1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-24-1996

Coalition Save v. Bd Ed DE

Precedential or Non-Precedential:

Docket 95-7452

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 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 __________________ 

 No. 95-7452 

 __________________ 

 COALITION TO SAVE OUR CHILDREN, 

 Appellant 

 v. 

 STATE BOARD OF EDUCATION OF THE STATE DELAWARE; 

 BOARD OF EDUCATION OF THE CHRISTIANA SCHOOL DISTRICT; 

 BOARD OF EDUCATION OF THE BRANDYWINE SCHOOL DISTRICT; 

 BOARD OF EDUCATION OF THE COLONIAL SCHOOL DISTRICT; 

 THE BOARD OF EDUCATION OF THE RED CLAY SCHOOL DISTRICT; 

 DELAWARE HOUSE OF REPRESENTATIVES COMMITTEE ON DESEGREGATION 

 __________________ 

 

 Appeal from the United States District Court 

 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. Forrest 

 CRAVATH, SWAINE & MOORE 

 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. 20005 
 Leonard L. Williams

 1214 King Street 

 Wilmington, DE 19801 

 ATTORNEYS FOR APPELLANT 

 Andre L. Dennis 

 STRADLEY, RONON, STEVENS & YOUNG 

 2600 One Commerce Square 

 Philadelphia, PA 19103-7098 

 

 Mary B. Matterer 

 STRADLEY, RONON, STEVENS & YOUNG 

 One Rodney Square, 8th Floor 

 P.O. Box 2170 

 Wilmington, DE 19899-2170 

 ATTORNEYS FOR 

 AMICUS CURIAE - CITY OF 

 WILMINGTON, DELAWARE 

 

 Rodman Ward, Jr. (argued) 

 Andre G. Bouchard 

 SKADDEN, ARPS, SLATE, 

 MEAGHER & FLOM 

 One Rodney Square 

 P.O. Box 636 

 Wilmington, Delaware 19899 

 John B. Hindman 

 Department of Justice 

 45 The Green 

 Sykes Building 

 Dover, DE 19901 

 ATTORNEYS FOR APPELLEE 

 STATE BOARD OF EDUCATION 

 OF THE STATE OF DELAWARE 

 M. Duncan Grant 

 PEPPER, HAMILTON & SCHEETZ 

 18th & Arch Streets

 3000 Two Logan Square 

 Philadelphia, PA 19103 

 Alfred J. D'Angelo, Jr. 

 Daniel V. Folt 

 PEPPER, HAMILTON & SHEETZ 

 1201 Market Street 

 Suite 1401 

 Wilmington, DE 19801 

 ATTORNEYS FOR APPELLEE 
 RED CLAY CONSOLIDATED 

 SCHOOL DISTRICT 

 David H. Williams 

 Barbara D. Crowell 

 MORRIS, JAMES, HITCHENS & 

 WILLIAMS 

 222 Delaware Avenue

 P.O. Box 2306 

 Wilmington, Delaware 19899 

 ATTORNEYS FOR APPELLEES 

 BRANDYWINE, CHRISTIANA 

 AND COLONIAL SCHOOL 

 DISTRICTS 

 Charles J. Cooper (argued) 

 SHAW, PITTMAN, POTTS & 

 TROWBRIDGE 

 2300 N Street, N.W.

 Washington, D.C. 20037 

 ATTORNEYS FOR APPELLEE 

 DELAWARE HOUSE OF 

 REPRESENTATIVES COMMITTEE 

 ON DESEGREGATION 

 

 __________________ 

 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 . . . . . . . . .44 
 C. 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 desegregation were 

deemed insufficient by the district court in 1957, and by this 

court in 1960, judges of this circuit blazed new jurisprudential 

trails in 1975 by requiring an interdistrict remedy. By 1977 and 

1978, the judiciary had fashioned detailed orders for primary and 

ancillary relief which, together with the factors set forth by 

the Supreme Court in Green v. County School Bd. of New Kent 

County, Va., 391 U.S. 430 (1968), constituted the marching 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 achieved unitary 

status by complying in good faith with our detailed desegregation 

decrees and by eliminating to the extent practicable the vestiges 

of de jure segregation. This was the ruling of the district 

court embodied in a judgment entered after a lengthy hearing. 

The Coalition to Save Our Students ("Coalition"), the 

representative of the plaintiff class, has appealed. We will 

affirm. 

 It is beyond dispute that racism and bigotry continue to 

tear at the fragile social fabric of our national and local 

communities, and that our best efforts as citizens are needed to 

address this problem at many levels. However, as the district 

court observed in the case at hand, court-supervised school 

desegregation alone cannot eliminate racial discrimination: 

 [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 apparent that the 

 school desegregation process has been unable to eliminate or 

 overcome racial discrimination in the "myriad factors 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 a 
limited amount of baggage. It would not serve the important 

objective of Brown I to seek to use school desegregation cases 

for purposes beyond their scope . . . ." Swann, 402 U.S. at 22. 

 In light of this sobering truth, it is all the more 

important that we write the final chapter in this long period of 

supervision by the federal courts and release our provisional 

grip on the administrators and educators of Northern 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. The length of 

the discussion that follows is but one indication of the 

importance and sensitivity of the task at hand. 

 II. Procedural History 

 Historically, Delaware required its public school 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 children. 

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 public school 

students deprived the minority group children of equal 

educational opportunities, in violation of the Equal Protection 

Clause. See Brown I, 347 U.S. 483 (1954). The Court again 

affirmed Belton v. Gebhart in Brown v. Board of Education, 349 

U.S. 294 (1955) (Brown II), remanding to the Supreme 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 nondiscriminatory school 

system . . . with all deliberate speed." Brown II, 349 U.S. at 

300-01. 

 Yet notwithstanding the end of de jure segregation, the City 

of Wilmington continued to operate many racially identifiable 

schools. Accordingly, the district court fashioned an interdistrict remedy to eliminate the vestiges of segregation and, 

faced with the state authorities' adamant and prolonged refusal 

to discharge their responsibilities, issued a remedial decree in 

1978. The 1978 Order required a 9-3 student assignment plan, 

which provided that all students would attend formerly 

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 ancillary relief 

"necessary and essential to . . . overcome the vestige effects of 

de jure segregation," including: (1) an in-service training 

program for teachers; (2) an affirmative reading and 

communication skills program; (3) new curriculum offerings; (4) a 

nondiscriminatory counseling and guidance program; (5) a human 

relations program; (6) codes of conduct providing for 

nondiscriminatory discipline; (7) the reassignment of faculty and 

staff; and (8) nondiscriminatory guidelines for construction and 

maintenance of school buildings. Evans v. Buchanan, 582 F.2d 
750, 770-774 (3d Cir. 1978) (in banc). 

 In 1981, the district court permitted the state to 

reorganize the judicially-created school district into the 

current four districts -- Brandywine, Christiana, Colonial and 

Red Clay. Evans v. Buchanan, 512 F. Supp. 839 (D. Del. 1981). 

In so doing, Judge Schwartz asserted that, notwithstanding the 

continued existence of "problems that may be characterized 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 authorities to come 

forward with their own meaningful solutions to vexing problems." 

Id. at 863, 874. However, because Judge Schwartz found the 

"effort [to have] fallen short of the mark in the critical area 

of pupil assignment," he deferred for 60 days any order regarding 

the State Board's motion for modification of the desegregation 

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 good faith with 

the 1978 order. Coalition to Save Our Children v. Buchanan, 744 

F. Supp. 582, 587-93 (D. Del. 1990). Judge Schwartz stated that 

"the vestiges of prior official segregation [had not] been 

eradicated 'root and branch' from either the Red Clay District as 

a whole or from its student assignment patterns." Id. at 587. 

Indeed, Judge Schwartz found that the record was "replete . . . 

with evidence of delay, obfuscation, and recalcitrance on the 

part of the Red Clay Board with respect to remedying the racial 

disparities" in that district. Id. at 592-93. 

 In 1991, Judge Schwartz stated that, notwithstanding the Red 

Clay District's "technical compliance with this court's orders," 

he again had "very grave doubts concerning the [Red Clay] Board's 

good faith compliance with the spirit of desegregation," and thus 

could "not make a finding that the Red Clay District [was] 

operating in compliance with the Equal Protection Clause . . . ." 

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 State Board of 

Education for a declaration of "unitary status," the district 

court concluded: 

 that the defendants have complied in good faith with 

 the desegregation decrees issued in this litigation, 

 that the defendants are unlikely to return to the 

 segregative practices of their predecessors, and that 

 the vestiges of past discrimination have been 

 eliminated to the extent practicable. 

Coalition, 901 F. Supp at 823-824. The opinion accompanying the 

order set forth 308 factual findings, which discussed: (a) 

compliance with what have become known as Green factors (as 

originally suggested in Green v. County School Board, 391 U.S. 

430 (1968)) -- student assignment, faculty and staff assignment, 

transportation, extracurricular activities, and facilities; (b) 

compliance with the ancillary relief provisions, endorsed 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 conceded compliance 

with two of the Green factors (transportation and facilities) and 

one of the ancillary relief provisions (also concerning 

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), Federal Rules 

of Appellate Procedure. 

