Full opinion text
OPINION MURRAY M. SCHWARTZ, District Judge. This opinion treats the few and relatively narrow remedial issues that remain for decision in this twenty year litigation, the more recent phase of which was initiated in 1971. Those issues are: (1) What inter-district pupil assignment concept should be employed to extirpate the de jure segregation and dual school system in Northern New Castle County, the constitutional violation and scope of remedy having been determined and all appeals on those issues exhausted; (2) What ancillary relief is required to overcome the “continuing conditions of inequality produced by the inherently unequal dual school system” and vestige effects of de jure segregation never, eradicated in Northern New Castle County; (3) What specific relief is required in the area of governance in light of past and continuing defaults by the State Legislature; (4) Whether this Court should retain continuing jurisdiction, and other future litigation matters. A summary of the procedural and factual background is necessary to place the matter presently before the Court in proper context. I. PUPIL REASSIGNMENT A. Background The genesis of this case can be attributed to a matter styled Gebhart v. Belton, 33 Del. 144, 91 A.2d 137 (1952). In that consolidated case, the Delaware Supreme Court ordered two districts to immediately admit black children plaintiffs into de jure all white schools. Upon review, the United States Supreme Court granted certiorari, combining Gebhart with other cases to formulate the historic Brown v. Board of Education saga. The Supreme Court affirmed but remanded Gebhart, mandating “a prompt and reasonable start toward . a transition to a racially nondiscriminatory school system.” In 1957, plaintiffs filed this action charging, inter alia, a failure to follow the mandate of Brown. Efforts to achieve the goal of- Brown between 1958 and 1971 are ehronicled elsewhere and will not be repeated here. In 1971, the present phase of this litigation was initiated. Subsequently the Wilmington Board of Education intervened as a party plaintiff with the State Board of Education and State Superintendent of Public Instruction remaining aligned as party defendants. In 1974, a three-judge court made detailed factual findings and unanimously held the State Board of Education had failed to eliminate the de jure segregated school system which had previously existed in Northern New Castle County. Concerned that suburban districts that might be affected by a final order lacked an adequate opportunity to be heard, the three-judge court invited them to intervene and present evidence on the issues raised by the amended complaint. Although virtually all suburban boards accepted the invitation, the district boards presented no evidence, electing to adopt the State Board pleadings and stand on the existing record. Following briefing and oral argument, the three-judge court filed a second opinion directing the submission of remedial schemes, including inter-district desegregation proposals. As earlier summarized by this Court, a majority of the three-judge court held that an: “inter-district remedy would be appropriate, based on its findings that: “1) there had been a failure to alter the historic pattern of inter-district segregation in Northern New Castle County; “2) governmental authorities at the state and local levels were responsible to a significant degree for increasing ■the [racial] disparity in residential and school populations between Wilmington and the suburbs; “3) the City of Wilmington had been unconstitutionally excluded from other school districts by the State Board of Education, pursuant to a withholding of reorganization powers under the Delaware Educational Advancement Act of 1968.” 424 F.Supp. at 877. Defendants appealed to the Supreme Court, which summarily affirmed the three-judge court order. Following the Supreme Court summary affirmance, the three-judge court endeavored to develop a remedy to redress the inter-district constitutional violation. Three weeks of evidentiary hearings were held to evaluate the approximately nineteen proposals that were submitted. The schemes under consideration divided analytically into three groups: voluntary transfer, reorganization into different districts with a portion of the black minority population to be included within each district, and “mandatory assignment plans providing for the transfer and transportation of students among the existing districts.” In May, 1976, after thorough consideration and articulation of additional findings of fact, the three-judge court rejected all proposals submitted. ' Recognizing that Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (“Milliken I”) “makes plain that the remedy to be ordered must be commensurate with the scope of the violation which has been found,” the three-judge court perceived that its “duty is to order a remedy which will place the victims of the violation in substantially the position which they would have occupied had the violation not occurred.” The court also noted that “where the violation found resulted in the operation of a dual school system, the Court must order the ‘greatest possible actual degree of desegregation,’ consistent with the practicalities of the situation . . . .” Based primarily upon these Milliken I principles, the three-judge court stressed that the nature and scope of the constitutional violation required an inter-district remedy. It then defined the geographic area to be included within the desegregation scheme and noted that reorganization of the affected school districts would be required. In the course of formulating its primary remedial decree, the three-judge court went to virtually unprecedented lengths to minimize federal court intrusion. In pursuit of its policy of nonintrusion, the district court deferred to the State Legislature to cure the constitutional violation both with respect to the scheme of reorganization and to issues of governance, noting that “[s]uch decisions are far better left to legislators and the process of compromise than to the rigors of judicial determination.” In the event the Delaware Legislature defaulted, the three-judge court provided that the affected desegregation area should be one county wide system governed on an interim basis by a five member board appointed by defendant State Board of Education and consisting of board members from the existing districts. To promote an orderly transition to a unitary system, the three-judge court afforded the parties a fifteen month delay. Finally, the three-judge court allowed whatever constitutional pupil assignment plan was adopted by responsible State authorities to become effective in two stages with the first step, grades 7-11, to be accomplished by September, 1977, and full compliance to be achieved with the commencement of the September, 1978 school year. Certain defendants appealed the three-judge court order to the Supreme Court, with a protective appeal being lodged with the Third Circuit. On November 28, 1976, the Supreme Court dismissed the appeal for want of jurisdiction. Thereafter, the protective appeal was pursued before the en banc Court of Appeals. The Third Circuit divided four to three in upholding the three-judge remedy order, except for one particular not presently germane. In affirming the three-judge court on scope of remedy, the circuit court majority adopted, endorsed, and furthered the efforts of the lower court to minimize federal intrusion, stating: “[T]he district court stressed that ‘the State Legislature and the State Board of Education may take such steps as are not violative of constitutional rights to change the pattern set here,’ 416 F.Supp. at 357, and ordered creation of an interim board to operate the schools ‘for so long as the State takes no action.’ Id We specifically affirm this governance plan and emphasize that prompt compliance by the state may make action by the interim board unnecessary.” 555 F.2d at 380-81. Regrettably, the State failed to act. On October 3, 1977, the Supreme Court declined to review the Third Circuit en banc determination by denying certiorari petitions filed by the State Board of Education and five suburban districts. In the hiatus between the Third Circuit affirmance of the three-judge court remedy order and the denial of certiorari by the Supreme Court, defendant State Board declined to endorse and bring before the Court any interim board pupil assignment proposal. Instead, the State Board, without benefit of implementing legislation, proffered a variant voluntary scheme known as “reverse volunteerism.” Hearings concerning reverse volunteerism were conducted on July 19-25, 1977. Following the hearings and after consideration of an application for a stay of the three-judge court order, this Court on August 5, 1977 issued an Order and Opinion rejecting the concept of reverse volunteerism but granting a limited stay. The stay deferred implementation of the one district plan for grades 7 through 11 scheduled to commence in September 1977 pending disposition of the writ of certiorari to the Supreme Court. The stay decision also necessitated temporarily delaying transfer of authority to the New Board and abolition of the eleven school districts. Although granting a limited stay, the Court ordered the State Board to appoint a five member new board as required by a May 19, 1977 order of this Court entered pursuant to the Third Circuit mandate. This new board was named the New Castle County Planning Board of Education (“NCCPBE” or “New Board”). Its primary responsibilities were to develop a complete desegregation scheme and to prepare and plan for the assumption of authority over the school system. The Court directed the NCCPBE to file its desegregation proposal on or before September 30, 1977. The NCCPBE timely filed its report, consisting of a majority report addressing pupil assignment and other matters relating to the desegregation process and a minority report containing only a pupil assignment proposal. The majority report (10-2) contemplates the reassignment of all students from the geographic area of the two predominantly black districts to the geographic area of the predominantly white districts for ten years and the reassignment of all students from the geographic area of the predominantly white districts to the geographic area of the predominantly black districts for two consecutive years. The minority report (Plan W) generally assigns children on a random basis and attempts to minimize the average number of years that students from the geographic areas of the two predominantly black districts are reassigned to the geographic area of the predominantly white districts. Hearings on the 10-2 majority and Plan W minority reports commenced on October 18, 1977 and terminated on November 8, 1977. At an early stage, the Court perceived weaknesses in each submission and within certain fixed parameters directed the New Board to examine the feasibility of other alternatives. The NCCPBE responded by activating a six member Pupil Assignment Committee. The individual membership of that Committee were relieved of their regular duties by their respective districts. The Pupil Assignment Committee labored diligently, completing its assigned task on November 21, 1977 and filing its special report with the New Board the following day. The Pupil Assignment Committee report declared that the alternatives examined were viable, given that certain noted concerns could be resolved. The report detailed three alternative concepts and outlined variations to the illustrations. These concepts (9-3) contain the common standard of reassignment of all students from the geographic area of the predominantly black districts to the geographic area of the predominantly white districts for nine years and reassignment of all students from the geographic area of the predominantly white districts to the geographic area of the predominantly black districts for three consecutive years. B. Roles of the Court and the NCCPBE The NCCPBE initially expressed a preference for its original majority configuration and adopted “no position at this time upon any alternative . . . . ” Hitherto unconvinced that Wilmington and DeLaWarr possess sufficient physical capacity to educate three grades of students, the NCCPBE has continued to withhold active support of the 9-3 concepts. The legal stance of the NCCPBE is that because all pupil assignment concepts presently at issue satisfy the constitutional objective of conversion to a unitary racially non-discriminatory school system within the desegregation area, the Court lacks authority to evaluate the fundamental fairness, of the respective plans and concomitantly is bound by whichever concept the New Board endorses. This NCCPBE posture necessitates delineating the respective roles of the Court and the New Board. The role of the Court in this narrow remedial phase of this litigation is limited. In Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (“Milliken II ”), a de jure violation case, the Supreme Court emphasized that: “In the first case concerning federal courts’ remedial powers in eliminating de jure school segregation, the Court laid down the basic rule which governs to this day: ‘In fashioning and effectuating the [desegregation] decrees, the courts will be guided by equitable principles.’ Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II).” Instructing that “[application of those ‘equitable principles’ . requires federal courts to focus upon three factors,” the Court stated: “In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. 1 at 16, 91 S.Ct. 1267, at 1276, 28 L.Ed.2d 554. The remedy must therefore be related to ‘the condition alleged to offend the Constitution . . . .’ Milliken I, supra, 418 U.S., at 738, 94 S.Ct., at 3124. Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible ‘to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.’ Id., at 746, 94 S.Ct., at 3128. Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution. In Brown II the Court squarely held that ‘[s]chool authorities have the primary responsibility for elucidating, assessing, and solving these problems . . . .’ 349 U.S., at 299, 75 S.Ct., at 756. (Emphasis supplied.) If, however, ‘school authorities fail in their affirmative obligations . . . judicial authority may be invoked.’ ” Id. (footnotes omitted). Finally, the Supreme Court noted that “[ojnce invoked, ‘the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.’ ” Id. Although Milliken II was primarily addressed to ancillary remedial relief, its explication of equitable considerations applies also to pupil reassignment. In the present case, when the Supreme Court summarily affirmed the existence of an inter-district violation, “the condition alleged to offend the Constitution” was established. The remedial nature and scope of the decree was determined with finality by virtue of the denial of certiorari of the Third Circuit’s affirmance of the three-judge court remedial order. With two components resolved beyond peradventure, remaining are only the directive that due regard should be afforded state and local authorities and the maxim that a district court has broad equitable power to remedy past wrongs. Application of these precepts to the issue of the amount of deference properly accorded the NCCPBE requires an examination of the unique status of that body. The historical predecessor to the NCCPBE was a five person Interim Board appointed by defendant State Board of Education pursuant to the three-judge court May 19, 1976 remedy opinion. In order to afford each district at least one representative, the Interim Board was expanded to thirteen members by the Delaware State Legislature pursuant to authority given that body by the three-judge court. The Third Circuit understandably did not know of the subsequent expansion to thirteen members. Accordingly, paragraph four of the circuit court’s mandate called for the appointment of a five member board by the State Board of Education in the event local officials failed to promptly act. Following the failure of the State to act in accordance with the Third Circuit mandate, this Court directed defendant State Board to appoint the five member “New Board.” Against this procedural background, attention is turned to the primary contention of the NCCPBE that it has broad discretion which cannot be disturbed because its 10-2 concept accomplishes the constitutional objective of transition to a racially non-diseriminatory unitary school system in the desegregation area. The NCCPBE reaches this conclusion by claiming the status either of a court-appointed master whose choice of pupil assignment concept can only be disturbed under the clearly erroneous test of F.R.Civ.P. 53(e)(2), or of a full fledged school board vested with broad discretion in formulating a remedy. That the NCCPBE is a court-appointed master pursuant to Rule 53 is a wholly untenable proposition. First and foremost, the membership of the NCCPBE was appointed by defendant State Board of Education, not by the Court. Not surprisingly, no authority has been cited or found that provides for the power of appointment of a master under F.R.Civ.P. 53.inhering to a party litigant. A fortiori, no authority has been found for the astounding proposition that under the clearly erroneous standard of F.R.Civ.P. 53(e)(2), a federal court is bound by factual findings of a “master” appointed by a party defendant. Second, although F.R.Civ.P. 53(b) contemplates issuance of an order of reference to establish the exceptional condition requiring a master, no such step was taken here. Third, the mandate of the Third Circuit and the August 5,1977 order of this Court instructing the NCCPBE to develop a plan for desegregation in no way authorize the NCCPBE to make findings of fact binding on this Court. Cf. Morgan v. Kerrigan, 530 F.2d 401, 411 n. 13 (1st Cir.), cert, denied, 426 U.S. 935, 96 S.Ct. 2649, 49 L.Ed.2d 386 (1976) (Boston masters not empowered to make findings of fact). Consequently no legitimate basis exists for con-eluding that the NCCPBE is a master for purposes of F.R.Civ.P. 53. The NCCPBE’s contention that it should be considered a body politic, i. e., a school board, is premised upon the derivation of its manner of appointment and the explicit requirement that the NCCPBE function as a school board. If the NCCPBE were truly a body politic created through democratic processes, its position would be entitled to considerable deference because “[s]chool authorities have the primary responsibility for elucidating, assessing, and solving these problems” and no other comparable means exist “to take into account the interests of state and local authorities in managing their own affairs . . . .” The NCCPBE position contains two basic fallacies, one factual and the other legal. The factual fallacy is that the. NCCPBE is not a true body politic. It was not elected by popular vote as are nine of the eleven litigant school boards. At most, it represents the best efforts of the three-judge court and the Third Circuit to establish a governance unit in a fashion in accordance with the legislative will. But the State of Delaware through its General Assembly expressly disowned and disavowed the NCCPBE and its 10-2 proposal. In addition, defendant State Board of Education initially declined to pay its court-ordered share of expenses of the NCCPBE. Thus the present judicially created and defendant appointed five person NCCPBE cannot be said to be a body politic representing the will of the people through its duly elected Legislature. In contrast to the above, the five cases primarily relied upon by the NCCPBE are inapposite because all involved school boards that were bodies politic existing by virtue of the democratic processes. The judicially created and defendant appointed NCCPBE expressly disavowed by the Delaware Legislature is not the usual body politic found in any desegregation case cited by any interested party or uncovered by the Court in its own research. Thus the Court declines to accept and/or approve unbridled discretion by the NCCPBE. Because the NCCPBE is factually and legally not a body politic, its position that “the Board’s choice of plans can only be rejected by this Court if the result is constitutionally defective” is disapproved. Although the NCCPBE is neither a master nor a full fledged body politic, its presence is vital to successful implementation of a desegregation plan in New Castle County. Occupying a unique role heretofore unknown in the annals of desegregation litigation, the New Board is the only body empowered to govern the schools which has proposed a solution capable of effectuating a transition to a racially non-discriminatory unitary school system. Further, the NCCPBE has demonstrated its resolve to retain an open mind by stating it is “fully prepared to implement a 9-3” concept if the same can be effectively achieved under a specific pupil assignment plan. Additionally, the NCCPBE willingly acquiesced in a procedure to protect its Pupil Assignment Committee from all outside influence. Given the high level of developed expertise and the demonstrated impartiality of the Pupil Assignment Committee, the Court is satisfied that the unique NCCPBE shows preliminary promise of working well in the area of pupil assignment. Equally important is the fact that the NCCPBE is going to be the responsible operating authority for the single unitary non-discriminatory school district. For these reasons, the Court must and wants to consider all helpful, well-reasoned, and documented conclusions of the maturing NCCPBE. Although not bound by the conclusions of that group, so long as the NCCPBE continues to seek responsible solutions in an impartial manner, its input will be accorded increasing weight by the Court in the exercise of its equitable power. C. Proposed Concepts Before the Court — Description Any pupil assignment concept intended to remedy the continuing inter-district violation must necessarily consider the composition and distribution