Full opinion text
OPINION MURRAY M. SCHWARTZ, District Judge. This opinion treats a distinct phase of this protracted desegregation litigation. The Court must pass upon the merits of a school district reorganization adopted pursuant to state legislation that would divide a single court-created school district into four independent school districts. During the latter part of June, 1980, the Delaware Legislature passed Senate Bill No. 593 relating to reorganization, governance and taxation of the public school system within the geographical desegregation area. Senate Bill 593 (“S.B. 593”) authorized the defendant State Board of Education (“State Board”) to implement the statutory objectives by formulation of a Plan or Rules and Regulations. Pursuant to that statutory authority, the State Board on November 20,1980, promulgated regulations dividing the geographic desegregation area into four school districts governed by separate boards of education and addressing matters germane to the desegregation process, notably pupil assignment and ancillary relief. Defendant State Board now moves for modification of this Court’s prior remedial decree “to permit implementation of the Reorganization.” (Doc. No. 956). Plaintiffs, believing the plan will cause irreversible harm to the desegregation process, oppose the State Board’s motion. The Court concludes that division of the desegregation area into the four proposed independent districts would not, in itself, imperil desegregation. The reorganization proposal cannot be approved, however, unless legislation is passed codifying the power of the State Board to enforce the pupil assignment requirements incorporated in the State Board’s Regulations. Rather than deny the State Board’s motion, an interim order will be entered granting state authorities 60 days to adopt appropriate curative legislation. This solution is intended to accommodate the avowed preference of the State Board and the State of Delaware for smaller school districts, while foreclosing the potential for federal judicial intrusion into matters of educational policy that are properly the concern of state authorities. The history of this litigation has been detailed elsewhere, and will not be repeated except insofar as is essential to an understanding of the issues presented by the State Board’s motion. Pertinent factual details and findings will supplement the discussion on the merits. This Opinion shall constitute the Court’s Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. I. BACKGROUND A. Prior Proceedings The United States Supreme Court summarily affirmed my predecessor three-judge district court in its findings of an unconstitutional dual school system and vestige effects of de jure segregation in the former Wilmington school district and ten suburban districts in Northern New Castle County. 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975). Following that decision, the three-judge court concluded after an evidentiary hearing that an inter-district remedy was necessary. It rejected all proffered plans and, in recognition of the administrative burdens that would arise were an inter-district remedy to be imposed upon an eleven district school system, ordered the State Board to reorganize or consolidate the eleven school districts as an essential part of any plan to effectuate the constitutionally required transition to a racially nondiscriminatory school system. 416 F.Supp. 328, 350 (D.Del.1976), aff’d, 555 F.2d 373, (3d Cir.), cert. denied, 434 U.S. 800, 98 S.Ct. 235, 54 L.Ed.2d 160 (1977). Having placed the responsibility for devising an inter-district plan for desegregation and reorganization or consolidation upon the State Board, my predecessor court also anticipated the state authorities’ failure to have an acceptable plan operational by September, 1977. The court held that, in default of an adequate state plan, there would be a single school district for the desegregation area, which then comprised over 50% of Delaware’s public school children. At the same time, it noted that the required change, although initially setting up a large district, is not only subject to appropriate subdivision for local control over issues of policy in particular schools, or local initiative with regard to curriculum, etc., but is also subject to redivision into smaller governmental units by action of the State, so long as such subdivision does not result in the frustration of the desegregation objective. 416 F.Supp. at 352-53 (footnote omitted). The United States Court of Appeals for the Third Circuit affirmed the three-judge court order with minor modification. 555 F.2d 373 (3d Cir. 1977). State authorities demonstrated continued unwillingness to discharge their responsibilities by responding to the Court’s call for a desegregation plan with legislation permitting unrestricted voluntary transfer and a woefully inadequate “reverse volunteerism” pupil assignment plan adopted by the State Board. Rejecting the unsatisfactory proposáis, this Court directed the parties to proceed with planning for the single district. At the same time a partial stay of implementation of the single district was ordered until the Supreme Court should act upon a petition for a writ of certiorari to review the affirmance by the Third Circuit Court of Appeals of the three-judge court’s primary remedial decree. 435 F.Supp. 832 (D.Del.1977). Faced with the state authorities’ adamant and prolonged refusal to discharge their responsibilities, this Court, after an evidentiary hearing, issued a secondary remedial decree on January 9, 1978. That decree: (1) reorganized the eleven component districts of the desegregation area into one district; (2) addressed pupil assignment by requiring all students to attend schools in the former predominantly white districts for nine years and schools in the former predominantly black districts for three consecutive years (“9-3” plan), and requiring that a full 1-12 grade span be maintained within the City of Wilmington and that, at a minimum, one of the three former predominantly black high schools be utilized as a 10-12 grade center; and (3) provided for ancillary remedial relief. 447 F.Supp. 982 (D.Del.), aff’d, 582 F.2d 750 (3d Cir. 1978), cert. denied, 446 U.S. 923, 100 S.Ct. 1862, 64 L.Ed.2d 278 (1980). Following issuance of the secondary remedial decree, the Delaware Legislature, in February 1978, approved a four-district reorganization for the desegregation area. Unhappily, it was too little, too late. It failed to provide for pupil assignment or to assign responsibility for enforcement of the pupil assignment plan contained within the secondary remedial decree. Further, the 1978 legislation failed to address or implement ancillary relief and allocation of costs. For these and other reasons the Court enjoined implementation of the 1978 four-district plan. 447 F.Supp. 1041 (D.Del.1978). Significantly, no appeal was taken. On or about July 1, 1978, full operating authority was transferred from the eleven component districts to the newly created governance unit, the New Castle County Board of Education (“NCCBE”) for the reorganized single school district, the New Castle County School District (“NCCSD”). In accordance with this Court’s order, the five members of the newly created governance unit were selected by defendant State Board from the membership of the then-existing eleven component district