Coalition to Save Our Children v. State Board of Education

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit

7-24-1996

Coalition Save v. Bd Ed DE
Precedential or Non-Precedential:

Docket 95-7452

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http://digitalcommons.law.villanova.edu/thirdcircuit_1996/110

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 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________________

No. 95-7452
__________________

COALITION TO SAVE OUR CHILDREN,

Appellant
v.

STATE BOARD OF EDUCATION OF THE STATE DELAWARE;
BOARD OF EDUCATION OF THE CHRISTIANA SCHOOL DISTRICT;
BOARD OF EDUCATION OF THE BRANDYWINE SCHOOL DISTRICT;
BOARD OF EDUCATION OF THE COLONIAL SCHOOL DISTRICT;
THE BOARD OF EDUCATION OF THE RED CLAY SCHOOL DISTRICT;
DELAWARE HOUSE OF REPRESENTATIVES COMMITTEE ON DESEGREGATION

__________________

Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 56-01816)
__________________

Argued: Tuesday, March 12, 1996

Before: NYGAARD, SAROKIN and ALDISERT, Circuit Judges

(Filed July 24, 1996)

__________________

Thomas D. Barr
David Boies (argued)
Sandra C. Goldstein
Katherine B. Forrest
CRAVATH, SWAINE & MOORE
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019

Thomas J. Henderson (argued)
Pace J. McConkie
LAWYERS' COMMITTEE FOR CIVIL
RIGHTS UNDER LAW
1450 G Street, N.W.
Washington, D.C. 20005
Leonard L. Williams
1214 King Street
Wilmington, DE 19801

ATTORNEYS FOR APPELLANT

Andre L. Dennis
STRADLEY, RONON, STEVENS & YOUNG
2600 One Commerce Square
Philadelphia, PA 19103-7098

Mary B. Matterer
STRADLEY, RONON, STEVENS & YOUNG
One Rodney Square, 8th Floor
P.O. Box 2170
Wilmington, DE 19899-2170

ATTORNEYS FOR
AMICUS CURIAE - CITY OF
WILMINGTON, DELAWARE

Rodman Ward, Jr. (argued)
Andre G. Bouchard
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899

John B. Hindman
Department of Justice
45 The Green
Sykes Building
Dover, DE 19901

ATTORNEYS FOR APPELLEE
STATE BOARD OF EDUCATION
OF THE STATE OF DELAWARE

M. Duncan Grant
PEPPER, HAMILTON & SCHEETZ
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103

Alfred J. D'Angelo, Jr.
Daniel V. Folt
PEPPER, HAMILTON & SHEETZ
1201 Market Street
Suite 1401
Wilmington, DE 19801

ATTORNEYS FOR APPELLEE
 RED CLAY CONSOLIDATED
SCHOOL DISTRICT

David H. Williams
Barbara D. Crowell
MORRIS, JAMES, HITCHENS &
WILLIAMS
222 Delaware Avenue
P.O. Box 2306
Wilmington, Delaware 19899

ATTORNEYS FOR APPELLEES
BRANDYWINE, CHRISTIANA
AND COLONIAL SCHOOL
DISTRICTS

Charles J. Cooper (argued)
SHAW, PITTMAN, POTTS &
TROWBRIDGE
2300 N Street, N.W.
Washington, D.C. 20037

ATTORNEYS FOR APPELLEE
DELAWARE HOUSE OF
REPRESENTATIVES COMMITTEE
ON DESEGREGATION

__________________

OPINION OF THE COURT
__________________

TABLE OF CONTENTS
I. Introduction . . . . . . . . . . . . . . . . . . . . . . 4

II. Procedural History . . . . . . . . . . . . . . . . . . . 6

III. Scope of Review. . . . . . . . . . . . . . . . . . . . .11

IV. Unitary Status . . . . . . . . . . . . . . . . . . . . .13

V. Green Factors. . . . . . . . . . . . . . . . . . . . . .18

A. Student Assignment . . . . . . . . . . . . . . . .18
B. Faculty and Staff Assignments. . . . . . . . . . .32
C. Extracurricular Activities . . . . . . . . . . . .37
D. Remaining Green Factors. . . . . . . . . . . . . .39

VI. Ancillary Relief . . . . . . . . . . . . . . . . . . .39

A. In-service Training. . . . . . . . . . . . . . . .41
B. Reading and Communication Skills . . . . . . . . .44
 C. Curriculum . . . . . . . . . . . . . . . . . . . .48
D. Counseling and Guidance. . . . . . . . . . . . . .50
E. Human Relations. . . . . . . . . . . . . . . . . .52
F. Discipline . . . . . . . . . . . . . . . . . . . .53

VII. Areas of Concern to the District Court and
Allocations of the Burden of Proof. . . . . . . . . .57

VIII. Conclusion . . . . . . . . . . . . . . . . . . . . . . .64

ALDISERT, Circuit Judge
I. Introduction
This case brings to a close our supervision of more than
four decades of litigation designed to desegregate the public
schools of Delaware.
However, we do not end our supervision hastily. After the
Delaware schools' rudimentary attempts at desegregation were
deemed insufficient by the district court in 1957, and by this
court in 1960, judges of this circuit blazed new jurisprudential
trails in 1975 by requiring an interdistrict remedy. By 1977 and
1978, the judiciary had fashioned detailed orders for primary and
ancillary relief which, together with the factors set forth by
the Supreme Court in Green v. County School Bd. of New Kent
County, Va., 391 U.S. 430 (1968), constituted the marching orders
for the school system.
Still, it was not until almost 20 years later (and 35 years
after this court announced dissatisfaction with an original plan
that called for grade-by-grade desegregation over a 12-year
period) that the district court could announce that the marching
orders had been obeyed: The school system has achieved unitary
status by complying in good faith with our detailed desegregation
decrees and by eliminating to the extent practicable the vestiges
of de jure segregation. This was the ruling of the district
court embodied in a judgment entered after a lengthy hearing.
The Coalition to Save Our Students ("Coalition"), the
representative of the plaintiff class, has appealed. We will
affirm.
It is beyond dispute that racism and bigotry continue to
tear at the fragile social fabric of our national and local
communities, and that our best efforts as citizens are needed to
address this problem at many levels. However, as the district
court observed in the case at hand, court-supervised school
desegregation alone cannot eliminate racial discrimination:
[A]s the years have passed since Brown I and II [Brown v.
Board of Educ., 347 U.S. 483 (1954) and Brown v. Board of
Educ., 349 U.S. 294 (1955)], it has become apparent that the
school desegregation process has been unable to eliminate or
overcome racial discrimination in the "myriad factors of
human existence" outside the school environment . . . .
Coalition to Save Our Children v. State Bd. of Educ. of State of
Del., 901 F. Supp. 784, 823 (1995) (quoting Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1, 22 (1971)). Or as the
Court succinctly put it in Swann: "One vehicle can carry only a
limited amount of baggage. It would not serve the important
objective of Brown I to seek to use school desegregation cases
for purposes beyond their scope . . . ." Swann, 402 U.S. at 22.
In light of this sobering truth, it is all the more
important that we write the final chapter in this long period of
supervision by the federal courts and release our provisional
grip on the administrators and educators of Northern New Castle
County, for only in so doing can we permit them to resume their
full role in the larger social and political effort to make our
nation worthy of the best ideals of its members. The length of
the discussion that follows is but one indication of the
importance and sensitivity of the task at hand.

II. Procedural History
Historically, Delaware required its public school pupils to
attend segregated schools. Del. Const. art. 10 2 (1950) and
Rev.Code 1935 2631. However, even before the landmark decision
in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I),
the Delaware courts ordered the admission of black children to
certain schools previously attended only by white children.
Belton v. Gebhart, 87 A.2d 862, aff'd 91 A.2d 137 (Del. 1952).
The Supreme Court consolidated Belton with Brown I and affirmed,
347 U.S. 483, holding that racial segregation of public school
students deprived the minority group children of equal
educational opportunities, in violation of the Equal Protection
Clause. See Brown I, 347 U.S. 483 (1954). The Court again
affirmed Belton v. Gebhart in Brown v. Board of Education, 349
U.S. 294 (1955) (Brown II), remanding to the Supreme Court of
Delaware for further proceedings to require "a prompt and
reasonable start toward full compliance" with Brown I and "to
effectuate a transition to a racially nondiscriminatory school
system . . . with all deliberate speed." Brown II, 349 U.S. at
300-01.
Yet notwithstanding the end of de jure segregation, the City
of Wilmington continued to operate many racially identifiable
schools. Accordingly, the district court fashioned an inter-
district remedy to eliminate the vestiges of segregation and,
faced with the state authorities' adamant and prolonged refusal
to discharge their responsibilities, issued a remedial decree in
1978. The 1978 Order required a 9-3 student assignment plan,
which provided that all students would attend formerly
predominantly "white" suburban school districts for a maximum of
nine years and would spend at least three years in the formerly
"black" school districts.
The 1978 Order also directed eight forms of ancillary relief
"necessary and essential to . . . overcome the vestige effects of
de jure segregation," including: (1) an in-service training
program for teachers; (2) an affirmative reading and
communication skills program; (3) new curriculum offerings; (4) a
nondiscriminatory counseling and guidance program; (5) a human
relations program; (6) codes of conduct providing for
nondiscriminatory discipline; (7) the reassignment of faculty and
staff; and (8) nondiscriminatory guidelines for construction and
maintenance of school buildings. Evans v. Buchanan, 582 F.2d
750, 770-774 (3d Cir. 1978) (in banc).
In 1981, the district court permitted the state to
reorganize the judicially-created school district into the
current four districts -- Brandywine, Christiana, Colonial and
Red Clay. Evans v. Buchanan, 512 F. Supp. 839 (D. Del. 1981).
In so doing, Judge Schwartz asserted that, notwithstanding the
continued existence of "problems that may be characterized as
vestige effects of de jure segregation, . . . [the] four-district
plan is viewed as a good faith effort to respond to repeated
judicial invitations for appropriate State authorities to come
forward with their own meaningful solutions to vexing problems."
Id. at 863, 874. However, because Judge Schwartz found the
"effort [to have] fallen short of the mark in the critical area
of pupil assignment," he deferred for 60 days any order regarding
the State Board's motion for modification of the desegregation
decree in order to encourage "curative legislation" on the
matter. Id. at 872-74.
In 1990, Judge Schwartz made a specific finding that one of
the districts (Red Clay) had failed to comply in good faith with
the 1978 order. Coalition to Save Our Children v. Buchanan, 744
F. Supp. 582, 587-93 (D. Del. 1990). Judge Schwartz stated that
"the vestiges of prior official segregation [had not] been
eradicated 'root and branch' from either the Red Clay District as
a whole or from its student assignment patterns." Id. at 587.
Indeed, Judge Schwartz found that the record was "replete . . .
with evidence of delay, obfuscation, and recalcitrance on the
part of the Red Clay Board with respect to remedying the racial
disparities" in that district. Id. at 592-93.
In 1991, Judge Schwartz stated that, notwithstanding the Red
Clay District's "technical compliance with this court's orders,"
he again had "very grave doubts concerning the [Red Clay] Board's
good faith compliance with the spirit of desegregation," and thus
could "not make a finding that the Red Clay District [was]
operating in compliance with the Equal Protection Clause . . . ."
Coalition to Save Our Children v. State Bd. of Educ., 757 F.
Supp. 328, 349-350 (D. Del.1990).
Four years later, upon motion by the Delaware State Board of
Education for a declaration of "unitary status," the district
court concluded:
that the defendants have complied in good faith with
the desegregation decrees issued in this litigation,
that the defendants are unlikely to return to the
segregative practices of their predecessors, and that
the vestiges of past discrimination have been
eliminated to the extent practicable.

