Full opinion text
OPINION MURRAY M. SCHWARTZ, Senior District Judge. This desegregation litigation traces its origins to 1956, when suit was filed as an outgrowth of the landmark decisions of the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I) and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II). The case was reactivated in 1971. In the mid-1970’s, a three-judge court determined that the Wilmington schools, which had been de jure black schools prior to Brown I, continued to be racially identifiable and that Wilmington’s dual school system had not been eliminated. Evans v. Buchanan, 379 F.Supp. 1218, 1223 (D.Del.1974). In a subsequent opinion, the three-judge court found inter-district de jure segregation involving eleven school districts in northern New Castle County. Evans v. Buchanan, 393 F.Supp. 428, 438 (D.Del.), aff'd, 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975). After three weeks of evidentiary hearings, the three-judge court rejected remedial plans proposed by the parties and ordered the schools in the segregated districts to be desegregated and reorganized. The responsibility for implementing the court’s order was given to the State authorities. Evans ¶. Buchanan, 416 F.Supp. 328 (D.Del.1976), aff'd, 555 F.2d 373 (3d Cir.), cert. denied, 434 U.S. 880, 98 S.Ct. 235, 54 L.Ed.2d 160 (1977). Upon the State’s failure to submit a plan which would effectively eliminate the dual school system and the vestiges of de jure segregation, this court entered an order (“1978 order”) consolidating the affected school districts into a single district (the “desegregated area”). After considering several desegregation plans, the court addressed pupil assignment in the 1978 order by requiring all students to attend schools in the former predominantly white districts for nine years and schools in the former predominantly black districts (the “City schools”) for a minimum of three consecutive years (“9-3”). The court also required that a full 1-12 grade span be maintained within the City of Wilmington (the “City”) and that at least one of the three former predominantly black high schools be used as a 10-12 grade center. Evans v. Buchanan, 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) (cited hereinafter as “Evans 1978 ”). The court chose the 9-3 plan over a 10-2 plan favored by State authorities because the 9-3 plan minimized the burden on minority students both in terms of the number of years those students would be transported away from neighborhood schools and in terms of the number of city schools which could remain open under each plan: 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. Evans 1978, 447 F.Supp. at 1004 (footnote omitted). By adopting the 9-3 plan, the court attempted to ensure that the class of minority students whose rights had been violated by previous state-supported segregation would not bear the full burden of the remedy. In 1981, after the Delaware General Assembly passed legislation empowering the Delaware State Board of Education (“State Board”) to ensure compliance with the parameters set forth in the 1978 order, this court approved division of the single consolidated district into four component school districts. Evans v. Buchanan, 512 F.Supp. 839 (D.Del.1981) (cited hereinafter as “Evans 1981 ”). Defendant Red Clay Consolidated School District (“Red Clay District” or “the District”) is one of the four component districts. In May 1989, defendant State Board suggested to the Red Clay District that it bring the racial composition of its student populations at each District school to within + / — 10% of the minority percentages for each grade level in the District by Fall 1991, a goal which was adopted by the Red Clay Consolidated School Board (“Red Clay Board” or “the Board”). PX 1-47. After a series of delays, the Red Clay Board submitted to the State Board on or about March 30, 1990 a plan to achieve compliance with the State Board’s request. The plan described a fully developed student reassignment component (“mixed feeder plan”) and a “choice” or “magnet school” component to be developed and submitted to the State Board by September 1, 1990. The Plan contemplated implementation of both components in September 1991. PX-3. The Coalition to Save Our Children (the “Coalition” or “plaintiffs”), representative of the black plaintiff class in this case, filed a motion in May 1990 seeking a court order directing implementation of the student reassignment component in September 1990. The court conducted a bench trial on June 12-15, 1990, in which the Plaintiffs presented substantial evidence that the feeder patterns then in place, although technically in compliance with 9-3, had not resulted in progress toward eradication of vestiges of past segregation. At trial, the Red Clay Board admitted that the mixed feeder plan could be implemented at the high school level with relative ease but that implementation at grades K-8 required much planning. The Board urged the impracticalities of implementing the mixed feeder plan on short notice. Both the Red Clay Board and the State Board assured the court that changes would be implemented in September 1991 to remedy the racial disparities among the Red Clay schools. Upon the conclusion of the bench trial and briefing by the parties, the court denied plaintiffs’ motion in an opinion and order issued on July 2, 1990 (“July 1990 opinion”). Coalition to Save Our Children v. Buchanan, 744 F.Supp. 582 (D.Del.1990). The court found that the Red Clay Board’s technical compliance with the 9-3 plan had not resulted in progress toward full racial desegregation of the Red Clay schools. In the July 1990 opinion, the court addressed the contention of the Red Clay Board that, so long as the Board technically complied with the 1978 and 1981 orders, the court could not order further remedial measures. The court held that if compliance with the 1978 and 1981 orders does not result in progress toward the eradication of the vestiges of prior segregation “root and branch,” the court can and should order further remedial actions. The court also stated in July 1990 and in previous opinions that it would not order remedial measures over the objection of educational authorities in the absence of a finding that those authorities had abdicated their responsibility to eradicate the remnants of de jure segregation and to return the District to a state of full compliance with the Equal Protection Clause of the United States Constitution. Although the court did not find in July 1990 that the Red Clay Board had abdicated its responsibilities under the desegregation orders, it did state that “[ojbviously, the six-year history of failure to develop and implement a satisfactory reassignment plan could well be considered an abdication of responsibility by the State and local education authorities if it appeared there would not be implementation in September 1991.” Coalition to Save Our Children, 744 F.Supp. at 593. From September 1, 1990 — December 14, 1990, the Red Clay Board submitted to the State Board for its approval a series of proposals regarding implementation in September 1991 of what has become known to all participants in this litigation as Red Clay’s “CHOICE” plan. At least two of these submissions were presented in the form of applications to the Title VII Magnet Schools Assistance Program for funding in the amount