978

Order.

C. Curriculum The 1978 Order required that the curriculum "emphasize and reflect the cultural pluralism of the students," an d that "all instructional materials, texts and other curriculum aids shall be free of racial bias." JA 129. Appellant argues th at the school districts "failed to show that [an] inclusive curri culum as required by the 1978 Order was ever actually taught in a single classroom or that efforts made were anything other than sporadic or shortlived, or that the curriculum achieved any results at all." Appellant's Br. at 27. This sweeping assert ion does not comport with the record. The record indicates that the Delaware Departme nt of Public Instruction has established text selection guidelin es for the districts to use in conjunction with their own guid elines to ensure racially unbiased texts and instructional ma terials. The Department also has adopted a Comprehensive Policy for Multicultural Education, published accompanying gui delines, sponsored multicultural education and adopted multi cultural curriculum standards. See, e.g., DX 124 at FL 2314 7; DX 125 at FL 23172. In April 1994, consistent with these gui delines, the Department sponsored a two-day Multicultural Educat ion Institute.

DX 52. Further, the district court made specific findi ngs that acknowledged efforts in each of the four districts to offer a multicultural curriculum. Coalition, 901 F. Supp. at 810-12. Our review of the record reveals several exemplary programs, including the Brandywine district's extensive black historycurriculum in the elementary schools; Christiana's inclusion of

the minority community in the textbook selection pr ocess; Colonial's course entitled "Minorities USA"; and Re d Clay's integration of cultural pluralism into the social s tudies, English language arts, art education and music educ ation curriculum guides. In light of this substantial record evidence su pporting the district court's findings, we are satisfied that th e court did not clearly err when it found that the schools have complied with

the court order as to curricular reform.

D. Counseling and Guidance The 1978 Order required the districts to "insti tute an effective and nondiscriminatory counseling and guid ance program . . . [to] insure that students are counseled on a ra cially nondiscriminatory basis" concerning post-secondary opportunities. JA 129. Appellant argues that the districts "faile d to show that any effort had been made to ensure that the counsel ing and guidance programs attempted to prevent resegregatio n of students in the classroom as required by the 1978 Order or t hat, in fact, the counseling and guidance programs did not become vehicles for resegregation. The School System failed to show th at the counseling and guidance programs achieved any resul ts at all." Appellant's Br. at 26. Again, the record belies Ap pellant's bold

assertions. In the spring of 1978, the New Castle district formed a

committee "to follow the directive of the Court at the time [--] to develop a nondiscriminatory developmental guidan ce program for all students." JA 770. The committee drafted guid elines, which the district adopted in the Handbook for Certified Guidance Counselors. JA 770-71. In 1981, the Department mo dified the guidelines for district and statewide use in the De laware Guidance Handbook, K-12, which was itself revised i n 1990 as Appendix B to the Handbook for K-12 Education. JA 770-71. The record further establishes that, from 1981 to 1991, these Department guidelines governed counseling pro grams within the districts. For example, in 1990, the state dir ected each district to prepare "a written plan describing the guidance program for the district which is reviewed periodic ally and updated at least every five years." DX 230 at D 14 64. Plans for each district subsequently were drafted and approve d. JA 755, 769-70, 852, 864, DX 230, DX 231, DX 232, DX 233, D X 234. The district programs described in the plans include ac ademic, personal, social, career and life-planning counseli ng. JA 1137. The court's detailed description of the program s established in each of the districts also is supported by the r ecord. Coalition, 901 F. Supp. at 813-814. Especially min dful of alleged disparities in the Red Clay school district , we emphasize that the record clearly supports the district court 's determination that that district administers aptitu de tests, provides speakers, supplies ample resource material , offers participation in various achievement programs, and facilitates an extensive college visitation program. JA 772-74. In sum, it is clear that the State Board has ad optednondiscriminatory counseling guidelines; that all t he districts

have provided comprehensive post-secondary career, educational and vocational assistance; and that the districts s upport numerous supplementary counseling programs which en courage minorities to pursue post-secondary education. Mor eover, Appellant fails to cite any instance of discriminat ory counseling. Accordingly, we conclude that the cour t did not err in determining that this aspect of the remedial ord er was fulfilled.

E. Human Relations The 1978 Order required the districts to "provi de an appropriate human relations program" for "schools u ndergoing desegregation." JA 130. The provision was intende d to be transitional, designed to address "the various pres sures which arise as a result of desegregation." Evans, 582 F. 2d at 769. Appellant argues that "[t]he School System failed t o show that any human relations program was actually implemente d as written . . . or that any human relations program lasted for more than a brief duration or achieved any results at all." Ap pellant's Br. at 24-25. Nevertheless, the record supports the di strict court's findings. The school districts responded to the order by implementing a program involving more than 100 specially trained and certified specialists who were assigned to schools in "biraci al teams." JA 763-64. Each high school and junior high school ha d at least one team, and these teams were also directed to serve a number of elementary schools. Id. These specialists provide d crisis intervention assistance and implemented student sup port programs, such as peer tutoring and counseling. JA 764-66. Because the desegregation went smoothly, the focus of the progr am soon shifted to multicultural awareness, problem-solving and other student support functions. JA 764. The districts continued these services by retaining human relations personn el and hiring elementary guidance counselors, social workers, community outreach personnel, visiting teachers, student advi sors, student relations specialists and other student support per sonnel. SeeCoalition, 901 F. Supp. at 815-16. Moreover, the district court described in detai l the progress in each of the four districts. Again dire cting our focus to the Red Clay district, we note that "Red C lay employed 16 human relations specialists and home/school advi sors in 1981- 82 and 18 in 1982-83" and "five human relations spe cialists and home/school advisors" as recently as 1993-94. Coal ition, 901 F. Supp. at 816 (crediting Defendant's Exhibit 111). Notwithstanding the necessary (and welcome) shi ft in the focus of the human relations program, it clearly ha s lasted beyond "a brief duration" and has yielded significa nt results. Accordingly, these findings support the district co urt's determination that the school districts complied wi th the court order as to human relations programs.

F. Discipline The 1978 Order required the development of a co de to provide"racially nondiscriminatory discipline" and to ensu re "procedural

and substantive due process." JA 130. In July 197 8, the New Castle district adopted a code of conduct drafted b y a "committee [which had] gathered similar documents from Delawar e and large desegregated school districts for review." JA 4436 . Prior to adoption, drafts of the code were reviewed by citiz en groups, student council leaders, the Teachers' Association, and administrators. JA 4435-36. The districts adopted the New Castle code in 1981, and each district has revised the code periodically since then, through a "process of deve lopment and continual revision that includes [the] involvement of others, that includes teachers, includes administrators, an d there are processes for the codes to be reviewed by external sources and have input." JA 719. Appellant's discipline expert concedes that the districts' codes are not "discriminatory on their face." JA 1 157. And the district court found that the codes "are not applie d in a discriminatory fashion." Coalition, 901 F. Supp. a t 817. Appellant argues, however, that the school district s have failed to reduce racial disparities in discipline rates am ong students, and that Appellant was denied the opportunity to ad mit expert testimony in support of this claim. However, on th is matter the record supports the district court's findings, as w ell as its

exercise of discretion. The district court's finding that discipline is not administered in a discriminatory fashion is support ed by the testimony of Dr. Charles Achilles, the school distr icts' expert. Dr. Achilles calculated indices by dividing the per centage of black student suspensions by the black enrollment p ercentage. Based on these data, Dr. Achilles determined that t he districts' suspension indices reflected less racial imbalance than indices calculated from national suspension data compiled b y the Office of Civil Rights and Delaware arrest data. JA 722-2 3. Dr.