Coalition, 901 F. Supp at 823-824. The opinion accompanying the
order set forth 308 factual findings, which discussed: (a)
compliance with what have become known as Green factors (as
originally suggested in Green v. County School Board, 391 U.S.
430 (1968)) -- student assignment, faculty and staff assignment,
transportation, extracurricular activities, and facilities; (b)
compliance with the ancillary relief provisions, endorsed by this
court sitting in banc, see Evans v. Buchanan, 582 F.2d at 769-74;
and (c) student achievement, special education and dropout rates,
which the district court labelled "Areas of Concern." See
Coalition, 901 F. Supp. at 818-22. Appellant conceded compliance
with two of the Green factors (transportation and facilities) and
one of the ancillary relief provisions (also concerning
facilities).
The district court had jurisdiction under 28 U.S.C. 1331
(1988). We have jurisdiction pursuant to 28 U.S.C. 1291
(1988). Appeal was timely filed under Rule 4(a), Federal Rules
of Appellate Procedure.

III. Scope of Review
The Coalition's appeal presents us with three fundamental
questions for consideration: first, whether the district court
properly concluded that the four school districts of Northern New
Castle County achieved unitary status by complying in good faith
with the desegregation decree and by eliminating to the extent
practicable the vestiges of past discrimination; second, whether
the district court properly allocated to Appellant the burden of
proving that certain racial disparities in student performance
are proximately related to de jure segregation; and third,
whether the district court properly excluded certain expert
testimony proffered by Appellant.

The appeal to this court from the order declaring unitary
status tracks a very narrow compass. Because the district
court's finding that the school districts have achieved unitary
status is factual, our review of that finding is limited to the
clearly erroneous standard. Vaughns by Vaughns v. Bd. of Educ.
of Prince George's County, 758 F.2d 983, 990 (4th Cir. 1985);
United States v. Texas Educ. Agency, 647 F.2d 504, 506 (5th Cir.
1981), cert. denied, 454 U.S. 1143 (1982); Keyes v. School Dist.
No. 1, Denver, Colo., 895 F.2d 659, 666 (10th Cir. 1990), cert.
denied, 498 U.S. 1082 (1991); Jacksonville Branch, NAACP v. Duval
County School Board, 883 F.2d 945, 952 n.3 (11th Cir. 1989). A
finding of fact is clearly erroneous only if the court has "the
definite and firm conviction that a mistake has been committed."
United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948). Further, "[i]t is the responsibility of an appellate
court to accept the ultimate factual determination of the fact-
finder unless that determination either (1) is completely devoid
of minimum evidentiary support displaying some hue of
credibility, or (2) bears no rational relationship to the
supportive evidentiary data." Krasnov v. Dinan, 465 F.2d 1298,
1302 (3d Cir. 1972).
We have plenary review of all questions of law. This
includes a district court's choice, interpretation and
application of the law to the historical facts. Louis W. Epstein
Family Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d Cir.
1994). Accordingly, this court undertakes plenary review of the
district court's allocation of the burdens of proof.
Finally, we review the district court's determination of the
admissibility of expert testimony for abuse of discretion.
United States v. Theodoropoulos, 866 F.2d 587, 590 (3d Cir.
1989).

IV. Unitary Status
The primary legal issue before us is whether the Northern
New Castle County school districts have fulfilled their
affirmative duty to eliminate the former dual school system. The
ultimate end to be brought about by a desegregation remedy is "a
unitary, nonracial system of public education." Green, 391 U.S.
at 436. A school system achieves this unitary status when it no
longer discriminates between school children on the basis of
race. See id. at 442. And a school system no longer
discriminates among school children on the basis of race when it
affirmatively has eliminated all vestiges of state-imposed
segregation. Id. at 435, 437-38 (school board charged with
affirmative duty to eliminate racial discrimination "root and
branch"); Swann, 402 U.S. at 15 ("the objective today remains to
eliminate from the public schools all vestiges of state-imposed
segregation"). Thus our task, simply put, is to determine
whether the district court clearly erred in finding that the
vestiges of de jure segregation have been eliminated in the
Brandywine, Christiana, Colonial and Red Clay school districts.
Green, 391 U.S. at 435; see also Missouri v. Jenkins, ___ U.S.
___, 115 S. Ct. 2038, 2055-56 (1995).
A critical starting point in identifying vestiges of
discrimination is the degree of racial imbalance in the school
districts. This inquiry is fundamental, because under the former
de jure regime, racial exclusion was both the means and the end
of a policy motivated by disparagement of, and hostility towards,
the disfavored race. The Court's 1968 opinion in Green squarely
addressed this issue, noting that "[t]he pattern of separate
`white' and `Negro' schools . . . established under compulsion of
state laws is precisely the pattern of segregation to which Brown
I and Brown II were particularly addressed." Green, 391 U.S. at
435. However, the Green Court also made clear that in examining
the problem of racial imbalance in our schools, we are to look
"not just to the composition of student bodies . . . but to every
facet of school operations -- faculty, staff, transportation,
extracurricular activities and facilities." Id.; see also Swann,
402 U.S. at 18 (the Green factors are "among the most important
indicia of a segregated system.") Because compliance with Greenfactors is
a condition precedent to unitary status, we will
survey each of those factors here.
Nevertheless, the Green factors, which address racial
imbalance, are not the only criteria by which we are to evaluate
whether the school districts have achieved unitary status. We
must also consider the eight programs of "ancillary remedial
relief" prescribed by this court in 1978, including: (1) an in-
service training program for teachers; (2) an affirmative reading
and communication skills program; (3) new curriculum offerings;
(4) a nondiscriminatory counseling and guidance program; (5) a
human relations program; (6) codes of conduct providing for
nondiscriminatory discipline; (7) the reassignment of faculty and
staff; and (8) nondiscriminatory guidelines for construction and
maintenance of school buildings. Evans v. Buchanan, 582 F.2d at
769-74. Thus we will survey compliance with these ancillary
relief measures as well.
By considering both the Green factors and the eight measures
of ancillary relief ordered by this court in 1978, we honor the
mandate set forth by the Supreme Court in Dowell that a school
board under federal supervision "is entitled to a rather precise
statement of its obligations." Bd. of Education of Okla. City
Public Schools, Indep. School Dist. No. 89, Oklahoma County, Okl.
v. Dowell, 498 U.S. 237, 246 (1991) (citing Pasadena City Bd. of
Educ. v. Spangler, 427 U.S. 424 (1976)). Together, the Greenfactors and
the ancillary remedial relief measures constitute
these obligations, and thus precisely frame our inquiry as we
determine whether the district court properly ordered the
withdrawal of federal supervision. The essence of that inquiry
recently was articulated by the Supreme Court:
whether the [constitutional violator] ha[s] complied in
good faith with the desegregation decree since it was
entered, and whether the vestiges of past
discrimination ha[ve] been eliminated to the extent
practicable.
Freeman v. Pitts, 503 U.S. 467, 492 (1992).
Given the Court's recent assertion that federal supervision
of local school districts "`was intended as a temporary measure
to remedy past discrimination,'" Jenkins, ___ U.S. ___, 115 S.
Ct. at 2049 (quoting Dowell, 498 U.S. at 247), we underscore that
the phrase "to the extent practicable" implies a reasonable limit
on the duration of that federal supervision. Indeed, to extend
federal court supervision indefinitely is neither practicable,
desirable, nor proper.
We are keenly aware that, for as long as we have imposed
federal supervision on local school boards, those bodies have
suffered the loss of their defining function -- control over
their own schools. Thus in the present matter the citizens of
the New Castle school districts have been denied for nearly 20
years what the Court has described as the "vital national
tradition" of "local autonomy of school districts." Freeman, 503
U.S. at 490 (quoting Dayton Bd. of Educ. v. Brinkman, 433 U.S.
406, 410 (1977)). Additionally, we appreciate the extended
social and economic burdens that continued supervision would
impose on generations of innocent school children and their
families. The reality of these burdens becomes clear when we
consider that a child who entered first grade in one of the
Northern New Castle County school districts in 1976 under federal
court supervision is now 26 years old, and possibly a parent with
a child of his or her own in the same judicially-controlled
school system.
Our concern for the autonomy of local school systems and
their members is consistent with the established jurisprudence of
desegregation: a fundamental purpose of our mandate to eliminate
the dual system has been to encourage local school districts
independently to provide high-quality educational opportunities
for all students, a state of affairs made possible only in "a
unitary, nonracial system of public education." Green, 391 U.S.
at 436. Were we to allow federal supervision to continue after a
finding that the school districts have complied with our
desegregation mandate, we would effectively preclude those school
districts from achieving that goal. In sum, we cannot reconcile
the prospect of indefinite federal supervision of local school
districts with the ultimate purpose of that supervision -- to
foster the creation of autonomous, racially balanced school
systems. Accordingly, we will remain attentive to the Supreme
Court's repeated instructions that such supervision be
"temporary" and "transitional." See, e.g., Jenkins, ___ U.S.
___, 115 S. Ct. at 2049; Dowell, 498 U.S. at 247.
With these teachings in mind, we turn now to the district
court's analysis in this case.

V. The Green Factors
The fundamental issue before the district court was whether
the desegregation measures taken by the school districts had
effectively eliminated to the extent practicable the vestiges of
the former dual school system. In addressing this issue, the
district court began by scrutinizing various educational factors
initially identified by the Court in Green: student assignments,
faculty, staff, facilities and resources, transportation, and
extra-curricular activities. Green, 391 U.S. at 435. We address
the district court's consideration of each of these factors in
turn.