of $6.07 million dollars for implementation of the CHOICE plan (“magnet school applications”). In order to make CHOICE available to all students in the District, it is necessary for the Red Clay Board to obtain modification of the 9-3 requirement. On December 20, 1990, the State Board issued an order (“State Board order”) approving the CHOICE proposal conditioned upon the Red Clay Board fulfilling certain requirements spelled out in that order. SB-23-6. An eight-day hearing held January 2-11, 1991 resulted in part from the Red Clay Board’s motion seeking this court’s approval for modification of the 9-3 provisions of the remedial orders to enable Red Clay to implement the CHOICE plan. For the reasons stated herein, the modifications of the court’s pri- or orders necessary to implement the CHOICE proposal will be granted, subject, however, to certain conditions and restrictions detailed in the Order attached as Appendix A to this Opinion. The hearing was also necessitated by a motion filed by the Coalition. The plaintiffs, fearing that further delay would result in the same impractiealities which convinced the court to deny their May 1990 motion, have filed a motion seeking a court order directing the Red Clay Board to implement the mixed feeder component of the March 1990 plan in September 1991. The Order issued by the court will address in part the concerns raised by the plaintiffs. Except to the extent that the Order addresses these concerns, however, plaintiffs’ motion will be denied. FINDINGS OF FACT A. The Need For Further Changes in the Red Clay School District in Order for it to Progress Toward Eradication of the Remnants of Prior Segregation “Root and Branch” 1. The evidence adduced during the hearings conducted January 2-11, 1991 and June 12-15, 1990 demonstrates that the 9-3 plan, as implemented by the Red Clay Board, has not resulted in eradication of the remnants of prior segregation “root and branch” from the District and that the District has not achieved the greatest degree of desegregation practicable under the circumstances. 2. On September 16, 1988, the State Board notified the Red Clay Board that it had conducted an overarching review of compliance with the desegregation orders by the four school districts in the desegregated area. The State Board’s review included a review of revenue, facilities, curriculum, transportation, extracurricular activities, student distribution, staff distribution, special education, dropout rates, achievement testing, and suspensions, expulsions and arrests. The State Board concluded that it was sufficiently comfortable with the overall compliance patterns of the Brandywine, Colonial, and Christina school districts to support a motion by those districts for a declaration of unitary status. The State Board notified the Red Clay Board that the State Board did not feel sufficiently comfortable with the compliance of Red Clay to offer similar support to the Red Clay District. SB-7 (letter from Charles E. Welch, then-President of the State Board of Education to Donald F. Schneck, then-President of the Red Clay School Board (September 16, 1988)). 3. As of September 1989, total enrollment in the Red Clay School District at grades 1-12 consisted of 34.71% minority students and 62.78% nonminority. The District has admitted that “six of the District’s 19 schools ... were outside of the [District’s] plus or minus 10 percent goal.... ” Opening Brief of the Red Clay Board of Education at 28 (Dkt. 1305). By the District’s own admission, then, nearly one-third of its schools are currently outside the desegregation target it has set for itself. For example, as of September 1989, the Baltz Elementary School had an enrollment of approximately 52.61% minority students and 47.09% nonminority. The Richardson Park Elementary School had 54.24% minority and 45.21% nonminority enrollment. The Conrad Middle School had an enrollment of 47.27%.minority and 52.16% nonminority, and the Wilmington High School had an enrollment of 54.85% minority and 44.34% nonminority. By contrast, the H.B. duPont Middle School had an enrollment of 19.22% minority and 74.83% nonminority, and the A.I. duPont High School had an enrollment of 19.33% minority and 75.86% nonminority. PX-41 at Exh. 1. 4. Such racial disparity in the schools can result in racial isolation at the classroom level. For example, as of October 29, 1990, of the 225 classes at Wilmington High School, a school in which 54.85% of the population was minority in school year 1989-90, 53, or nearly one-fourth, of the classes contain greater than 49% African-American students, while only 2 classes, or less than 1%, had enrollments which were less than 10% African-American. By contrast, of the 395 classes at A.I. duPont High School, which had only 19.23% minority enrollment in school year 1989-90, only 8, or roughly 2%, had greater than 49% African-American enrollment, while 159, or 40% had an enrollment that is less than 10% African-American as of October 29, 1990. PX-84. 5. Racial disparity such as that demonstrated above reverberates through the performance of children at the various schools. For example, the basic battery test scores of minority children remain well below those of nonminority children at most, if not all, of the Red Clay schools. See PX-80-82. In its application for federal funding, the Red Clay District detailed the disparate impact that the Red Clay schools have had on minority children in terms of test scores. “While scores of 11th grade Red Clay students on the statewide standardized achievement test are the highest of all Delaware school districts, the scores differ across the four high schools within Red Clay and are lowest for minority students.... Moreover, the score differences between minority students and nonminority students differ in many cases by 20 NCE points or more_ This discrepancy exists in all grade levels.... ” RC-30 at 18-19. 6. Moreover, both minority and nonmi-nority students in schools with a disproportionately large percentage of minority students appear to perform at a lower level. See PX-82 (comparing test scores of students at Wilmington High School with those of the other three high schools); PX-81 (comparing test scores of eighth grade students at Conrad Middle School with those of eighth graders at the other Red Clay middle schools); PX-41 at Exh. 5 (comparing college matriculation at the four high schools). 7. According to the Red Clay District, “the percent of students enrolled in special education who are minority [is] 58.4 percent of all special education students in the district. There are 16 schools in the district where 50 percent or more of the special education students are minorities.” RC-30 at 16. 8. The district has also admitted that there is a high rate of absenteeism and suspension among its minority students. RC-30 at 15 & 17. 9. In sum, although the current attendance configurations in the Red Clay school district comply with the 9-3 plan, technical compliance with the 9-3 plan alone has not resulted in the eradication of the vestiges of prior segregation. Maintenance of the status quo will not enable the District to make the transition to the greatest degree of desegregation practicable under the circumstances. B. Proposed Changes in the Red Clay Feeder Patterns 10. Plaintiffs filed a motion requesting the court to enter an order directing the State Board and the Red Clay Board to revise the Red Clay District feeder patterns to eliminate racial disparities and to meet with plaintiffs to devise a plan for addressing problems of minority suspensions, absenteeism, low achievement scores, etc. Plaintiffs’ Motion (Dkt. 1294). 