 III. Scope of Review 

 The Coalition's appeal presents us with three fundamental 

questions for consideration: first, whether the district court 

properly concluded that the four school districts of 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; second, 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; and third, 

whether the district court properly excluded certain expert 

testimony proffered by Appellant. 

 

 The appeal to this court from the order declaring unitary 

status tracks a very narrow compass. Because the district 

court's finding that the school districts have achieved unitary 

status is factual, our review of that finding is limited to the 

clearly erroneous standard. Vaughns by Vaughns v. Bd. of Educ. 

of Prince George's County, 758 F.2d 983, 990 (4th Cir. 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 Cir. 1989). A 

finding of fact is clearly erroneous only if the court has "the 

definite and firm conviction that a mistake has been 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 completely devoid 

of minimum evidentiary support displaying some hue of 

credibility, or (2) bears no rational relationship to the 

supportive evidentiary data." Krasnov v. Dinan, 465 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. Louis 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 determination of the 

admissibility of expert testimony for abuse of discretion. 

United States v. Theodoropoulos, 866 F.2d 587, 590 (3d Cir. 
1989). 

 IV. Unitary Status 

 The primary legal issue before us is whether the Northern 

New Castle County school districts have fulfilled their 

affirmative duty to eliminate the former dual school system. The 

ultimate end to be brought about by a desegregation remedy is "a 

unitary, nonracial system of public education." Green, 391 U.S. 

at 436. A school system achieves this unitary status when it no 

longer discriminates between school children on the basis of 

race. See id. at 442. And a school system no longer 

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 charged with 

affirmative duty to eliminate racial discrimination "root and 

branch"); Swann, 402 U.S. at 15 ("the objective today remains to 

eliminate from the public schools all vestiges of state-imposed 

segregation"). Thus our task, simply put, is to determine 

whether the district court clearly erred in finding that the 

vestiges of de jure segregation have been eliminated in the 

Brandywine, Christiana, Colonial and Red Clay school districts. 

Green, 391 U.S. at 435; see also Missouri v. Jenkins, ___ U.S. 

___, 115 S. Ct. 2038, 2055-56 (1995). 

 A critical starting point in identifying vestiges of 

discrimination is the degree of racial imbalance in the school 

districts. This inquiry is fundamental, because under the former 

de jure regime, racial exclusion was both the means and the end 

of a policy motivated by disparagement of, and hostility towards, 

the disfavored race. The Court's 1968 opinion in Green 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, transportation, 

extracurricular activities and facilities." Id.; see also Swann, 

402 U.S. at 18 (the Green factors are "among the most important 

indicia of a segregated system.") Because compliance 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 are 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 affirmative reading 

and communication skills program; (3) new curriculum offerings; 

(4) a nondiscriminatory counseling and guidance program; (5) a 

human relations program; (6) codes of conduct providing for 

nondiscriminatory discipline; (7) the reassignment of faculty and 

staff; and (8) nondiscriminatory guidelines for construction and 

maintenance of school buildings. Evans v. Buchanan, 582 F.2d at 
769-74. Thus we will survey compliance with these ancillary 

relief measures as well. 

 By considering both the Green factors and the eight measures 

of ancillary relief ordered by this court in 1978, we honor the 

mandate set forth by the Supreme Court in Dowell that a school 

board under federal supervision "is entitled to a rather precise 

statement of its obligations." Bd. of Education of Okla. City 

Public Schools, Indep. School Dist. No. 89, Oklahoma County, Okl. 

v. Dowell, 498 U.S. 237, 246 (1991) (citing Pasadena 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 inquiry as we 

determine whether the district court properly ordered 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 extent 

 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 temporary measure 

to remedy past discrimination,'" Jenkins, ___ U.S. ___, 115 S. 

Ct. at 2049 (quoting Dowell, 498 U.S. at 247), we underscore that 

the phrase "to the extent practicable" implies a reasonable limit 

on the duration of that federal supervision. Indeed, to extend 

federal court supervision indefinitely is neither practicable, 

desirable, nor proper. 

 We are keenly aware that, for as long as we have imposed 

federal supervision on local school boards, those bodies have 

suffered the loss of their defining function -- control over 

their own schools. Thus in the present matter the citizens of 

the New Castle school districts have been denied for nearly 20 

years what the Court has described as the "vital national 

tradition" of "local autonomy of school districts." Freeman, 503 

U.S. at 490 (quoting Dayton Bd. of Educ. v. Brinkman, 433 U.S. 

406, 410 (1977)). Additionally, we appreciate the extended 

social and economic burdens that continued supervision would 

impose on generations of innocent school children and their 

families. The reality of these burdens becomes clear when we 

consider that a child who entered first grade in one 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-controlled 

school system. 

 Our concern for the autonomy of local school systems and 

their members is consistent with the established jurisprudence 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 opportunities 

for all students, a state of affairs made possible only in "a 

unitary, nonracial system of public education." Green, 391 U.S. 

at 436. Were we to allow federal supervision to continue after a 
finding that the school districts have complied with our 

desegregation mandate, we would effectively preclude those school 

districts from achieving that goal. In sum, we cannot reconcile 

the prospect of indefinite federal supervision of local school 

districts with the ultimate purpose of that supervision -- to 

foster the creation of autonomous, racially balanced 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 the 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 districts had 

effectively eliminated to the extent practicable the vestiges of 

the former dual school system. In addressing this issue, the 

district court began by scrutinizing various educational factors 

initially identified by the Court in Green: student assignments, 

faculty, staff, facilities and resources, transportation, and 

extra-curricular activities. Green, 391 U.S. at 435. 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 schools 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 State Board and 

districts not only have adhered to the requirements of our 

student assignment order, but also have attempted to maintain a 

racial balance by consolidating districts, redrawing attendance 

zones, and instituting the busing of thousands of students. 

 Indeed, after the hearing below on the Appellees' motion for 

unitary status, the district court found that the schools in 

these districts were "among the most racially balanced schools in 

the United States." Coalition, 901 F. Supp. at 799. The court's 

conclusion finds ample support in the record from the testimony 

of school desegregation expert Dr. Christine Rossell. 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 students in schools 

with certain variances and the percentage of schools themselves 

within certain variances. 

 Dr. Rossell observed that, as measured against this index, 

the four Northern New Castle County school districts have 

achieved "close to perfect racial balance." Further, on the 

basis of her full analysis, Dr. Rossell concluded that these 

districts "are much less racially imbalanced than . . . [the] 

national comparison group." JA 568; see also Coalition, 901 F. 
Supp. at 797. Because the district court's finding of racial 

balance rests on Dr. Rossell's thorough analysis, it is not 

clearly erroneous. See Krasnov, 465 F.2d at 1302 (an appellate 

court must "accept the ultimate factual determination of the 

fact-finder unless that determination . . . is completely devoid 

of minimum evidentiary support displaying some hue of credibility 

. . ."). 

 Appellant does not contest the findings of racial balance 

among schools, but argues nonetheless that segregation persists 

within those buildings, in classrooms and programs. More 

specifically, Appellant contends that black students are overrepresented in certain classes, such as special education, and 

under-represented in others, such as gifted and advanced 

placement classes. However, we are mindful that in Milliken v. 

Bradley, 418 U.S. 717, 740-41 (1974), the Court held that the 

Constitution "does not require any particular racial balance in 

each school, grade or classroom." See also Oliver v. Kalamazoo 

Bd. of Educ., 640 F.2d 782, 809 (6th Cir. 1980) (rejecting notion 

that school system is not unitary if black students are over- or 

under-represented in various academic courses). Moreover, the 

district court actually made 19 findings concerning the 

circumstances of student assignments in the classrooms, 

concluding that classroom balance throughout the districts was 

exemplary. Coalition, 901 F. Supp. at 800 (measured against a 

national sample, classroom imbalance in Northern New Castle 

County was one-third to one-half that of other schools). We 

review these findings for clear error. 

 First, although the district court's findings of classroom 

racial balance exclude special education classes, there is no 

clear error. In our 1978 desegregation order we expressly 

excepted "students presently attending and who in the future may 

attend . . . special education school facilities and such other 

similar special school facilities as presently exist or may be 

hereafter established . . . ." JA 128 (Evans v. Buchanan, Civil 

Action Nos. 1816-1822, Order at 11 (D. Del. Jan. 9, 1978)). The 

rationale for this exception is obvious and compelling: 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 that 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 of blacks in 

the overall student population, the record demonstrates that 

the school districts classify students based on neutral, nondiscriminatory state and federal criteria. JA 829-34. 

Additionally, the districts make periodic re-evaluations of 

special education students to determine when they can 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 education classes. 

JA 830, 832-33. Moreover, we note that the Appellee State Board 

has created numerous statewide special education task forces; has 
authorized five comprehensive studies relating to special 

education; and thoroughly has investigated intervention 

strategies, mainstreaming and the application of selection 

procedures. JA 1223, 1243. 

 The Appellees' efforts to improve racial balance within 

these programs not only are commendable, but successful. Indeed, 

in three of the four districts, the racial imbalances have 

declined. Although we might hope -- even expect -- that this 

imbalance will soon disappear, the mere fact that black 

students remain over-represented in special education classes 

does not make clearly erroneous the district court's finding of 

unitary status. Given that Dr. Reschly, in summarizing his 

comprehensive analysis, concluded that in these school districts 

"special education is not used as a means to separate students by 

race," Coalition, 901 F. Supp. at 821; JA 839, we will accept the 

court's finding on this issue. See Krasnov, 465 F.2d at 1302 

(standard of review). 