A. Student Assignment
Because the crux of the original constitutional violation
was the legalized system of segregated schools, the traditional
remedy for the violation was to desegregate the schools through
student reassignment. Accordingly, we ordered the consolidation
of urban and suburban school districts. See Evans v. Buchanan,
582 F.2d at 759 n.5 (quoting Evans v. Buchanan, 435 F. Supp. 832,
838-39 (D. Del. 1977) (footnotes omitted)). The State Board and
districts not only have adhered to the requirements of our
student assignment order, but also have attempted to maintain a
racial balance by consolidating districts, redrawing attendance
zones, and instituting the busing of thousands of students.
Indeed, after the hearing below on the Appellees' motion for
unitary status, the district court found that the schools in
these districts were "among the most racially balanced schools in
the United States." Coalition, 901 F. Supp. at 799. The court's
conclusion finds ample support in the record from the testimony
of school desegregation expert Dr. Christine Rossell. Using an
"index of dissimilarity," Dr. Rossell compared the racial
balance in the four districts to a national sample of 76 similar
districts, analyzing both the percentage of students in schools
with certain variances and the percentage of schools themselves
within certain variances.
Dr. Rossell observed that, as measured against this index,
the four Northern New Castle County school districts have
achieved "close to perfect racial balance." Further, on the
basis of her full analysis, Dr. Rossell concluded that these
districts "are much less racially imbalanced than . . . [the]
national comparison group." JA 568; see also Coalition, 901 F.
Supp. at 797. Because the district court's finding of racial
balance rests on Dr. Rossell's thorough analysis, it is not
clearly erroneous. See Krasnov, 465 F.2d at 1302 (an appellate
court must "accept the ultimate factual determination of the
fact-finder unless that determination . . . is completely devoid
of minimum evidentiary support displaying some hue of credibility
. . .").
Appellant does not contest the findings of racial balance
among schools, but argues nonetheless that segregation persists
within those buildings, in classrooms and programs. More
specifically, Appellant contends that black students are over-
represented in certain classes, such as special education, and
under-represented in others, such as gifted and advanced
placement classes. However, we are mindful that in Milliken v.
Bradley, 418 U.S. 717, 740-41 (1974), the Court held that the
Constitution "does not require any particular racial balance in
each school, grade or classroom." See also Oliver v. Kalamazoo
Bd. of Educ., 640 F.2d 782, 809 (6th Cir. 1980) (rejecting notion
that school system is not unitary if black students are over- or
under-represented in various academic courses). Moreover, the
district court actually made 19 findings concerning the
circumstances of student assignments in the classrooms,
concluding that classroom balance throughout the districts was
exemplary. Coalition, 901 F. Supp. at 800 (measured against a
national sample, classroom imbalance in Northern New Castle
County was one-third to one-half that of other schools). We
review these findings for clear error.
First, although the district court's findings of classroom
racial balance exclude special education classes, there is no
clear error. In our 1978 desegregation order we expressly
excepted "students presently attending and who in the future may
attend . . . special education school facilities and such other
similar special school facilities as presently exist or may be
hereafter established . . . ." JA 128 (Evans v. Buchanan, Civil
Action Nos. 1816-1822, Order at 11 (D. Del. Jan. 9, 1978)). The
rationale for this exception is obvious and compelling: students
-- black or white -- should not be mainstreamed (i.e., denied
special education meant to address special learning needs and
problems) merely to effect a racial balance.
Appellant is also unpersuasive in asserting that students
are placed in special education programs (such as "intensive
learning centers") simply because they are black. Although in
each of the four districts the percentage of black students in
special education programs exceeds the percentage of blacks in
the overall student population, the record demonstrates that
the school districts classify students based on neutral, non-
discriminatory state and federal criteria. JA 829-34.
Additionally, the districts make periodic re-evaluations of
special education students to determine when they can return to
regular classes. Id. Placement is not mandatory, because at
several junctures, parents are empowered to reject the school's
recommendation to place their child in special education classes.
JA 830, 832-33. Moreover, we note that the Appellee State Board
has created numerous statewide special education task forces; has
authorized five comprehensive studies relating to special
education; and thoroughly has investigated intervention
strategies, mainstreaming and the application of selection
procedures. JA 1223, 1243.
The Appellees' efforts to improve racial balance within
these programs not only are commendable, but successful. Indeed,
in three of the four districts, the racial imbalances have
declined. Although we might hope -- even expect -- that this
imbalance will soon disappear, the mere fact that black
students remain over-represented in special education classes
does not make clearly erroneous the district court's finding of
unitary status. Given that Dr. Reschly, in summarizing his
comprehensive analysis, concluded that in these school districts
"special education is not used as a means to separate students by
race," Coalition, 901 F. Supp. at 821; JA 839, we will accept the
court's finding on this issue. See Krasnov, 465 F.2d at 1302
(standard of review).
Similarly, Appellant argues that the district court's
findings with regard to classroom assignment are clearly
erroneous because black students are under-represented in non-
special education classes. This argument relies on, inter alia,the
district court's finding 47: "[t]here is evidence that among
high school students who achieve identical testing scores, black
students were more likely to be placed in the lower level class
than were white students." Coalition, 901 F. Supp. at 801
(footnote omitted); JA 1385; JA 4249; JA 4305-07. To be sure,
this finding is potentially troubling, suggesting on its face
that black students may have been segregated from white students
of equal testing aptitude. However, we must consider this
finding in the full context in which it was examined and
presented by the district court. Thus we must consider that in
footnote 30, which accompanies this finding, the district court
noted that "[t]he comparison apparently does not include academic
achievement as measured by course performance, or whether such
placement was requested or required." Id. Because this
comparison relied on testing aptitude alone, rather than
considering as well the important factor of academic achievement
based on course performance, and because it is not clear whether
the placement at issue was requested or required, we do not
consider finding 47 to be evidence that black students have not
received equal opportunity, nor can we reasonably conclude that
the district court, upon its careful examination, clearly erred.
We observe also finding 48, which states that "[o]n the
other hand, the percentage of minorities enrolled in honors and
AP classes who scored over the 75th percentile in reading or math
in the spring of 1993 is slightly greater than that of whites in
all 4 school districts." Coalition, 901 F. Supp. at 801; JA
6259. Although this finding could, as urged by Appellant, give
rise to an inference that blacks must perform at a higher level
than whites in order to be placed in honors and AP classes, that
is not the sole inference that could be drawn from so limited,
and thus malleable, a sample. Indeed, on the basis of finding 48
alone we may just as reasonably infer something quite different:
that the school districts' good faith efforts to desegregate have
paid off in terms of the improved testing performance of black
students.
In any event, our task here is not to engage in such broad
speculation, nor to choose among possible inferences from the
data; rather, we are to inquire whether the district court's
determination of the districts' unitary status was clearly
erroneous. To accord this finding its proper value, therefore,
it must be considered in the context of other, related findings.
This the district court did. Indeed, in view of the district
court's copious research, we are assured that the court
interpreted this finding in the proper light in determining that
the districts have achieved unitary status.
At the urging of Appellant, we also have examined carefully
the district court's finding 36, which states that "[t]he extent
to which elementary and middle school students are placed in
classes according to their ability is unclear from the record."
Coalition, 901 F. Supp. at 800; JA 4214-21. This finding means
little on its own, for it represents merely that there is
uncertainty in the record about how elementary and middle school
students are placed in classes according to their ability.
Indeed, without further amplification, we are not persuaded to
conclude that this statement cuts against the court's
determination regarding the districts' good faith efforts to
eliminate de jure segregation. Again, we are required to place
this finding in context, bearing in mind that because few
elective classes or courses are available to students at the
elementary and middle school levels, the selective process for
students is far more meaningful at the high school level. Thus
we must consider finding 36 in light of findings 39, 40 and 45.
Finding 39 describes the high school class selection process
as involving "class presentations by guidance counselors,
booklets with course descriptions, application by students in
consultation with family, individual guidance from guidance
counselors, and teacher input." Coalition, 901 F. Supp. at 800;
JA 755-56, 771-72, 851-54, 863-66. Not only is high school class
selection the product of these various deliberations, but,
according to finding 40, "[t]he parents and student have the
ultimate say in the level to which the student is assigned."
Coalition, 901 F. Supp. at 800; JA 1383.
And although finding 36 indicates that the record is unclear
on how elementary and middle school students are placed in
classes according to their ability, finding 45, when considered
in its entirety, provides detailed information about the class
placement of high school students as set forth in the margin.
Accordingly, when we consider Finding 36 in the context of
these other relevant findings, we find unavailing the contention
that finding 36 provides significant evidence that minority
students have not received an equal opportunity to succeed in the
pertinent school districts. The district court's multiple
findings on this particular issue suggest that the court did
indeed consider "every facet of school operations" in determining
that the districts have achieved unitary status.
Finally, we note finding 49 of the district court's opinion,
which states that "[t]here is evidence that lower levels of
instruction may not encourage achievement and may adversely
affect the ability of a student to attend college." Coalition,
901 F. Supp. at 801; PX 2262 at 82; PX 2265. As with the
foregoing findings, although this finding may be considered
troubling on its face, alone it is neither definitive nor
substantial enough to show clear error in the district court's
determination of unitary status. The mere finding that evidence
exists "that lower levels of instruction may not encourage
achievement and may adversely affect the ability of a student to
attend college," id., does not establish anything specific about
whether that putative problem is related to disparate educational
opportunity or treatment according to race.
Of course, this finding is obvious and indisputable as far
as it goes: when students receive lower levels of instruction,
they are less likely to feel encouraged to achieve and thus will
be less likely to attend college. Yet this truism merely serves
to underscore the more fundamental question at issue here -- on
what basis are students placed in "lower levels of instruction"?
As we already have made clear, that basis was not racially
discriminatory; the record does not support the claim that
students of one race are afforded college preparation
opportunities (advanced placement classes, counseling, help in
preparing for college placement exams) that students of another
race are not.
Thus although the finding that "lower levels of instruction
may not encourage achievement" is problematic, especially when
viewed in isolation, yet when considered in relevant socio-
economic context, this statement of mere possibility cannot be
regarded as proof that the district court clearly erred in
determining that the school districts have achieved unitary
status. The district court dutifully presented this finding in
combination with many others and, after carefully analyzing these
findings in their totality, declared that "there is no credible
evidence linking any current racially identifiable conditions to
the prior violation" Id. at 823 (footnote omitted).
This, too, must be said. Although the Constitution requires
that all of its citizens have equal access to the pursuit of
education, and that they be given equal breaks while attending
school, it does not insist that they all finish even. The proper
test under the Constitution is equality of opportunity, not of
results. On this point we would do well to recall Edmund Burke's
pithy formulation: "[A]ll men have equal rights, but not to equal
things." And indeed, Appellant articulated its commitment to
this principle at oral argument: "[w]e have never suggested that
the measure here is ultimate equal outcomes."
That everyone does not finish even is tragic, of course, but
it does not amount to a constitutional violation. Nor does it
violate the school districts' mandate regarding student
assignment under Green. Accordingly, we conclude that the
district court properly determined that, as to student
assignment, the districts achieved unitary status through good
faith compliance with the requirements of the 1978 Order.