of the student body throughout the desegregation area and the physical limitation of building capacity. Thus, if the total number of children in the predominantly white districts were mirrored in all important respects by the same total number of children in the predominantly black districts, the burden of pupil reassignment theoretically could, but not necessarily would, be distributed evenly between the two groups with each being reassigned six years. But this theoretical mathematically equal disbursement of student population does not exist in Northern New Castle County. The two predominantly black districts of Wilmington and DeLa-Warr contain in the aggregate far less student population and, consequently, far less building capacity than the aggregate student population and building capacity of the nine predominantly white districts. Accordingly, plaintiffs accept that under any desegregation plan “black children on the average will be reassigned to [what will be formerly racially identifiable] white schools a greater number of years than white children will be reassigned to [what will be formerly racially identifiable] black schools.” Given that the children from the predominantly black districts will be reassigned to the predominantly white districts for a significant portion of their education, the difference between the litigants centers primarily upon how much of the disproportionate impact of pupil reassignment above that dictated by numbers and building constraints should be borne by the minority whose constitutional rights were violated. Five proposed concepts are before the Court, two advanced by the NCCPBE and three submitted directly by the Pupil Assignment Committee: 1) The concept favored by the majority of the NCCPBE — the “10-2” configuration; 2) The concept endorsed by the minority member of the NCCPBE — “Plan W”; 3) A 9-3 configuration labelled the “S” concept, bottomed upon pairing elementary attendance zones in the Wilmington district with elementary attendance zones in eight predominantly white districts; 4) A 9-3 configuration utilizing an Independent Feeder (“IF”) concept, which can be overlaid on any of the “S” concept illustrations; 5) A 9-3 configuration termed the “G” concept, predicated upon pairing grids within the Wilmington district with elementary attendance zones in eight predominantly white districts. Four of the five concepts presented divide the desegregation area geographically into four attendance zones. Plan W employs nine clusters. Apparently fortuitously, all concepts pair the DeLaWarr district with the New Castle-Gunning Bedford district, treating the combined geographic area as a distinct entity. As a necessary corollary, all concepts in one form or another have paired or clustered Wilmington with the remaining eight predominantly white districts. 1. The NCCPBE Majority Proposal— The 10-2 Concept The NCCPBE 10-2 majority concept reassigns all students from the two predominantly black districts to the predominantly white districts for ten years and all students from the predominantly white districts to the predominantly black districts for two consecutive years. The 10-2 concept anticipates retention of a minimum of ten grades in each of the predominantly white districts and limits Wilmington to grade centers of two years spanning grades 5 through 9 and DeLaWarr to eighth and ninth grades. As a consequence, under the NCCPBE majority 10-2 configuration all Wilmington and DeLaWarr children in grades 1 through 4, 10 through 12, and three other consecutive grades must necessarily attend schools located in the predominantly white districts. A concomitant result is that none of the high schools in the predominantly black districts is used as a high school. 2. The NCCPBE Minority Proposal— Plan W The NCCPBE minority proposal seeks to minimize the disproportionate impact upon black students during the transition from a dual system to a unitary racially non-discriminatory system by maximizing utilization of Wilmington school facilities. Recognizing that limitations on physical capacity of Wilmington schools preclude anything approaching a 6-6 plan, Plan W endeavors to increase the average time that black students spend in their home district to something more than three, but less than four years. "Dividing the desegregation area into nine clusters and randomizing assignment patterns of both white and black students, Plan W results in a significant number of students from the predominantly white districts never being assigned to a predominantly black district. Other children from the predominantly white districts are assigned out of their former school districts . for a minimum of two years to a maximum of seven years, whereas students from the predominantly black districts attend a predominantly white district for a minimum of 5 years to a maximum of 10 years. Finally, the NCCPBE minority concept purports to enhance walk-in use of three regional high schools. 3. The 9-3 “S” Configuration In undertaking to determine the feasibility of a 9-3 configuration, the NCCPBE through its Pupil Assignment Committee considered the following questions: “1. Is it possible to develop a plan which assigns suburban children to schools in Wilmington and De La Warr for three years and Wilmington and De La Warr children to suburban districts for nine years? “2. Can Wilmington and/or P. S. duPont High Schools be used as a grades 10-12 center? If yes, what plan results? “3. Can De La Warr High School be used as a grades 10-12 center? If yes, what plan results.” Ct.Exh. 101A, at 4. The Pupil Assignment Committee also employed another formulation to describe a part of their task: Using three-grade centers and assuming that all students throughout the eleven districts are treated equally between rather than within racial groups to the fullest extent feasible, what plan results? Can P.S. and/or Wilmington High School remain open as feeder high schools? In responding to the above questions, the Pupil Assignment Committee also considered whether a 9-3 concept was feasible while retaining certain distinctive characteristics of the 10-2 proposal. Consequently, the committee investigated whether a 9-3 configuration was possible if no Wilmington or DeLaWarr high school was used as a high school and the primary grades were offered only in the predominantly white districts. The response of the Committee came in the form of various illustrations and alternates. All demonstrate that a 9-3 concept is feasible provided noted concerns can be resolved. The three S illustrations (Si, S2, and S3) and their alternates employ existing elementary attendance zones in all districts as the basic desegregation tool. In addition, the Pupil Assignment Committee in developing the three S concepts imposed upon itself certain perceived educationally sound assumptions and constraints. The Si illustration demonstrates the fit of a 9-3 configuration if all young elementary children and high school students attend school in the predominantly white districts. The alternates to Si demonstrate the feasibility of a 9-3 concept using one of the Wilmington high schools as a high school in conjunction with an Attendance Area II high school. The S2 model includes early elementary grades by providing for different three year grade spans to be assigned from each of three attendance areas. Accordingly, grades 