Achilles further illustrated that the indices were essentially

consistent across the four districts -- "a result d ifficult to achieve if equitable nondiscriminatory codes were n ot being used and applied in an equitable, nondiscriminatory mann er." Coalition, 901 F. Supp. at 817; see JA 724. And fi nally, Dr. Achilles demonstrated "consistency in how the codes were applied by administrators, regardless of the administrators ' race." Coalition, 901 F. Supp. at 817; see JA 725. In lig ht of this compelling testimony, we conclude that the district court did not clearly err in determining that, as to discipline, the school districts have complied with the 1978 Order. See K rasnov, 465 F.2d at 1302 (standard of review). Nor did the district court err in rejecting the testimony of Appellant's discipline expert, Dr. William Gordon. He could cite no study or authoritative literature to support his assumption "that 'undiscipline' or misbehavior is a randomly d istributed characteristic among racial groups . . . ." JA 116 1. And in fact, statistical data demonstrate a comparable or greater racial disproportion for those offenses for which Delaware law mandates suspension, which Gordon called "very objective" of fenses, than for those offenses he viewed as less objective. JA 726.Accordingly, we reject Appellant's argument that th e schools have

failed to reduce racial disparities in discipline r ates.

We likewise reject Appellant's contention that expert testimony on this matter was improperly rejected by the district court. A trial judge's exclusion of testimony cann ot be disturbed on appeal "absent a clear abuse of discre tion." Semper v. Santos, 845 F.2d 1233, 1238 (3d Cir. 1988); Fash auer v. New Jersey Transit Rail Operations, 57 F.3d 1269, 1287 (3d Cir. 1995). In both Semper and Fashauer, the court uphe ld the exclusion of rebuttal testimony because of counsel' s failure to adhere to a pretrial order. Semper, 845 F.2d at 12 38; Fashauer,

57 F.3d at 1287. Here, Appellant disregarded two pretrial orders requiring the disclosure of the "specific subject matter as t o which each expert will testify" and the provision of expert re ports complying with Rule 26, Federal Rules of Civil Proc edure. Denying Appellant's motion to delay disclosure of t he identity of its experts, the district court stressed, more than three months before trial, that "[t]his is a case where the inte rests of justice dictate public disclosure of the parties' e xperts and early resolution of any potential disputes regardin g any experts' qualifications." JA 203, 208. Rule 26 states that "[t]he report shall contain a complete statement of all opinions to be expressed and the b asis and reasons therefor" and obligates a party to suppleme nt the report if it "learns that in some material respect the inf ormation disclosed is incomplete or incorrect . . . ." Fed. R. Civ. P. 26(a)(2)(B) & (e)(1). Supplementation must be made "with special promptness as the trial date approaches." Fed. R. Civ. P. 26(e). Exclusion of testimony is an appropriate sanction f or failure to supplement in a timely manner. See Freund v. Fleet wood Enterprises, Inc., 956 F.2d 354, 358 (1st Cir. 1992 ). As of November 30, Appellant knew all of the St ate Board's experts' topics and methodologies. Appellant couldhave, but declined to, file a supplemental report for expert witness de Leeuw on December 9, as it did for three of its oth er experts. Appellant also could have disclosed its intent as a result of counsel's comments at the deposition on December 15 . Instead, Appellant chose the tactical route of surprise. In light of the foregoing discussion, we conclude that the district court did not abuse its discretion in excluding this surprise tes timony.

VII. Areas of Concern to the District Co urt
and Allocations of the Burden of Proof

Aside from its examination of the four sch ool districts' compliance with the Green factors and th e ancillary relief measures, the district court also acknowledg ed that certain performance disparities persist in the New Castle County schools -- most notably in the Red Clay district. These performance disparities include student achievement , special education, and dropout rates, and are not disputed here. However, because these disparities are not among th e vestigesenumerated either in Green or in the ancillary reli ef order, we

must determine, first, whether these disparities ac tually are vestiges of de jure segregation, and if so, whether the school districts have in good faith eliminated them to the extent practicable. Having considered the taxonomy of dis parities proffered by Appellant and reviewed the record and pertinent legal precepts, we hold that Appellant properly was allocated the burden to prove that the disparities were vestiges, and that the Appellant failed to meet this burden. The Court has made plain that certain disp arities necessarily are vestiges of de jure segregation. I dentifying what would become known as the Green factors, the C ourt directed school boards to propose plans designed to disestab lish stateimposed segregation in "every facet of school opera tions -- faculty, staff, transportation, extracurricular act ivities and facilities." Green, 391 U.S. at 435. Accordingly, and as the relevant cases cited by Appellant demonstrate, the Court consistently has turned to the Green factors to "de termin[e] whether a dual school system has been disestablishe d." Columbus, 443 U.S. at 458-61 (Green factors). See also Davis v. Board of Sch. Comm'rs of Mobile County, 402 U.S. 33, 37 (197 1) (pupil assignment); Dayton Bd. of Educ. v. Brinkman, 443 U .S. at 538 (pupil assignment and school construction). Indeed , the Greenfactors have become per se vestiges of de jure segregation -- an d therefore the focal point for determining unitary s tatus. Nevertheless, the performance disparities enumerate d by Appellant are not among these factors. Still, the Green factors are not the only disparities that may be classified as vestiges of de jure segre gation. Depending on the circumstances of a particular case , the trial court still may exercise discretion to consider oth er factors. Freeman, 503 U.S. at 492-93. The circumstances of the instant case prompted the district court, in 1978, to order eight ancillary remedial measures. As with the Green fac tors, we have reviewed the districts' compliance with that order and conclude that there was a good faith effort to eliminate the vestiges identified therein to the extent practicable. Agai n, however, the performance disparities urged here were not ide ntified among these vestiges of de jure segregation. We emphasize that here we are not discussi ng the burden of proving compliance with the Green factors or the 1978 Order, as to which the school districts acknowledge bearin g the evidentiary burden. Our discussion here, and our a llocation of the burden of proof to Appellant, is limited to the issue of proving that the identified performance disparities are vestiges of de jure segregation. Because the performance disparities claime d by Appellant are not among (or even similar to) the Gr een factors or the vestiges identified in the 1978 Order, we will not simply presume -- as Appellant urges us to do -- that thes e are vestiges of de jure segregation. Appellant offers no persua sive authority for establishing a causal link between present achi evement disparities and past de jure segregation. In fact, all but one of the cases relied on by Appellant on this point a re irrelevant,because they address only Green-type factors; the S tate Board