11. Evidence at the January 2-11, 1991 hearing as to revision of feeder patterns centered around the feeder pattern changes proposed by the District on March 30, 1990. At this point, some clarification of terminology is necessary. Since they were first proposed on March 30, 1990, the proposed changes have been discussed as two plans, rather than one. The proposed changes in feeder patterns for grades K-8 have become known as “Mixed Feeder I.” The changes in assignment for grades 9-12 are denominated “Mixed Feeder II.” 12. The Red Clay Board has decided to implement Mixed Feeder I, or the K-8 feeder pattern changes, along with implementation of their proposed CHOICE plan. Under Mixed Feeder I, certain groups of students who under current assignment patterns would spend their three years in a City school at Wilmington High School during grades 9-12 would instead spend grades 1-3 in the City. Consequently, implementation of Mixed Feeder I would require a temporary deviation from the 9-3 plan for those Red Clay students who enter grades 2 and above in school year 1991-92 and who reside in the two city census grids numbered 104/358 and 110/360 where the assignment to schools in the former predominantly black districts would be changed from grades 9-12 to grades 1-3. 13. The deviations requested for Mixed Feeder I will affect a total of approximately 857 students who will spend less than three years in the City schools. SB-23-1; Tr. 799 (Spartz). 14. The Red Clay Board has declined to implement feeder pattern changes for grades 9-12 (Mixed Feeder II) because it intends to implement its CHOICE plan instead. 15. Apparently, no deviations from the 9-3 plan would occur if Mixed Feeder II were to be implemented other than those necessitated by implementation of Mixed Feeder I as set forth at ¶ 12 above. C. The CHOICE Proposal 16. The State Board urges the court to consider the entire CHOICE plan as consisting of the March 30, 1990 submission, PX-3, the September 1, 1990 submission, RC-18, the letter of Dr. Green to Dr. Keene dated December 14, 1990, RC-29, and the various explanations by Red Clay officials during the January 2-11, 1990 hearing, as well as the final application submitted to the federal Magnet Schools Assistance Program on December 14, 1990, entitled “A Proposal to Eliminate Racial Isolation by the Implementation of a Voluntary Desegregation Plan Using Magnet Programs,” RC-30. . 17. The March 30, 1990 and September 1, 1990 submissions, however, are prior proposals which supposedly have been revised and polished to produce the December 14, 1990 application. The December 14, 1990 letter and the explanations given at the hearing represent the views and assurances of individual Red Clay officials who may or may not be in a position to carry out their assurances in the future. Tr. 1724-25 (Bennett) (“[G]iven the transitory nature of school board members or at least the fact that school board members are elected to office, they leave office, and even more directly the transitory nature of school leadership, school superintendents ... unless there are written components of a plan that in turn the Court can order ... the individuals who embroider upon a plan and offer to the Court commitments and additional statements on behalf of what the plan really means, the Court may well find those individuals simply no longer in a position to enforce the Court’s orders and understanding.”). 18. Consequently, the court will limit its consideration of the CHOICE plan to the proposals set forth in the final magnet school application, RC-30, as modified by the State Board’s order of December 20, 1990, SB-6. 19. The court will first describe the plan that has been proposed for grades 9-12. The CHOICE plan at the high school level consists of two components: a “magnet” component and a student assignment or “controlled choice” component. 20. The “magnet” componment consists of programmatic enhancements at two of the four Red Clay high schools. a.At Wilmington High School, a former predominantly black school, the District proposes to offer three specialized programs: an Academy of Banking, Finance and Office Technology, RC-30 at 117-21, an Academy of Math and Science, RC-30 at 122-25, and an Academy of Engineering and Technology, RC-30 at 126-29. In addition, all Wilmington High School students will participate in a core curriculum which satisfies the minimum standards of the Department of Public Instruction. The method of instruction for the core courses will be dictated by the “RE: Learning” philosophy, an instructional methodology focusing on team teaching, student evaluation through exhibits rather than traditional written tests, and active student participation in the learning process. RC-30 at 112-16; Red Clay Post-Trial Brief at 30 n. 18 (Dkt. 1336). b. The District also proposes to offer three specialized curricula at the Dickinson High School, a former predominantly white school: a School of Communication, RC-30 at 99-102, a School for the Creative and Performing Arts, RC-30 at 103-07, and a School of Health Professions, RC-30 at 108-10. Dickinson High School students will participate in a core curriculum meeting the standards of the Department of Public Instruction which will utilize the “Paideia” philosophy, an instructional strategy symbolized by active participation between student and teacher involving extensive classroom discussion and coaching labs in which students interact with a coach. RC-30 at 95-98; Red Clay Post-Trial Brief at 30 n. 19. c. The two remaining high schools, A.I. duPont High School and Thomas McKean High School, will continue to offer traditional comprehensive high school curricula. 21. The student assignment or “controlled choice” component is a method of student assignment ostensibly designed to evenly distribute enrollment among the four high schools and to bring the populations of each of the high schools to within + /— 10% of the racial distribution of the District average for the grades affected. RC-30 at 1. 22. The plan proposes to achieve these objectives by setting numerical target ranges at each school. For example, the District has projected that District-wide minority enrollment for ninth graders in the school year 1991-92 will be 35.6%. The target ninth grade enrollment at Dickinson High School is 226. In order for the District to achieve its goal of + / — 10%, between 58 and 103 minority and between 123 and 168 nonminority ninth grade students must be assigned to Dickinson, See RC-30 at 33-34. 