1-9 are offered in Wilmington. The S2 alternate illustrates the feasibility of using a Wilmington high school as a high school in conjunction with Attendance Area I high schools. Several possibilities emerge for designating one city high school as a 7-12 or 10-12 grade center in a pairing arrangement with a junior high school and senior high school in the predominantly white districts. Also resulting in a grade span of nine years in Wilmington, the S3 illustration modifies S2 by exchanging the grade spans which Attendance Areas I and III send to Wilmington. The S3 alternate employs an Attendance Area III high school as a 7-12 grade center to permit one of the Wilmington high schools to be used as a similar grade center. The primary concerns expressed by the Pupil Assignment Committee with respect to the S concept are possible overutilization of schools, particularly in Wilmington, and the conflict between strict retention of feeder patterns and the desirability of assignments to nearby schools. Underutilization of some facilities was also noted by the Committee as a matter of some concern. 4. The 9-3 “IF” Configuration Unlike the S concepts which utilized existing elementary attendance zones and the four attendance areas created by the NCCPBE, the Independent Feeder (“IF”) concept combines some of the so called grids or geocodes of predominantly white Alexis I. and Conrad with geocodes of Wilmington. Feeding the children from designated residential tracts into Wilmington High School for their high school experience, the IF concept may be viewed as carving out an additional attendance area consisting of five schools which collectively provide a full 1-12 grade span. The Pupil Assignment Committee concluded it was possible to superimpose the IF illustration on any of the S illustrations. Although noted concerns would not appreciably change for any of the S illustrations, the self-contained IF area as distinguished from its larger attendance area would have a less serious problem with overutilization, no problem with underutilization, and could be easily expanded or contracted by adding or subtracting geocodes. Aside from the obvious drawback of limited application in the desegregation area, the IF approach evoked some concern over lateral transfers between districts in the predominantly white Alexis I. and Conrad districts. Although the matter was not explored fully, a cursory review of the IF concept as applied to P.S. duPont High School convinced the Pupil Assignment Committee such an arrangement was not feasible because of inability to obtain sufficient students without going beyond the physical location of predominantly white high schools. Finally, the Pupil Assignment Committee was unable to predict compatibility of the IF concept with the third 9-3 configuration, the G concept. 5. The 9-3 “G” Concept The G concept combines geocodes in Wilmington with elementary attendance areas in the predominantly white districts. Use of geocodes necessarily results in new elementary attendance zones in Wilmington. Specifically, three elementary attendance area zones emerge, conforming to Attendance Areas I, II and III of the 10-2 plan. Comparison of the new geocoded elementary attendance zones in Wilmington with the existing Wilmington elementary attendance zones immediately reveals the geocoded elementary attendance zones to be far more compact. As a result, Wilmington students are able to attend schools close to their homes during their three years in Wilmington. Employing geocodes to establish elementary attendance zones derives other advantages enumerated in a later section of this opinion. 6. Attendance Area IV The geographic area comprising the De-LaWarr and New Castle-Gunning Bedford districts is considered a separate Attendance Area under each of the proposed concepts. Under the NCCPBE majority 10-2 proposal, grades 8 and 9 attend three of the five DeLaWarr schools; grades 1 through 7 and 10 through 12 are offered only in the predominantly white New Castle-Gunning Bedford District. Plan W, by attempting randomization of pupil selection and proposing utilization of DeLaWarr High School as a regional.high school, attempts to minimize the disproportionate burden borne by children in DeLaWarr. The 9-3 feasibility study also pairs the predominantly black districts of DeLaWarr with the predominantly white district of New Castle-Gunning Bedford to form Attendance Area 4. Within that precept, three options are enumerated. Under option 1, only grades 4-6 are provided in DeLaWarr; under option 2, grades 4-6 and 10-12 are offered in DeLaWarr; and under option 3, DeLaWarr would house grades 1-9. Option 3 strives to attain a better “fit” by splitting the geographic area of DeLaWarr into two subdivisions and treating one portion as though it were within the predominantly white district of New Castle-Gunning Bedford. In so doing, option 3 reduces DeLaWarr to two elementary school buildings and one high school building. As in option 1, all students in Attendance Area IV then attend only grades 4-6 in the “revised” DeLaWarr District. D. Merits of the Proposed Concepts The foregoing plans having been submitted to the Court, its duty is to review these proposals against the principles enunciated by the Supreme Court and the Third Circuit. Under the mandate of Brown I, supra, the duty of the Court is to insure the elimination of the inter-district racially discriminatory dual school system that has persisted in New Castle County. Evans v. Buchanan, 379 F.Supp. 1218 (D.Del.1974), and 393 F.Supp. 428 (D.Del.), summ. aff’d., 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975). In formulating the appropriate remedy to redress the systemwide violation, the three-judge court relied heavily on the guidance provided by Milliken I, supra, and Swann, supra. Elucidating upon the basic tenet that “the nature of the violation determines the scope of the remedy”, Swann, 402 U.S. at 16, 91 S.Ct. at 1276, the Supreme Court in Milliken I cautioned that the effort “to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct” does not constitutionally require “any particular racial balance in each ‘school, grade, or classroom’.” 418 U.S. at 740-41, 94 S.Ct. at 3125 (quoting Swann, 402 U.S. at 24, 91 S.Ct. 1267). Noting its acceptance of desegregation plans rendering schools more than 50% black, the Supreme Court stated that such results are not offensive to the Constitution and do not justify an inter-district remedy where only an intra-district violation has been identified. Where, however, the constitutional violation is of systemwide magnitude and an inter-district remedy is mandated, attention must be focused on whether the remedial process is governed by the appropriate exercise of equitable power. At this stage, one becomes mindful that “the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann, 402 U.S. at 15, 91 S.Ct. at 1276. Because the inter-district extent of the violation and the inter-district scope of the remedy have previously been confirmed in this case, the limited remaining judicial task is to assure and effectuate implementation of a scheme that eliminates the dual school system and extirpates the vestiges of impermissible racial discrimination perpetuated in Delaware by de jure segregation of public schools. In so doing, the Court draws on its powers in equity which