boards. See 555 F.2d 373, 381 (3d Cir. 1977); Doc. No. 530. The NCCBE implemented the court ordered pupil assignment plan by creation of four Attendance Areas. In three of the areas a group of former predominantly white districts were paired with a portion of the predominantly black Wilmington district, while in the fourth area a predominantly white district was combined with a predominantly black district. In addition, school authorities, by agreement, assigned to Area II responsibility for bilingual education of eligible Hispanic children. This agreement was incorporated in this Court’s January 9, 1978, Order. (Doc. No. 699, p. 10). Since September 1978, public school children in the desegregation area have attended schools in the single, court-created district described above. On April 28, 1980, the Supreme Court of the United States denied certiorari petitions filed in October, 1978, requesting review of the secondary remedial decree as affirmed. On July 8, 1980, the Governor of the State of Delaware signed into law S.B. 593. B. Current Proceedings The State Board considered S.B. 593 to be a legislative mandate to reorganize and change the method of governance of the desegregation area's single district. Tr. B 19 (Grossman). In the fall of 1980 the State Board authorized research, planning and public hearings out of which developed a plan for reorganization. In November, Regulations embodying this plan were approved in the form in which they were initially presented to the Court. (P-4D81, Ex. 19). All litigants believe, probably correctly, that the enabling section of S.B. 593 and the pertinent aspects of the Regulations, coupled with other state statutes, cause the State Board's reorganization authority to expire if the reorganization is not accomplished and operational by August 31,1981. Nonetheless, although S.B. 593 was signed into law in early July, the State Board did not approve final Regulations until November 20, 1980. As a consequence, the Regulations contain a necessary, but exceedingly difficult, time line that makes no allowance for litigation. On November 21, 1980, defendant State Board filed the instant motion. At the conclusion of two separate hearings on December 3, 1980, it was determined that the parties would endeavor to obtain an opinion of the Justices of the Supreme Court of Delaware on specified Delaware constitutional and statutory questions while simultaneously proceeding with discovery on the federal issues which was to be terminated by December 31, 1980. The Delaware Supreme Court responded to the Governor’s request for an advisory opinion on the state law questions by setting an expedited briefing and argument schedule. On December 29, 1980, that Court issued an en banc opinion to the Governor concluding that the legislation was consistent with the Delaware constitution. Opinion of the Justices, 425 A.2d 604 (Del.1980). While such an opinion is advisory, “is non-judicial and does not result in binding precedent,” Opinion of the Justices, 424 A.2d 663, 664 (Del.1980), plaintiffs wisely refrain from further urging those State law issues. Because resources were focused on the Delaware Supreme Court proceedings, the Court extended discovery until January 23, 1981, and ordered preliminary proposed findings of fact to be filed by plaintiffs and defendants on January 27 and January 30, 1981, respectively. (Doc. No. 969). Trial was scheduled to begin on February 4,1981. (Doc. No. 970). Meanwhile, in accordance with the State Board’s necessarily tight time line, four interim school boards were elected January 31, 1981. At the February 4 hearing, the State Board made known its intention to swear the newly elected school board members into office the next day. As a consequence, the Court entered an order adding as parties defendant the four interim boards and their individual members in their official capacities. The Court then continued the hearing until February 9, 1981, so that the additional defendants might appear through counsel. (Doc. No. 997). The hearing resumed on February 9, 1981. Proposed Districts 1, 2 and 4 ultimately elected to be separately represented, while District 3 chose to appear through special counsel for the State Board. Counsel for the District Boards declined to apply for a continuance beyond the time needed to arrange representation. Tr. C 7-9, D 1. The hearing on the merits occupied the greater part of two weeks and was completed on February 23. On March 5, the Court, on its own motion, reopened the record for admission of additional facts developed in the interim by a Pupil Assignment and School Closing Committee established during the course of the hearings. (Doc. No. 1009). When all parties had decided not to present additional evidence, the record was again closed. Expedited briefing encompassing a 2000 page trial transcript and over 90 exhibits was completed on March 23 and oral argument held on March 25, followed by supplemental letter briefing completed on April 1. C. The Proposed Four-District Plan The legislature, in S.B. 593, gave the State Board authority to propose and implement a reorganization. It also restructured school board election procedures and taxation, established guidelines for employment of staff, and provided for transfer of property and financial obligations from the NCCSD to any new districts the State Board chose to create. Division of the single district as well as governance, pupil assignment and operational decisions fell to the discretion of the State Board. Testimony and argument have focused primarily on a few aspects of the Regulations. These challenged elements of the plan are described below, with brief allusion, as needed, to other features of the Regulations. The reorganization plan adopted by the State Board would replace the present New Castle County School District with four autonomous school districts and corresponding school boards. Pursuant to statute, the State Board has set July 1,1981, as the date for the dissolution of the NCCSD and its board and the assumption of authority by the four new boards of education. 14 Del. C.Ann. §§ 1028(k)(13) & 1066 (Michie Supp.1980). Each of the new boards will possess the powers traditionally exercised by local school boards in Delaware. The legislation sets an initial uniform tax rate to be levied by each of the districts to cover their current operating expenses and debt service, but authorizes each district to vary its current operating expense tax rate by referendum. 14 Del. C.Ann. § 1925 (Michie Supp. 1980). In addition, each board is empowered to set its own tax rates for tuition and minor capital improvements. 