does not dispute that it carried the burden of prov ing good faith efforts to eliminate (to the extent practicable) su ch vestiges of de jure segregation. Appellant thus can rely solely on Vaughns by Vaughns v. Bd. of Educ. of Prince George's County, 758 F.2d 98 3, 990-91 (4th Cir. 1985), which, upon our review, supports the di strict court. In Vaughns, because the school district was not uni tary with respect to the Green factor of student assignment, id. at 990-91, the Court of Appeals for the Fourth Circuit held th at the plaintiffs were entitled to a presumption that disp arities in special education and gifted and talented programs arose from prior segregation. More important, the Vaughns cou rt distinguished a decision from a sister circuit beca use "the burden shifted to [Appellants] in that case only be cause the school system had achieved unitary status with rega rd to student assignment." Vaughns, 758 F.2d at 991. Here, however, the districts have been uni tary as to school assignments since the 1978 order. Had the V aughns school

district satisfied the Green factors as have the De laware districts before us, the Vaughns plaintiffs would h ave had to prove that performance disparities resulted from de juresegregation. The Court of Appeals for the Fourth Circuit so held in two subsequent cases. See Riddick by Riddick v. School Bd. of City of Norfolk, 784 F.2d 521, 534 (4th Cir.), cert . denied, 479 U.S. 938 (1986); School Bd. of the City of Richmond , Va. v. Baliles, 829 F.2d 1308, 1312 (4th Cir. 1987). The same result

should obtain here. Further, we must respect the Court's teach ing that "a school board is entitled to a rather precise statem ent of its obligations under a desegregation decree" and to "a like

statement from the court" for when "such a decree i s to be terminated or dissolved." Dowell, 498 U.S. at 246 (citing Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 42 4 (1976)). Because we are reluctant to impose any unstated obl igation on the school boards, we allocate the burden to prove any additional violation to the Appellant. See Jenkins, 115 S. Ct . at 2055-56 (to require a remedy, inferior student achievement must be proven to have resulted from de jure segregation); see als o Keyes v. School Dist. No. 1, C.A. Nos. C-1499, 69-M-1499 (D. Colo. Sept. 12, 1995), slip op. at 14 ("The Court's opinion in . . . Jenkins. . . defeats the plaintiffs' call for compelling additio nal action to investigate and redress racial disparitie s in student achievement . . . [when the] court has never made a ny findings

that such differences are the result of discriminat ion by the District"). In light of the foregoing discussion, we c onclude that Appellant failed to carry its burden. The district court's finding that persistent student performance dispari ties were caused by socioeconomic factors is supported by the record. Coalition, 901 F. Supp. at 818-19. The district co urt cited various demographic data from the 1990 U.S. Census and the 1992 Vital Statistics Report of Delaware that illustrate a "black/white gap" in the geographic area contained in the fourschool districts, and in New Castle County generall y, as to

socioeconomic conditions. The record establishes that "Blacks in the desegregation area are in an inferior positi on economically to whites, and [that] that gap is wide r in New Castle County than it is in the nation as a whole." Coalition, 901 F. Supp. at 818. Further, the record supports a causal link between

these socioeconomic factors and student achievement across the four districts: "There is consistency between the gap in socioeconomic status with the gap in achievement, w ith Brandywine statistics demonstrating the greatest disparity in both areas, Colonial the least disparity." Id. With such supp ort in the record, these findings cannot be clearly erroneous. Anchoring its determination on these unfortunate, but uncontr overted, socioeconomic factors, the court found, inter alia, that "[b]ecause the environment outside school is so str ong, cumulative, and varied, schools cannot overcome suc h environmental/differences [sic] among children." I d. at 819. We

agree. Accordingly, we affirm the district court' s allocation of the burden of proof and its determination that p ersistent performance disparities are not vestiges of de jure segregation.

VIII. Conclusion The task of setting forth reasons for affi rming the district court's judgment would have been lightenedconsiderably -- and this opinion made benevolently more brief -- had the Coalition not chosen to mount a scatter-gun attack on virtually every aspect of the district court's comprehensive opinion. Indeed, the Coalition portrays nearly 20 years of f ederal court supervision of Delaware public education as a cheer less and sorrowful failure. As our discussion has shown, ho wever, the Coalition's contentions, in the main, have been exp ressed in conclusory language that neglects to demonstrate wh ere the district court erred and fails to appreciate the na rrow standard of review by which we are constrained. Moreover, the Coalition repeatedly has fai led properly to acknowledge the importance of pervasive socioeco nomic conditions that account for discrepancies among the races in educational performance. Indeed, the Coalition avo ids the responsibility of carefully examining the roots of the continuing black/white achievement gap, a brutal national phen omenon first

documented in the 1960s and substantiated in variou s recent
studies that "demonstrate that if socioeconomic cha racteristics are more equalized, achievement levels are more equ alized." Coalition, 901 F. Supp. at 819. These studies conc lude that "[i]t is difficult for children to take equal advan tage of learning opportunities absent the initial and cumul ative advantages of a stimulating home curriculum," and t hat "[b]ecause the environment outside school is so strong, cumula tive, and varied, schools cannot overcome such environmental/ differences among children." Id. These conclusions support our belief, pres ented in the foregoing discussion, that none of the Coalition's argumentsconcerning special education, discipline and dropou t rates,

student achievement, extra-curricular activities or disparities in college matriculation can seriously be considere d without weighing the impact of critical demographic data. This the Coalition has failed to do, choosing instead to foc us its primary energies on arguing for continued federal court sup ervision of the schools -- as if a federal judge's order could eliminate, with the stroke of a pen, broad social problems. As humans, we acknowledge with melancholy the fact that many socioeconomic factors militate against a compl etely level playing field in our society. As judges, however, we are powerless to alter formidable social, economic and demographic forces and conditions over which no legal precept h as control. Moreover, we are constrained to fulfill an obligati on to address only those constitutional questions properly presen ted to us, and to show fealty to appropriate standards of review, lest we abandon the limits on judicial power that give cohe rence to our political system. The district court articulated t he meaning of

these institutional limits for this case: [t]he continued existence of racial discri mination in our society as a whole, and the effect of that discrimination on the ability of a black c hild to enter school on an equal footing with more privi leged white schoolmates, are not matters in dispute in this litigation.

