Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BUCHANAN ET AL. v. EVANS ET AL.

decided: September 1, 1978.

BUCHANAN ET AL
v.
EVANS ET AL.



ON APPLICATION FOR STAY.

Author: Brennan

[ 439 U.S. Page 1360]

MR. JUSTICE BRENNAN, Circuit Justice.

The Delaware State Board of Education and eight intervening defendant suburban school districts*fn1 request that I stay execution of the judgment and mandate of the Court of Appeals for the Third Circuit in this case pending consideration by this Court of their petition for certiorari. The judgment affirmed an order of the District Court for the District of Delaware prescribing a school desegregation plan involving

[ 439 U.S. Page 1361]

     the city of Wilmington and 11 surrounding suburban school districts.*fn2

 In deciding whether to grant a stay pending disposition of a petition for certiorari, I must consider two factors.

"First, 'a Circuit Justice should "balance the equities" . . . and determine on which side the risk of irreparable injury weighs most heavily.' Holtzman v. Schlesinger, 414 U.S. 1304, 1308-1309 (1973) (MARSHALL, J., in chambers). Second, assuming a balance of equities in favor of the applicant, the Circuit Justice must also determine whether 'it is likely that four Members of this Court would vote to grant a writ of certiorari.' Id., at 1310. The burden of persuasion as to both of these issues rests on the applicant . . . ." Beame v. Friends of the Earth, 434 U.S. 1310, 1312 (1977) (MARSHALL, J., in chambers).

That burden is "particularly heavy," ibid., when, as here, a stay has been denied both by the District Court and unanimously by the Court of Appeals sitting en banc.

The thrust of applicants' position is that the desegregation plan ordered by the District Court and approved by the Court of Appeals is administratively and financially onerous, and that it is inconsistent with the precepts enunciated in Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977).*fn3

[ 439 U.S. Page 1362]

     that time . . . Wilmington and suburban districts were not meaningfully 'separate and autonomous'" because "de jure segregation in New Castle County was a cooperative venture involving both city and suburbs." 393 F.Supp. 428, 437 (1975). So far from finding only isolated examples of unconstitutional action, the District Court in this case concluded "that segregated schooling in Wilmington has never been eliminated and that there still exists a dual school system." 379 F.Supp. 1218, 1223 (1974). The District Court found that this dual school system has been perpetuated through constitutional violations of an interdistrict nature,*fn5 necessitating for their rectification an interdistrict remedy. See 393 F.Supp. 428 (1975). See also 416 F.Supp. 328, 338-341 (1976). The District Court's finding of these interdistrict violations was summarily affirmed by this Court, 423 U.S. 963 (1975), and it thus constitutes the law of the case for purposes of this stay application. Unlike the situation in Dayton, therefore, the record before the Court of Appeals in the instant case was replete with findings justifying, if not requiring, the extensive interdistrict remedy ordered by the District Court.

Applicants argue, however, that the order of the District Court violates the principles of Dayton because no findings were made as to "incremental segregative effect." But even assuming that such an analysis were appropriate when, as ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.