have been well defined in desegregation cases such as Brown II, supra, Swann, Milliken I, Milliken II, supra, and Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976). Central to these cases is recognition that the task of righting discrimination necessarily entails considering not only what is fair but also what is practical. Specifically, the Supreme Court has advised that equity traditionally “has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.” Brown II, 349 U.S. at 300, 75 S.Ct. at 756 (footnote omitted). In this ease, the Third Circuit has recognized that a judicial decree to effectuate desegregation must necessarily take “into account the practicalities of the situation” lest a court order into effect a plan falling fatally short of its desired goal. 555 F.2d at 379 (quoting Davis v. Board of School Commissioners, 402 U.S. 33, 37, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971)). For example, although a dual school system would cease to exist if all public schools in Northern New Castle County were closed, such an alternative could hardly be termed a reasonable attempt to meet constitutional standards. See Griffin v. County School Board of Prince Edward Co., 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964). Similarly, a 12-0 configuration, assigning all students from the predominantly black districts to schools in the predominantly white districts would result in a conversion to a non-discriminatory unitary school system but, absent special circumstances not present here, one could not successfully contend such a proposal should be upheld by a court sitting in equity. See Evans v. Buchanan, 435 F.Supp. 832 (D.Del.1977). It follows that the means employed to accomplish desegregation must necessarily be considered against the practicalities and equities of the situation in order to insure that a desegregation scheme is just in application and possesses a reasonable probability of success. Because this is not a case requiring a court to devise its own plan due to a total abdication by local authorities, the Court in no way presumes to dictate the type of education that must occur in Northern New Castle County. Despite its long, tortuous history and the failure of the Legislature to respond, the case at this stage is not characterized by recalcitrance and obdurance. Several reassignment concepts have been submitted to the Court, demonstrating a high level of responsibility by the NCCPBE, the Pupil Assignment Committee, and Delaware educators. Matters of educational programming and quality of education are properly the province of educators, not that of the Court. Testimony in this case demonstrates that Delaware educators are highly qualified to make such determinations and the Court does not purport to substitute its judgment for theirs. Accordingly, the Court narrowly visualizes its duty as one of ordering into effect a scheme for desegregation that meets the constitutional goal in a practical and equitable manner. Not all agree; all parties to this action with the exception of plaintiffs and intervening defendant DeLaWarr District perceive no need for the Court to issue any order on pupil assignment. Relying on current legislation permitting voluntary transfers for 1977-78, defendant State Board and defendants from the nine predominantly white districts maintain that the opportunity afforded a student to transfer to a school in which his race is a minority is-adequate to overcome the dual school system and the pervasive effects of de jure segregation. Not only is the evidence to the contrary, but the voluntary transfer legislation suffers from the basic flaws that proved fatal to the State Board’s alternate proposal known as “reverse volunteerism”. The latter provided for the mandatory assignment of black students to predominantly white district schools but permitted any student subsequently to opt out. Depending on a number of variables, not the least of which was the receptivity of the predominantly white districts in welcoming black students, the number of blacks who could be expected to accept their assignments and thereafter continue in those schools was indeterminate. Absent any evidence that the plan would work and given the more than 20 years that the State has had to dismantle its dual system, this Court concluded that the plan’s disparate burden and “too little, too late” character rendered it unacceptable under Green v. County School Board, 391 U.S. 430, 438-39, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). 435 F.Supp. 832, 841 (Del.1977). The voluntary transfer plan promises even less. Requiring affirmative independent action by a large number of individuals, it does not describe a plan that “promises realistically to work now,” Green, supra, 391 U.S. at 439, 88 S.Ct. at 1694, and consequently at this late date cannot be the basis of a desegregation order for Northern New Castle County. The Court recognizes that Green does not per se invalidate all voluntary plans but rather requires review of their effectiveness. The voluntary transfer plan which has attracted so few white students into the predominantly black districts fails to meet the constitutional objective. Although it is black students represented by the Wilmington School District who have sought relief from the affirmed constitutional violation, it does not follow that they, the aggrieved party, should assume full responsibility for rectifying the wrongs directed at them. Ordinary fair play would appear to dictate the opposite result or, at the least, an attempt to minimize the impact visited on those who have been wronged. In this regard, the Court is not totally insensitive to the dismay and anger experienced by some white citizens who must assume responsibility for violations arising out of discriminatory laws enacted in the past over which they exercised little or no control. However sincere and strongly held, such beliefs fail to recognize that widespread discrimination, sanctioned by law, was practiced in Delaware in contravention of the United States Constitution and that today the effects of that condition persist in the form of separate but equal school systems in the desegregation area in violation of Brown I, supra. The State Legislature, although allotted an unprecedented amount of time, has defaulted, not even enacting enabling legislation to permit defendant State Board to address this constitutionally impermissible condition. In addition, defendant State Board fairly can be characterized as channeling its energies toward preservation of its legal position, rather than attempting to redress the constitutional violation. In view of this default, the Court’s duty is to implement a remedy, the parameters of which have been established by the three-judge court’s primary remedial decree. To accomplish this end, a proper, though not sole, consideration is an awareness of the desirability of minimizing the disproportionate burden on any racial group in choosing a concept that effectively desegregates within the established parameters. Curing the constitutional infirmity requires assignment of students for some period of time to schools which they otherwise would not have attended. Obviously transportation to these schools is necessary. But children in Northern New Castle County are presently transported to school by bus to a large