B. Faculty and Staff Assignments
 Before the 1978 consolidation, the vast majority of black
administrators and teachers served two predominantly black
districts. In September 1978, the districts reassigned faculty,
administrative and other certificated staff in all eleven
districts. The evidence presented at trial demonstrated that
the districts now have balanced their faculties to a degree that
is virtually unprecedented among those school districts in this
country that operate under court orders. The district court
found that the districts closely monitor the racial composition
of their faculties and do not hesitate to block transfers and to
make reassignments, overriding seniority where necessary, to
ensure diverse racial representation at each school. Coalition,
901 F. Supp. at 802-04. The record testimony of senior
administrative officials from each of the four districts supports
these findings.
Appellant does not refute either the district court's
calculations or its conclusion of racial balance among the
faculties, but nonetheless argues that the district court's
finding that the vestiges of de jure segregation have been
eliminated to the extent practicable is clearly erroneous because
the overall percentage of minority teachers within the districts
has declined by two or three percent since 1982. Appellant's Br.
at 10. This gradual decline does not indicate clear error,
however, because the shortage of minority teachers in the four
school districts is not a vestige of de jure segregation in
Northern New Castle County, but rather a manifestation of an
unfortunate contemporary national trend. Indeed, even
Appellant's expert testified that there is a critical shortage of
black teachers in the public schools. JA 1167-68 (the number of
black students graduating from colleges in the United States with
bachelor degrees in the field of education has declined); see
also Freeman v. Pitts, 503 U.S. 467, 482-83 (1992).
The record further reveals that, notwithstanding the
shortage of available faculty, the districts hired minority
candidates at rates two to four times greater than the available
percentage of minorities in regional and national pools. JA
6566. This is attributable in part to the extensive affirmative
minority recruitment efforts of each of the four school
districts. For example, the Brandywine district has sought to
expand its pool of potential minority hires by recruiting not
only teachers who have received a degree in education from a 4-
year program, but teachers who have received their B.A. or B.S.
degrees in fields other than education and have prior teaching
experience. JA 620. The Christiana district has attempted to
recruit minority teachers by sending announcements to
predominantly and historically black universities, by attending
career days at predominantly black universities, and by hiring
minorities as paraprofessionals. JA 603. The Colonial district
has assembled a task force to address minority faculty
representation. JA 633. And in the Red Clay district,
occasionally a faculty position will be held open until a
minority candidate is found. JA 624. Based on this record, the
court did not clearly err in finding that the school districts
had demonstrated good faith efforts to integrate the faculties of
the schools.
We turn, then, to the racial balance among the "non-
professional" or "classified" staff, which includes bus drivers,
bus aides, secretarial and clerical positions, paraprofessionals,
custodial employees, and food service workers. The undisputed
evidence of record establishes that the school districts have
attempted to use the hiring process to improve racial balance on
the staff as new openings have materialized. For example,
Brandywine recruits minority staff through community channels,
focusing on community centers, neighborhood churches and
community groups in minority areas. JA 621. Similarly,
Christiana recruits through community newsletters, community
centers, and by "word of mouth." JA 603.
Appellant concedes that the districts have made such
efforts, but argues that the districts have not reassigned the
staff to maximize racial balance. The district court found
that it would be impractical for the districts to reassign these
employees in order to attain greater racial balance. We agree.
Food service workers, for example, earn approximately $3200-
$4300 per year, working approximately three hours a day. JA 605.
Generally, these employees work close to where they live.
Transferring them to a distant workplace that would require a
long commute simply is not feasible for the salary they receive.
Id. Secretarial and clerical personnel would experience a
similarly negative economic impact. Id. Even Appellant's expert
acknowledged that forced reassignment of these part-time, low-
wage employees could create hardships on these workers with
respect to child care, commuting time, distance from work and
expenses. JA 1105. Accordingly, it was not clearly erroneous
for the court to conclude that the districts have eliminated to
the extent practicable any residual racial identifiability in the
schools with respect to these employees.
We carefully have considered Appellant's contentions with
respect to faculty and staff assignment, and we conclude that
there was no clear error in the district court's findings.

C. Extracurricular Activities
Appellant contends that the districts have not eliminated
the vestiges of de jure segregation from their extracurricular
activities. It is undisputed, however, that all extracurricular
activities within the four districts are open to students of all
races. All eligibility requirements are race-neutral, and
district officials encourage all students, regardless of race, to
participate in a wide range of extracurricular activities.
Nevertheless, Appellant argues that the districts must also
eliminate any racial identifiability that exists within each of
these activities. In findings 98-100, 109-110, 118 and 125-128,
the district court indicated that, unfortunately, there exist a
substantial number of racially identifiable extracurricular
activities throughout the four districts. We cannot, however,
expect a school district to compel or deny student participation
in non-compulsory extracurricular activities merely to effect a
racial balance.
The four districts have removed financial and transportation
barriers to participation. JA 1164. Moreover, each of the
districts has demonstrated good faith efforts to reduce the
racial identifiability of their activities through experimental
programs. For example, the Brandywine district invites all
eighth graders and their parents to the high schools to meet
representatives from the activities, JA 753; Christiana announces
upcoming activities in newsletters and physical education
classes, JA 740; middle schoolers in Colonial are recruited to
participate in activities when they enter high school, JA 743;
and in Red Clay, coaches recruit students and expose them to
various sports through the physical education curriculum, JA 680.
We believe that a school district's extracurricular
activities are unitary if they "are available to all students
within the School District regardless of race." Singleton v.
Jackson Mun. Separate Sch. Dist., 541 F. Supp. 904, 908 (S.D.
Miss. 1981); see also Swann, 402 U.S. at 18 ("With respect to
such matters as . . . extracurricular activities," it may be
enough "to eliminate invidious racial distinctions."). School
districts need not "show equal participation." Lockett v. Board
of Educ. of Muscogee County, No. 991 at 55 (M.D. Ga. Nov. 18
1994) (citing Quarles v. Oxford Municipal Separate School Dist.,
868 F.2d 750, 757 (5th Cir. 1989)). Accordingly, we conclude
that the record supports the district court's finding that the
districts have eliminated to the extent practicable from their
extracurricular activities the vestiges of past de jurediscrimination.

D. Remaining Green Factors (Transportation and Facilities)
There is no dispute among the parties concerning the two
remaining factors outlined in Green. Specifically,
transportation is provided on a non-discriminatory basis.
Additionally, the districts successfully have remedied the
distinctions between the facilities of the formerly black and
formerly white schools.

VI. Ancillary Relief
The 1978 order of this court required the implementation of
eight specific programs ancillary to the 9-3 pupil assignment
plan. The order required the districts to:
1) formulate and implement a comprehensive in-service
training program for teachers, administrators and other
staff in order to train personnel to cope with the
desegregation process;

2) institute an affirmative reading and communication
skills program, which does not resegregate the pupils,
in order to remedy the effects of the past
discrimination;

3) provide curriculum offerings and programs which
emphasize and reflect the cultural pluralism of the
students, and all instructional materials, texts and
other curriculum aids shall be free of racial bias;

4) institute an effective and nondiscriminatory counseling
 and guidance program. The counseling and guidance
program must insure that students are counseled on a
racially nondiscriminatory basis concerning all
programs available in the area of work opportunities
and opportunities for a college education;

5) provide an appropriate human relations program . . .
[designed] to protect the individual dignity of
students and teachers and to prevent racial myths and
stereotypes from prevailing in schools undergoing
desegregation;

6) develop . . . a code of rights and responsibilities . .
. provid[ing] for racially nondiscriminatory discipline
and . . . contain[ing] provisions to insure each
student in the desegregation area procedural and
substantive due process required by existing law. Such
a code will help to provide equal educational
opportunity to all students by protecting them from
unreasonable, discriminatory, and arbitrary rules; and
the Board shall not administer the code on a racially
selective or otherwise biased basis;

7) reassign faculty, administrative and other staff
personnel to insure that schools do not retain their
former racial identity through racially identifiable
faculty and staff assignments; [and]

8) establish and enforce nondiscriminatory guidelines for
new construction, review of building needs and the
appropriateness of each proposed building project or
school closing.
JA 128-30; see also 447 F. Supp. at 1014; see also Evans v.
Buchanan, 582 F.2d at 771-73.
The district court offered more than 180 factual findings in
detailing the school districts' implementation of these ancillary
relief provisions. In the first four years alone, more than
$18.8 million in federal desegregation project grants were used
to pay for human relations specialists, home-school liaisons,
reading resource teachers and in-service programs. The state and
the districts maintained these programs even after the transition
to a desegregated system. And significantly, from 1978 until the
unitary status petition was filed, Appellant never complained to
the court of any failure to comply with any of the ancillary
relief provisions. Of these eight, the last is undisputed, and
the seventh we have addressed in our discussion on compliance
with the Green factors. Thus here we will review the district
court's findings on the first six of these ancillary measures.

A. In-Service Training
The district court found that all four districts offered a
rich array of in-service programs for their faculty, and that,
although the focus of these programs no longer is desegregation,
all four districts continue to offer in-service training on
desegregation, race equity and multiculturalism. Coalition, 901
F. Supp. at 809. Appellant contends that the district court's
findings are clearly erroneous because two of the Appellant's
experts testified that the in-service training was inadequate.
Appellant's Br. at 25. But a reviewing court's role is not to
pick and choose isolated snippets of evidence. Rather, we must
decide, after viewing the record as a whole, whether there is
evidentiary support for the district court's findings. Such
support is present; accordingly, there is no clear error.
In January 1978, a team from the districts drafted a
statement listing several management goals for the in-service
training of the faculty, staff and administration. The first
goal -- "[t]o orient the instructional staff to the curricular
and instructional process" -- was accomplished through the Center
for Conflict and Desegregation at the University of Pittsburgh
the following month. JA 948-49, 4373, 4376-77. In addition, the
team responsible for planning in-service training also realized
at least three other goals that year. Further, in 1978, an
Office of In-Service Activities was established and staffed by
two full-time personnel, JA 951-52, and all programs relating to
desegregation were mandatory for faculty, staff and
administrators. JA 961-62. Finally, even Appellant's expert
testified that the in-service programs offered by the state at
the time of desegregation complied with the 1978 order. JA 1140,
1170.
The record similarly supports the district court's finding
that the districts have continued in-service training programs
since the 1978 order. For example, the district court heard
evidence that from 1981 through 1994, Brandywine offered various
workshops and courses related to desegregation, race equity and
multiculturalism. Moreover, all new Brandywine teachers are
required to participate in a 12-hour induction program, which
includes a panel discussion on issues of multiculturalism. JA
931.
Similarly, in the 1980s, various human relations specialists
and administrators trained by the Race Desegregation Assistance
Center at the University of Pittsburgh worked with the Red Clay
faculty and staff in the area of cultural diversity. DI 1936 at
635-36, 642. The record further reveals that from 1992 through
1995, Red Clay also has offered in-service training on
multiculturalism. DX 79 at FL 12295, FL 12299, FL 12302, FL
12304-11, FL 12313-14, DX 80; DXC 81; DI 1939 at 1806. The
court's findings with regard to the Christiana and Colonial
districts likewise are supported by the record.

In light of the foregoing, we are satisfied that Appellant's
charges have no support in the record, and thus that the district
court properly found that the schools have met the requirements
of in-service training.