 Similarly, Appellant argues that the district court's 

findings with regard to classroom assignment are clearly 

erroneous because black students are under-represented in nonspecial education classes. This argument relies on, inter alia,the 

district court's finding 47: "[t]here is evidence that 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 on its face 

that black students may have been segregated from white students 

of equal testing aptitude. However, we must consider this 

finding in the full context in which it was examined and 

presented by the district court. Thus we must consider that in 

footnote 30, which accompanies this finding, the district court 

noted that "[t]he comparison apparently does not include academic 

achievement as measured by course performance, or whether such 

placement was requested or required." Id. Because this 

comparison relied on testing aptitude alone, rather than 

considering as well the important factor of academic achievement 

based on course performance, and because it is not clear whether 

the placement at issue was requested or required, we do not 

consider finding 47 to be evidence that black students have not 

received equal opportunity, nor can we reasonably conclude that 

the district court, upon its careful examination, clearly erred. 

 We observe also finding 48, which states that "[o]n the 

other hand, the percentage of minorities enrolled in honors and 

AP classes who scored over the 75th percentile in reading 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; JA 

6259. Although this finding could, as urged by Appellant, 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 quite different: 

that the school districts' good faith efforts to desegregate have 
paid off in terms of the improved testing performance of black 

students. 

 In any event, our task here is not to engage in such broad 

speculation, nor to choose among possible inferences from the 

data; rather, we are to inquire whether the district 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, related findings. 

This the district court did. Indeed, in view of the district 

court's copious research, we are assured that the court 

interpreted this finding in the proper light in determining that 

the districts have achieved unitary status. 

 At the urging of Appellant, we also have examined 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 finding means 

little on its own, for it represents merely that there is 

uncertainty in the record about how elementary and middle school 

students are placed in classes according to their ability. 

Indeed, without further amplification, we are not persuaded to 

conclude that this statement cuts against the court's 

determination regarding the districts' good faith efforts to 

eliminate de jure segregation. Again, we are required to place 

this finding in context, bearing in mind that because few 

elective classes or courses are available to students 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 selection process 

as involving "class presentations by guidance counselors, 

booklets with course descriptions, application by students 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 high school class 

selection the product of these various deliberations, but, 

according to finding 40, "[t]he parents and student have the 

ultimate say in the level to which the student is assigned." 

Coalition, 901 F. Supp. at 800; JA 1383. 

 And although finding 36 indicates that the record is unclear 

on how elementary and middle school students are placed in 

classes according to their ability, finding 45, when considered 

in its entirety, provides detailed information about the class 

placement of high school students as set forth in the margin. 

 Accordingly, when we consider Finding 36 in the context of 

these other relevant findings, we find unavailing the 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 multiple 

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 court's opinion, 

which states that "[t]here is evidence that lower levels of 
instruction may not encourage achievement and may adversely 

affect the ability of a student to attend college." Coalition, 

901 F. Supp. at 801; PX 2262 at 82; PX 2265. As with the 

foregoing findings, although this finding may be considered 

troubling on its face, alone it is neither definitive nor 

substantial enough to show clear error in the district court's 

determination of unitary status. The mere finding that evidence 

exists "that lower levels of instruction may not encourage 

achievement and may adversely affect the ability of a student to 

attend college," id., does not establish anything specific about 

whether that putative problem is related to disparate educational 

opportunity or treatment according to race. 

 Of course, this finding is obvious and indisputable as far 

as it goes: when students receive lower levels of instruction, 

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 issue here -- on 

what basis are students placed in "lower levels of instruction"? 

As we already have made clear, that basis was not racially 

discriminatory; the record does not support the claim that 

students of one race are afforded college preparation 

opportunities (advanced placement classes, counseling, help in 

preparing for college placement exams) that students of another 

race are not. 

 Thus although the finding that "lower levels of instruction 

may not encourage achievement" is problematic, especially when 

viewed in isolation, yet when considered in relevant socioeconomic context, this statement of mere possibility cannot be 

regarded as proof that the district court clearly erred in 

determining that the school districts have achieved unitary 

status. The district court dutifully presented this finding in 

combination with many others and, after carefully analyzing 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 Constitution requires 

that all of its citizens have equal access to the pursuit of 

education, and that they be given equal breaks while attending 

school, it does not insist that they all finish even. The proper 

test under the Constitution is equality of opportunity, not of 

results. On this point we would do well to recall Edmund Burke's 

pithy formulation: "[A]ll men have equal rights, but 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, of course, but 

it does not amount to a constitutional violation. Nor does it 

violate the school districts' mandate regarding student 

assignment under Green. Accordingly, we conclude that the 

district court properly determined that, as to student 

assignment, the districts achieved unitary status through good 

faith compliance with the requirements of the 1978 Order. 

 B. Faculty and Staff Assignments 
 Before the 1978 consolidation, the vast majority of black 

administrators and teachers served two predominantly black 

districts. In September 1978, the districts reassigned faculty, 

administrative and other certificated staff in all eleven 

districts. The evidence presented at trial demonstrated that 

the districts now have balanced their faculties to a degree that 

is virtually unprecedented among those school districts in this 

country that operate under court orders. The district court 

found that the districts closely monitor the racial composition 

of their faculties and do not hesitate to block transfers and to 

make reassignments, overriding seniority where necessary, to 

ensure diverse racial representation at each school. Coalition, 

901 F. Supp. at 802-04. The record testimony of senior 

administrative officials from each of the four districts supports 

these findings. 

 Appellant does not refute either the district court's 

calculations or its conclusion of racial balance among the 

faculties, but nonetheless argues that the district court's 

finding that the vestiges of de jure segregation have been 

eliminated to the extent practicable is clearly erroneous 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 clear error, 

however, because the shortage of minority teachers in the four 

school districts is not a vestige of de jure segregation in 

Northern New Castle County, but rather a manifestation of an 

unfortunate contemporary national trend. Indeed, even 

Appellant's expert testified that there is a critical shortage of 

black teachers in the public schools. JA 1167-68 (the number of 

black students graduating from colleges in the United States with 

bachelor degrees in the field of education has declined); see 

also Freeman v. Pitts, 503 U.S. 467, 482-83 (1992). 

 The record further reveals that, notwithstanding 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 pools. JA 

6566. This is attributable in part to the extensive affirmative 

minority recruitment efforts of each of the four school 

districts. For example, the Brandywine district has sought to 

expand its pool of potential minority hires by recruiting not 

only teachers who have received a degree in education from a 4- 

year program, but teachers who have received their B.A. or B.S. 

degrees in fields other than education and have prior teaching 

experience. JA 620. The Christiana district has attempted to 

recruit minority teachers by sending announcements to 

predominantly and historically black universities, by attending 

career days at predominantly black universities, and by hiring 

minorities as paraprofessionals. JA 603. The Colonial district 

has assembled a task force to address minority faculty 

representation. JA 633. And in the Red Clay district, 

occasionally a faculty position will be held open until a 

minority candidate is found. JA 624. Based on this record, the 

court did not clearly err in finding that the school districts 

had demonstrated good faith efforts to integrate the faculties of 
the schools. 

 We turn, then, to the racial balance among the "nonprofessional" or "classified" staff, which includes bus drivers, 

bus aides, secretarial and clerical positions, paraprofessionals, 

custodial employees, and food service workers. The undisputed 

evidence of record establishes that the school districts have 

attempted to use the hiring process to improve racial balance on 

the staff as new openings have materialized. For example, 

Brandywine recruits minority staff through community channels, 

focusing on community centers, neighborhood churches and 

community groups in minority areas. JA 621. Similarly, 

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 reassigned the 

staff to maximize racial balance. The district court found 

that it would be impractical for the districts to reassign these 

employees in order to attain greater racial balance. We agree. 

 Food service workers, for example, earn approximately $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 would require a 

long commute simply is not feasible for the salary they receive. 

Id. Secretarial and clerical personnel would experience a 

similarly negative economic impact. Id. Even Appellant's expert 

acknowledged that forced reassignment of these part-time, lowwage employees could create hardships on these workers with 

respect to child care, commuting time, distance from work and 

expenses. JA 1105. Accordingly, it was not clearly erroneous 

for the court to conclude that the districts have eliminated to 

the extent practicable any residual racial identifiability in the 

schools with respect to these employees. 

 We carefully have considered Appellant's contentions with 

respect to faculty and staff assignment, and we conclude that 

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

 C. Extracurricular Activities 

 Appellant contends that the districts have not eliminated 

the vestiges of de jure segregation from their extracurricular 

activities. It is undisputed, however, that all extracurricular 

activities within the four districts are open to students of all 

races. All eligibility requirements are race-neutral, and 

district officials encourage all students, regardless of race, to 

participate in a wide range of extracurricular activities. 