14 Del.C.Ann. § 1028(k)(10) (Michie Supp.1980). Geographically, the four proposed districts closely resemble the NCCSD’s Attendance Areas. Four changes in the Attendance Area boundaries were made by school authorities, however, primarily for the purposes of maintaining racial balance and, to a lesser extent, narrowing differentials in assessed property valuation per pupil among the four proposed districts. It was hoped by the State Board that general adherence to the Attendance Area boundaries would prevent the major upheavals in pupil assignment that would be occasioned by full-scale redistricting without reference to current attendance patterns. Tr. B 19 (Grossman). Districts 1, 2 and 4 are each a consolidation of some of the pre-1978 decree suburban districts paired with a section of Wilmington. District 3 is the former Newark district paired with a non-contiguous portion of Wilmington. In terms of gross student population, the black/white ratios are relatively similar among districts. Assessed property valuation per pupil varies substantially, however, as does the size of each district’s total student population. Rather than develop a new pupil assignment plan, the State Board embraced in toto the pupil assignment criteria tailored to the single district in effect since the 1978 secondary remedial decree. Under the Regulations, each new district must prepare a pupil assignment plan in conformity with the Court Order of January 9, 1978; relevant provisions of the Order are incorporated as “the rule of the State Board.” (S.B. Regs. § VI, B; P-4D81, Ex. 19 at 41). Thus, each district must implement a 9-3 assignment plan; a full 1-12 grade span must be maintained in Wilmington and at least one of the three former minority high schools must house grades 10-12; in addition a bilingual program for eligible Hispanic students must be provided. As will appear in detail below, the last three requirements present some difficulty. While the State Board’s “rule” requires maintenance of a full grade span in Wilmington and utilization of a high' school, no particular district or other entity has the assigned responsibility for ensuring implementation of this command. As in the Order, the Regulations assign responsibility for the Bilingual Program to proposed District 2. The Regulations also purport to provide for transfer of bilingual students residing outside District 2 into that district. The Regulations also adopt and incorporate those aspects of the Court’s January 9, 1978, Order pertaining to ancillary relief. (S.B.Regs. § VII; P-4D81, Ex. 19 at 42-43). This by no means comprehensive description of the State Board’s four-district reorganization portrays the geographical structures and black-letter rules of administration that have been proposed, but the full implications of the motion to modify are not grasped by simple contemplation of the Regulations. In its true character, the reorganization is not a set of rules passively awaiting court validation; it is a process occurring now and consuming the energies of diverse governmental groups and school personnel. Many of these people wear two hats — for example, as members of the interim district boards and of the NCCBE. Administrators’ prospects are unclear, and their loyalties divided, yet their duties are doubled, for they must prepare to run the school system in the fall no matter what the decision of this Court. The complexity of current administrative relationships highlights another important aspect of the reorganization: It is a beginning of the process of shifting power from a court-created entity back to where it belongs — with appropriate state authorities. This long awaited process must be permitted to go forward if at all possible. The proper judicial concerns are two: Are the plaintiffs’ unchallenged and hard-won rights in danger of being lost in the reorganization shuffle? If so, how can these rights be protected without federal intrusion upon the prerogatives of the state? Keeping these concerns in mind, attention is turned to plaintiffs’ contentions. II. PLAINTIFFS’ OBJECTIONS TO THE REORGANIZATION PLAN Plaintiffs have mounted a two-pronged attack on the State Board’s four-district plan. First, they argue that the State Board drew the proposed district boundaries with the racially biased motive of “protecting identifiably white interests at the expense of the black victims of the underlying constitutional violation.” Second, plaintiffs contend that implementation of the plan of reorganization would impede the constitutionally required transition to a racially nondiscriminatory school system. A. The Plan Violates Plaintiffs’ Constitutional Rights In making the claim that the proposed four-district plan is the product of racially discriminatory motivation, plaintiffs argue that the Court must assess the plan against the backdrop of past acts of official discrimination that are the recorded history of this case and the past defaults of the State Board in taking the constitutionally and judicially required affirmative action to dismantle the dual school system. According to plaintiffs the boundary lines of the four-district plan that was enjoined by the Court in 1978 and the boundary lines of the Attendance Areas of the New Castle County School District were the knowing products of racial bias. On the basis of the similarities between the proposed district lines and the boundary lines of the 1978 plan and of the New Castle County School District’s attendance zones, as well as perceived substantive and procedural “anomalies,” plaintiffs would have the Court draw the inference that the plan is infected with racial bias. The crux of plaintiffs’ objections to the three schemes is that each in some manner divided up the predominantly black former Wilmington School District, while preserving substantially intact the predominantly white former suburban school districts. Preservation of the suburban districts intact allegedly protected the interests of their predominantly white populations, while Wilmington was forced to pay the price of reorganization because it was the source of the desegregation “problem.” Other aspects of the plan advanced as evidence of racial animus include: 1) the imposition of four separate tax rates on the City of Wilmington; 2) the creation of one district out of a section of Wilmington and the non-contiguous, overwhelmingly white former Newark School District; 3) boundary drafting decisions claimed to impose a disproportionate burden of dislocation on Wilmington children; and 4) the differential in student population size and assessed valuation per pupil among the four districts. These “anomalies,” according to plaintiffs, are further evidence of the bias in favor of protecting identifiably white suburban interests. Finally, plaintiffs argue that the nominating districts and election procedures of the proposed district were drafted in a manner that may minimize black representation on the school boards. They conclude that the Court must reject the plan because the State Board has failed to produce any evidence that the boundary lines would have been the same had “official racial discrimination ... played no part in the State Board’s reorganization decision.” B. The Reorganization Plan Impedes Desegregation Plaintiffs argue that the proposed reorganization must be rejected because it will impede the as yet uncompleted transition to a racially nondiscriminatory school system and the elimination of the vestiges of de jure segregation. They attribute difficulties in the desegregation process to state and local district officials’ indifference to the need to eradicate the vestiges of discrimination and to a disregard for the substance and spirit of the Court’s desegregation order. Official default in the face of the constitutional obligation continues, plaintiffs argue, and it infects the present proposal. Plaintiffs cite critical omissions from the plan as impediments to effective continuation of the desegregation process. They point out that while the New Castle County Board of Education has before it a comprehensive school closing and pupil assignment proposal (P-4D81, Ex. 21A), no such proposal is