B. Reading and Communication Skills
The district court found that an affirmative and integrated
reading program was instituted in each of the four districts.
Coalition, 901 F. Supp. at 809. Appellant contends that the
finding is clearly erroneous, because the districts "failed to
show that any reading program was implemented for the purpose of
remedying the negative effects of the de jure segregation as
required by the 1978 Order, or that the reading programs that
were implemented did not resegregate students." Appellant's Br.
at 26. However, although no reading program specifically
targeted black students, we conclude from our review of the
record that the districts nevertheless met the standard of good
faith compliance with the 1978 Order.
The record indicates that a reading program was instituted
in the schools in 1978, immediately following the issuance of the
remedial order. JA 967. The program employed 110 reading
teachers, who
worked with the classroom teacher to help with testing,
interpretation of those data from the tests, selection of
materials, planning of program and strategies for students
who needed assistance and anything that [a] particular
teacher wanted, to do to help the students within that
classroom.

JA 968. Students in grades two through nine were provided
assistance under the reading program if they were one year or
more below reading level, as demonstrated by standardized test
scores. JA 968. Students in grades ten through twelve were
provided assistance if they were two years below level. Id. And
supplemental reading instruction was provided daily for 30-45
minutes, depending on grade level. JA 969. For the most part,
this instruction occurred in small groups within the classroom.
Id. The districts combined have employed between 100 and 135
reading teachers every year since the 1981-82 school year. JA
4910-11.
Further, the court heard evidence and found facts pertaining
to the reading programs in each of the four districts. With
regard to the Red Clay district, for example, the court credited
the testimony of officials from the district and found that
reading resource teachers coordinate the "HOSTS"
program (Help One Student to Succeed) for reading- and
writing-deficient students. Under the program,
volunteer tutors work with individual children for 45
minutes per week. More than 300 students participate
in the program.

[Twenty five] parent educators hired by the Parents as
Teachers program teaches [sic] first-time parents in
New Castle County the importance of language and
reading for pre-school children. The program has been
in existence since 1987. In 1993 and 1994, the focus
was on teenage parents and families with multiple
needs.

Coalition, 901 F. Supp. at 810 (footnote omitted). The court
found similar progress in the other districts.
Because these programs were meant to address the reading
problems of every student, Appellant's argument that the program
resegregated students is misguided. Although the school
districts have not excluded black (or white) students from the
remedial reading programs to effect a racial balance, the
districts do deploy several different programs such as one-on-
one, small group and pull-out remedial reading programs, in which
reading teachers either work inside the classroom or pull a given
student out of the classroom for individual attention. Thus we
cannot agree that the districts' remedial reading programs have
resegregated students; the basic requirement of good faith
efforts to remove the vestiges of de jure segregation to the
extent practicable have been met. Accordingly, the district
court did not clearly err.
Appellant further contends that the school districts have
"failed to show that any `communications skills program' was ever
implemented" in any of the districts. Appellant's Br. at 26.
However, there is no meaningful distinction between reading
skills programs and communication skills programs; indeed, the
1978 Order mandates the creation of a singular "program" to teach
reading and communication skills. JA 129. Likewise, testimony
from school officials on this point suggests that instruction for
both skills is combined. Thus "reading skills" and
"communications skills" are synonymous for purposes of our
analysis here. Accordingly, on the basis of our foregoing
discussion of reading skills and programs, we reject Appellant's
argument that the districts have not complied with the 1978
Order.

C. Curriculum
The 1978 Order required that the curriculum "emphasize and
reflect the cultural pluralism of the students," and that "all
instructional materials, texts and other curriculum aids shall be
free of racial bias." JA 129. Appellant argues that the school
districts "failed to show that [an] inclusive curriculum as
required by the 1978 Order was ever actually taught in a single
classroom or that efforts made were anything other than sporadic
or shortlived, or that the curriculum achieved any results at
all." Appellant's Br. at 27. This sweeping assertion does not
comport with the record.
The record indicates that the Delaware Department of Public
Instruction has established text selection guidelines for the
districts to use in conjunction with their own guidelines to
ensure racially unbiased texts and instructional materials. The
Department also has adopted a Comprehensive Policy for
Multicultural Education, published accompanying guidelines,
sponsored multicultural education and adopted multicultural
curriculum standards. See, e.g., DX 124 at FL 23147; DX 125 at
FL 23172. In April 1994, consistent with these guidelines, the
Department sponsored a two-day Multicultural Education Institute.
DX 52.
Further, the district court made specific findings that
acknowledged efforts in each of the four districts to offer a
multicultural curriculum. Coalition, 901 F. Supp. at 810-12.
Our review of the record reveals several exemplary programs,
including the Brandywine district's extensive black history
curriculum in the elementary schools; Christiana's inclusion of
the minority community in the textbook selection process;
Colonial's course entitled "Minorities USA"; and Red Clay's
integration of cultural pluralism into the social studies,
English language arts, art education and music education
curriculum guides.
In light of this substantial record evidence supporting the
district court's findings, we are satisfied that the court did
not clearly err when it found that the schools have complied with
the court order as to curricular reform.

D. Counseling and Guidance
The 1978 Order required the districts to "institute an
effective and nondiscriminatory counseling and guidance program .
. . [to] insure that students are counseled on a racially
nondiscriminatory basis" concerning post-secondary opportunities.
JA 129. Appellant argues that the districts "failed to show that
any effort had been made to ensure that the counseling and
guidance programs attempted to prevent resegregation of students
in the classroom as required by the 1978 Order or that, in fact,
the counseling and guidance programs did not become vehicles for
resegregation. The School System failed to show that the
counseling and guidance programs achieved any results at all."
Appellant's Br. at 26. Again, the record belies Appellant's bold
assertions.
In the spring of 1978, the New Castle district formed a
committee "to follow the directive of the Court at the time [--]
to develop a nondiscriminatory developmental guidance program for
all students." JA 770. The committee drafted guidelines, which
the district adopted in the Handbook for Certified Guidance
Counselors. JA 770-71. In 1981, the Department modified the
guidelines for district and statewide use in the Delaware
Guidance Handbook, K-12, which was itself revised in 1990 as
Appendix B to the Handbook for K-12 Education. JA 770-71.
The record further establishes that, from 1981 to 1991,
these Department guidelines governed counseling programs within
the districts. For example, in 1990, the state directed each
district to prepare "a written plan describing the guidance
program for the district which is reviewed periodically and
updated at least every five years." DX 230 at D 1464. Plans for
each district subsequently were drafted and approved. JA 755,
769-70, 852, 864, DX 230, DX 231, DX 232, DX 233, DX 234. The
district programs described in the plans include academic,
personal, social, career and life-planning counseling. JA 1137.
The court's detailed description of the programs established
in each of the districts also is supported by the record.
Coalition, 901 F. Supp. at 813-814. Especially mindful of
alleged disparities in the Red Clay school district, we emphasize
that the record clearly supports the district court's
determination that that district administers aptitude tests,
provides speakers, supplies ample resource material, offers
participation in various achievement programs, and facilitates an
extensive college visitation program. JA 772-74.
In sum, it is clear that the State Board has adopted
nondiscriminatory counseling guidelines; that all the districts
have provided comprehensive post-secondary career, educational
and vocational assistance; and that the districts support
numerous supplementary counseling programs which encourage
minorities to pursue post-secondary education. Moreover,
Appellant fails to cite any instance of discriminatory
counseling. Accordingly, we conclude that the court did not err
in determining that this aspect of the remedial order was
fulfilled.

E. Human Relations
The 1978 Order required the districts to "provide an
appropriate human relations program" for "schools undergoing
desegregation." JA 130. The provision was intended to be
transitional, designed to address "the various pressures which
arise as a result of desegregation." Evans, 582 F.2d at 769.
Appellant argues that "[t]he School System failed to show that
any human relations program was actually implemented as written .
. . or that any human relations program lasted for more than a
brief duration or achieved any results at all." Appellant's Br.
at 24-25. Nevertheless, the record supports the district court's
findings.
The school districts responded to the order by implementing
a program involving more than 100 specially trained and certified
specialists who were assigned to schools in "biracial teams." JA
763-64. Each high school and junior high school had at least one
team, and these teams were also directed to serve a number of
elementary schools. Id. These specialists provided crisis
intervention assistance and implemented student support programs,
such as peer tutoring and counseling. JA 764-66. Because the
desegregation went smoothly, the focus of the program soon
shifted to multicultural awareness, problem-solving and other
student support functions. JA 764. The districts continued
these services by retaining human relations personnel and hiring
elementary guidance counselors, social workers, community
outreach personnel, visiting teachers, student advisors, student
relations specialists and other student support personnel. SeeCoalition,
901 F. Supp. at 815-16.
Moreover, the district court described in detail the
progress in each of the four districts. Again directing our
focus to the Red Clay district, we note that "Red Clay employed
16 human relations specialists and home/school advisors in 1981-
82 and 18 in 1982-83" and "five human relations specialists and
home/school advisors" as recently as 1993-94. Coalition, 901 F.
Supp. at 816 (crediting Defendant's Exhibit 111).
Notwithstanding the necessary (and welcome) shift in the
focus of the human relations program, it clearly has lasted
beyond "a brief duration" and has yielded significant results.
Accordingly, these findings support the district court's
determination that the school districts complied with the court
order as to human relations programs.

F. Discipline
The 1978 Order required the development of a code to provide
"racially nondiscriminatory discipline" and to ensure "procedural
and substantive due process." JA 130. In July 1978, the New
Castle district adopted a code of conduct drafted by a "committee
[which had] gathered similar documents from Delaware and large
desegregated school districts for review." JA 4436. Prior to
adoption, drafts of the code were reviewed by citizen groups,
student council leaders, the Teachers' Association, and
administrators. JA 4435-36. The districts adopted the New
Castle code in 1981, and each district has revised the code
periodically since then, through a "process of development and
continual revision that includes [the] involvement of others,
that includes teachers, includes administrators, and there are
processes for the codes to be reviewed by external sources and
have input." JA 719.
Appellant's discipline expert concedes that the districts'
codes are not "discriminatory on their face." JA 1157. And the
district court found that the codes "are not applied in a
discriminatory fashion." Coalition, 901 F. Supp. at 817.
Appellant argues, however, that the school districts have failed
to reduce racial disparities in discipline rates among students,
and that Appellant was denied the opportunity to admit expert
testimony in support of this claim. However, on this matter the
record supports the district court's findings, as well as its
exercise of discretion.
The district court's finding that discipline is not
administered in a discriminatory fashion is supported by the
testimony of Dr. Charles Achilles, the school districts' expert.
Dr. Achilles calculated indices by dividing the percentage of
black student suspensions by the black enrollment percentage.
Based on these data, Dr. Achilles determined that the districts'
suspension indices reflected less racial imbalance than indices
calculated from national suspension data compiled by the Office
of Civil Rights and Delaware arrest data. JA 722-23. Dr.
Achilles further illustrated that the indices were essentially
consistent across the four districts -- "a result difficult to
achieve if equitable nondiscriminatory codes were not being used
and applied in an equitable, nondiscriminatory manner."
Coalition, 901 F. Supp. at 817; see JA 724. And finally, Dr.
Achilles demonstrated "consistency in how the codes were applied
by administrators, regardless of the administrators' race."
Coalition, 901 F. Supp. at 817; see JA 725. In light of this
compelling testimony, we conclude that the district court did not
clearly err in determining that, as to discipline, the school
districts have complied with the 1978 Order. See Krasnov, 465
F.2d at 1302 (standard of review).
Nor did the district court err in rejecting the testimony of
Appellant's discipline expert, Dr. William Gordon. He could cite
no study or authoritative literature to support his assumption
"that 'undiscipline' or misbehavior is a randomly distributed
characteristic among racial groups . . . ." JA 1161. And in
fact, statistical data demonstrate a comparable or greater racial
disproportion for those offenses for which Delaware law mandates
suspension, which Gordon called "very objective" offenses, than
for those offenses he viewed as less objective. JA 726.
Accordingly, we reject Appellant's argument that the schools have
failed to reduce racial disparities in discipline rates.