 Nevertheless, Appellant argues that the districts must also 

eliminate any racial identifiability that exists within each of 

these activities. In findings 98-100, 109-110, 118 and 125-128, 

the district court indicated that, unfortunately, there exist a 

substantial number of racially identifiable extracurricular 

activities throughout the four districts. We cannot, 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 transportation 
barriers to participation. JA 1164. Moreover, each of the 

districts has demonstrated good faith efforts to reduce the 

racial identifiability of their activities through experimental 

programs. For example, the Brandywine district invites all 

eighth graders and their parents to the high schools to meet 

representatives from the activities, JA 753; Christiana announces 

upcoming activities in newsletters and physical education 

classes, JA 740; middle schoolers in Colonial are recruited to 

participate in activities when they enter high school, JA 743; 

and in Red Clay, coaches recruit students and expose them to 

various sports through the physical education curriculum, JA 680. 

 We believe that a school district's extracurricular 

activities are unitary if they "are available to all students 

within the School District regardless of race." Singleton 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." Lockett 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, we conclude 

that the record supports the district court's finding 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 Facilities) 

 There is no dispute among the parties concerning the two 

remaining factors outlined in Green. Specifically,

transportation is provided on a non-discriminatory basis. 

Additionally, the districts successfully have remedied the 

distinctions between the facilities of the formerly black and 

formerly white schools. 

 VI. Ancillary Relief 

 The 1978 order of this court required the implementation 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, administrators and other 

 staff in order to train personnel to cope with the 

 desegregation process; 

 2) institute an affirmative reading and communication 

 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 pluralism of the 

 students, and all instructional materials, texts and 

 other curriculum aids shall be free of racial bias; 

 4) institute an effective and nondiscriminatory counseling 
 and guidance program. The counseling and guidance 

 program must insure that students are counseled on a 

 racially nondiscriminatory basis concerning all 

 programs available in the area of work opportunities 

 and opportunities for a college education;

 

 5) provide an appropriate human relations program . . . 

 [designed] to protect the individual dignity of 

 students and teachers and to prevent racial myths and 

 stereotypes from prevailing in schools undergoing 

 desegregation; 

 

 6) develop . . . a code of rights and responsibilities . . 

 . provid[ing] for racially nondiscriminatory discipline 

 and . . . contain[ing] provisions to insure each 

 student in the desegregation area procedural and 

 substantive due process required by existing law. Such 

 a code will help to provide equal educational 

 opportunity to all students by protecting them from 

 unreasonable, discriminatory, and arbitrary 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 retain their 

 former racial identity through racially identifiable 

 faculty and staff assignments; [and] 

 8) establish and enforce nondiscriminatory guidelines 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 factual findings in 

detailing the school districts' implementation of these ancillary 

relief provisions. In the first four years alone, more than 

$18.8 million in federal desegregation project grants 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 undisputed, and 

the seventh we have addressed in our discussion on compliance 

with the Green factors. Thus here we will review the district 

court's findings on the first six of these ancillary measures. 

 A. In-Service Training 

 The district court found that all four districts offered a 

rich array of in-service programs for their faculty, and that, 

although the focus of these programs no longer is desegregation, 

all four districts continue to offer in-service training on 
desegregation, race equity and multiculturalism. Coalition, 901 

F. Supp. at 809. Appellant contends that the district 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 role is not to 

pick and choose isolated snippets of evidence. Rather, we must 

decide, after viewing the record as a whole, whether there is 

evidentiary support for the district court's findings. Such 

support is present; accordingly, there is no clear error. 

 In January 1978, a team from the districts drafted 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 through 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 also 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 programs relating to 

desegregation were mandatory for faculty, staff and

administrators. JA 961-62. Finally, even Appellant's expert 

testified that the in-service programs offered by the state at 

the time of desegregation complied with the 1978 order. JA 1140, 

1170. 

 The record similarly supports the district court's finding 

that the districts have continued in-service training programs 

since the 1978 order. For example, the district court heard 

evidence that from 1981 through 1994, Brandywine offered various 

workshops and courses related to desegregation, race equity and 

multiculturalism. Moreover, all new Brandywine teachers are 

required to participate in a 12-hour induction program, which 

includes a panel discussion on issues of multiculturalism. JA 

931. 

 Similarly, in the 1980s, various human relations specialists 

and administrators trained by the Race Desegregation 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 1806. 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 that Appellant's 

charges have no support in the record, and thus that 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 and integrated 

reading program was instituted in each of the four districts. 

Coalition, 901 F. Supp. at 809. Appellant contends that the 
finding is clearly erroneous, because the districts "failed to 

show that any reading program was implemented for the purpose of 

remedying the negative effects of the de jure segregation as 

required by the 1978 Order, or that the reading programs that 

were implemented did not resegregate students." Appellant's Br. 

at 26. However, although no reading program specifically 

targeted black students, we conclude from our review of the 

record that the districts nevertheless met the standard 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 issuance 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, selection of 

 materials, planning of program and strategies for students 

 who needed assistance and anything that [a] particular 

 teacher wanted, to do to help the students within that 

 classroom. 

JA 968. Students in grades two through nine were provided 

assistance under the reading program if they were one year or 

more below reading level, as demonstrated by standardized test 

scores. JA 968. Students in grades ten through twelve were 

provided assistance if they were two years below level. Id. And 

supplemental reading instruction was provided daily for 30-45 

minutes, depending on grade level. JA 969. For the most part, 

this instruction occurred in small groups within the classroom. 

Id. The districts combined have employed between 100 and 135 

reading teachers every year since the 1981-82 school year. JA 

4910-11. 

 Further, the court heard evidence and found facts pertaining 

to the reading programs in each of the four districts. With 

regard to the Red Clay district, for example, the court credited 

the testimony of officials from the district and found that 

 reading resource teachers coordinate the "HOSTS" 

 program (Help One Student to Succeed) for reading- and 

 writing-deficient students. Under the program,

 volunteer tutors work with individual children for 45 

 minutes per week. More than 300 students participate 

 in the program. 

 [Twenty five] parent educators hired by the Parents as 

 Teachers program teaches [sic] first-time parents in 

 New Castle County the importance of language and 

 reading for pre-school children. The program has been 

 in existence since 1987. In 1993 and 1994, the focus 

 was on teenage parents and families with multiple 

 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 the reading 

problems of every student, Appellant's argument that the program 
resegregated students is misguided. Although the school 

districts have not excluded black (or white) students from the 

remedial reading programs to effect a racial balance, the 

districts do deploy several different programs such as one-onone, small group and pull-out remedial reading programs, in which 

reading teachers either work inside the classroom or pull a given 

student out of the classroom for individual attention. Thus we 

cannot agree that the districts' remedial reading programs have 

resegregated students; the basic requirement of good faith 

efforts to remove the vestiges of de jure segregation to the 

extent practicable have been met. Accordingly, the district 

court did not clearly err. 

 Appellant further contends that the school districts have 

"failed to show that any `communications skills program' 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 "program" to teach 

reading and communication skills. JA 129. Likewise, testimony 

from school officials on this point suggests that instruction 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 foregoing 

discussion of reading skills and programs, we reject 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," and that "all 

instructional materials, texts and other curriculum aids shall be 

free of racial bias." JA 129. Appellant argues that the school 

districts "failed to show that [an] inclusive curriculum 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 assertion does not 

comport with the record. 

 The record indicates that the Delaware Department of Public 

Instruction has established text selection guidelines for the 

districts to use in conjunction with their own guidelines to 

ensure racially unbiased texts and instructional materials. The 

Department also has adopted a Comprehensive Policy for 

Multicultural Education, published accompanying guidelines, 

sponsored multicultural education and adopted multicultural 

curriculum standards. See, e.g., DX 124 at FL 23147; DX 125 at 

FL 23172. In April 1994, consistent with these guidelines, the 

Department sponsored a two-day Multicultural Education Institute. 

DX 52. 

 Further, the district court made specific findings 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 history 
curriculum in the elementary schools; Christiana's inclusion of 

the minority community in the textbook selection process; 

Colonial's course entitled "Minorities USA"; and Red Clay's 

integration of cultural pluralism into the social studies, 

English language arts, art education and music education 

curriculum guides. 

 In light of this substantial record evidence supporting the 

district court's findings, we are satisfied that the 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 "institute an 

effective and nondiscriminatory counseling and guidance program . 

. . [to] insure that students are counseled on a racially 

nondiscriminatory basis" concerning post-secondary opportunities. 

JA 129. Appellant argues that the districts "failed to show that 

any effort had been made to ensure that the counseling and 

guidance programs attempted to prevent resegregation of students 

in the classroom as required by the 1978 Order or that, in fact, 

the counseling and guidance programs did not become vehicles for 

resegregation. The School System failed to show that the 

counseling and guidance programs achieved any results at all." 

Appellant's Br. at 26. Again, the record belies Appellant'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 guidance program for 

all students." JA 770. The committee drafted guidelines, which 

the district adopted in the Handbook for Certified Guidance 

Counselors. JA 770-71. In 1981, the Department modified the 

guidelines for district and statewide use in the Delaware 

Guidance Handbook, K-12, which was itself revised in 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 programs within 

the districts. For example, in 1990, the state directed each 

district to prepare "a written plan describing the guidance 

program for the district which is reviewed periodically and 

updated at least every five years." DX 230 at D 1464. Plans for 

each district subsequently were drafted and approved. JA 755, 

769-70, 852, 864, DX 230, DX 231, DX 232, DX 233, DX 234. The 

district programs described in the plans include academic, 

personal, social, career and life-planning counseling. JA 1137. 