included in the four-district plan. Moreover, assuming school closings were to be undertaken by boards of the proposed four districts, there is no plan ready to insure that faculty and staff will be assigned so as to eliminate schools that are racially identifiable by personnel. Another flaw identified by plaintiffs is the absence of mechanisms for resolving disputes among the four districts regarding pupil assignment and allotting responsibility for maintaining the grade spans and educational facilities in Wilmington required by the Court Order and the Regulations. Finally, plaintiffs argue that the plan will impede desegregation because it fails to address such alleged problems as continuing segregation in classrooms and disproportionate discipline of blacks. III. ANALYTIC FRAMEWORK The State Board’s motion raises novel and difficult questions relating to the legal standards to be applied when a party defendant in a school desegregation case, after a long history of default, seeks to persuade, the Court that it is prepared to take up its duty to provide a racially non-discriminatory school system. This case is especially unusual because the State Board has not presented a comprehensive plan of desegregation to the Court, but seeks approval of a plan of reorganization that would incorporate in toto the pupil assignment and in large measure other remedial aspects of a court decree that has now been in effect for nearly three years. This section will describe the legal standards by which the Court has determined the State Board’s motion should be judged. A. The State Board’s request for permission to implement its plan of reorganization calls upon the Court to exercise its well established discretionary power, codified in Rule 60(b)(5) of the Federal Rules of Civil Procedure, to modify or vacate an equitable decree “if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen.” System Federation v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 371, 5 L.Ed.2d 349 (1961). See United States v. United Shoe Corp., 391 U.S. 244, 248-49, 88 S.Ct. 1496, 1499, 1500, 20 L.Ed.2d 562 (1968); United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462-63, 76 L.Ed. 999 (1932). This power to modify a decree applies equally well to school desegregation eases. See Pasadena City Board of Education v. Spangler, 427 U.S. 424, 437, 96 S.Ct. 2697, 2705, 49 L.Ed.2d 599 (1976). Because an injunctive decree does not create any vested rights in the party in whose favor the decree was entered, but is a remedy designed to vindicate a right, the court, upon a proper showing, may modify or vacate a decree over the objection of the protected party. The proper exercise of discretion in cases of this nature has been characterized in a number of ways. A court may be duty bound to modify a decree at the request of a plaintiff who demonstrates that the decree has not been effective in achieving the relief to which the plaintiff was entitled. United States v. United Shoe Corp., supra, 391 U.S. at 251, 88 S.Ct. at 1500. Conversely, a defendant may not be relieved of burdens imposed by a decree unless the relief the decree was intended to effect has been fully accomplished. United States v. Swift & Co., supra, 286 U.S. at 119, 52 S.Ct. at 464. However characterized, these cases reflect the principle that the prevailing party is entitled to a decree that will fully vindicate the rights recognized in the judgment. In considering when modification is appropriate, the courts have imposed substantial burdens upon defendants seeking relief from obligations under an equitable decree. It has been said that the defendant must make “a clear showing of grievous wrong evoked by new and unforeseen conditions,” id. at 119, 52 S.Ct. at 464, or that the defendant “must bear a heavy ' burden” of showing that changed circumstances have eliminated the dangers the decree was designed to correct and that, absent such relief, extreme and unexpected hardship will result. Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977). This case is not, however, one of court imposed restraints on a private corporation or individual, but rather involves extraordinary judicial involvement in the selection of a system of organization and governance for the public schools of Northern New Castle County. It is axiomatic that state and local authorities are responsible for running public school systems. This Court decreed a single district school system only after state authorities abdicated their responsibility to come forward with a plan of reorganization compatible with the mandate to eliminate the dual school system and the vestige effects of de jure segregation. In effect the State Board now argues that there has been a change in the material facts upon which the Court relied in ordering the implementation of a single district school system — the change being that the State Board has at last proposed a plan of reorganization that is compatible with the constitutionally required process of desegregation. The Court’s concern for the important values of local control of the public schools requires that it give special consideration to a proposed modification of its decree when it appears that local authorities may be prepared to assume responsibility where in the past they have defaulted. Therefore, in considering the proposed modification of the desegregation decree, it is necessary to balance the right of local authorities to run public schools against standards commonly applied to motions for modification of an injunctive decree. The broad discretion that may exist in other cases to reject a defendant’s request for relief from a decree cannot be permitted in a school desegregation context. Instead, the State Board’s motion must be judged by a very simple test: Will the proposed modification in the system of organization of the public schools permit the effective continuance of the transition to a unitary school system and the elimination of the vestiges of de jure segregation? If the evidence adduced by the State Board persuades the Court that the answer is yes, then the Court will be obliged to permit the State Board to implement its chosen system of reorganization and governance for the public schools of Northern New Castle County. In placing on the State Board the burden of persuading the Court that the proposed reorganization is compatible with the desegregation process, the Court is not unmindful of its duty to accord legislative enactments “a presumption of regularity and constitutionality.” Evans v. Buchanan, 582 F.2d at 779. Accordingly, the Court will presume that it was drafted without intent to impede desegregation and will be applied in a manner consonant with desegregation. However, presuming the good faith of state authorities in drafting and implementing the plan does not resolve the question before the Court. To the extent that reorganization is an essential element of a desegregation remedy in Northern New Castle County, this Court must determine whether the reorganization plan proposed by the State Board is one which, irrespective of intent, will have the effect of continuing the desegregation process. To presume that the General Assembly and the State Board acted in good faith does not relieve the State Board of its burden of establishing that the desegregation decree, if modified to permit the proposed reorganization, will remain a meaningful remedy. Since the State Board has not yet succeeded in establishing a unitary school system, its conduct must be measured by “the effectiveness, not the purpose, of [its] actions in decreasing or increasing the segregation caused by the dual system.” Dayton Board of Education v. Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979) (citations omitted). Finally, it is important to bear in mind just what modification in the decree is sought. The State Board requests modification only to the extent necessary to permit implementation of a four-district reorganization scheme. The State Board neither questions the plaintiffs’ right to, nor the need for, those elements of the decree assignment plan, the maintenance of certain grade structures and educational facilities in Wilmington, and the ancillary relief and bilingual programs. Unless and until the Court has been persuaded that changed circumstances warrant modification or vacation of those elements of the decree, plaintiffs are entitled to have the decree completely and vigorously enforced. Therefore, before authorizing implementation of the reorganization plan, the Court must determine that it would not endanger those elements of the decree that are unchallenged and remain intact. B. Plaintiffs claim that the plan must also be rejected because it constitutes a fresh violation of their rights under the fourteenth amendment’s equal protection clause. The essence of this claim is that the authors of the reorganization plan drew the boundary lines of the four proposed districts with the purpose and effect of promoting perceived white suburban interests and disadvantaging the interests of black Wilmington residents. It is important to note that this claim is analytically distinct from plaintiffs’ argument that implementation of the reorganization plan will impede desegregation. If, for example, the State Board were to establish that the plan would not impede desegregation, plaintiffs could nonetheless prevail by proving that the inevitable disruptive effects of reorganization will bear most heavily on black Wilmington residents, and that such a disproportionate impact was one of the motivating factors of the drafters in adopting this particular reorganization plan and its attendant boundaries. That is, the plan must be held constitutionally infirm if plaintiffs prove both that it will have a racially disproportionate impact and that it was adopted with a racially discriminatory purpose. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 562-63, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). I will first address plaintiffs’ constitutional claim and then determine whether the reorganization plan is compatible with desegregation. IV. PLAINTIFFS’ CONSTITUTIONAL CLAIM Plaintiffs’ constitutional challenge to the four-district plan raises the claim that the boundaries of the proposed districts were drawn in a manner intended to protect identifiably white interests and to disadvantage the black victims of the underlying constitutional violation. According to plaintiffs, the State Board manipulated the neutral criteria of establishing school districts with reasonably similar student populations, racial ratios, and taxable wealth per pupil so as to further the racially discriminatory purpose of dividing Wilmington, while retaining whole suburban districts intact. Resolution of plaintiffs’ claim requires the Court first to determine whether the proposed reorganization both has a disproportionate adverse effect on blacks and then to consider whether the plan was the product of a racially discriminatory purpose. A. Adverse Impact Although implementation of the four-district plan will not have an immediate effect on the day-to-day lives of most Wilmington school children, it may fairly be said that creation of four autonomous school districts will adversely affect the black community in Wilmington. The most significant effect on Wilmington will be the parceling out of the city among four independent political units, whereas in the past Wilmington was either a single political unit, or included undivided in the New Castle County School District. Thus, to the extent that predominantly black interests in Wilmington have succeeded in developing political power and influence in the single district, they would, after reorganization, need to rechannel that power and influence in four different directions. Such a realignment of black political forces would cause significant disruption and probably a net diminution of the ability of the black community to affect decisions regarding the administration of schools in New Castle County. In addition, it appears that there is a much'higher rate of intra-district school transfers among Wilmington students than among suburban students. Therefore, if the four districts should develop different curricula and disciplinary standards, Wilmington students whose intracity housing changes mean a move into a different school district may face significant adjustment problems that they would not face in a single district system. B. Discriminatory Purpose In Village of Arlington Heights v. Metropolitan Housing Development Corp., the Supreme Court identified some of the kinds of evidence that may be probative of discriminatory purpose. These include (1) the disproportionate impact of the enactment; (2) “[t]he historical background of the decision ..., particularly if it reveals a series of official actions taken for invidious purposes”; (3) the specific series of events leading up to the decision, including departures from normal procedural sequences; and (4) any available legislative or administrative history. See 429 U.S. at 266-68, 97 S.Ct. at 563-65. I will examine such of these evidentiary sources as are in the record and determine whether plaintiffs have met their burden of establishing discriminatory purpose. The legislation authorizing the proposed reorganization reflected the Delaware General Assembly’s “overriding and explicit concern ‘to preserve the historic concept of semi-autonomous locally controlled school districts throughout the State’ and ‘to continue the statewide process of reorganization of school districts.’ ” Opinion of the Justices, 425 A.2d 604, 607 (Del.1980). Nothing in the record indicates that the boundaries adopted pursuant to that legislation are simply a pretext for racial discrimination. In Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), the Supreme Court concluded that a Massachusetts law that gave a preference in public employment to veterans was not a pretext for gender-based discrimination against women because the law served the “legitimate and worthy” purpose of benefiting veterans and because it also disadvantaged a considerable number of men. See 442 U.S. at 274-75, 99 S.Ct. at 2293. Similar evidence in this case warrants the conclusion that the division of Wilmington was not a pretext for discriminating against blacks. First, the decision to divide Wilmington was for the legitimate purpose of creating racially balanced districts that would be consistent with the continuing transition to a unitary school system. Counsel for plaintiffs conceded at oral argument both that the State has the right to create multiple districts out of the present single district and that any such reorganization could not be accomplished without some division of Wilmington. Tr. N 139-41. Second, the decision not to divide the former