degree. Nonetheless, implementation of a desegregation plan within the fixed parameters of the primary remedial decree represents change and thus must be approached with great care and always in a fair and practical manner. With these considerations in mind, the Court must evaluate the merits of the 10-2, Plan W, and 9-3 concepts. Analyzing first the NCCPBE majority 10-2 plan, the Court finds the concept presently undesirable as a remedy to cure the constitutional infirmity in this case because of a number of perceived weaknesses. Specific examples are the basing of a decision adverse to black students on a grade fraction favorable to black students, reassigning only black children in the tender elementary years, and failing to use any of the black high schools as 10-12 grade centers. The probable result would be a disproportionate number of black schools targeted for closing, causing concomitant adverse effects and impeding the plan’s chance for success. The concept of 10-2 was generated by multiplying the 21.7% figure for black students in the affected area by twelve grades to determine that 2.6 was the number of grades requiring white reassignment in order to produce a “complete mix”. Having arrived at a number closer to three than two grades, the New Board arbitrarily chose to assign children from predominantly white districts the lesser number of two years, thereby requiring the reassignment of children from predominantly black districts for ten years rather than nine. In anticipation of assigning children from predominantly white districts to schools in the predominantly black districts for two years, the NCCPBE proceeded to establish two year grade centers in Wilmington and DeLaWarr while retaining almost a full range of grades in the formerly white districts. Some children from the predominantly white districts would be educated in Wilmington for grades 5 and 6; some for grades 6 and 7; others would come into the city for 7th and 8th grades; still others for 8th and 9th grades. In DeLaWarr, children from the predominantly white districts would be assigned only to grades 8 and 9. The decision not to use any of the black high schools as high schools under the 10-2 concept is conceivably explained by reference to the principle that all children in the desegregation area are to be treated equally and by acceptance as educationally desirable that a student should attend a given high school for at least three years. But this reasoning surrenders much of its attraction when used as an underpinning to support a decision not to use any of the three black high schools as high schools. The decision becomes more questionable when one notes that Wilmington High School is in excellent physical condition, is one of the few schools in the desegregation area to boast a swimming pool, and is close to a municipal golf course. Finally, the choice becomes particularly dubious when one realizes that Wilmington High School is strategically located for desegregation purposes on a district line in a corner of the Wilmington District. As a result, if Wilmington High School were simply moved across a relatively narrow road in a westerly direction (a distance of no more than sixty feet), it would be in the predominantly white Alexis I. District; or, if moved one block in a southerly direction, Wilmington High School would be in the predominantly white Conrad District. Additional considerations further imperil the 10-2 concept. Credible testimony to the effect that the primary and high school grades are perceived as the most important grades indicates that the less important grades were assigned to the predominantly black districts. Concern was intimated over the prospect of children from the predominantly white districts travelling to school by bus in the primary grades; the worry was obviated by the expedient of assigning all children from the predominantly black districts to travel to the predominantly white districts during those years. No mention was made that the parents of those children from the predominantly black districts might be equally concerned about their children's transportation in the early years. Also, failure to reassign any child in the predominantly white districts for grades 1-4 or for the high school years necessarily reduces the number of grades which the former black schools can offer. Moreover, plaintiffs point out that with a surplus capacity in the county as a whole, severe underutilization of the city schools will inevitably target them for closing. Arguably, these anticipated school closings, the conversion of the Wilmington high schools to grade centers, and the attendant demise of the Wilmington high schools as high schools will both identify the formerly black schools and create widespread misapprehension that something was wrong with the formerly black schools in the first place. Plaintiffs maintain the negative impact of such misconceptions upon both black students generally and white students assigned to these schools will have a deleterious effect upon the entire effort to desegregate. Serious additional equitable questions are also raised by the 10-2 plan. First, given that most black children need be assigned nine or ten years out of their neighborhood schools and most white children only two or three years, the New Board, without detailing its reasons, chose to maximize that disproportionate burden on black students by assigning them ten years. The Court is fully cognizant that the law does not demand absolute parity among groups. Nonetheless, approval of plans resulting in disproportionate impact generally rests upon ample justification. For example, in Allen v. Asheville, supra, the court approved a plan primarily in which black students were transported during grades 1-5 because white students bore the burden during grades 6-12 and alteration of this arrangement would have increased the transportation expense unnecessarily without corresponding benefit to either group. See Norwalk Core v. Norwalk Board of Education, 423 F.2d 121, 124 (2d Cir. 1970); Hart v. County School Board of Arlington Co., Va., 329 F.Supp. 953 (E.D.Va.1971). Other courts have viewed peculiar circumstances to justify school closings in black neighborhoods. See, e. g., Mims v. Duval County School Board, 329 F.Supp. 123 (M.D.Fla.), aff’d, 447 F.2d 1330 (5th Cir. 1971). Obviously a student does not have a right to attend the school building of his or her choice and should a formerly black junior high school be converted to a magnet school for the gifted, Hart v. Community School Board of Education, 383 F.Supp. 769, 772 (E.D.N.Y.1974), aff’d, 512 F.2d 37, 53-54 (2d Cir. 1975), or a certain school closed because it is physically unsound and located in a dangerous and noxious neighborhood, no one can be heard to complain. See Mims, supra. The plenary power of a school board to utilize or close a given school building as it should see fit is not challenged here. What is open to question is whether a plan to provide a unitary racially non-discriminatory school system can, without reciting any underlying justification, transport black children a greater number of years than is necessary to accomplish the goal and simultaneously eliminate most grades in predominantly black districts when a practical alternative appears to exist. The answer arising out of principles of equity is no. At the