 The court's detailed description of the programs established 

in each of the districts also is supported by the record. 

Coalition, 901 F. Supp. at 813-814. Especially mindful 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 aptitude 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 adopted 
nondiscriminatory counseling guidelines; that all the districts 

have provided comprehensive post-secondary career, educational 

and vocational assistance; and that the districts support 

numerous supplementary counseling programs which encourage 

minorities to pursue post-secondary education. Moreover, 

Appellant fails to cite any instance of discriminatory 

counseling. Accordingly, we conclude that the court did not err 

in determining that this aspect of the remedial order was 

fulfilled. 

 E. Human Relations 

 The 1978 Order required the districts to "provide an 

appropriate human relations program" for "schools undergoing 

desegregation." JA 130. The provision was intended to be 

transitional, designed to address "the various pressures which 

arise as a result of desegregation." Evans, 582 F.2d at 769. 

Appellant argues that "[t]he School System failed to show that 

any human relations program was actually implemented as written . 

. . or that any human relations program lasted for more than a 

brief duration or achieved any results at all." Appellant's Br. 

at 24-25. Nevertheless, the record supports the district 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 "biracial teams." JA 

763-64. Each high school and junior high school had at least one 

team, and these teams were also directed to serve a number of 

elementary schools. Id. These specialists provided crisis 

intervention assistance and implemented student support programs, 

such as peer tutoring and counseling. JA 764-66. Because the 

desegregation went smoothly, the focus of the program soon 

shifted to multicultural awareness, problem-solving and other 

student support functions. JA 764. The districts continued 

these services by retaining human relations personnel and hiring 

elementary guidance counselors, social workers, community 

outreach personnel, visiting teachers, student advisors, student 

relations specialists and other student support personnel. SeeCoalition, 

901 F. Supp. at 815-16. 

 Moreover, the district court described in detail the 

progress in each of the four districts. Again directing our 

focus to the Red Clay district, we note that "Red Clay employed 

16 human relations specialists and home/school advisors in 1981- 

82 and 18 in 1982-83" and "five human relations specialists and 

home/school advisors" as recently as 1993-94. Coalition, 901 F. 

Supp. at 816 (crediting Defendant's Exhibit 111). 

 Notwithstanding the necessary (and welcome) shift in the 

focus of the human relations program, it clearly has lasted 

beyond "a brief duration" and has yielded significant results. 

Accordingly, these findings support the district court's 

determination that the school districts complied with the court 

order as to human relations programs. 

 F. Discipline 

 The 1978 Order required the development of a code to provide 
"racially nondiscriminatory discipline" and to ensure "procedural 

and substantive due process." JA 130. In July 1978, the New 

Castle district adopted a code of conduct drafted by a "committee 

[which had] gathered similar documents from Delaware and large 

desegregated school districts for review." JA 4436. Prior to 

adoption, drafts of the code were reviewed by citizen 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 development and 

continual revision that includes [the] involvement of others, 

that includes teachers, includes administrators, and 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 1157. And the 

district court found that the codes "are not applied in a 

discriminatory fashion." Coalition, 901 F. Supp. at 817. 

Appellant argues, however, that the school districts have failed 

to reduce racial disparities in discipline rates among students, 

and that Appellant was denied the opportunity to admit expert 

testimony in support of this claim. However, on this matter the 

record supports the district court's findings, as well as its 

exercise of discretion. 

 The district court's finding that discipline is not 

administered in a discriminatory fashion is supported by the 

testimony of Dr. Charles Achilles, the school districts' expert. 

Dr. Achilles calculated indices by dividing the percentage of 

black student suspensions by the black enrollment percentage. 

Based on these data, Dr. Achilles determined that the districts' 

suspension indices reflected less racial imbalance than indices 

calculated from national suspension data compiled by the Office 

of Civil Rights and Delaware arrest data. JA 722-23. Dr. 

Achilles further illustrated that the indices were essentially 

consistent across the four districts -- "a result difficult to 

achieve if equitable nondiscriminatory codes were not being used 

and applied in an equitable, nondiscriminatory manner." 

Coalition, 901 F. Supp. at 817; see JA 724. And finally, 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 light 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 Krasnov, 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 distributed 

characteristic among racial groups . . . ." JA 1161. 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" offenses, than 

for those offenses he viewed as less objective. JA 726. 
Accordingly, we reject Appellant's argument that the schools have 

failed to reduce racial disparities in discipline rates. 

 

 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 cannot be 

disturbed on appeal "absent a clear abuse of discretion." Semper 

v. Santos, 845 F.2d 1233, 1238 (3d Cir. 1988); Fashauer v. New 

Jersey Transit Rail Operations, 57 F.3d 1269, 1287 (3d Cir. 

1995). In both Semper and Fashauer, the court upheld the 

exclusion of rebuttal testimony because of counsel's failure to 

adhere to a pretrial order. Semper, 845 F.2d at 1238; Fashauer, 

57 F.3d at 1287. 

 Here, Appellant disregarded two pretrial orders requiring 

the disclosure of the "specific subject matter as to which each 

expert will testify" and the provision of expert reports 

complying with Rule 26, Federal Rules of Civil Procedure. 

Denying Appellant's motion to delay disclosure of the identity of 

its experts, the district court stressed, more than three months 

before trial, that "[t]his is a case where the interests of 

justice dictate public disclosure of the parties' experts and 

early resolution of any potential disputes regarding 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 basis and 

reasons therefor" and obligates a party to supplement the report 

if it "learns that in some material respect the information 

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 for failure to 

supplement in a timely manner. See Freund v. Fleetwood 

Enterprises, Inc., 956 F.2d 354, 358 (1st Cir. 1992). 

 As of November 30, Appellant knew all of the State Board's 

experts' topics and methodologies. Appellant could have, but 

declined to, file a supplemental report for expert witness de 

Leeuw on December 9, as it did for three of its other 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 testimony. 

 VII. Areas of Concern to the District Court 

 and Allocations of the Burden of Proof

 

 Aside from its examination of the four school 

districts' compliance with the Green factors and the ancillary 

relief measures, the district court also acknowledged 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 the vestiges 
enumerated either in Green or in the ancillary relief order, we 

must determine, first, whether these disparities actually 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 disparities 

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 disparities 

necessarily are vestiges of de jure segregation. Identifying 

what would become known as the Green factors, the Court directed 

school boards to propose plans designed to disestablish stateimposed segregation in "every facet of school operations -- 

faculty, staff, transportation, extracurricular activities 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 "determin[e] 

whether a dual school system has been disestablished." 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 (1971) (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 -- and 

therefore the focal point for determining unitary status. 

Nevertheless, the performance disparities enumerated 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 segregation. 

Depending on the circumstances of a particular case, the trial 

court still may exercise discretion to consider other 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 factors, 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. Again, however, 

the performance disparities urged here were not identified among 

these vestiges of de jure segregation. 

 We emphasize that here we are not discussing the burden 

of proving compliance with the Green factors or the 1978 Order, 

as to which the school districts acknowledge bearing the 

evidentiary burden. Our discussion here, and our allocation 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 claimed by 

Appellant are not among (or even similar to) the Green factors or 

the vestiges identified in the 1978 Order, we will not simply 

presume -- as Appellant urges us to do -- that these are vestiges 

of de jure segregation. Appellant offers no persuasive authority 

for establishing a causal link between present achievement 

disparities and past de jure segregation. In fact, all but one 

of the cases relied on by Appellant on this point are irrelevant, 
because they address only Green-type factors; the State Board 

does not dispute that it carried the burden of proving good faith 

efforts to eliminate (to the extent practicable) such 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 983, 990-91 (4th 

Cir. 1985), which, upon our review, supports the district court. 

In Vaughns, because the school district was not unitary with 

respect to the Green factor of student assignment, id. at 990-91, 

the Court of Appeals for the Fourth Circuit held that the 

plaintiffs were entitled to a presumption that disparities in 

special education and gifted and talented programs arose from 

prior segregation. More important, the Vaughns court 

distinguished a decision from a sister circuit because "the 

burden shifted to [Appellants] in that case only because the 

school system had achieved unitary status with regard to student 

assignment." Vaughns, 758 F.2d at 991. 

 Here, however, the districts have been unitary as to 

school assignments since the 1978 order. Had the Vaughns school 

district satisfied the Green factors as have the Delaware 

districts before us, the Vaughns plaintiffs would have 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 teaching that "a 

school board is entitled to a rather precise statement of its 

obligations under a desegregation decree" and to "a like 

statement from the court" for when "such a decree is to be 

terminated or dissolved." Dowell, 498 U.S. at 246 (citing 

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976)). 

Because we are reluctant to impose any unstated obligation 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 also 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 additional 

action to investigate and redress racial disparities in student 

achievement . . . [when the] court has never made any findings 

that such differences are the result of discrimination by the 

District"). 

 In light of the foregoing discussion, we conclude that 

Appellant failed to carry its burden. The district court's 

finding that persistent student performance disparities were 

caused by socioeconomic factors is supported by the record. 