suburban districts was premised, at least in part, on the State Board’s judgment that it would minimize the disruption to students inherent in both desegregation and reorganization. Tr. B 60 (Grossman). The proposed boundaries would further the legitimate state purpose of minimizing disruption to students while creating school systems compatible with desegregation. Finally, a reorganization plan which does not divide former suburban districts would benefit blacks and disadvantage whites in not insignificant numbers. Approximately 14% of the public school students in Wilmington are white, while one formerly predominantly black district — DeLaWarr— benefited from the policy decision to split up only the former Wilmington district. In view of these facts, there is no basis for concluding that the boundary configurations adopted by the State are merely a pretext for discriminating against blacks. Since the decision to divide Wilmington while preserving the suburban districts intact was not a pretext for racial discrimination, the issue is whether plaintiffs have shown that a racially-based “discriminatory purpose has, at least in some measure, shaped” the drawing of the boundary lines. The heart of plaintiffs’ claim that a racially discriminatory purpose was a motivating factor in the selection of the boundary lines is found in the argument that the present plan incorporates and perpetuates the racially discriminatory boundaries of the State Board’s 1978 four-district plan and the NCCBE’s attendance areas. Assuming that preparation of those past plans was motivated by racially discriminatory considerations, adoption now of a substantially similar plan would be probative of a claim that the present plan was adopted with a racially discriminatory purpose. See Arlington Heights, supra, 429 U.S. at 267, 97 S.Ct. at 564. This Court, however, has never held that any boundary proposals of the State Board or the NCCBE were the product of invidious racial considerations, nor has it held that a plan that incorporates whole suburban districts is patently discriminatory. Therefore, the similarity of this plan to past boundary proposals, standing alone, is of no probative value. The past reorganization efforts of the State Board are, however, material in that they reveal a consistent policy of the State Board that any school district reorganization in the desegregation area should seek to avoid the division of any former suburban districts. All plans seriously considered by the State Board, including the 1978 four-district plan enjoined by the Court, were prepared on the principle that any new school districts should be created by consolidating a portion of Wilmington with some combination of former suburban districts. No serious consideration was ever given to a reorganization that would create new school districts without regard to any of the former district lines. The NCCBE apparently followed the same policy when it drew the boundary lines of the four present Attendance Areas which formed the starting point for the present four-district plan. Finally, in the development of the present plan, it is clear that the only type of reorganization considered was one that would substantially incorporate the Attendance Area lines as district boundaries. The question before the Court is not whether the present redistricting plan is racially discriminatory because it is substantially similar to past plans. Rather, the Court must decide whether the policy of the State Board that any reorganization of the desegregation area should divide Wilmington while preserving whole former suburban districts intact, as applied in this case, is racially discriminatory. More specifically, the question is whether such a policy reflects a racially discriminatory purpose that was a motivating factor in the creation of this four-district plan. This Court is unwilling to conclude that proof that the State Board sought to retain suburban districts intact, and proof that those suburban districts are overwhelmingly white, establishes a racially discriminatory purpose. Testimony established several reasons behind the policy of retaining the suburban districts intact. The primary reason was a desire to retain intact as much as possible communities that had developed around certain schools. Preliminary efforts at reorganization also revealed substantial practical problems in devising a reorganization plan that would have completely disregarded the boundary lines of the former suburban districts. Finally, past reorganizations of Delaware school systems had traditionally been achieved by consolidating whole districts. Against these considerations must be contrasted the unchallenged conclusion of the State Board that if the NCCSD were to be reorganized into multiple districts in a manner that would be consistent with the desegregation process the former Wilmington district, home of the plaintiff class, would somehow have to be apportioned among the newly created districts. It is undeniable that if students are benefited by not having their former school districts divided among new autonomous school districts, it is white suburban students who have disproportionately benefited from the reorganization. The evidence, however, indicates that only the suburban districts were preserved intact because responsible officials reasonably concluded that only the suburban districts could avoid dismemberment in a reorganization plan that would be consistent with the requirements of desegregation. Plaintiffs have pointed to no evidence which demonstrates that the State Board divided Wilmington because its students are predominantly black nor to any evidence which • demonstrates that the former suburban districts were preserved intact because its students are predominantly white. Discriminatory purpose is not established simply because the State Board knew, or should have known, that black Wilmington residents would bear disproportionate adverse effects of the reorganization. Rather, discriminatory purpose “implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Feeney, supra, 442 U.S. at 279, 99 S.Ct. at 2296. Here the record indicates that the reorganization was prompted by a considered and legitimate state objective of reducing the Court-created school district to a size that would be more easily manageable and more responsive to the concerns of parents and of taxpayers. In so doing, the State Board responded to the repeated invitations of the federal courts to reorganize the New Castle County schools in a manner consistent with the goals and needs of desegregation. I decline to conclude that adherence to a policy of avoiding division of former suburban school districts necessarily reflects an invidious racial purpose. Although the State Board’s consistent policy that any reorganization should avoid splitting up former suburban districts was important, another substantial motivating factor also contributed to the adoption of the proposed boundaries. The State Board, in approaching the task of reorganization, was faced with the fact that four Attendance Areas, created by the NCCBE, were already in place. The testimony of officials of the State Board and the Department of Public Instruction established that the underlying premise of the present reorganization was to avoid disruption to students by adopting the Attendance Area lines as the district boundaries to the extent