Coalition, 901 F. Supp. at 823. Unfortunately, in its presentation the Coalition repeatedly has refused t o accept the fundamental concept that this court's scope of revi ew is limited to determining whether the district court clearly e rred in concluding that the school districts have achieved unitary

status. The history of our jurisprudence contains no true precedent for the micromanagement of school systems by the federal courts. Indeed, our authority to supervise these school districts does not stem from the Anglo-American common law tradition, in which the law evolves through judicia l reasoning based on legal principle; instead, our legitimacy h ere derives exclusively from the powers that inhere in equity j urisdiction, "another stream that flowed alongside the common la w, whose headwaters were in the discretionary royal prerogat ive. Equity was a more flexible process, more unprincipled, ini tially quite ad hoc." Thus the jurisprudential basis for 20 yea rs of detailed management of the Northern New Castle Coun ty school system has been, simply, a remedy framed in equity to enforce a desegregation decree. This equitable remedy and, by definition, its jurisprudential legitimacy, were meant to have a li mited lifespan. The remedy was designed to serve only as an implement for monitoring and guidance, not as a permanent sub stitute for state and local school boards, or indeed, for the s tate legislature. Thus in our zeal to insure maximum ed ucational opportunities for all Delaware school students, the federal courts must bear in mind that the responsibility fo radministering the schools ultimately belongs to loc ally elected

officials. Indeed, we must acknowledge that althou gh it has been proper for us to supervise multiple generations of students in the service of unassailable ideals, in the process we have also denied multiple generations of elected officials th e freedom to participate fully in representative government. Fo r 20 years there has been a constant colloquy between federal judges and officers of these political institutions, a score o f years in which to achieve desegregation "with all deliberate speed," as ordered in Brown II, 349 U.S. 294, 301 (1955). In ruling that the school districts of Nor thern New Castle County have at long last truly respected our specific orders of desegregation, the district court has cut the umbilical cord extending from the courtroom to the classroom. Institutions that normally are free to exercise powers tradition ally granted them (and them alone) in the American political pro cess now are free to assume those powers. The time has come for the courts to step back. What Roscoe Pound said almost a century ago still is most appropriate: "[W]hen men demand too much of la w, when they seek to devolve upon it the whole burden of social control, when they seek to make it do the work of the [school,] h ome and . . . church, enforcement of law comes to involve many di fficulties." The judgment of the district court declari ng unitary

status will be affirmed.

Coalition to Save our Children v. State Board of Ed ucation of the State of Delaware et al., No. 95-7452

___________________________________________________ ______________ SAROKIN, J., dissenting: One hundred years ago, the United States S upreme Court turned its back on the constitutional promise of eq ual protection of the law that this country made to its African-Am erican

citizens in the aftermath of the Civil War. In Ple ssy v. Ferguson, 163 U.S. 537 (1896), the Court upheld the constitutionality of laws requiring the racial segr egation of public facilities, including public schools, as "wi thin the competency of the state legislatures," id. at 544, and validated the infamous doctrine of "separate but equal." See id. at 552 (Harlan, J., dissenting). No one at the time could have truly believ ed for one instant that there was a shred of equality between the systems serving the white children and black children of th e dual school systems. Yet it took close to sixty years for the Supreme Court to acknowledge the reality of segregation. In one of the most glorious moments of the history of the federal judi ciary, the Court, speaking in a unanimous voice, effectively r epealed the "separate but equal" doctrine by holding, in Brown v. Board of Education, 347 U.S. 483, 495 (1954), that "in the f ield of public education the doctrine of 'separate but equal' has no place." Along with Topeka, Kansas, the Supreme Cou rt in Brownwas considering the fates of three additional school sy stems: South Carolina, Virginia, and Delaware. Delaware b ecame a part of this historic decision after the state's Supreme Court ordered two districts to admit black children into de jure all-whiteschools. Gebhart v. Belton, 91 A.2d 137 (Del. 1952 ). It was the

appeal from that decision that was consolidated wit h the Topeka

case. There was no straight and unwavering march toward a color-blind school system in the aftermath of Brown , however. Rather, desegregation in Delaware and elsewhere has had a "long, tortured history," Evans v. Buchanan, 447 F. Supp. 982, 1000 (D. Del.), aff'd, 582 F.2d 750 (3d Cir. 1978), cert. de nied, 446 U.S. 923 (1980). Resistance to the mandate of Brown was fierce, and at times violent. Then-Governor George Wallace of Alabama spoke for many when, standing on the front steps of the U niversity of Alabama in Tuscaloosa, he denounced the "illegal us urpation of [state] power by the Central Government" and tried to block admission of African-American youngsters into the s tate university system. Delaware officials, as well, proved less t han responsive to the constitutional mandate to desegre gate the state's public schools and, as a result, the federa l courts were compelled to enforce the mandate one ruling at a ti me, culminating with this Court's desegregation order i n 1978. Evans v. Buchanan, 582 F.2d 750 (3d Cir. 1978) (in banc), cert. denied, 446 U.S. 923 (1980). Today we are asked to lift th is order. The Majority accurately reflects the tortured history of this matter. The elapse of four decades of litigation and court supervision clearly militates against its continuance, but it is also evidence of begrudging compliance wi th repeated court orders to desegregate. I find it ironic that the delay in implementing the orders of this court to end segreg ation is now being utilized to justify the end of court interven tion. Although it is very tempting to end judicial superv ision in the face of substantial progress, it would be unfortuna te to abandon it just short of success. I dissent, not because I conclude that any of the findings of the district court are erron eous, but rather because accepting them causes me to conclude that some vestiges of past discrimination may remain, althoug h I concede that many have been eliminated. I concur with the majority's recognit ion of the

need to return control of schools to local communit ies, but only if and when we are satisfied that the goals establi shed some 18 years ago have been substantially met. I challenge the majority's suggestion that the court's role in thes e matters has "denied multiple generations of elected officials t he freedom to participate fully in representative government." M ajority at 68. The denial of that participation, if it occurr ed, was not due to judicial usurpation but rather arose from th e discriminatory and unconstitutional conduct of many of those

elected officials. It is not the courts who have d elayed the return to local power, but it is those elected offi cials who failed to act "with all deliberate speed." Brown v . Board of Education [Brown II], 349 U.S. 294, 301 (1955). Ev en if we are to withdraw our supervision at this juncture, I see little need to apologize for the court's intervention in these matters.
Without such intervention our schools would have re mained separate and unequal and a segment of our nation wo uld have beendenied rights and opportunities to which all are en titled.

I. Shared principles Before I articulate the reasons for my dis sent, I want to underscore the shared premises under which the m ajority and I
operate. There is, first of all, no disagreement th at "to extend federal court supervision indefinitely is neither p racticable, desirable, nor proper," Majority at 16, and this is not what I advocate today. At the same time, the Supreme Cour t has held that supervision by the courts should continue unti l "the vestiges of past discrimination ha[ve] been elimina ted to the extent practicable." Freeman v. Pitts, 503 U.S. 46 7, 492 (1992). Because the Appellees have not met this requirement , I believe that withdrawal of supervision is premature at this point. Nor is there any disagreement between the Majority and the Dissent that "[t]he proper test under the Const itution is equality of opportunity, not of results." Majority at 31. To the extent that the principal issue in this Dissent is the placement of African-American children in lower-lev el classes,

and to the extent that the district court itself fo und that "lower levels of instruction may not encourage achi evement and may adversely affect the ability of a student to at tend college,"

Coalition to Save our Children v. State Bd. of Educ ., 901 F. Supp. 784, 801,  49 (D. Del. 1995), it is their opportunity to succeed academically that is at stake. Finally, I share the Majority's "reluctan[ ce] to impose any unstated obligation on the school boards." Maj ority at 61. At the same time, we should not impose or tolerate any limitations on the opportunity of young black stude nts to participate equally in the educational process and derive all of

the benefits therefrom.