Coalition, 901 F. Supp. at 818-19. The district court 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 four 
school districts, and in New Castle County generally, as to 

socioeconomic conditions. The record establishes that "Blacks 

in the desegregation area are in an inferior position 

economically to whites, and [that] that gap is wider 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, with Brandywine 

statistics demonstrating the greatest disparity in both areas, 

Colonial the least disparity." Id. With such support in the 

record, these findings cannot be clearly erroneous. Anchoring 

its determination on these unfortunate, but uncontroverted, 

socioeconomic factors, the court found, inter alia, that 

"[b]ecause the environment outside school is so strong, 

cumulative, and varied, schools cannot overcome such 

environmental/differences [sic] among children." Id. at 819. We 

agree. 

 Accordingly, we affirm the district court's allocation 

of the burden of proof and its determination that persistent 

performance disparities are not vestiges of de jure segregation. 

 VIII. Conclusion 

 The task of setting forth reasons for affirming the 

district court's judgment would have been lightened considerably 

-- 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 federal court 

supervision of Delaware public education as a cheerless and 

sorrowful failure. As our discussion has shown, however, the 

Coalition's contentions, in the main, have been expressed in 

conclusory language that neglects to demonstrate where the 

district court erred and fails to appreciate the narrow standard 

of review by which we are constrained. 

 Moreover, the Coalition repeatedly has failed properly 

to acknowledge the importance of pervasive socioeconomic 

conditions that account for discrepancies among the races in 

educational performance. Indeed, the Coalition avoids the 

responsibility of carefully examining the roots of the continuing 

black/white achievement gap, a brutal national phenomenon first 

documented in the 1960s and substantiated in various recent 

studies that "demonstrate that if socioeconomic characteristics 

are more equalized, achievement levels are more equalized." 

Coalition, 901 F. Supp. at 819. These studies conclude that 

"[i]t is difficult for children to take equal advantage of 

learning opportunities absent the initial and cumulative 

advantages of a stimulating home curriculum," and that "[b]ecause 

the environment outside school is so strong, cumulative, and 

varied, schools cannot overcome such environmental/differences 

among children." Id. 

 These conclusions support our belief, presented in the 

foregoing discussion, that none of the Coalition's arguments 
concerning special education, discipline and dropout rates, 

student achievement, extra-curricular activities or disparities 

in college matriculation can seriously be considered without 

weighing the impact of critical demographic data. This the 

Coalition has failed to do, choosing instead to focus its primary 

energies on arguing for continued federal court supervision 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 completely 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 has control. 

Moreover, we are constrained to fulfill an obligation to address 

only those constitutional questions properly presented to us, and 

to show fealty to appropriate standards of review, lest we 

abandon the limits on judicial power that give coherence to our 

political system. The district court articulated the meaning of 

these institutional limits for this case: 

 [t]he continued existence of racial discrimination in 

 our society as a whole, and the effect of that 

 discrimination on the ability of a black child to enter 

 school on an equal footing with more privileged 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 to accept the 

fundamental concept that this court's scope of review is limited 

to determining whether the district court clearly erred 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 judicial reasoning 

based on legal principle; instead, our legitimacy here derives 

exclusively from the powers that inhere in equity jurisdiction, 

"another stream that flowed alongside the common law, whose 

headwaters were in the discretionary royal prerogative. Equity 

was a more flexible process, more unprincipled, initially quite 

ad hoc." Thus the jurisprudential basis for 20 years of 

detailed management of the Northern New Castle County 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 limited 

lifespan. The remedy was designed to serve only as an implement 

for monitoring and guidance, not as a permanent substitute for 

state and local school boards, or indeed, for the state 

legislature. Thus in our zeal to insure maximum educational 

opportunities for all Delaware school students, the federal 

courts must bear in mind that the responsibility for 
administering the schools ultimately belongs to locally elected 

officials. Indeed, we must acknowledge that although 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 the freedom to 

participate fully in representative government. For 20 years 

there has been a constant colloquy between federal judges and 

officers of these political institutions, a score of 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 Northern 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 traditionally granted 

them (and them alone) in the American political process 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 law, 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,] home and . . . 

church, enforcement of law comes to involve many difficulties." 

 The judgment of the district court declaring unitary 

status will be affirmed. 

Coalition to Save our Children v. State Board of Education of the 

State of Delaware et al., No. 95-7452 

_________________________________________________________________ 

SAROKIN, J., dissenting: 

 One hundred years ago, the United States Supreme Court 

turned its back on the constitutional promise of equal protection 

of the law that this country made to its African-American 

citizens in the aftermath of the Civil War. In Plessy v. 

Ferguson, 163 U.S. 537 (1896), the Court upheld the

constitutionality of laws requiring the racial segregation of 

public facilities, including public schools, as "within 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 believed for one 

instant that there was a shred of equality between the systems 

serving the white children and black children of the 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 judiciary, the 

Court, speaking in a unanimous voice, effectively repealed the 

"separate but equal" doctrine by holding, in Brown v. Board of 

Education, 347 U.S. 483, 495 (1954), that "in the field of public 

education the doctrine of 'separate but equal' has no place." 

 Along with Topeka, Kansas, the Supreme Court in Brownwas 

considering the fates of three additional school systems: 

South Carolina, Virginia, and Delaware. Delaware became a part 

of this historic decision after the state's Supreme Court ordered 

two districts to admit black children into de jure all-white 
schools. Gebhart v. Belton, 91 A.2d 137 (Del. 1952). It was the 

appeal from that decision that was consolidated with 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. denied, 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 University of 

Alabama in Tuscaloosa, he denounced the "illegal usurpation of 

[state] power by the Central Government" and tried to block 

admission of African-American youngsters into the state 

university system. 

 Delaware officials, as well, proved less than 

responsive to the constitutional mandate to desegregate the 

state's public schools and, as a result, the federal courts were 

compelled to enforce the mandate one ruling at a time, 

culminating with this Court's desegregation order in 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 this 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 with repeated 

court orders to desegregate. I find it ironic that the delay in 

implementing the orders of this court to end segregation is now 

being utilized to justify the end of court intervention. 

Although it is very tempting to end judicial supervision in the 

face of substantial progress, it would be unfortunate to abandon 

it just short of success. I dissent, not because I conclude that 

any of the findings of the district court are erroneous, but 

rather because accepting them causes me to conclude that some 

vestiges of past discrimination may remain, although I concede 

that many have been eliminated. 

 I concur with the majority's recognition of the 

need to return control of schools to local communities, but only 

if and when we are satisfied that the goals established some 18 

years ago have been substantially met. I challenge the 

majority's suggestion that the court's role in these matters has 

"denied multiple generations of elected officials the freedom to 

participate fully in representative government." Majority at 

68. The denial of that participation, if it occurred, was not 

due to judicial usurpation but rather arose from the 

discriminatory and unconstitutional conduct of many of those 

elected officials. It is not the courts who have delayed the 

return to local power, but it is those elected officials who 

failed to act "with all deliberate speed." Brown v. Board of 

Education [Brown II], 349 U.S. 294, 301 (1955). Even 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 remained 

separate and unequal and a segment of our nation would have been 
denied rights and opportunities to which all are entitled. 

 I. Shared principles 

 Before I articulate the reasons for my dissent, I want 

to underscore the shared premises under which the majority and I 

operate. 

 There is, first of all, no disagreement that "to extend 

federal court supervision indefinitely is neither practicable, 

desirable, nor proper," Majority at 16, and this is not what I 

advocate today. At the same time, the Supreme Court has held 

that supervision by the courts should continue until "the 

vestiges of past discrimination ha[ve] been eliminated to the 

extent practicable." Freeman v. Pitts, 503 U.S. 467, 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 Constitution 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-level classes, 

and to the extent that the district court itself found that 

"lower levels of instruction may not encourage achievement and 

may adversely affect the ability of a student to attend 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." Majority at 61. 

At the same time, we should not impose or tolerate any 

limitations on the opportunity of young black students 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 the district 

court's ruling. First, I agree with the Majority's conclusion 

that the vestiges of segregation have been eliminated with 

respect to the following areas: intra-district student racial 

balance, Majority at 18-20; special education student assignment, 

id. at 21-24; faculty and clerical staff assignment, id. at 32- 

36; extracurricular activities, id. at 37-38; transportation, 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 relations, 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 been eliminated 

with respect to the following facets of school operations: 

student classroom assignment; certified staff assignment; 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 student 

achievement, I would remand for further findings regarding the 
so-called "areas of concern." Finally, because the district 

court did not apply the correct legal standard regarding 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 districts 

acknowledge bearing the evidentiary burden" of proving compliance 

with this issue, other Green factors and the 1978 Order. SeeMajority at 

59. 

 1. The district court's findings and conclusions 

 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 specifically on 

"tracking" or "ability grouping," i.e., the assignment of 

students "to various instructional groups on the basis of 

ability." Id. at 800-01. Among the court's findings are the 

following: 

 36. The extent to which elementary and 

 middle school students are placed in classes 

 according to their ability is unclear from

 the record. 