possible. Thus the process by which the proposed district boundaries were selected was to adopt the Attendance Area lines as district lines, and then to make any adjustments necessary to satisfy the State Board’s criteria that the four resulting districts be racially balanced and have acceptable assessed property values per student. Thus it may fairly be said that the State Board adopted a reorganization plan that would join portions of Wilmington to clusters of former suburban school districts both because it determined such a plan was educationally sound and because the framework for such a reorganization was already in place. I find no basis for concluding that racial discrimination was one of the motivating factors. Plaintiffs also contend that the modifications made in the Attendance Area lines to produce the proposed district lines were racially tainted. Testimony by the administrator primarily responsible for drafting the boundary lines indicated that such modifications were necessary to rectify unacceptable imbalances in the racial ratios and assessed values per pupil of the proposed districts. The effect of these modifications was to place approximately 1900 students in school districts which do not substantially correspond to their present Attendance Areas. Plaintiffs claim that these modifications bore more heavily on black Wilmington interests than on white suburban interests. Initially it should be noted that at least 400 of these 1900 students reside in a predominantly white portion of the former Stanton school district. Assuming that claim is true, however, plaintiffs have been unable to point to any evidence which would indicate that racial discrimination was one of the motivating factors in adopting the particular modifications. Indeed, plaintiffs would shift to the State Board the burden of establishing that the modifications were not racially discriminatory because of “the racially tainted genesis of the basic boundaries for the proposed four districts....” However, because plaintiffs have failed to establish that adoption of the Attendance Area lines as district boundary lines was racially tainted, their claim that the modifications were also discriminatory must fail. On this record, the Court concludes that the modifications in the boundary lines were adopted as a practical and efficient means of attaining racially balanced districts, a permissible State Board objective. Past constitutional violations of the State Board and its default in the face of its duty to dismantle the dual school system are relevant considerations in deciding whether the present plan was adopted with an invidious purpose. See Arlington Heights, supra, 429 U.S. at 267, 97 S.Ct. at 564. Those past wrongs, however, do not permit the Court to presume that all subsequent actions of the State Board are unconstitutionally motivated. Cf. Evans v. Buchanan, 582 F.2d at 774-80. There is neither direct evidence in the record that the reorganization plan was the product of a discriminatory animus, nor are the State Board’s past misdeeds adequate circumstantial evidence upon which to find the reorganization plan unconstitutional. Similarly inadequate is the other circumstantial evidence upon which plaintiffs rely in support of their claim that boundary lines were drawn with a discriminatory purpose. Plaintiffs point for example to the fact that the proposed reorganization contains no plan for school closings or for reassigning faculty and staff on a racially integrated basis. The Court agrees that there is evidence of a need for a comprehensive school closing plan and that some schools are racially identifiable by reason of staff assignments. The Court, however, cannot infer an invidious racial purpose from the fact that the reorganization plan does not address all of the problems that exist now in the single district and will still be there if the four districts come into being. Strong action is needed, whomever may be the governing authorities this fall, to close unneeded schools and confront such problems as racially identifiable classrooms and racially disproportionate school suspensions. That such problems exist, however, does not forever tie New Castle County to a single school district. Plaintiffs also point to a number of so-called substantive and procedural “anomalies” in the plan. They argue that the substantial disparities in pupil enrollment and taxable wealth per pupil, for example, support an inference of a racially invidious purpose. The evidence showed, however, that these inequities resulted because creating racially balanced districts and minimizing disruption were the foremost considerations, while enrollment size and taxable wealth were sought to be kept within acceptable ranges. Indeed testimony regarding the process of drawing district lines persuades the Court that it would have been well-nigh impossible to create four racially balanced districts with equal enrollment and Wealth without causing tremendous disruption. The Court also is convinced that creation of a non-contiguous school district, i. e., joining a portion of Wilmington with the area corresponding to the former Newark school district, does not indicate that the plan was the product of racial bias. Although the creation of a disjointed school district is at first startling, this district merely incorporates present student assignment patterns and its adoption minimizes disruption. Finally, plaintiffs have been unable to point to any evidence that the boundaries of the nominating districts within the proposed districts were drawn in a manner intended to minimize representation of the black community. Plaintiffs’ argument is now apparently reduced to a claim that the nominating districts are defective because they are included within school district boundaries that they argue are infected with racial bias. Moreover, the results of January elections to the interim school boards substantially diminish plaintiffs’ claim.- Five of the twenty-three persons elected to interim boards are black and each received more votes than some of the whites elected to the boards. In sum, the evidence does not demonstrate that the reorganization plan was adopted with a racially discriminatory purpose. Plaintiffs have therefore failed to make out a violation of their fourteenth amendment rights. V. COMPATIBILITY OF THE PLAN WITH DESEGREGATION The Court’s primary concern must be the effect implementation of the reorganization plan will have on the ongoing process of desegregation. In order to meet its burden of persuading the Court that implementation of the reorganization plan will not imperil desegregation the State Board must establish two basic facts: First, that the plan will not now, nor in the reasonably foreseeable future, create racially identifiable school districts; and second, because the plan adopts the Court’s pupil assignment scheme, the State Board must show that the Court’s pupil assignment criteria are adaptable to the four-district system. As will be explained in detail below, the Court is satisfied that the reorganization would create four racially non-identifiable school districts, each of which is capable of continuing the 9-3 pupil assignment scheme now in effect. The Court, however, must withhold approval of the plan unless curative legislation is promptly obtained that would give the State Board authority to enforce other aspects of the Court