II. Factual findings

I now turn to the substantive review of th e district court's ruling. First, I agree with the Majority's conclusion that the vestiges of segregation have been eliminat ed with respect to the following areas: intra-district stud ent racial balance, Majority at 18-20; special education stude nt assignment, id. at 21-24; faculty and clerical staff assignment , id. at 32- 36; extracurricular activities, id. at 37-38; trans portation, id.at 39; facilities, id.; in-service training, id. at 41-44; reading skills, id. at 44-47; curriculum, id. at 48 -50; counseling and guidance, id. at 50-52; human relati ons, id. at 52-53; and discipline, id. at 53-57. However, I cannot agree with the Majority that the Appellees demonstrated, or that the district court correctly concluded, that the vestiges of segregation have be en eliminated with respect to the following facets of school oper ations: student classroom assignment; certified staff assig nment; and communications skills programs. I therefore would remand to the district court for further findings regarding these three areas. In addition, because classroom assignment affects s tudent achievement, I would remand for further findings re garding theso-called "areas of concern." Finally, because the district

court did not apply the correct legal standard rega rding the exclusion of the testimony of one of the Coalition' s experts, I would remand for further findings on this issue as well. A. Student classroom assignment I note, first of all, that "the school dis tricts acknowledge bearing the evidentiary burden" of prov ing compliance with this issue, other Green factors and the 1978 O rder. SeeMajority at

59. 1. The district court's findings and concl usions Findings 30 to 49 of the district court's opinion concern student classroom assignments. Coalition, 901 F. Supp. at 799-401. Findings 34 through 49 focus more spec ifically on "tracking" or "ability grouping," i.e., the assignm ent of students "to various instructional groups on the ba sis of ability." Id. at 800-01. Among the court's findin gs are the following: 36. The extent to which elementary an d middle school students are placed in class es according to their ability is unclear from

the record.

* * *

38. In 1993, the percentage of

minorities in the self-contained honors an d gifted student program at Burnett Elementa ry School [the only self-contained "gifted" student program in the 4 districts, id. at 800 n. 27], who scored above 85% on exams is slightly greater than that for the other

groups.

* * *

46. A review of the percentages of th e racial groups who were taking college and non-college prep classes illustrates that: a) a little over 50% of Brandywine's black students in grades 9-12 were taking non- college prep English, whereas a little les s than 20% of Brandywine's white students we re taking that level of English; b) a little

over 60% of Christiana's black students in grades 9-12 were taking non-college prep English, whereas a little less than 25% of Christiana's white students were taking th at level of English; c) a little over 50% of Colonial's black students in grades 9-12 w ere taking non-college prep English, whereas a

little less than 35% of Colonial's white students were taking that level of English ; d) a little over 40% of Red Clay's black students in grades 9-12 were taking non-college prep English, whereas a little les s

than 17% of Red Clay's white students were taking that level of English. Less than 5 %

of black students were enrolled in advance d English in the high schools of the 4 districts; however, over 20% of white

students were at that level.

47. There is evidence that among high

school students who achieve identical test ing scores ["The comparison apparently does no t
include academic achievement as measured b y course performance, or whether such placem ent was requested or required." Id. at 801 n.30.], black students were more likely to be placed in the lower level class than were

white students.

48. On the other hand, the percentage of

minorities enrolled in honors and AP class es who scored over the 75th percentile in reading or math in the spring of 1993 is slightly greater than that of whites in al l 4

school districts.

49. There is evidence that lower leve ls of instruction may not encourage achieveme nt and may adversely affect the ability of a student to attend college.

Id. at 800-01 (citations omitted). Taken together, these findings demonstrate that: (1) African-American students are less likely to be ass igned to highlevel classes than their white counterparts, and mo re likely to be placed in low-level classes [  46]; and (2) these disparate assignments are made at least in part for reasons o ther than academic merit, since black students who perform as well as white students are "more likely to be placed on the lower level class than [are] white students" [  47; see also  38, 48]. In the absence of alternative explanations, these findings permit the inference that the four districts' tracking practic es may be based, at least in part, on racial considerations. Furthermore, the court's findings demonstrate that these dispara te tracking assignments may deprive African-American students o f the opportunity to achieve the same level of academic s uccess, including college admission, as their white counter parts [  49].

The district court made no additional find ing of fact regarding alternate explanations for these "potenti ally troubling" findings, see Majority at 24. Furthermo re, whereas it was able to conclude, with regard to school-based s tudent assignments, that "[t]he 4 districts are among the most racially balanced schools in the United States," see Coaliti on, 901 F. Supp. at 799,  29, it reached no such conclusion regarding tracking-based assignments.The court did conclude as a legal matter t hat "there is

no credible evidence linking any current racially i dentifiable conditions to the prior violation," id. at 823, andthat "the vestiges of past discrimination have been eliminate d to the extent practicable." Id. at 823-24. I believe tha t the evidence discussed supra does not support this conclusion. First of all, the court's own findings con stitute "credible evidence" potentially linking one raciall y identifiable condition -- i.e., the racial disparities in assign ment to highlevel and low-level classes -- to "the prior violat ion." Second, while the findings regarding stude nt tracking do not prove conclusively that the school districts discriminate in their tracking practices on the basis of race, t hey certainly do not support the opposite conclusion -- i.e., tha t the

districts do not discriminate on the basis of race. If anything, the court's findings create a presumption that race might be a factor in New Castle County's tracking practices. Since the burden with regard to the Green factors -- includin g student assignments -- is on the Appellees to prove that th e vestiges of segregation have been eliminated, and since the App ellees offered no explanation for the disparities in tracking, the uncertainty as to the cause of the disparities should be resolv ed in favor of the Coalition, and therefore the district court's c onclusion that the vestiges have been eliminated, at least with re gards to student classroom assignment, was unsupported and p remature. 2. The Majority's analysis Despite the disparity between the court's own findings of fact and its conclusions of law, the Majority af firms the court's conclusion. I believe that the Majority's position is based on the wrong standard of review, the wrong al location of burdens and an unsustainable reading of the evident iary record.
(a) First, the Majority defines "our task" as "to inquire

whether the district court's determination of the d istricts' unitary status was clearly erroneous." Majority at 26. The district court's determination as to unitary status , however, is one not of fact, which we would review for clear er ror, but of law, see Coalition, 901 F. Supp. at 822-23, which a s is customary we subject to plenary review.
(b) Second, time and again the Majority dismis ses the import of the district court's factual findings by resolving gaps in the evidentiary record and ambiguities as to tho se factual findings in favor of the Appellees, despite the fac t that by its own acknowledgment, and that of Appellees, Appellee s bear the burden of showing that the vestiges of discriminati on have been

eliminated. (i) The Majority dismisses the district co urt's finding that "among high school students who achieve identi cal testing scores, black students were more likely to be place d in the lower level class than were white students," Coalition, 9 01 F. Supp. at 801,  47, as "no[] . . . evidence that black students ha ve not received equal opportunity." Majority at 25. Whil e the Majority concedes that this "potentially troubling" finding might"suggest[] on its face that black students may have been

segregated from white students of equal testing apt itude," id. at 24, it rejects this conclusion on the ground that t he comparison did not "consider[] as well the important factor of academic achievement based on course performance," and that "it is not clear whether the placement at issue was requested or required."