 * * * 

 38. In 1993, the percentage of 

 minorities in the self-contained honors and 

 gifted student program at Burnett Elementary 

 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 the 

 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 less 

 than 20% of Brandywine's white students were 

 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 that 

 level of English; c) a little over 50% of 

 Colonial's black students in grades 9-12 were 

 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 less 

 than 17% of Red Clay's white students were

 taking that level of English. Less than 5% 

 of black students were enrolled in advanced 

 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 testing 

 scores ["The comparison apparently does not 

 include academic achievement as measured by 

 course performance, or whether such placement 

 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 classes 

 who scored over the 75th percentile in 

 reading or math in the spring of 1993 is 

 slightly greater than that of whites in all 4 

 school districts. 

 49. There is evidence that lower levels 

 of instruction may not encourage achievement 

 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 assigned to highlevel classes than their white counterparts, and more likely to 

be placed in low-level classes [ 46]; and (2) these disparate 

assignments are made at least in part for reasons other 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 practices may be 

based, at least in part, on racial considerations. Furthermore, 

the court's findings demonstrate that these disparate tracking 

assignments may deprive African-American students of the 

opportunity to achieve the same level of academic success, 

including college admission, as their white counterparts [ 49]. 

 The district court made no additional finding of fact 

regarding alternate explanations for these "potentially 

troubling" findings, see Majority at 24. Furthermore, whereas it 

was able to conclude, with regard to school-based student 

assignments, that "[t]he 4 districts are among the most racially 

balanced schools in the United States," see Coalition, 901 F. 

Supp. at 799,  29, it reached no such conclusion regarding 

tracking-based assignments. 
 The court did conclude as a legal matter that "there is 

no credible evidence linking any current racially identifiable 

conditions to the prior violation," id. at 823, and that "the 

vestiges of past discrimination have been eliminated to the 

extent practicable." Id. at 823-24. I believe that the evidence 

discussed supra does not support this conclusion. 

 First of all, the court's own findings constitute 

"credible evidence" potentially linking one racially identifiable 

condition -- i.e., the racial disparities in assignment to highlevel and low-level classes -- to "the prior violation." 

 Second, while the findings regarding student tracking 

do not prove conclusively that the school districts discriminate 

in their tracking practices on the basis of race, they certainly 

do not support the opposite conclusion -- i.e., that 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 -- including student 

assignments -- is on the Appellees to prove that the vestiges of 

segregation have been eliminated, and since the Appellees offered 

no explanation for the disparities in tracking, the uncertainty 

as to the cause of the disparities should be resolved in favor of 

the Coalition, and therefore the district court's conclusion that 

the vestiges have been eliminated, at least with regards to 

student classroom assignment, was unsupported and premature. 

 2. The Majority's analysis 

 Despite the disparity between the court's own findings 

of fact and its conclusions of law, the Majority affirms the 

court's conclusion. I believe that the Majority's position is 

based on the wrong standard of review, the wrong allocation of 

burdens and an unsustainable reading of the evidentiary record. 

 (a) 

 First, the Majority defines "our task" as "to inquire 

whether the district court's determination of the districts' 

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 error, but of 

law, see Coalition, 901 F. Supp. at 822-23, which as is customary 

we subject to plenary review. 

 (b) 

 Second, time and again the Majority dismisses the 

import of the district court's factual findings by resolving gaps 

in the evidentiary record and ambiguities as to those factual 

findings in favor of the Appellees, despite the fact that by its 

own acknowledgment, and that of Appellees, Appellees bear the 

burden of showing that the vestiges of discrimination have been 

eliminated. 

 (i) The Majority dismisses the district court's finding 

that "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,  47, as "no[] . . . evidence that black students have not 

received equal opportunity." Majority at 25. While 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 aptitude," id. at 

24, it rejects this conclusion on the ground that the 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 Majority 

identifies do not nullify the import of the district court's 

finding as to potential disparate treatment of equally qualified 

students based on race. Furthermore, these gaps should not serve 

to exonerate the party that bears the burden of proof; 

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 court's 

finding that "the percentage of minorities enrolled in honors and 

AP classes who scored over the 75th percentile in reading 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," Majority at 25, as to 

allow any number of inferences. Specifically, while the Majority 

acknowledges that "this finding could . . . 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," it suggests that 

"we may just as reasonably infer something quite different: that 

the school districts' good faith efforts to desegregate have paid 

off in terms of the improved testing performance of black 

students." Id. at 25-26. 

 The Majority's inference, even assuming that it is one 

an appellate court could draw, is unconvincing at best: the issue 

is not whether some black students perform well, but rather 

whether black students must perform better than whites 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 dismiss the 

Coalition's interpretation because another interpretation, 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 ability is 

unclear from the record," Coalition, 901 F. Supp. at 800,  36, 

as "mean[ing] little on its own, for it represents merely that 

there is uncertainty in the record about how elementary and 

middle school students are placed in classes according to their 

ability." Majority at 26. 

 True enough. However, uncertainty about student 

placement merely demonstrates that Appellees have failed to meet 

their burden of showing that the vestiges of discrimination have 

been eliminated. To suggest otherwise is to misallocate the 

evidentiary burden. 

 (iv) The Majority dismisses the district court's 

finding of "[e]vidence that lower levels of instruction may not 
encourage 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 whether that 

putative problem is related to disparate educational 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 lower-level 

classes, but that if they are, this would have a deleterious 

effect on their level of academic achievement. This finding, 

when read in the context of the district court's other 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 proclaims that 

"[a]s we already have made clear, [the basis on which 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 supports such a 

conclusion. At best, they suggest that the record is 

indeterminate regarding whether students are assigned 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 been eliminated 

to the extent practicable. 

 3. Conclusion 

 For the foregoing reasons, I would remand to the 

district court for further findings regarding the racial 

disparities in tracking. 

 B. Certified staff 

 Regarding the issue of staff assignment, the district 

court noted that "[t]he staff is divided into three subsections: 

administrative staff, certified staff, and classified staff." 

Coalition, 901 F. Supp. at 802,  50. As the court explained, 

"'[c]ertified staff' includes nonadministrative certified 

personnel such as teachers, psychologists, speech and hearing 

therapists, educational diagnosticians and other 'instructional 

and pupil support personnel.'" Id.,  52. 

 Except for teachers, the court made no finding 

regarding the racial identifiability of the schools with respect 

to the certified staff. Similarly, the Majority discusses the 

districts' efforts regarding the faculties, Majority at 33-35, 

and the "non-professional" or "classified" staff only, id. at 35- 

36, but in no way discusses the districts' efforts regarding 

certified staff. 

 No one disputes that these professionals were included 

in the 1978 Order, and I see no reason for the district court's 

omission. Therefore, I would remand to the court for further 

findings regarding whether vestiges with regard to certified 

staff have been eliminated. 

 C. Communication skills 

 The 1978 Order required the districts (which at the 

time were consolidated into a single district) "to institute an 
affirmative reading and communication skills program which does 

not resegregate pupils." Evans, 447 F. Supp. at 1015-16. I do 

not dispute the Majority's conclusion that "the districts . . . 

met the standard of good faith compliance with" the Order 

regarding reading skills. See Majority at 45. However, 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 distinction 

between reading skills programs and communication skills 

programs," Majority at 47, and that "'reading skills' and 

'communications skills' are synonymous for purposes of our 

analysis here." Id. at 48. However, there is no support in the 

record to read the "communication skills" requirement as mere 

surplusage. I cannot agree with the Majority's suggestion, 

eighteen years after the fact, that the language of the 1978 

Order was merely sloppy or redundant. This suggestion 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 human activity, 

and they involve different skills. Therefore, I would remand to 

the district court for further findings in this area. 

 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 concern" for 

possible discriminatory practices: student achievement; special 

education; and dropout rates. Coalition, 901 F. Supp. at 818-22. 

As the Majority acknowledges, there is no dispute that 

significant disparities along racial lines remain in these 

various areas. See Majority at 57. The issue is whether these 

disparities are legally cognizable vestiges of de juresegregation. The 

district court concluded that "[t]here is no 

credible evidence demonstrating that the differences between 

black and white children's success in school can be attributed to 

the former de jure segregated school system." Coalition, 901 F. 

Supp. at 823. 

 In a very real sense, there can be no doubt that the 

condition of many African-Americans in our society is a lasting 

legacy of a time when people of color as a matter of law were 

denied equality of opportunity. However, the Supreme Court has 

made it clear that not all vestiges of de jure segregation 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, causality is 

presumed. As the Majority explains, "the Green factors have 

become per se vestiges of de jure segregation." Majority at 58. 

Causality is also presumed for the ancillary relief measures 

contained in the 1978 Order. But the issue of establishing 

causality is a more difficult one in the case of the identified 

performance disparities. 

 I agree with the Majority that under the typical 
scenario, "[b]ecause the performance disparities claimed by 

Appellant are not among (or even similar to) the Green factors or 

the vestiges identified in the 1978 Order, we will not simply 

presume . . . that these are vestiges of de jure segregation." 