We likewise reject Appellant's contention that expert
testimony on this matter was improperly rejected by the district
court. A trial judge's exclusion of testimony cannot be
disturbed on appeal "absent a clear abuse of discretion." Semper
v. Santos, 845 F.2d 1233, 1238 (3d Cir. 1988); Fashauer v. New
Jersey Transit Rail Operations, 57 F.3d 1269, 1287 (3d Cir.
1995). In both Semper and Fashauer, the court upheld the
exclusion of rebuttal testimony because of counsel's failure to
adhere to a pretrial order. Semper, 845 F.2d at 1238; Fashauer,
57 F.3d at 1287.
Here, Appellant disregarded two pretrial orders requiring
the disclosure of the "specific subject matter as to which each
expert will testify" and the provision of expert reports
complying with Rule 26, Federal Rules of Civil Procedure.
Denying Appellant's motion to delay disclosure of the identity of
its experts, the district court stressed, more than three months
before trial, that "[t]his is a case where the interests of
justice dictate public disclosure of the parties' experts and
early resolution of any potential disputes regarding any experts'
qualifications." JA 203, 208.
Rule 26 states that "[t]he report shall contain a complete
statement of all opinions to be expressed and the basis and
reasons therefor" and obligates a party to supplement the report
if it "learns that in some material respect the information
disclosed is incomplete or incorrect . . . ." Fed. R. Civ. P.
26(a)(2)(B) & (e)(1). Supplementation must be made "with special
promptness as the trial date approaches." Fed. R. Civ. P. 26(e).
Exclusion of testimony is an appropriate sanction for failure to
supplement in a timely manner. See Freund v. Fleetwood
Enterprises, Inc., 956 F.2d 354, 358 (1st Cir. 1992).
As of November 30, Appellant knew all of the State Board's
experts' topics and methodologies. Appellant could have, but
declined to, file a supplemental report for expert witness de
Leeuw on December 9, as it did for three of its other experts.
Appellant also could have disclosed its intent as a result of
counsel's comments at the deposition on December 15. Instead,
Appellant chose the tactical route of surprise. In light of the
foregoing discussion, we conclude that the district court did not
abuse its discretion in excluding this surprise testimony.

VII. Areas of Concern to the District Court
and Allocations of the Burden of Proof

Aside from its examination of the four school
districts' compliance with the Green factors and the ancillary
relief measures, the district court also acknowledged that
certain performance disparities persist in the New Castle County
schools -- most notably in the Red Clay district. These
performance disparities include student achievement, special
education, and dropout rates, and are not disputed here.
However, because these disparities are not among the vestiges
enumerated either in Green or in the ancillary relief order, we
must determine, first, whether these disparities actually are
vestiges of de jure segregation, and if so, whether the school
districts have in good faith eliminated them to the extent
practicable. Having considered the taxonomy of disparities
proffered by Appellant and reviewed the record and pertinent
legal precepts, we hold that Appellant properly was allocated the
burden to prove that the disparities were vestiges, and that the
Appellant failed to meet this burden.
The Court has made plain that certain disparities
necessarily are vestiges of de jure segregation. Identifying
what would become known as the Green factors, the Court directed
school boards to propose plans designed to disestablish state-
imposed segregation in "every facet of school operations --
faculty, staff, transportation, extracurricular activities and
facilities." Green, 391 U.S. at 435. Accordingly, and as the
relevant cases cited by Appellant demonstrate, the Court
consistently has turned to the Green factors to "determin[e]
whether a dual school system has been disestablished." Columbus,
443 U.S. at 458-61 (Green factors). See also Davis v. Board of
Sch. Comm'rs of Mobile County, 402 U.S. 33, 37 (1971) (pupil
assignment); Dayton Bd. of Educ. v. Brinkman, 443 U.S. at 538
(pupil assignment and school construction). Indeed, the Greenfactors have
become per se vestiges of de jure segregation -- and
therefore the focal point for determining unitary status.
Nevertheless, the performance disparities enumerated by Appellant
are not among these factors.
Still, the Green factors are not the only disparities
that may be classified as vestiges of de jure segregation.
Depending on the circumstances of a particular case, the trial
court still may exercise discretion to consider other factors.
Freeman, 503 U.S. at 492-93. The circumstances of the instant
case prompted the district court, in 1978, to order eight
ancillary remedial measures. As with the Green factors, we have
reviewed the districts' compliance with that order and conclude
that there was a good faith effort to eliminate the vestiges
identified therein to the extent practicable. Again, however,
the performance disparities urged here were not identified among
these vestiges of de jure segregation.
We emphasize that here we are not discussing the burden
of proving compliance with the Green factors or the 1978 Order,
as to which the school districts acknowledge bearing the
evidentiary burden. Our discussion here, and our allocation of
the burden of proof to Appellant, is limited to the issue of
proving that the identified performance disparities are vestiges
of de jure segregation.
Because the performance disparities claimed by
Appellant are not among (or even similar to) the Green factors or
the vestiges identified in the 1978 Order, we will not simply
presume -- as Appellant urges us to do -- that these are vestiges
of de jure segregation. Appellant offers no persuasive authority
for establishing a causal link between present achievement
disparities and past de jure segregation. In fact, all but one
of the cases relied on by Appellant on this point are irrelevant,
because they address only Green-type factors; the State Board
does not dispute that it carried the burden of proving good faith
efforts to eliminate (to the extent practicable) such vestiges of
de jure segregation.
Appellant thus can rely solely on Vaughns by Vaughns v.
Bd. of Educ. of Prince George's County, 758 F.2d 983, 990-91 (4th
Cir. 1985), which, upon our review, supports the district court.
In Vaughns, because the school district was not unitary with
respect to the Green factor of student assignment, id. at 990-91,
the Court of Appeals for the Fourth Circuit held that the
plaintiffs were entitled to a presumption that disparities in
special education and gifted and talented programs arose from
prior segregation. More important, the Vaughns court
distinguished a decision from a sister circuit because "the
burden shifted to [Appellants] in that case only because the
school system had achieved unitary status with regard to student
assignment." Vaughns, 758 F.2d at 991.
Here, however, the districts have been unitary as to
school assignments since the 1978 order. Had the Vaughns school
district satisfied the Green factors as have the Delaware
districts before us, the Vaughns plaintiffs would have had to
prove that performance disparities resulted from de juresegregation. The
Court of Appeals for the Fourth Circuit so held
in two subsequent cases. See Riddick by Riddick v. School Bd. of
City of Norfolk, 784 F.2d 521, 534 (4th Cir.), cert. denied, 479
U.S. 938 (1986); School Bd. of the City of Richmond, Va. v.
Baliles, 829 F.2d 1308, 1312 (4th Cir. 1987). The same result
should obtain here.
Further, we must respect the Court's teaching that "a
school board is entitled to a rather precise statement of its
obligations under a desegregation decree" and to "a like
statement from the court" for when "such a decree is to be
terminated or dissolved." Dowell, 498 U.S. at 246 (citing
Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976)).
Because we are reluctant to impose any unstated obligation on the
school boards, we allocate the burden to prove any additional
violation to the Appellant. See Jenkins, 115 S. Ct. at 2055-56
(to require a remedy, inferior student achievement must be proven
to have resulted from de jure segregation); see also Keyes v.
School Dist. No. 1, C.A. Nos. C-1499, 69-M-1499 (D. Colo. Sept.
12, 1995), slip op. at 14 ("The Court's opinion in . . . Jenkins. . .
defeats the plaintiffs' call for compelling additional
action to investigate and redress racial disparities in student
achievement . . . [when the] court has never made any findings
that such differences are the result of discrimination by the
District").
In light of the foregoing discussion, we conclude that
Appellant failed to carry its burden. The district court's
finding that persistent student performance disparities were
caused by socioeconomic factors is supported by the record.
Coalition, 901 F. Supp. at 818-19. The district court cited
various demographic data from the 1990 U.S. Census and the 1992
Vital Statistics Report of Delaware that illustrate a
"black/white gap" in the geographic area contained in the four
school districts, and in New Castle County generally, as to
socioeconomic conditions. The record establishes that "Blacks
in the desegregation area are in an inferior position
economically to whites, and [that] that gap is wider in New
Castle County than it is in the nation as a whole." Coalition,
901 F. Supp. at 818.
Further, the record supports a causal link between
these socioeconomic factors and student achievement across the
four districts: "There is consistency between the gap in
socioeconomic status with the gap in achievement, with Brandywine
statistics demonstrating the greatest disparity in both areas,
Colonial the least disparity." Id. With such support in the
record, these findings cannot be clearly erroneous. Anchoring
its determination on these unfortunate, but uncontroverted,
socioeconomic factors, the court found, inter alia, that
"[b]ecause the environment outside school is so strong,
cumulative, and varied, schools cannot overcome such
environmental/differences [sic] among children." Id. at 819. We
agree.
Accordingly, we affirm the district court's allocation
of the burden of proof and its determination that persistent
performance disparities are not vestiges of de jure segregation.

VIII. Conclusion
The task of setting forth reasons for affirming the
district court's judgment would have been lightened considerably
-- and this opinion made benevolently more brief -- had the
Coalition not chosen to mount a scatter-gun attack on virtually
every aspect of the district court's comprehensive opinion.
Indeed, the Coalition portrays nearly 20 years of federal court
supervision of Delaware public education as a cheerless and
sorrowful failure. As our discussion has shown, however, the
Coalition's contentions, in the main, have been expressed in
conclusory language that neglects to demonstrate where the
district court erred and fails to appreciate the narrow standard
of review by which we are constrained.
Moreover, the Coalition repeatedly has failed properly
to acknowledge the importance of pervasive socioeconomic
conditions that account for discrepancies among the races in
educational performance. Indeed, the Coalition avoids the
responsibility of carefully examining the roots of the continuing
black/white achievement gap, a brutal national phenomenon first
documented in the 1960s and substantiated in various recent
studies that "demonstrate that if socioeconomic characteristics
are more equalized, achievement levels are more equalized."
Coalition, 901 F. Supp. at 819. These studies conclude that
"[i]t is difficult for children to take equal advantage of
learning opportunities absent the initial and cumulative
advantages of a stimulating home curriculum," and that "[b]ecause
the environment outside school is so strong, cumulative, and
varied, schools cannot overcome such environmental/differences
among children." Id.
These conclusions support our belief, presented in the
foregoing discussion, that none of the Coalition's arguments
concerning special education, discipline and dropout rates,
student achievement, extra-curricular activities or disparities
in college matriculation can seriously be considered without
weighing the impact of critical demographic data. This the
Coalition has failed to do, choosing instead to focus its primary
energies on arguing for continued federal court supervision of
the schools -- as if a federal judge's order could eliminate,
with the stroke of a pen, broad social problems.
As humans, we acknowledge with melancholy the fact that
many socioeconomic factors militate against a completely level
playing field in our society. As judges, however, we are
powerless to alter formidable social, economic and demographic
forces and conditions over which no legal precept has control.
Moreover, we are constrained to fulfill an obligation to address
only those constitutional questions properly presented to us, and
to show fealty to appropriate standards of review, lest we
abandon the limits on judicial power that give coherence to our
political system. The district court articulated the meaning of
these institutional limits for this case:
[t]he continued existence of racial discrimination in
our society as a whole, and the effect of that
discrimination on the ability of a black child to enter
school on an equal footing with more privileged white
schoolmates, are not matters in dispute in this
litigation.