Id. at 25. Of course, the evidentiary gaps that the M ajority identifies do not nullify the import of the distric t court's finding as to potential disparate treatment of equa lly qualified students based on race. Furthermore, these gaps sh ould not serve to exonerate the party that bears the burden of pro of; uncertainty as to the significance of the district court's factual finding should not be resolved in favor of the party that

bears the burden. (ii) The Majority dismisses the district c ourt's finding that "the percentage of minorities enrolledin honors and AP classes who scored over the 75th percentile in r eading or math in the spring of 1993 is slightly greater than that of whites in all 4 school districts," Coalition, 901 F. Supp. at 801,  48, as "so limited, and thus malleable, a sample," Majorit y at 25, as to allow any number of inferences. Specifically, whil e the Majority acknowledges that "this finding could . . . give ri se to an inference that blacks must perform at a higher leve l than whites in order to be placed in honors and AP classes," it suggests that "we may just as reasonably infer something quite di fferent: that the school districts' good faith efforts to desegre gate have paid off in terms of the improved testing performance of black

students." Id. at 25-26. The Majority's inference, even assuming th at it is one an appellate court could draw, is unconvincing at b est: the issue is not whether some black students perform well, bu t rather whether black students must perform better than whi tes to be placed in honors and AP classes, which the district court's finding clearly suggests. In any case, once again it is inappropriate -- and legally erroneous -- to dismis s the Coalition's interpretation because another interpre tation, more favorable to Appellees, is possible when the burden lies with Appellees. (iii) The Majority dismisses the district court's finding that "[t]he extent to which elementary and middle school students are placed in classes according to their a bility is unclear from the record," Coalition, 901 F. Supp. a t 800,  36, as "mean[ing] little on its own, for it represents merely that there is uncertainty in the record about how elemen tary and middle school students are placed in classes accord ing to their ability." Majority at 26. True enough. However, uncertainty about s tudent placement merely demonstrates that Appellees have f ailed to meet their burden of showing that the vestiges of discri mination have been eliminated. To suggest otherwise is to misall ocate the evidentiary burden. (iv) The Majority dismisses the district c ourt's finding of "[e]vidence that lower levels of instruc tion may notencourage achievement and may adversely affect the ability of a

student to attend college," Coalition, 901 F. Supp. at 801,  49, as "not establish[ing] anything specific about whet her that putative problem is related to disparate educationa l opportunity or treatment according to race." Majority at 29. The significance of this finding, however, is not to

demonstrate that black students are channeled to lo wer-level classes, but that if they are, this would have a de leterious

effect on their level of academic achievement. Thi s finding,

when read in the context of the district court's ot her findings suggesting that students are assigned to different levels of instruction based on race, is ominous and suggests that the poor performance of black students in a number of areas might not be related solely to socioeconomic factors.
(c) At the end of its analysis, the Majority p roclaims that "[a]s we already have made clear, [the basis on whi ch students are placed in lower levels of instruction] was not racially discriminatory." Majority at 29. In fact, neither the district court's findings nor even the Majority's analysis s upports such a conclusion. At best, they suggest that the record is indeterminate regarding whether students are assign ed to certain levels of instruction on the basis of race -- i.e., that Appellees have failed to establish that in the area of student assignment, the vestiges of discrimination have bee n eliminated to the extent practicable.

3. Conclusion For the foregoing reasons, I would remand to the district court for further findings regarding the r acial disparities in tracking.

B. Certified staff Regarding the issue of staff assignment, t he district court noted that "[t]he staff is divided into three subsections: administrative staff, certified staff, and classifi ed staff." Coalition, 901 F. Supp. at 802,  50. As the court explained, "'[c]ertified staff' includes nonadministrative cer tified personnel such as teachers, psychologists, speech a nd hearing therapists, educational diagnosticians and other 'i nstructional and pupil support personnel.'" Id.,  52. Except for teachers, the court made no fin ding regarding the racial identifiability of the schools with respect to the certified staff. Similarly, the Majority di scusses the districts' efforts regarding the faculties, Majorit y at 33-35, and the "non-professional" or "classified" staff on ly, id. at 35- 36, but in no way discusses the districts' efforts regarding

certified staff. No one disputes that these professionals w ere included in the 1978 Order, and I see no reason for the dist rict court's omission. Therefore, I would remand to the court f or further findings regarding whether vestiges with regard to certified

staff have been eliminated.

C. Communication skills The 1978 Order required the districts (whi ch at the time were consolidated into a single district) "to institute anaffirmative reading and communication skills progra m which does

not resegregate pupils." Evans, 447 F. Supp. at 10 15-16. I do not dispute the Majority's conclusion that "the dis tricts . . . met the standard of good faith compliance with" the Order regarding reading skills. See Majority at 45. How ever, the district court made not a single finding regarding the implementation of a communication skills program. See Coalition, 901 F. Supp. at 809-10,  168-185. The Majority contends that this oversight is inconsequential because "there is no meaningful dis tinction between reading skills programs and communication s kills programs," Majority at 47, and that "'reading skill s' and 'communications skills' are synonymous for purposes of our analysis here." Id. at 48. However, there is no s upport in the record to read the "communication skills" requireme nt as mere surplusage. I cannot agree with the Majority's sug gestion, eighteen years after the fact, that the language of the 1978 Order was merely sloppy or redundant. This suggest ion is not only in contradiction with the careful analysis of the district court at the time, but also with the plain meaning of the words. Reading and communication are different forms of hu man activity, and they involve different skills. Therefore, I wo uld remand to the district court for further findings in this are a. D. Areas of concern

In addition to the so-called Green factors and the ancillary relief measures outlined by the district court in 1978,

the district court considered several "areas of con cern" for possible discriminatory practices: student achievem ent; special education; and dropout rates. Coalition, 901 F. Su pp. at 818-22. As the Majority acknowledges, there is no dispute t hat significant disparities along racial lines remain i n these various areas. See Majority at 57. The issue is w hether these disparities are legally cognizable vestiges of de j uresegregation. The district court concluded that "[t]here is no credible evidence demonstrating that the difference s between

black and white children's success in school can be attributed to the former de jure segregated school system." Coal ition, 901 F. Supp. at 823. In a very real sense, there can be no doub t that the condition of many African-Americans in our society is a lasting legacy of a time when people of color as a matter o f law were denied equality of opportunity. However, the Supre me Court has made it clear that not all vestiges of de jure segr egation are "the concern of the law," but only those that "have a causal link to the de jure violation being remedied." Freeman v. Pitts, 503 U.S. 467, 496 (1992). With regard to the Green factors, causalit y is presumed. As the Majority explains, "the Green fac tors have become per se vestiges of de jure segregation." Ma jority at 58. Causality is also presumed for the ancillary relief measures contained in the 1978 Order. But the issue of esta blishing causality is a more difficult one in the case of th e identified performance disparities. I agree with the Majority that under the t ypicalscenario, "[b]ecause the performance disparities cl aimed by