Order that it has adopted and which are necessary to maintain a viable educational system within the former predominantly black Wilmington district. A. The four-district reorganization before the Court is the response of the State Board of Education to the perceived mandate of the General Assembly that the desegregation area be reorganized. The State Board initiated the process by requesting the staff of the State Department of Public Instruction (“DPI”) to prepare a plan of reorganization that would minimize disruption of students by relying on the present boundaries of the NCCSD’s four Attendance Areas, while producing a reasonably equitable distribution of assessable property. Tr. B 19-20 (Grossman); D 13-14 (Nichols). The initial proposal developed by the DPI staff quickly proved unacceptable, however, because it unexpectedly created racially imbalanced districts. Tr. B 21-22 (Grossman); D 15 (Nichols). The State Board then retained a statistician from the University of Delaware, Edward Ratledge, to analyze data relating to present and anticipated student enrollment and to assist the DPI staff in preparing a reorganization proposal that would produce racially balanced districts. Specifically, Ratledge was instructed to determine what boundary changes could be made so that by the 1982-83 school year the percentage of black students in each district would be within 2 percentage points of the anticipated percentage of black students in the four districts combined. In developing a modified four-district proposal, Ratledge and the DPI staff were also directed to seek to limit disruption by minimizing boundary changes, to make sure that each new district would capable of implementing a 9-3 pupil assignment plan, and, to the extent feasible, to minimize differences among the districts in the assessed real estate value per pupil. be Ratledge and the DPI staff then prepared three alternative four-district proposals. Each of them was based upon the Attendance Area lines of the NCCSD, with modifications made in those lines to equalize racial proportions, and to eliminate unacceptable disparities in the assessed valuation per pupil. The State Board adopted so-called Option IV on the DPI’s recommendation that it satisfied the racial balance requirements and minimized disparities in assessed valuation. Option IV, which is incorporated in the Regulations of the State Board, was summarized statistically by DPI as follows: OPTION IV Grade 1-12 Enrollments (Excluding Special Schools) 1979-80 1980-81 1981-82(Proj.) 1982-83(Proj.) Enrollment % Black Enrollment % Black Enrollment % Black Enrollment % Black District 1 13,314 22.1 12,343 24.5 11,948 26.2 11,519 28.1 District 2 15,326 26.6 14,373 27.0 14,129 27.9 13,914 28.5 District 3 15,370 24.0 14,565 24.5 14,681 25.2 14,639 25.8 District 4 10,151 27.9 9,674 28.7 9,796 28.8 9,858 28.9 Total 54,161 25.0 50,955 26.0 50,554 26.9 49,930 27.7 Assessed Value of Real Estate (In Thousands) 1979-80 1980-81 Total Per Pupil Total Per Pupil District 1 $752,381 $52,640 $762,228 $57,483 District 2 $760,387 $46,555 $777,653 $50,592 District 3 $673,362 $40,072 $690,192 $43,116 District 4 $372,635 $33,787 $378,984 $36,066 TOTAL $2,558,765 $43,770 $2,609,057 $47,312 See D-SBE81, Ex. 1 at 4. The new boundaries create four districts, each composed of former suburban school districts and a portion of Wilmington. District 3 — unlike the others and unique in Delaware school-districting history — eomprises two non-contiguous areas separated by some 12 miles. This anomaly resulted from the necessity of pairing the distant and predominantly white Newark district with a predominantly black population to be found only in Wilmington. Tr. B 69-71 (Grossman). In great part, the proposed boundaries correspond to the lines of the NCCSD Attendance Areas. However, the old boundaries were changed in four places for purposes of equalizing racial proportions and assessed valuation per pupil. Three such moves shifted boundaries in Wilmington, while the fourth occurred in the suburbs, placing a small portion of the former predominantly white Stanton School District, all of which is in Area II, into proposed District 4. See Tr. D 19-20 (Nichols); S.B.Regs., § YI, A (P-4D81, Ex. 19 at 40). The statistics demonstrate that school authorities achieved the desired goal; the proposed districts’ student populations should be, at least through 1983, very nearly equal in overall racial composition. Moreover, the evidence indicates that the drafters of the plan determined that each of the proposed districts will be capable of implementing the 9-3 student assignment pattern required by the Court Order. Thus, on its face, the reorganization plan appears to create racially non-identifiable school districts that are as able as the single district to continue the educational policies required to establish a unitary school system. More detailed demographic evidence regarding the four districts came to the Court’s attention as a result of the School Closing Committee’s grade-by-grade analysis of the racial characteristics of the proposed districts. Because the hearing on the four-district plan had by then been completed, the Court sua sponte reopened the record to permit this information to be made part of the record evidence in the current proceedings. The information developed by the School Closing Committee caused the Court some concern because it indicated that the very nearly equal racial balances among the four districts suggested by the State Board’s evidence might have been misleading. Although the Committee did not dispute the validity of the data presented to the State Board, it did analyze the racial composition of the proposed districts on a grade-by-grade basis, information that had never been presented to the State Board. That information reveals significant disparities in the racial composition of the districts when particular grades are examined. In particular, the evidence demonstrated that in the lower elementary grades (grades 1-3) proposed District 1 would have a higher percentage of minority students than any of the other three districts. See CT-4D81, Exs. 1, 2A, 3. The disparity between the anticipated minority enrollments of Districts 1 and 3 in these grades is most significant. The conclusions to be drawn from these figures are that proposed District l’s minority enrollment would increase at a demonstrably faster rate than the other three districts, and, specifically, that District 1 would have elementary grades with significantly larger minority enrollments than Districts 3 and 4. If the disparities in the lower grades develop a trend, then the differences among districts will increase. Within a single school district, flexibility in reassigning pupils could take account of these changes. Indeed, the NCCSD’s work on a new pupil assignment and school closing plan represents an attempt to do just that. See P-4D81, Ex. 21A; Tr. M 51-52 (Harrison). The new four districts will not have the luxury of this flexibility. Under state law, each school district’s power to assign pupils extends only to students in its territorial borders. If it desires to rectify racial imbalances, an individual district must work with its own population or seek the cooperation of other districts. This loss of flexibility in student assignment was cited by one State Board member as a reason for her personal opposition to the reorganiz