23. The proposed enrollment procedures would work as follows. Students would complete enrollment forms indicating four choices among the eight available high school programs (the six magnet programs at Wilmington and Dickinson High Schools plus the two comprehensive curricula at A.I. duPont and McKean High Schools) in order of priority. The District would assign as many students as possible to their first choice programs based upon factors of priority of choice, program capacity, racial balance, whether the student already has a sibling attending the school which houses the program, and proximity of residence to the school which houses the program. If a particular program is oversubscribed, meaning that the number of applicants who satisfy the controlling factors exceeds program capacity, then a computer would assign students to that program by random selection, keeping the assignment within the racial targets. Those students who do not receive their first choice program would then repeat the process for their second, third, and fourth choices. They would also be put on a waiting list for their first choice, the order of which would be determined by random selection. RC-30 at 57-60. 24. Implementation of the CHOICE proposal requires what has been termed in Red Clay’s motion a “permanent” modification of the 9-3 plan that would permit: a permanent exemption from the requirement that our “suburban” students spend at least three years in a city school for those students who will not be assigned to a city school for at least three years in grades 1 through 8 and who thereafter select a CHOICE Plan program based at one of the District's suburban high schools. Motion of the Red Clay Board (Dkt. 1304). The word “permanent” is somewhat misleading and was the subject of much debate during the hearing. Red Clay’s motion is clearly tied to operation of the CHOICE program and would not exempt the Red Clay District from the 9-3 requirement in the event the CHOICE program was discontinued or never implemented. The State Board apparently recognized this limitation when it eliminated the term “permanent” from the modification it granted Red Clay. SB-32-6 (Order of the State Board). 25.Implementation of the CHOICE plan at the high school level could potentially cause between 25.4% and 32% of the District population, depending upon whether one included in the District population kindergarten students and students who leave the District schools prior to ninth grade, to fail to attend a City school at any time during their twelve years of public schooling. Tr. 874-887 (Spartz). Phrased differently, an estimated 830 students who would have been assigned to Wilmington High School under the mixed feeder plans at any one time would not have spent any time in a City school during grades 1-8. If all 830 of these students chose and received a high school assignment other than Wilmington High School, they would spend no time in a City school. SB-23-3. Of course, some portion of those 830 students could choose one of the programs housed at Wilmington High School so that the actual number of high school students at any given time who would never have attended a City School will probably be somewhat less than 830. In fact, the State Board has noted that many of those 830 students live in an area which is in close proximity to Wilmington High School, so that the controlling factors used in assigning students would give these students a preference over other students of the same race if they chose to attend one of the programs at Wilmington High School. Tr. 819-23 (Spartz). 26. Much testimony has been offered both in favor of and opposing the CHOICE plan. The testimony in favor of the plan has largely been related to its potential, if implemented as designed, to eradicate the racial imbalances in the Red Clay high schools and to provide enhanced educational opportunities. 27. The staff at the Department of Public Instruction concluded upon completion of an evaluation of the plan that it offered a potential for enriched secondary education: In summary, in looking at the magnet proposal from a programmatic perspective and accepting it as a concept, it is hard to make a strident case against the proposed concept. The actual test of its validity will come when the course guides are written, the staff is re-trained, when the students select or are selected for the programs, when the students are scheduled into the classes, and when the educational outcomes can be assessed. As stated previously, the concept outlined in the magnet application, which is more fully developed than all reports previously published by Red Clay Consolidated School District, has the potential to offer curricula and pedagogy within an established framework that could be an educational improvement over a conventional program found in a typical high school. Moreover, it appears to offer some scheduling opportunities that will increase the chances of programs and classrooms to be non-racially identifiable. SB-23-8 at 3-4 (Analysis of the Programmatic Aspect of Red Clay’s Magnet Application); see generally Tr. 961-83 (Schiller). 28. The plan was also praised as providing “fairness” in terms of equal opportunity for all students to participate in the magnet programs through the lottery system of assignment, RC-29, and through the intention to eliminate “tracking,” the practice of programming students into courses based upon ability and past performance so that students may participate regardless of their previous academic achievements. Tr. 965-66 (Schiller). 29. Red Clay’s expert, Dr. Charles Glenn, testified that the plan would enhance education by “permitting] a school to concentrate on serving some students extremely well rather than having to try to meet the needs of every kind of interest with some kind of lowest common denominator.” Tr. 319 (Glenn). 30. Dr. Glenn also testified that the CHOICE method of student assignment would create an atmosphere wherein the four high schools would compete for students, providing “an extremely powerful motivator toward reform and improvement in general.” Tr. 272 (Glenn). 31. The proposed educational enhancements appear to be beneficial. The plan proposes use of small group learning sessions to give some students more personalized teaching, as well as peer tutoring and interaction. RC-30 at 160. If the District obtains the necessary funding, it plans to obtain a great deal of additional equipment such as a computer lab and specialized equipment for each of the magnet programs. RC-30 at 164-65. 32. The literature regarding magnet schools and choice programs has largely been favorable. See, e.g., SB-20; SB-21. 33. The evidence opposing the plan has centered on five main themes: its dependence on substantial outside funding for implementation, the trustworthiness of the Red Clay Board to implement the plan in a nondiscriminatory fashion, the plan’s lack of an explicit “commitment” to its enrollment and racial balance “targets,” the plan’s ability to remedy the racial disparities, in dropouts, suspensions, attendance, assignments to special education classes, test scores, and matriculation to college, and the plan’s failure to address certain contingencies which may or may not be likely to arise. With the exception of the issue of the Red Clay Board’s good faith, which will be addressed in the next section, the court will set forth the evidence presented as to each of these criticisms. 34. The District’s application for funding from the Magnet Schools Assistance Program seeks a total of $6.07 million over a two-year period. RC-30 at 166. 35. Dr. Green, the Superintendent of the Red Clay Consolidated School District, has stated that the District’s current budget, consisting of state and local funds, supports its traditional K-12 curriculum, and outside funding will be necessary to implement the educational enhancements, or magnet component, of the CHOICE proposal. SB-23-12 (letter from Dr. Green to Dr. Keene). Consequently, CHOICE as proposed is dependent upon a grant of funds from the federal Magnet Schools Assistance Program. Tr. 733-34 (Green); RC-24. 