Coalition, 901 F. Supp. at 823. Unfortunately, in its
presentation the Coalition repeatedly has refused to accept the
fundamental concept that this court's scope of review is limited
to determining whether the district court clearly erred in
concluding that the school districts have achieved unitary
status.
The history of our jurisprudence contains no true
precedent for the micromanagement of school systems by the
federal courts. Indeed, our authority to supervise these school
districts does not stem from the Anglo-American common law
tradition, in which the law evolves through judicial reasoning
based on legal principle; instead, our legitimacy here derives
exclusively from the powers that inhere in equity jurisdiction,
"another stream that flowed alongside the common law, whose
headwaters were in the discretionary royal prerogative. Equity
was a more flexible process, more unprincipled, initially quite
ad hoc." Thus the jurisprudential basis for 20 years of
detailed management of the Northern New Castle County school
system has been, simply, a remedy framed in equity to enforce a
desegregation decree.
This equitable remedy and, by definition, its
jurisprudential legitimacy, were meant to have a limited
lifespan. The remedy was designed to serve only as an implement
for monitoring and guidance, not as a permanent substitute for
state and local school boards, or indeed, for the state
legislature. Thus in our zeal to insure maximum educational
opportunities for all Delaware school students, the federal
courts must bear in mind that the responsibility for
administering the schools ultimately belongs to locally elected
officials. Indeed, we must acknowledge that although it has been
proper for us to supervise multiple generations of students in
the service of unassailable ideals, in the process we have also
denied multiple generations of elected officials the freedom to
participate fully in representative government. For 20 years
there has been a constant colloquy between federal judges and
officers of these political institutions, a score of years in
which to achieve desegregation "with all deliberate speed," as
ordered in Brown II, 349 U.S. 294, 301 (1955).
In ruling that the school districts of Northern New
Castle County have at long last truly respected our specific
orders of desegregation, the district court has cut the umbilical
cord extending from the courtroom to the classroom. Institutions
that normally are free to exercise powers traditionally granted
them (and them alone) in the American political process now are
free to assume those powers. The time has come for the courts to
step back. What Roscoe Pound said almost a century ago still is
most appropriate: "[W]hen men demand too much of law, when they
seek to devolve upon it the whole burden of social control, when
they seek to make it do the work of the [school,] home and . . .
church, enforcement of law comes to involve many difficulties."
The judgment of the district court declaring unitary
status will be affirmed.

Coalition to Save our Children v. State Board of Education of the
State of Delaware et al., No. 95-7452
_________________________________________________________________
SAROKIN, J., dissenting:
One hundred years ago, the United States Supreme Court
turned its back on the constitutional promise of equal protection
of the law that this country made to its African-American
citizens in the aftermath of the Civil War. In Plessy v.
Ferguson, 163 U.S. 537 (1896), the Court upheld the
constitutionality of laws requiring the racial segregation of
public facilities, including public schools, as "within the
competency of the state legislatures," id. at 544, and validated
the infamous doctrine of "separate but equal." See id. at 552
(Harlan, J., dissenting).
No one at the time could have truly believed for one
instant that there was a shred of equality between the systems
serving the white children and black children of the dual school
systems. Yet it took close to sixty years for the Supreme Court
to acknowledge the reality of segregation. In one of the most
glorious moments of the history of the federal judiciary, the
Court, speaking in a unanimous voice, effectively repealed the
"separate but equal" doctrine by holding, in Brown v. Board of
Education, 347 U.S. 483, 495 (1954), that "in the field of public
education the doctrine of 'separate but equal' has no place."
Along with Topeka, Kansas, the Supreme Court in Brownwas
considering the fates of three additional school systems:
South Carolina, Virginia, and Delaware. Delaware became a part
of this historic decision after the state's Supreme Court ordered
two districts to admit black children into de jure all-white
schools. Gebhart v. Belton, 91 A.2d 137 (Del. 1952). It was the
appeal from that decision that was consolidated with the Topeka
case.
There was no straight and unwavering march toward a
color-blind school system in the aftermath of Brown, however.
Rather, desegregation in Delaware and elsewhere has had a "long,
tortured history," Evans v. Buchanan, 447 F. Supp. 982, 1000 (D.
Del.), aff'd, 582 F.2d 750 (3d Cir. 1978), cert. denied, 446 U.S.
923 (1980). Resistance to the mandate of Brown was fierce, and
at times violent. Then-Governor George Wallace of Alabama spoke
for many when, standing on the front steps of the University of
Alabama in Tuscaloosa, he denounced the "illegal usurpation of
[state] power by the Central Government" and tried to block
admission of African-American youngsters into the state
university system.
Delaware officials, as well, proved less than
responsive to the constitutional mandate to desegregate the
state's public schools and, as a result, the federal courts were
compelled to enforce the mandate one ruling at a time,
culminating with this Court's desegregation order in 1978. Evans
v. Buchanan, 582 F.2d 750 (3d Cir. 1978) (in banc), cert. denied,
446 U.S. 923 (1980). Today we are asked to lift this order.
The Majority accurately reflects the tortured
history of this matter. The elapse of four decades of litigation
and court supervision clearly militates against its continuance,
but it is also evidence of begrudging compliance with repeated
court orders to desegregate. I find it ironic that the delay in
implementing the orders of this court to end segregation is now
being utilized to justify the end of court intervention.
Although it is very tempting to end judicial supervision in the
face of substantial progress, it would be unfortunate to abandon
it just short of success. I dissent, not because I conclude that
any of the findings of the district court are erroneous, but
rather because accepting them causes me to conclude that some
vestiges of past discrimination may remain, although I concede
that many have been eliminated.
I concur with the majority's recognition of the
need to return control of schools to local communities, but only
if and when we are satisfied that the goals established some 18
years ago have been substantially met. I challenge the
majority's suggestion that the court's role in these matters has
"denied multiple generations of elected officials the freedom to
participate fully in representative government." Majority at
68. The denial of that participation, if it occurred, was not
due to judicial usurpation but rather arose from the
discriminatory and unconstitutional conduct of many of those
elected officials. It is not the courts who have delayed the
return to local power, but it is those elected officials who
failed to act "with all deliberate speed." Brown v. Board of
Education [Brown II], 349 U.S. 294, 301 (1955). Even if we are
to withdraw our supervision at this juncture, I see little need
to apologize for the court's intervention in these matters.
Without such intervention our schools would have remained
separate and unequal and a segment of our nation would have been
denied rights and opportunities to which all are entitled.

I. Shared principles
Before I articulate the reasons for my dissent, I want
to underscore the shared premises under which the majority and I
operate.
There is, first of all, no disagreement that "to extend
federal court supervision indefinitely is neither practicable,
desirable, nor proper," Majority at 16, and this is not what I
advocate today. At the same time, the Supreme Court has held
that supervision by the courts should continue until "the
vestiges of past discrimination ha[ve] been eliminated to the
extent practicable." Freeman v. Pitts, 503 U.S. 467, 492 (1992).
Because the Appellees have not met this requirement, I believe
that withdrawal of supervision is premature at this point.
Nor is there any disagreement between the Majority and
the Dissent that "[t]he proper test under the Constitution is
equality of opportunity, not of results." Majority at 31. To
the extent that the principal issue in this Dissent is the
placement of African-American children in lower-level classes,
and to the extent that the district court itself found that
"lower levels of instruction may not encourage achievement and
may adversely affect the ability of a student to attend college,"
Coalition to Save our Children v. State Bd. of Educ., 901 F.
Supp. 784, 801, 49 (D. Del. 1995), it is their opportunity to
succeed academically that is at stake.
Finally, I share the Majority's "reluctan[ce] to impose
any unstated obligation on the school boards." Majority at 61.
At the same time, we should not impose or tolerate any
limitations on the opportunity of young black students to
participate equally in the educational process and derive all of
the benefits therefrom.

II. Factual findings
I now turn to the substantive review of the district
court's ruling. First, I agree with the Majority's conclusion
that the vestiges of segregation have been eliminated with
respect to the following areas: intra-district student racial
balance, Majority at 18-20; special education student assignment,
id. at 21-24; faculty and clerical staff assignment, id. at 32-
36; extracurricular activities, id. at 37-38; transportation, id.at 39;
facilities, id.; in-service training, id. at 41-44;
reading skills, id. at 44-47; curriculum, id. at 48-50;
counseling and guidance, id. at 50-52; human relations, id. at
52-53; and discipline, id. at 53-57.
However, I cannot agree with the Majority that the
Appellees demonstrated, or that the district court correctly
concluded, that the vestiges of segregation have been eliminated
with respect to the following facets of school operations:
student classroom assignment; certified staff assignment; and
communications skills programs. I therefore would remand to the
district court for further findings regarding these three areas.
In addition, because classroom assignment affects student
achievement, I would remand for further findings regarding the
so-called "areas of concern." Finally, because the district
court did not apply the correct legal standard regarding the
exclusion of the testimony of one of the Coalition's experts, I
would remand for further findings on this issue as well.
A. Student classroom assignment
I note, first of all, that "the school districts
acknowledge bearing the evidentiary burden" of proving compliance
with this issue, other Green factors and the 1978 Order. SeeMajority at
59.
1. The district court's findings and conclusions
Findings 30 to 49 of the district court's opinion
concern student classroom assignments. Coalition, 901 F. Supp.
at 799-401. Findings 34 through 49 focus more specifically on
"tracking" or "ability grouping," i.e., the assignment of
students "to various instructional groups on the basis of
ability." Id. at 800-01. Among the court's findings are the
following:
36. The extent to which elementary and
middle school students are placed in classes
according to their ability is unclear from
the record.

* * *

38. In 1993, the percentage of
minorities in the self-contained honors and
gifted student program at Burnett Elementary
School [the only self-contained "gifted"
student program in the 4 districts, id. at
800 n. 27], who scored above 85% on exams is
slightly greater than that for the other
groups.