very least, fundamental fairness demands that decisions that have the effect of maximizing the burden on black students be supported by justifications of a non-racial nature. The instant record is devoid of any supportable explanation why a 10-2 plan was preferred to a 9-3 scheme or why a 9-3 arrangement was not seriously considered in the first instance. Accordingly, the Court at this time must withhold approval of the 10-2 plan. The Court also questions the validity of Plan W. Although it too would effectuate a transition to a unitary racially nondiscriminatory school system and therefore meets the constitutional objective, Plan W holds scant promise of satisfactory implementation. Advanced as a minority report of the NCCPBE, Plan W has attracted the support of neither the New Board, defendant State Board, or defendant predominantly white districts, all of which generally consider it the least attractive alternative. Starting from a premise that the capacity of the Wilmington schools must be utilized to the fullest in order to minimize the disproportionate impact on black students, Plan W reassigns children from the predominantly black districts to the predominantly white districts for an average of eight years and reassigns some but not all of the children out of the predominantly white districts for up to seven years. These reassignments are intended to enable accommodation of four full grades of children in the city, thus minimizing the number of years black children must be reassigned to an average of eight years. Besides minimizing the disproportionate impact on black students with respect to the number of years assigned, Plan W also provides a full range of grades in Wilmington, thus reducing the potential for immediate racial identification of the formerly black schools. The NCCPBE majority believes the major weakness of Plan W to be that instead of the entire student community, only certain geographic areas actively participate and then for a varying number of years. It is claimed that a plan which fails to reassign children from certain predominantly white districts and reassigns children from other predominantly white districts for as many as seven years will promote bitterness and confusion. Arguably, rather than a likelihood of success, such a plan creates the distinct possibility of resegregation by permitting easy methods by which to withdraw one’s participation. An additional criticism of Plan W is that its complex pairing and clustering arrangement fails to keep students together during the course of their educations to the same degree possible under the majority plan. Groups are splintered at the elementary level and feeder patterns are broken due to the attempt to provide a high school education in Wilmington for any Wilmington child who had been assigned outside that district for nine years. The plan’s method of provision for high school education in Wilmington is also problematic. Anticipated use of the present Wilmington and P.S. duPont High Schools is predicated on a concept of regionalization which does not appear feasible. Drawing a two mile zone around each high school, Plan W’s adherents hypothesize that the area would encompass sufficient numbers of white and black students who would be within walking distance of the school. Superficially attractive, this attempt to regionalize breaks down when evidence is credited that safety hazards along the two mile route prohibit walk-ins to any significant extent. Furthermore, the two mile circles come within one-half mile of other high schools so that students within actual walking distance of much closer high schools would be assigned to high school in Wilmington. The foregoing enumerated weaknesses and serious reservations regarding the feasibility of Plan W indicate it should not be afforded further consideration. Finally, the Court also has before it the Pupil Assignment Committee’s feasibility study which indicates that a 9-3 concept incorporating total student involvement and retention of feeder patterns is possible. Treating all children in the desegregation area equally, the report demonstrates the use of three year consecutive grade reassignments for students living in predominantly white districts, and nine year reassignments for students in the predominantly black districts. In addition to minimizing the disproportionate impact on the aggrieved class, a 9-3 concept provides ready opportunity to offer high school grades 10-12 in Wilmington and/or DeLaWarr, utilizing the available high school facilities in those locations to the extent such use is educationally desirable. Among the several illustrations generated by the Pupil Assignment Committee, the “G” configuration appears superior. The G illustration retains a tight feeder pattern and provides a full grade span in the predominantly black Wilmington district, thus including use of at least one of the Wilmington high schools as a high school. Under the G illustration, when the Wilmington children are assigned back to the city for three years, they necessarily attend a school close to their homes. This feature, apparently afforded children from predominantly white districts under the 10-2 plan, simply ought to be preserved as much as possible. The use of geocodes also permits the possible high school use of both Wilmington high schools should the NCCPBE decide such use to be educationally satisfactory. Further, the increased flexibility under G permits easy modification in the future should adjustments be necessary or desirable. Where the educational patterns of thousands of children are involved, a flexible approach is advantageous; G appears to be such a plan. Apart from the question of capacity, neither the New Board nor defendants State Board and intervening districts have advanced any reasons why a 9-3 concept ought not to be successfully implemented in the desegregation area. Nor has it been shown that if a capacity problem of minor dimension exists, a slight departure from 9- 3 is sufficiently deleterious to justify a wholesale embracing of 10-2. Thus the issue before the Court is whether the evidence demonstrates sufficient capacity in Wilmington and DeLaWarr to render feasible a 9-3 plan. It is important to realize at the outset that unlike the affected areas in other reported desegregation cases Northern New Castle County contains no dearth of school spaces. To the contrary, declining enrollments have resulted in a surplus of seats in all districts such that absent any desegregation order the need to consider closing some schools is abundantly evident. Under the 10- 2 assignment plan, severe underutilization of city schools identified the Wilmington schools as ready targets for closing. Under a 9-3 assignment plan, most if not all of the Wilmington and DeLaWarr schools are actively utilized and would probably remain open. In contrast to the devastating impact of the 10-2 plan on the degree of utilization of schools in the predominantly black districts, however, the 9-3 concept contemplates only minor adjustments in the use of the schools in the predominantly white districts, reducing their utilization from a current figure of 70% to 67%. Against this background, some have argued that any plan ought to proceed by closing schools first and assigning students to the remaining open schools. Because the paramount goal sought is