36. For school year 1990-91, the Magnet Schools Assistance Program approved partial or complete funding for only 54 of the 144 applicants. Tr. 1328-29 (Fine); SB-24. 37. Although the Red Clay witnesses have urged the possibility of obtaining private funding in the event the District does not receive a grant from the federal program, the District has thus far failed to formally apply to any private foundations or donors, Tr. 197-98 (Ames); Tr. 620 (Allen); Tr. 1671-77 (Green), and is only in the very preliminary stages of an investigation into the availability of such private funding. Tr. 1671-77 (Green) (only two letters of inquiry have been written to date). 38. The State Board has not given the District carte blanche to implement any version of CHOICE that it finds itself able to implement. Rather, the CHOICE plan approved by the State Board was the plan presented in the December 14,1990 application as fully implemented and funded. Tr. 1173 (Fine); SB-23-6 at ¶ 1. 39. As the plan stood prior to issuance of the State Board’s December 20, 1990 order, remediation of the racial disparities at the Red Clay high schools was dependent upon the receipt of federal funds. 40. Despite a request from the State Board that it submit a backup plan, the Red Clay Board voted not to submit a backup plan. See infra. The Red Clay Board insisted a backup plan was unnecessary because the CHOICE proposal as written would guarantee racial balance. As the State Board properly recognized, however, a backup plan is necessary to remedy the racial disparities at the Red Clay high schools by September 1991 if funding does not become available. 41. Even if the CHOICE plan were to be funded and implemented, it contains substantial gaps. The plan fails to address squarely several contingencies. It is unclear from the plan what would happen if a student did not receive one of his four choices, if a student or parent failed to fill out a CHOICE enrollment form, if a student decided at some point that his program assignment was not meeting his needs and desired to change programs, if a student changed his mind after submitting his selection forms, and how students who enter the District mid-year will be assigned. Tr. 1728 (Bennett). 42. The plan was also considered deficient by several witnesses because it failed to set minimum enrollments at the four high schools. Although the plan expressly states that one of its objectives is equivalent enrollment at the four high schools, there is no explicit commitment to this objective beyond certain statements about the number of minority and nonminority students who “will” be enrolled at the various schools. E.g., RC-30 at 33 (based on a “target” enrollment of 226 ninth graders at Dickinson, “admission will be controlled to achieve the range of 58 to 103 minority students and 123 to 168 nonminority students”) (emphasis added). Without a commitment to minimum enrollment, the District creates the possibility of the “incredible shrinking school.” Tr. 1746 (Bennett). The District itself has noted that a school’s population may decline to the point that the school becomes ineffective. RC-30 at 39; see also Tr. 1747-48 (Bennett) (schools with low enrollment tend to offer fewer courses and less breadth of curriculum). Thus, one flaw in the CHOICE plan is its failure to make an express commitment to minimum enrollments at the four high schools. A commitment to minimum enrollments should not be buried in statements concerning racial disparities. Although the District cannot know for certain the number of students who will enroll in the District next September, there is nothing preventing it from making a commitment that the enrollment at each high school shall not fall below 25% of the District total at each grade level. 43. The CHOICE plan also fails to explain clearly what would result if, because of program capacity and the other factors taken into account in the assignment process, a student failed to receive any of his or her four choices. Although Red Clay witnesses stated that in such a situation that student would be assigned to a program with available capacity, this is not spelled out in the December 14, 1990 application itself. RC-30 generally; Tr. 1591 (Green); Tr. 1738-40 (Bennett). Moreover, this feature has not been explained to the parents in any Red Clay communication concerning the CHOICE program. Tr. 1590-93 (Green). The only communication which even comes close to informing parents that their children might be mandato-rily assigned even under the CHOICE proposal is RC-17, which contains the statement: Students will be notified of their program assignments in March, 1991. A waiting list will be established for each program in case openings develop later. Every effort will be made to see that students and parents receive an educational program which best fits their needs and interests. This statement, however, is offset by other statements in larger type in the same communication: With the help of their parents and school counselors, students will be able to choose special CHOICE Programs at Wilmington or Dickinson high schools or conventional/traditional programs at A.I. duPont and McKean high schools.... It simply lets them pick a program which offers a good education with a focus on an area or subject in which they are interested. RC-17. 44.The combination of the CHOICE plan’s failure to commit to minimum enrollments and failure to set forth a mechanism in case a student is not assigned one of his four choices could lead to a troubling sec-nario in which one of the four high schools is substantially undersubscribed through the CHOICE procedure. For example, if only 100 ninth grade students select Wilmington High School as one of their four choices, the student assignment process outlined in the plan would leave the District far short of its target enrollment of 300 ninth graders at Wilmington High School. RC-30 at 34. While the District witnesses testified that such a contingency would be addressed by mandatorily assigning students to the undersubscribed high school despite the students’ failure to choose that school, Tr. 80 (Ames); Tr. 711-12, 1604-09 (Green), the plan nowhere provides for a mandatory assignment mechanism in the event of undersubscription. The District witnesses urged that this scenario was unlikely. In fact, the Acting Director of CHOICE for the Red Clay District testified that the possibility of mass selection away from a particular high school was not a contingency which the District had fully addressed. Tr. 80-82 (Ames). 45. Even if the District opted to assign students to an undersubscribed school, this practice in and of itself would create concern if the undersubscribed school were one of the two magnets. Such a procedure would result in assigning students into specialized curricula which would not dovetail with those students’ predilections, interests and talents, and could result in increased non-achievement, dropouts and nonattendance. Tr. at 1783, 1749-50 (Bennett). 