Appellant are not among (or even similar to) the Gr een factors or the vestiges identified in the 1978 Order, we will not simply presume . . . that these are vestiges of de jure se gregation." Majority at 59. I also agree with the Majority, ho wever, that if the district court ultimately were to find that the school district has not achieved unitary status, the burde n would shift and the plaintiffs would be entitled to a presumpti on of causality. See id. at 60 (citing Vaughns by Vaughn s v. Bd. of Educ. of Prince George's County, 758 F.2d 983, 990- 91 (4th Cir. 1985)). As I explain supra, I believe that remand is appropriate in the instant matter for further findi ngs regarding classroom assignment. If the district court were t o conclude on remand that students are assigned to different leve ls of education based on race, under Vaughns v. Vaughns s uch a finding would create a presumption of causal relationship b etween the dejure violation and the disparities in achievement, and t he evidentiary burden would shift to Appellees. We no te, too, that this presumption would be entirely consistent with the district court's own finding that "lower levels of instructi on may not encourage achievement and may adversely affect the ability of a student to attend college." Coalition, 901 F. Supp . at 801, 

49. Because any conclusion the court draws reg arding class placement may affect its conclusion that "[t]here i s no credible evidence demonstrating that the differences between black and

white children's success in school can be attribute d to the former de jure segregated school system," id. at 82 3, I would vacate the court's conclusion regarding the so-call ed areas of concern and remand for reconsideration in light of the above.

E. Exclusion of Jan de Leeuw's testimo ny The Coalition argued on appeal that the di strict court improperly excluded expert testimony it sought to p resent to rebut the defendant' own experts, and that it was p rejudiced by the exclusion. The Majority correctly notes that " [a] trial judge's exclusion of testimony cannot be disturbed on appeal 'absent a clear abuse of discretion.'" Majority at 56 (citing Semper v. Santos, 845 F.2d 1233, 1238 (3d Cir. 1988 ); Fashauer v. New Jersey Transit Rail Operations, 57 F.3d 1269, 1 287 (3d Cir. 1995)). However, review is plenary when the distri ct court's evidentiary ruling "implicates 'the application of a legally set standard.'" Lippay v. Christos, 996 F.2d 1490, 149 6 (3d Cir. 1993) (quoting Savarese v. Agriss, 883 F.2d 1194, 1 200 (3d Cir. 1989)). 1. Factual findings On November 2, 1994, the district court is sued an order setting up, inter alia, the framework for pre-trial discovery. In particular, the court ordered that by November 9 , 1994, "each party [should] designate which of its experts [woul d] testify at trial and the specific subject matter as to which e ach expert [would] testify." Coalition to Save our Children v . Delaware Board of Education, Nos. 1816-1822-SLR, slip op. at 4 (D. Del. Nov. 2, 1994) (Order) (JA 318). The court further ordered theparties to "exchange expert reports, the content of which will

comply with Fed. R. Civ. P. 26(a)(2)(B)" by Novembe r 23. Id., slip op. at 5 (JA 319). The Coalition submitted its list of expert s on November 17. Among those listed was Dr. Jan de Leeuw, Direc tor of the UCLA Statistical Consulting Center. Redesignation of Expert Witnesses, Coalition to Save our Children v. State Board of Education, C.A. No. 1816-1822 SLR, slip op. at 2 (D . Del. Nov. 17, 1994) (JA 346). Dr. de Leeuw was to "be calledas an expert witness in the fields of statistical consultation, data analysis,

and related matters." Id. Dr. de Leeuw submitted his Report on Creat ion and Use of Database (hereinafter the "de Leeuw Report") on November 29, 1994. JA 4041. The report deals exclusively with the preparation and construction of the database. One section, entitled "Goal of Analysis," explains: The analysis consists of providing expert witnesses with tables. The tables depicte d the racial composition of districts and schools with regard to outcomes of interes t. These tables provide the actual number and percentages of students who fall within ea ch of these categories. In addition, the tab les include marginal (or conditional)
percentages. De Leeuw Report at 14 (JA 4055). An attorney for the school system wrote to the court on December 1 protesting that "the expert reports prov ided by Plaintiff were incomplete," Letter from Rodman Ward , Jr. to Judge Sue L. Robinson (Dec. 1, 1994) (JA 362), and asking that the Coalition provide "expert reports that comply fully with Rule 26(a)(2)(B)" by December 9. Id.; see also Letter f rom Rodman Ward, Jr. to Thomas D. Barr (Dec. 2, 1995) (JA 384) . The Coalition apparently did not supplement Dr. de Leeu w's report by

that date. Board's Brief at 55. Dr. de Leeuw was deposed on December 15. After being initially asked if he would be "offering any opinio ns in this matter," he responded, "Opinions, no. I have to de scribe the database construction, and I don't think that invol ves any opinions." Deposition of Jan de Leeuw, Dec. 15, 19 94 (hereinafter the "de Leeuw Deposition") (JA 1562). However, Thomas Henderson, a counsel for the Coalition, inte rvened later during the deposition to "give [the Board's counsel ] notice that [Dr. de Leeuw] may testify as to materials and anal yses, data . . . in the defendants [sic] reports." Id. (JA 1563). Describing this intervention as "a real problem," Andre G. Bou chard, the school system's counsel, requested that he be given notice if the Coalition intended to call Dr. de Leeuw to testify about "anything outside of his report." Id. Mr. Henders on responded, "Well, I heard your request and it's on the record, and I will

consider that." Id. The same day, the Coalition informed the d efendants of its intention to call three new rebuttal experts. One of these witnesses was Dr. Franklin Fisher, a professor of e conomics atM.I.T., who was to testify on the statistical analy sis methods

used in the reports by Dr. Rossell, Dr. Armor and D r. Walberg,

three of the Board's witnesses. JA 858. The defen se objected during a hearing held on December 27, on the groundthat Dr. Fisher's testimony would simply "duplicate what [it ] thought Mr. Deleeuw [sic] was supposed to do." JA 860. The ne xt day, the court sustained the objection and excluded the new experts' testimony: The deadline for naming experts is long pa st. The general context of defendants' experts ' testimony and methodology used by these experts should have been of no surprise to the plaintiff. Defendants would be prejudiced if these experts were allowed t o testify. And plaintiff has not claimed prejudice in the absence of their testimon y. Tr. 1572 (JA 863). The Coalition did not appeal th e court's ruling. On January 3, 1995, the day of Dr. de Leeu w's testimony, the Coalition's counsel handed to the de fendants what defendants describe as "91 pages of charts and stat istical data," Board's Brief at 56, and signaled that it intended to call Dr. de Leeuw to offer rebuttal testimony regarding the ana lyses of three experts for the defendants, Drs. Armor, Achilles an d Reschly. Boards' Brief at 56. The new testimony sought from Dr. de Leeuw was to be the same as that which the Coalition expe cted to elicit from Dr. Fisher, and that the court excluded on Dec ember 28. JA 1229. This time again, however, the court excludedthe testimony on the ground that the Coalition's effort failed to comply with the court's previous orders and with Rule 26. 2. Legal analysis The Coalition argues that the court's excl usion of Dr. de Leeuw's rebuttal testimony is contrary to Rule 7 03 of the Federal Rules of Evidence, as well as "normal pract ice and the common usage of expert witnesses." Appellant's Bri ef at 47. The Coalition further argues that exclusion of Dr. de L eeuw's testimony "does not make sense since Dr. de Leeuw's testimony was fashioned, and could only have been fashioned, afte r the crossexamination of the School System's witnesses and th e production of data bases and disk files that were made during trial." Id.at 47-48. Finally, the Coalition argues that the excluded testimony "would have demonstrated a series of meth odological and analytical flaws fatally undermining [the Coalition 's] testimony." Id. at 47. Because the district court failed to consider the importance of Dr. de Leeuw's profferedtestimony, I