Majority at 59. I also agree with the Majority, however, that if 

the district court ultimately were to find that the school 

district has not achieved unitary status, the burden would shift 

and the plaintiffs would be entitled to a presumption of 

causality. See id. at 60 (citing Vaughns by Vaughns 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 findings regarding 

classroom assignment. If the district court were to conclude on 

remand that students are assigned to different levels of 

education based on race, under Vaughns v. Vaughns such a finding 

would create a presumption of causal relationship between the dejure 

violation and the disparities in achievement, and the 

evidentiary burden would shift to Appellees. We note, too, that 

this presumption would be entirely consistent with the district 

court's own finding that "lower levels of instruction 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 regarding class 

placement may affect its conclusion that "[t]here is no credible 

evidence demonstrating that the differences between black and 

white children's success in school can be attributed to the 

former de jure segregated school system," id. at 823, I would 

vacate the court's conclusion regarding the so-called areas of 

concern and remand for reconsideration in light of the above. 

 E. Exclusion of Jan de Leeuw's testimony 

 The Coalition argued on appeal that the district court 

improperly excluded expert testimony it sought to present to 

rebut the defendant' own experts, and that it was prejudiced 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, 1287 (3d Cir. 

1995)). However, review is plenary when the district court's 

evidentiary ruling "implicates 'the application of a legally set 

standard.'" Lippay v. Christos, 996 F.2d 1490, 1496 (3d Cir. 

1993) (quoting Savarese v. Agriss, 883 F.2d 1194, 1200 (3d Cir. 

1989)). 

 1. Factual findings 

 On November 2, 1994, the district court issued 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 [would] testify at 

trial and the specific subject matter as to which each 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 the 
parties to "exchange expert reports, the content of which will 

comply with Fed. R. Civ. P. 26(a)(2)(B)" by November 23. Id., 

slip op. at 5 (JA 319). 

 The Coalition submitted its list of experts on November 

17. Among those listed was Dr. Jan de Leeuw, Director 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 called as an expert 

witness in the fields of statistical consultation, data analysis, 

and related matters." Id. 

 Dr. de Leeuw submitted his Report on Creation 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 depicted 

 the racial composition of districts and 

 schools with regard to outcomes of interest. 

 These tables provide the actual number and

 percentages of students who fall within each 

 of these categories. In addition, the tables 

 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 provided 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 from Rodman 

Ward, Jr. to Thomas D. Barr (Dec. 2, 1995) (JA 384). The 

Coalition apparently did not supplement Dr. de Leeuw'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 opinions in this 

matter," he responded, "Opinions, no. I have to describe the 

database construction, and I don't think that involves any 

opinions." Deposition of Jan de Leeuw, Dec. 15, 1994 

(hereinafter the "de Leeuw Deposition") (JA 1562). However, 

Thomas Henderson, a counsel for the Coalition, intervened later 

during the deposition to "give [the Board's counsel] notice that 

[Dr. de Leeuw] may testify as to materials and analyses, data . . 

. in the defendants [sic] reports." Id. (JA 1563). Describing 

this intervention as "a real problem," Andre G. Bouchard, 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. Henderson 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 defendants of 

its intention to call three new rebuttal experts. One of these 

witnesses was Dr. Franklin Fisher, a professor of economics at 
M.I.T., who was to testify on the statistical analysis methods 

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

three of the Board's witnesses. JA 858. The defense objected 

during a hearing held on December 27, on the ground that Dr. 

Fisher's testimony would simply "duplicate what [it] thought Mr. 

Deleeuw [sic] was supposed to do." JA 860. The next day, the 

court sustained the objection and excluded the new experts' 

testimony: 

 The deadline for naming experts is long past. 

 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 to 

 testify. And plaintiff has not claimed 

 prejudice in the absence of their testimony. 

Tr. 1572 (JA 863). The Coalition did not appeal the court's 

ruling. 

 On January 3, 1995, the day of Dr. de Leeuw's 

testimony, the Coalition's counsel handed to the defendants what 

defendants describe as "91 pages of charts and statistical data," 

Board's Brief at 56, and signaled that it intended to call Dr. de 

Leeuw to offer rebuttal testimony regarding the analyses of three 

experts for the defendants, Drs. Armor, Achilles and Reschly. 

Boards' Brief at 56. The new testimony sought from Dr. de Leeuw 

was to be the same as that which the Coalition expected to elicit 

from Dr. Fisher, and that the court excluded on December 28. JA 

1229. This time again, however, the court excluded the 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 exclusion of Dr. 

de Leeuw's rebuttal testimony is contrary to Rule 703 of the 

Federal Rules of Evidence, as well as "normal practice and the 

common usage of expert witnesses." Appellant's Brief at 47. The 

Coalition further argues that exclusion of Dr. de Leeuw's 

testimony "does not make sense since Dr. de Leeuw's testimony was 

fashioned, and could only have been fashioned, after the crossexamination of the School System's witnesses and the 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 methodological 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 proffered testimony, I 

would remand. 

 (a) 

 I note, first, that Rule 703 of the Federal Rules of 

Evidence is inapposite to the dispute at hand. Rule 703 states, 

inter alia: "The facts or data in the particular case upon which 

an expert bases an opinion or inference may be those perceived by 

or made known to the expert at or before the hearing." The 

subject of the dispute over Dr. de Leeuw's testimony, and the 

reason for his exclusion, is the scope of his expertise as 
defined in the Coalition's November 30 report, and more 

specifically "whether at this late stage in the proceeding the 

plaintiff should be given the opportunity to present affirmative 

evidence by an expert never before qualified in" the area of 

student achievement. JA 1230 (statement by The Court). 

 Similarly, the cases cited by the Coalition 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 witnesses, 

allegedly in violation of an order by the court excluding 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 district court 

opinion, offer any support for its argument. Laysears v. 

Schindler Elevator Corp., No. Civ. A. 94-3152 (E.D. Penn. Sept. 

27, 1995). 

 (b) 

 The Coalition next argues that Dr. de Leeuw's testimony 

could only have been fashioned after cross-examination of the 

Board's witnesses and the production of databases and disk files 

during trial. There are two problems with this argument. The 

first is that regardless of when specific data was given to the 

Coalition, the Coalition was aware all along that the school 

system would present statistical analyses as part of 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 information was 

available and when. As just noted, as of November 30, the 

Coalition knew the subjects on which the school system's various 

experts would testify, and the extent to which they relied on 

statistical analysis. JA 1289. As to specific experts, 

"anything that Dr. Achilles relied on in his testimony was 

entirely in the appendix to the report on the 30th in terms of 

all the backup data for his tables." JA 1290. Regarding Dr. 

Reschly's testimony, "the backup tables for all of that data [the 

data on which Dr. Reschly relied] were all contained in the 

appendix that [the school system] delivered on November 30th." 

Id. Finally, as to Dr. Armor, it appears from the school 

system's uncontroverted testimony that "[h]is methodology 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 December 1 was 

specific census data used by Dr. Armor in his work -- but again, 

while the Coalition may not have had all the data as of November 

30, it knew the scope and methodology of the testimony to be 

presented by the school system. Therefore, the district court 

was certainly acting within its discretion when it found that the 

Coalition failed to comply with its orders regarding Dr. de 

Leeuw's belated testimony. 

 (c) 
 Our analysis does not end with the district court's 

finding, however. It has been the "consistent position" of the 

Third Circuit that "'the importance of the excluded testimony is 

one of the factors to be considered in deciding whether 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 pretrial 

memorandum," Meyers, 559 F.2d at 904; "ability of the party to 

have discovered the witnesses earlier," id.; "validity 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 considerations" 

should guide the court's decision: 

 (1) the prejudice or surprise in fact of the 

 party against whom the excluded witnesses 

 would have testified, (2) the ability of that 

 party to cure the prejudice, (3) the extent 

 to which waiver of the rule against calling 

 unlisted witnesses would disrupt the orderly 

 and efficient trial of the case or of other 

 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 district court's 

decision to the outcome of the case and the effect it will have 

on important rights." In re Paoli Railroad Yard PCB Litigation, 

35 F.3d 717, 750 (3d Cir. 1994) (citation omitted), cert. deniedsub nom. 

General Electric Co. v. Ingram, 115 S. Ct. 1253 (1995). 

 There is no evidence in the record that the district 

court considered the importance of Dr. de Leeuw's proffered 

testimony or several of the other factors outlined in Meyers. 

Therefore, I believe that we should vacate the district court's 

decision to exclude Dr. de Leeuw's belated testimony and remand 

to the district court for the more complete consideration of Dr. 

de Leeuw's testimony that the law of this Circuit demands. 

 III. Conclusion 

 The presence of a number of young black students at the 

argument of this matter should serve as a compelling reminder to 

us that while we struggle over the sufficiency of proof 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 Majority on the 

legal grounds outlined above, neither can I join the condemnation 

of Coalition's counsel. Without the zealous advocacy 

demonstrated throughout this case's history, much of what has 
been 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 the 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 does it merely 

"inhere in equity jurisdiction." Id. It is rooted in the Equal 

Protection Clause of the Fourteenth Amendment to the United 

States Constitution. 

 Much time has elapsed since the State of Delaware was 

first ordered to desegregate its schools and, admittedly, much 

has been accomplished. But unless and until we can be certain 

that all of the vestiges of past discrimination have been 

eliminated to the extent practicable, supervision should not be 

abandoned. Considering that we are dealing here with 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 consideration 

and findings consistent with this opinion.