46. The plan also does not indicate the degree of flexibility in terms of a specialized assignment. As the plan now stands, eighth graders would make a decision which could conceivably lock them into a specialized curriculum for their entire secondary education. A related problem would be the ability of a student who was mandatorily assigned to a program in the ninth grade because he or she did not receive any of his or her four choices to access a different program the following year. According to the Superintendent of the Red Clay District, the student would be locked into his or her choice for at least one year, Tr. 1686 (Green), but that individual cases might be reviewed. Tr. 1686-87 (Green). Dr. Green stated that a student would be able to change programs between the ninth and tenth grades, but there would be less flexibility after the tenth grade. Tr. 1687 (Green). The court has been unable to find any statement in the December 14, 1990 application which addresses this. Dr. Green admitted that the degree of flexibility after a student has been assigned to a program has not yet been explained to the parents. 47. The plan also fails to address assignment of students who enter the District during the school year and those who for one reason or another fail to fill out and submit a CHOICE form, Tr. 1594 (Green), although Dr. Green testified that a student who did not return a CHOICE form would be mandatorily assigned. 48. Plaintiffs also criticize the plan because they assert that it will not alleviate the “Substantive Problems.” Plaintiffs assert that the time, funding, and energies of the Red Clay Board and administrative staff would be better spent directly addressing the Substantive Problems rather than pinning their hopes on the elixir of CHOICE to work its magic and make these problems disappear. 49. On pages 15-19 of the December 14, 1990 application, the District, in a section titled “Needs Assessment,” details the disproportionate difficulties experienced by minority students in the Red Clay District in terms of attendance, enrollment in special education, suspensions, academic achievement, and dropout rates. RC-30 at 15-19. 50. A section entitled “A Clear Description of How the Objectives of the Project Relate to the Purposes of the Program” begins on page 39 of the December 14, 1990 application. RC-30 at 39. The court finds this section neither clear nor a description of a relationship between the project, the objectives stated in this section, and the Needs Assessment set forth on pages 15-19. 51. For example, the section sets forth “Academic Performance Objectives” envisioning that in each of the first two years of the plan, the performance disparity between minority and nonminority students at the magnet schools will decrease by 5 NCE points. RC-30 at 41-42. While this objective does in fact dovetail with the statement in the Needs Assessment section that achievement score differences between the two groups of students differ in many cases by 20 NCE points or more, RC-30 at 19, nowhere is it explained how this objective will be achieved other than by the magical panacea of implementing the CHOICE proposal. Plaintiffs were unable to get any District witness to explain on the record the basis upon which the objective of 5 NCE points was derived. The president of the Red Clay Board referred plaintiffs to the superintendent. Tr. 544 (Allen). The superintendent could only answer that the data was derived from and assessed by outside consultants. Tr. 1537, 1541-42 (Green). When pressed, Dr. Green had to respond that he did not know how the objective of five NCE points was derived. Tr. 1542 (Green). As it turns out, the District actually originally proposed a reduction of 2 NCE points, RC-27 at 15-17, to which the State Board objected as not statistically significant. RC-28. Consequently, the objective was changed to 5 NCE points. Tr. 1560-62 (Green). 52. The remaining objectives listed in the section entitled “A Clear Description ...” discuss attendance, suspensions, dropouts, and promotions. RC-30 at 43-44. These objectives, however, do not dovetail with the Needs Assessment because they discuss increasing attendance, reducing suspensions, etc., in terms of the entire student population rather than in terms of the disproportionate difficulties of minority students in these areas. To the extent the District assumes that improvement in these areas over the entire student population will cause some improvement for minority students, the section still fails to describe how such improvements will occur beyond the magic worked by the mere implementation of CHOICE. Again, Dr. Green could not explain the basis for the specific objectives or how the objectives would be achieved. Tr. 1574-75 (Green). 53. The court finds that the District’s CHOICE proposal, by itself, fails to address the Substantive Problems that concern plaintiffs other than to rely on the magnet and controlled choice components of the proposal as a sort of panacea for all ills. On the other hand, reassignment of students under Mixed Feeder II also would not address these issues. Consequently, it appears that if the Red Clay District is ever to eradicate root and branch the vestiges of prior discrimination and free itself from the court’s supervision, the Board must work with plaintiffs to resolve the issues of minority attendance and suspension rates, dropouts, special education, low achievement, and the other substantive problems. 54. Finally, the State Board, as well as plaintiffs, have noted that the CHOICE proposal’s parent outreach plan is insufficient. E.g., Tr. 1147,1165-66 (Fine). Paragraph 8 of the December 20, 1990 State Board Order, SB-23-6, appears to remedy these deficiencies. 55. The elementary magnet school proposal for Baltz Elementary School is merely a concept at this point. Most notably, the proposal lacks a detailed curriculum. RC-30 at 55-56. Even more importantly, the Red Clay Board has not come forward with any student assignment plans for determining where the students currently attending the Baltz Elementary School would be assigned. The plan also lacks a detailed description of the enrollment procedure, including the factors which would be used to determine which students would receive a preference in attending the Baltz magnet programs. Depending upon the details of the plan, implementation of an elementary magnet at Baltz could potentially affect a large number of students in terms of impact upon 9-3. D. The State Board Order of December 20, 1990 56. When the State Board approved the CHOICE proposal, it took the unprecedented step of issuing an order, SB-23-6, requiring the Red Clay District to accomplish certain tasks along a timeline. The State Board’s order is an attempt (1) to ensure that student assignment patterns will be changed, either through CHOICE or by realignment of feeder patterns, to remedy the racial imbalances in the Red Clay schools in September 1991; (2) to remedy some of the deficiencies in the CHOICE proposal; and (3) to assure that implementation of whatever student assignment changes occur in September 1991 proceeds smoothly. 