would remand. (a) I note, first, that Rule 703 of the Federa l Rules of Evidence is inapposite to the dispute at hand. Rul e 703 states, inter alia: "The facts or data in the particular ca se upon which an expert bases an opinion or inference may be thos e perceived by or made known to the expert at or before the hearin g." The subject of the dispute over Dr. de Leeuw's testimon y, and the reason for his exclusion, is the scope of his exper tise asdefined in the Coalition's November 30 report, and more

specifically "whether at this late stage in the pro ceeding the plaintiff should be given the opportunity to presen t affirmative evidence by an expert never before qualified in" th e area of student achievement. JA 1230 (statement by The Cou rt). Similarly, the cases cited by the Coalitio n as evidencing "normal practice and the common usage of expert
witnesses" are of no relevance in the instant case. The issue in the first two cases was whether an expert should be allowed to testify after attending the testimony of other witn esses, allegedly in violation of an order by the court exc luding all witnesses from the courtroom during trial. United States v. Crabtree, 979 F.2d 1261, 1270 (7th Cir. 1992), cert . denied, 114 S. Ct. 216 (1993); United States v. Bramlet, 820 F. 2d 851, 855 (7th Cir.), cert. denied, 484 U.S. 861 (1987). Nor does the third case cited by the Coalition, an unreported di strict court opinion, offer any support for its argument. Layse ars v. Schindler Elevator Corp., No. Civ. A. 94-3152 (E.D. Penn. Sept. 27, 1995). (b) The Coalition next argues that Dr. de Leeu w's testimony could only have been fashioned after cross-examinat ion of the Board's witnesses and the production of databases a nd disk files during trial. There are two problems with this arg ument. The first is that regardless of when specific data was given to the Coalition, the Coalition was aware all along that t he school system would present statistical analyses as part o f its argument, and it was aware by late November of the areas for which statistical analysis would be presented. The second problem has to do with the chronology of what infor mation was available and when. As just noted, as of November 30, the Coalition knew the subjects on which the school sys tem's various experts would testify, and the extent to which they relied on statistical analysis. JA 1289. As to specific exp erts, "anything that Dr. Achilles relied on in his testim ony was entirely in the appendix to the report on the 30th in terms of all the backup data for his tables." JA 1290. Reg arding Dr. Reschly's testimony, "the backup tables for all of that data [the data on which Dr. Reschly relied] were all containe d in the appendix that [the school system] delivered on Nove mber 30th." Id. Finally, as to Dr. Armor, it appears from the school system's uncontroverted testimony that "[h]is metho dology is described in his report. The statistical analysis is described in his report. The assumptions that he made in his regression methodology is described carefully and fully in his report." Id. Therefore, the only data that was missing as of Dec ember 1 was specific census data used by Dr. Armor in his work -- but again, while the Coalition may not have had all the data a s of November 30, it knew the scope and methodology of the testim ony to be presented by the school system. Therefore, the dis trict court was certainly acting within its discretion when it found that the Coalition failed to comply with its orders regardin g Dr. de Leeuw's belated testimony.
(c)Our analysis does not end with the distric t court's

finding, however. It has been the "consistent posi tion" of the Third Circuit that "'the importance of the excludedtestimony is one of the factors to be considered in deciding whe ther the trial court abused its discretion in excluding a witness. '" Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 302 (3d Cir. 1991) (quoting Meyers v. Pennypack Woods Home Ownership Assn., 559 F.2d 894, 904 (3d Cir. 1977), overruled on other grounds, Goodman v. Lukens Steel, 777 F.2d 113 (3d Cir. 1985), aff'd, 482 U.S. 656 (1987)). Other factors include: "bad faith on the part of the party seeking to call witnesses not listed in his p retrial memorandum," Meyers, 559 F.2d at 904; "ability of t he party to have discovered the witnesses earlier," id.; "vali dity of the excuse offered by the party," id.; "willfulness of the party's failure to comply with the court's order," id.; and"the parties' intent to confuse or mislead his [sic] adversary." Id.. As the court in Meyers explained, the following "basic con siderations" should guide the court's decision: (1) the prejudice or surprise in fact of t he party against whom the excluded witnesses would have testified, (2) the ability of t hat party to cure the prejudice, (3) the exten t to which waiver of the rule against callin g unlisted witnesses would disrupt the order ly

and efficient trial of the case or of othe r cases in the court, and (4) bad faith or willfulness in failing to comply with the

court's order. Id.at 904-05; see also DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1201-02 (3d Cir. 1978). Furthermore, "the likelihood of finding an abuse of discretion is affected by the importance of the dis trict court's

decision to the outcome of the case and the effect it will have on important rights." In re Paoli Railroad Yard PC B Litigation, 35 F.3d 717, 750 (3d Cir. 1994) (citation omitted), cert. deniedsub nom. General Electric Co. v. Ingram, 115 S. Ct. 1253 (19 95).

There is no evidence in the record that th e district court considered the importance of Dr. de Leeuw's p roffered testimony or several of the other factors outlined in Meyers. Therefore, I believe that we should vacate the dist rict court's

decision to exclude Dr. de Leeuw's belated testimon y and remand to the district court for the more complete conside ration of Dr. de Leeuw's testimony that the law of this Circuit d emands.

III. Conclusion The presence of a number of young black st udents at the argument of this matter should serve as a compellin g reminder to us that while we struggle over the sufficiency of p roof and allocation of burdens, our decision today directly affects the education and future of many of these young people. As I cannot join the opinion of the Majori ty on the legal grounds outlined above, neither can I join th e condemnation

of Coalition's counsel. Without the zealous advoca cy demonstrated throughout this case's history, much o f what hasbeen accomplished in the past two decades would not have been.

Nor can I join in the Majority's criticism of "the micromanagement of [segregated] school systems by t he federal courts." Majority at 67. The courts assumed their role in these matters not out of an unquenchable thirst for power or a desire to intrude upon the province of others, but because of the failure of those charged with the responsibility of ending segregation to fulfill the duties imposed upon them and respond voluntarily to the commands of Brown. The courts' authority in these matters does not spring from arrogance, nor d oes it merely "inhere in equity jurisdiction." Id. It is rootedin the Equal

Protection Clause of the Fourteenth Amendment to th e United

States Constitution. Much time has elapsed since the State of D elaware was first ordered to desegregate its schools and, admit tedly, much has been accomplished. But unless and until we can be certain that all of the vestiges of past discrimination hav e been eliminated to the extent practicable, supervision s hould not be abandoned. Considering that we are dealing here wi th the education and future of a large number of tomorrow' s leaders, to trade additional time for greater equality is not a bad bargain. Accordingly, I would remand for further co nsideration and findings consistent with this opinion.