57. During the June 1990 hearing, the President of the State Board assured the court that changes would occur in student assignments at Red Clay to remedy the racial imbalances in September 1991. See Coalition to Save Our Children, 744 F.Supp. at 593. The Red Clay Board’s vote not to submit a backup plan to the State Board created a situation where the status quo would prevail in the event that the CHOICE proposal did not receive funding. Paragraph 5 of the State Board order ensures that, either by CHOICE or by realignment of feeder patterns, changes will occur in September 1991. Paragraph 5(b) instructs the Red Clay Board to submit a backup plan on or before March 1, 1991, and states that in the event the Red Clay Board does not submit a backup plan, the State Board will order that Mixed Feeder II be implemented as the backup plan. Paragraph 5(c) orders the District to have in place by April 15, 1991 plans sufficiently developed, as described in paragraph 6, to ensure implementation of both CHOICE and the backup plan as if proceeding to September 1 implementation. Paragraph 5(d) orders the backup plan adopted for September 1991 if the State Board finds that plans for CHOICE are not sufficiently developed, as set forth in paragraph 6, by April 15, 1991. Consequently, failure to perform the tasks set forth in paragraph 6 of the State Board order before April 15, 1991 would result in withdrawal of the State Board’s approval of CHOICE. Tr. 1006 (Schiller); 1173 (Fine). 58. Paragraph 7 of the State Board order sets forth administrative tasks to be accomplished on or before July 31, 1991 in the event CHOICE is federally funded. According to Dr. Schiller, the State Board will withdraw support for CHOICE if the District does not comply with paragraph 7. Tr. 1006 (Schiller). 59. Paragraph 8 sets forth the parameters of an adequate parent outreach program which the District must effectively implement by April 1, 1991. State Board support for CHOICE will be withdrawn if the parameters of paragraph 8 are not satisfied. Tr. 1006 (Schiller); Tr. 1173 (Fine). E. The Red Clay Board’s Record of Delay, Obfuscation, and Recalcitrance 60. In its July 1990 opinion, this court stated: “Indeed, so replete is this record with evidence of delay, obfuscation, and recalcitrance on the part of the Red Clay Board with respect to remedying the racial disparities in the Red Clay schools by reassigning students that there is no need to recite specifics.” Coalition to Save Our Children, 744 F.Supp. at 592-93. The time has come to recite specifics. 61. Since at least March 19, 1984, the Red Clay Board has been aware of a need to take action to remedy racial disparities among its schools. On that date, then-Superintendent Joseph E. Johnson presented a memorandum to the Board members detailing the difficulties which they would confront as they moved to adjust feeder patterns. PX-35. What follows is the six-year history of the Red Clay Board’s refusal to reassign students to remedy racial disparities in the Red Clay schools. 62. In June of 1986, the Red Clay Board came before the court seeking a temporary, one-time deviations from 9-3 so that it could adjust feeder patterns to relieve overcrowding in its schools. Red Clay’s motion requesting the one-time deviations offered overcrowding as its only justification. Motion of Red Clay (Dkt. 1181). The 1986 feeder pattern realignments were not prompted by a desire to address the racial disparities at the Red Clay schools. Although the Coalition did not oppose the deviations, it drew the court’s attention to the difficulty the plaintiffs were experiencing in obtaining a meeting with the Red Clay Board to discuss minority dropouts, suspensions, absenteeism, low achievement scores and the other Substantive Problems. The court urged the Red Clay Board to work with the Coalition to resolve those issues. PX-1-3; PX-1-4; PX-1-17 at 3. 63. On September 5, 1986, the Red Clay Superintendent proposed a meeting between the Coalition and the four school boards. However, the guidelines listed on the proposed agenda prohibited raising issues unique to any of the individual districts. PX-1-6. Consequently, such a meeting would not give the Coalition an opportunity to discuss its concerns involving conditions in the Red Clay District with the District’s policymaking body. 64. Even after implementation of the 1986 feeder pattern realignments, there remained such significant racial disparities among the Red Clay schools that the Desegregation Advisory Committee, by reso: lution dated March 18, 1987, urged the State Board to address the racial disparities in the Red Clay District and their attendant impact on minority students in terms of the Substantive Problems. PX-1-13. 65. In a letter dated May 11, 1987, Dr. Keene, Superintendent for Public Instruction, acting on behalf of the State Board, requested Red Clay to respond to allegations concerning the racial disparities in their feeder patterns. SB-4. Dr. Johnson submitted a response on behalf of the majority of the Red Clay Board. PX-1-16. 66. On August 27, 1987, two of the Red Clay Board members dissented from the majority’s response, pointing to the majority’s obfuscation and failure to address racial disparities in the feeder patterns. PX-1-17. 67. On October 1, 1987, a substantial contingent of the State Board met with the Red Clay Board to voice its concern over the racial disparities in the District and offer its assistance in resolving the issue. SB-1; Tr. 467-68 (Allen). The Red Clay Board did not timely respond to the State Board’s concerns. Tr. 468 (Allen). The suggestions eventually made by Red Clay in response to the State Board, including a proposal to house an exploratory vocational program at Wilmington High School, were rejected by the State Board because they would not significantly enhance desegregation so much as they would merely enable maintenance of the status quo. SB-1; Tr. 468-69 (Allen). 68. What was to be the last meeting to date between the Coalition and the Red Clay Board convened specifically to address the Substantive Problems was held in November 1987. Tr. 1954 (Street). This meeting was apparently conducted pursuant to a mediation effort by federal officials. PX-1-23. It has been more than three years since the Red Clay Board has agreed to meet with the plaintiffs specifically to address the Substantive Problems. 69. On September 16, 1988, the State Board notified Red Clay that, after conducting a review of all four districts in the desegregated area, the State Board was insufficiently satisfied with the overall compliance of Red Clay to support a motion for declaration of unitary status on behalf of the Red Clay District. The State Board noted that it was sufficiently comfortable with the behavior of the other three districts to support motions on their behalf. SB-7. 70. On April 19, 1989, the State Board rejected a Red Clay proposal to house a magnet program at Wilmington High School because the program would not significantly advance desegregation. Tr. 471 (Allen). 71. On May 18, 1989, the State Board instructed Red Clay to bring its schools within +/— 10% of the racial percentages of the District population as a whole by Fall 1991. The State Board requested that Red Clay’s plan for accomplishing this objective be submitted to it on or before September 30, 1989. PX-1-47. 72. The Red Clay Board offered to meet with the Coalition in November 1989, two months after the State Board deadline for submitting a plan to remedy the racial disparities in the Red Clay District, to discuss feeder pattern changes. PX-1-56. The Substantive Problems were not part of the agenda. When representatives of the Coalition arrived for the meeting on Thanksgiving eve of 1989, a date and time selected by Red Clay, they found that three of the four Red Clay Board members, all three of whom were part of the Board majority that consistently opposed feeder changes, were not present. (Street). pattern Tr. 1968 73. After a series of requests for extensions, the District finally submitted Mixed Feeder I & II and a choice “concept” to the State Board on March 30,1990 — six months after the original deadline. PX-3. The State Board instructed the Red Clay Board to develop the choice concept into a complete plan for submission on or before September 1, 1990, almost one year after the date on which Red Clay was originally to have submitted a plan. 74. On July 20, 1990, Dr. Green requested that the Coalition name three persons to sit on the 35-member Central Coordinating Committee, which would make recommendations on overall planning and general operations of the CHOICE plan and three to sit on the 42-member Community-wide Advisory Committee, which would provide general advice on process and implementation and attempt to generate community support. RC-7. While several of the persons whose names were submitted by the Coalition were placed on each committee, others were not placed on the committees because they were not Red Clay residents. Tr. 67-68 (Ames). 75. On August 14, 1990, Dr. Green held a lunch meeting with members of the Coalition to request their support for the CHOICE plan. At that meeting, the Coalition members were presented with a series of possible enrollment configurations at the high school level. PX-86. They were not presented with a detailed plan of assignment. The Coalition members informed Dr. Green that they would discuss the proposal but that they doubted they could support a plan with so little information before them. Tr. 1944-46 (Street). Dr. Green reacted by calling a meeting with counsel present for that afternoon. Dr. Green conceded at the January 2-11 hearing that he would not expect the Coalition to be able to make a judgment on the plan based upon the limited information which was presented to them at the August 14, 1990 meetings. Tr. 1519 (Green). 76. The Red Clay Board submitted a plan on September 1, 1990. RC-18. This submission and the accompanying presentation by the Red Clay Board on September 6, 1990 did not constitute the complete plan envisioned by State Board President Paul Fine. (Tr. 1289). For example, the Red Clay Board did not submit a description of the magnet programs. Tr. 947, 959-60 (Schiller); Tr. 1107 (Fine). However, Mr. Fine felt that Dr. Green had accomplished a significant amount of work in a short period of time, Tr. 1293-94 (Fine), and he was aware that there remained sufficient time until the federal deadlines for funding applications in which the District could further develop the plan to a point where it would satisfy the State Board. Tr. 1290 (Fine). 77. The Red Clay Board developed the September 1,1990 submission, which would become the blueprint for all submissions to follow, without any consultation with or input from plaintiffs beyond the August 14, 1990 meetings and the plaintiffs’ representation on the two committees. 78. In a September 6, 1990 letter from Red Clay’s counsel to the State Board, the District informed the State Board for the first time that it would be seeking what it termed “permanent” exemptions from 9-3. PX-48; SB-23-2; Tr. 1308 (Fine). 79. The Coalition first learned of the request for “permanent” exemptions when this same letter was copied to Coalition’s counsel. Tr. 1950 (Street). The Red Clay District had developed a plan which would call for a major departure from the desegregation orders in this case without informing the Coalition ahead of time. When the Coalition requested a meeting with the Red Clay Board, they were granted a meeting only with Dr. Green because Red Clay’s counsel believed a meeting with the Board would prove “too confrontational.” Tr. 1951 (Street). 80. The State Board requested clarification of the plan as presented in early September, including further explanation in the areas of special education, equal opportunities for minority student participation in the magnet programs, and impact on unitary status. Dr. Green responded with an addendum on September 20, 1990. RC-19. 81. After receipt of the addendum, the State Board continued to have some concerns, which it voiced in a letter written by Dr. Keene of the Department of Public Instruction dated October 3, 1990. Among the concerns voiced were concerns about the adequacy of outreach to encourage minority parents and other parents who were not traditionally active in the schools to participate in choice and whether the plan would require waiver of any existing policies or rules of the State Board. RC-20. Thus, even after the State Board made clear that it had concerns over the effect of CHOICE on the minority children, Red Clay continued to fail to treat issues concerning minority students in a substantive manner. It was only due to the continual prodding by the State Board that the issues affecting minority students were addressed. 82. In response to the October 3 letter from Dr. Keene, Red Clay on October 26, 1990 informed the state authorities for the first time that it was considering an “alternative backup plan.” SB-23-12. Prior to this time, the state authorities had assumed that Mixed Feeder II would be the backup plan. Tr. 950-51 (Schiller); 1109-10 (Fine). 83. The state authorities, through an October 30, 1990 letter by Dr. Keene, requested further information concerning the backup plan. SB-23-13. The Red Clay Board did not formally respond to this request until it informed the State Board on November 29, 1990 that it would not submit a backup plan. 84. On October 14, 15, and 17, 1990 the Red Clay Board attempted to conduct and did conduct meetings in executive session. The Attorney General of the State of Delaware found these meetings were conducted in violation of Delaware’s Sunshine Act. PX-40. The subjects addressed at these sessions deliberately conducted away from public scrutiny involved the CHOICE proposal. PX-61. 85. On November 14, 1990, Red Clay sent the State Board a more complete response to the questions raised by the October 3 letter in the form of a second addendum. RC-24. 86. On November 16, 1990, State Board President Paul Fine wrote a letter to Red Clay Board President David Allen urging prompt submission of Red Clay’s funding application to the State Board in order to give the State Board adequate time for a full review prior to the federal deadline. In the same letter, Mr. Fine noted that the State Board’s review of the agenda of the November 13, 1990 Red Clay Board meeting indicated consideration of a magnet school at the elementary level — a proposal never previously presented in any form to the State Board. Mr. Fine voiced his concern that the State Board would not have adequate time to review this wholly new proposal. Mr. Fine also urged the adoption of a backup plan in the event federal funds were not forthcoming and encouraged the adoption of Mixed Feeder II as the backup. SB-23-14. 87. On November 21, 1990, Red Clay received a letter from its then-counsel advising that: [I]f the Board fails to adopt a viable back-up plan and if it is the Board’s decision to direct us to oppose the implementation of Mixed Feeder Plan II, it is our view that we could no longer effectively represent the Board. Under such circumstances, we would be forced