* * *

46. A review of the percentages of the
racial groups who were taking college and
non-college prep classes illustrates that: a)
a little over 50% of Brandywine's black
students in grades 9-12 were taking non-
college prep English, whereas a little less
than 20% of Brandywine's white students were
taking that level of English; b) a little
over 60% of Christiana's black students in
grades 9-12 were taking non-college prep
English, whereas a little less than 25% of
Christiana's white students were taking that
level of English; c) a little over 50% of
Colonial's black students in grades 9-12 were
taking non-college prep English, whereas a
little less than 35% of Colonial's white
students were taking that level of English;
d) a little over 40% of Red Clay's black
students in grades 9-12 were taking non-
 college prep English, whereas a little less
than 17% of Red Clay's white students were
taking that level of English. Less than 5%
of black students were enrolled in advanced
English in the high schools of the 4
districts; however, over 20% of white
students were at that level.

47. There is evidence that among high
school students who achieve identical testing
scores ["The comparison apparently does not
include academic achievement as measured by
course performance, or whether such placement
was requested or required." Id. at 801
n.30.], black students were more likely to be
placed in the lower level class than were
white students.

48. On the other hand, the percentage of
minorities enrolled in honors and AP classes
who scored over the 75th percentile in
reading or math in the spring of 1993 is
slightly greater than that of whites in all 4
school districts.

49. There is evidence that lower levels
of instruction may not encourage achievement
and may adversely affect the ability of a
student to attend college.

Id. at 800-01 (citations omitted).
Taken together, these findings demonstrate that: (1)
African-American students are less likely to be assigned to high-
level classes than their white counterparts, and more likely to
be placed in low-level classes [ 46]; and (2) these disparate
assignments are made at least in part for reasons other than
academic merit, since black students who perform as well as white
students are "more likely to be placed on the lower level class
than [are] white students" [ 47; see also 38, 48]. In the
absence of alternative explanations, these findings permit the
inference that the four districts' tracking practices may be
based, at least in part, on racial considerations. Furthermore,
the court's findings demonstrate that these disparate tracking
assignments may deprive African-American students of the
opportunity to achieve the same level of academic success,
including college admission, as their white counterparts [ 49].
The district court made no additional finding of fact
regarding alternate explanations for these "potentially
troubling" findings, see Majority at 24. Furthermore, whereas it
was able to conclude, with regard to school-based student
assignments, that "[t]he 4 districts are among the most racially
balanced schools in the United States," see Coalition, 901 F.
Supp. at 799, 29, it reached no such conclusion regarding
tracking-based assignments.
 The court did conclude as a legal matter that "there is
no credible evidence linking any current racially identifiable
conditions to the prior violation," id. at 823, and that "the
vestiges of past discrimination have been eliminated to the
extent practicable." Id. at 823-24. I believe that the evidence
discussed supra does not support this conclusion.
First of all, the court's own findings constitute
"credible evidence" potentially linking one racially identifiable
condition -- i.e., the racial disparities in assignment to high-
level and low-level classes -- to "the prior violation."
Second, while the findings regarding student tracking
do not prove conclusively that the school districts discriminate
in their tracking practices on the basis of race, they certainly
do not support the opposite conclusion -- i.e., that the
districts do not discriminate on the basis of race. If anything,
the court's findings create a presumption that race might be a
factor in New Castle County's tracking practices. Since the
burden with regard to the Green factors -- including student
assignments -- is on the Appellees to prove that the vestiges of
segregation have been eliminated, and since the Appellees offered
no explanation for the disparities in tracking, the uncertainty
as to the cause of the disparities should be resolved in favor of
the Coalition, and therefore the district court's conclusion that
the vestiges have been eliminated, at least with regards to
student classroom assignment, was unsupported and premature.
2. The Majority's analysis
Despite the disparity between the court's own findings
of fact and its conclusions of law, the Majority affirms the
court's conclusion. I believe that the Majority's position is
based on the wrong standard of review, the wrong allocation of
burdens and an unsustainable reading of the evidentiary record.
(a)
First, the Majority defines "our task" as "to inquire
whether the district court's determination of the districts'
unitary status was clearly erroneous." Majority at 26. The
district court's determination as to unitary status, however, is
one not of fact, which we would review for clear error, but of
law, see Coalition, 901 F. Supp. at 822-23, which as is customary
we subject to plenary review.
(b)
Second, time and again the Majority dismisses the
import of the district court's factual findings by resolving gaps
in the evidentiary record and ambiguities as to those factual
findings in favor of the Appellees, despite the fact that by its
own acknowledgment, and that of Appellees, Appellees bear the
burden of showing that the vestiges of discrimination have been
eliminated.
(i) The Majority dismisses the district court's finding
that "among high school students who achieve identical testing
scores, black students were more likely to be placed in the lower
level class than were white students," Coalition, 901 F. Supp. at
801, 47, as "no[] . . . evidence that black students have not
received equal opportunity." Majority at 25. While the Majority
concedes that this "potentially troubling" finding might
"suggest[] on its face that black students may have been
segregated from white students of equal testing aptitude," id. at
24, it rejects this conclusion on the ground that the comparison
did not "consider[] as well the important factor of academic
achievement based on course performance," and that "it is not
clear whether the placement at issue was requested or required."
Id. at 25.
Of course, the evidentiary gaps that the Majority
identifies do not nullify the import of the district court's
finding as to potential disparate treatment of equally qualified
students based on race. Furthermore, these gaps should not serve
to exonerate the party that bears the burden of proof;
uncertainty as to the significance of the district court's
factual finding should not be resolved in favor of the party that
bears the burden.
(ii) The Majority dismisses the district court's
finding that "the percentage of minorities enrolled in honors and
AP classes who scored over the 75th percentile in reading or math
in the spring of 1993 is slightly greater than that of whites in
all 4 school districts," Coalition, 901 F. Supp. at 801, 48, as
"so limited, and thus malleable, a sample," Majority at 25, as to
allow any number of inferences. Specifically, while the Majority
acknowledges that "this finding could . . . give rise to an
inference that blacks must perform at a higher level than whites
in order to be placed in honors and AP classes," it suggests that
"we may just as reasonably infer something quite different: that
the school districts' good faith efforts to desegregate have paid
off in terms of the improved testing performance of black
students." Id. at 25-26.
The Majority's inference, even assuming that it is one
an appellate court could draw, is unconvincing at best: the issue
is not whether some black students perform well, but rather
whether black students must perform better than whites to be
placed in honors and AP classes, which the district court's
finding clearly suggests. In any case, once again it is
inappropriate -- and legally erroneous -- to dismiss the
Coalition's interpretation because another interpretation, more
favorable to Appellees, is possible when the burden lies with
Appellees.
(iii) The Majority dismisses the district court's
finding that "[t]he extent to which elementary and middle school
students are placed in classes according to their ability is
unclear from the record," Coalition, 901 F. Supp. at 800, 36,
as "mean[ing] little on its own, for it represents merely that
there is uncertainty in the record about how elementary and
middle school students are placed in classes according to their
ability." Majority at 26.
True enough. However, uncertainty about student
placement merely demonstrates that Appellees have failed to meet
their burden of showing that the vestiges of discrimination have
been eliminated. To suggest otherwise is to misallocate the
evidentiary burden.
(iv) The Majority dismisses the district court's
finding of "[e]vidence that lower levels of instruction may not
encourage achievement and may adversely affect the ability of a
student to attend college," Coalition, 901 F. Supp. at 801, 49,
as "not establish[ing] anything specific about whether that
putative problem is related to disparate educational opportunity
or treatment according to race." Majority at 29.
The significance of this finding, however, is not to
demonstrate that black students are channeled to lower-level
classes, but that if they are, this would have a deleterious
effect on their level of academic achievement. This finding,
when read in the context of the district court's other findings
suggesting that students are assigned to different levels of
instruction based on race, is ominous and suggests that the poor
performance of black students in a number of areas might not be
related solely to socioeconomic factors.
(c)
At the end of its analysis, the Majority proclaims that
"[a]s we already have made clear, [the basis on which students
are placed in lower levels of instruction] was not racially
discriminatory." Majority at 29. In fact, neither the district
court's findings nor even the Majority's analysis supports such a
conclusion. At best, they suggest that the record is
indeterminate regarding whether students are assigned to certain
levels of instruction on the basis of race -- i.e., that
Appellees have failed to establish that in the area of student
assignment, the vestiges of discrimination have been eliminated
to the extent practicable.
3. Conclusion
For the foregoing reasons, I would remand to the
district court for further findings regarding the racial
disparities in tracking.
B. Certified staff
Regarding the issue of staff assignment, the district
court noted that "[t]he staff is divided into three subsections:
administrative staff, certified staff, and classified staff."
Coalition, 901 F. Supp. at 802, 50. As the court explained,
"'[c]ertified staff' includes nonadministrative certified
personnel such as teachers, psychologists, speech and hearing
therapists, educational diagnosticians and other 'instructional
and pupil support personnel.'" Id., 52.
Except for teachers, the court made no finding
regarding the racial identifiability of the schools with respect
to the certified staff. Similarly, the Majority discusses the
districts' efforts regarding the faculties, Majority at 33-35,
and the "non-professional" or "classified" staff only, id. at 35-
36, but in no way discusses the districts' efforts regarding
certified staff.
No one disputes that these professionals were included
in the 1978 Order, and I see no reason for the district court's
omission. Therefore, I would remand to the court for further
findings regarding whether vestiges with regard to certified
staff have been eliminated.
C. Communication skills
The 1978 Order required the districts (which at the
time were consolidated into a single district) "to institute an
affirmative reading and communication skills program which does
not resegregate pupils." Evans, 447 F. Supp. at 1015-16. I do
not dispute the Majority's conclusion that "the districts . . .
met the standard of good faith compliance with" the Order
regarding reading skills. See Majority at 45. However, the
district court made not a single finding regarding the
implementation of a communication skills program. See Coalition,
901 F. Supp. at 809-10, 168-185.
The Majority contends that this oversight is
inconsequential because "there is no meaningful distinction
between reading skills programs and communication skills
programs," Majority at 47, and that "'reading skills' and
'communications skills' are synonymous for purposes of our
analysis here." Id. at 48. However, there is no support in the
record to read the "communication skills" requirement as mere
surplusage. I cannot agree with the Majority's suggestion,
eighteen years after the fact, that the language of the 1978
Order was merely sloppy or redundant. This suggestion is not
only in contradiction with the careful analysis of the district
court at the time, but also with the plain meaning of the words.
Reading and communication are different forms of human activity,
and they involve different skills. Therefore, I would remand to
the district court for further findings in this area.
D. Areas of concern
In addition to the so-called Green factors and the
ancillary relief measures outlined by the district court in 1978,
the district court considered several "areas of concern" for
possible discriminatory practices: student achievement; special
education; and dropout rates. Coalition, 901 F. Supp. at 818-22.
As the Majority acknowledges, there is no dispute that
significant disparities along racial lines remain in these
various areas. See Majority at 57. The issue is whether these
disparities are legally cognizable vestiges of de juresegregation. The
district court concluded that "[t]here is no
credible evidence demonstrating that the differences between
black and white children's success in school can be attributed to
the former de jure segregated school system." Coalition, 901 F.
Supp. at 823.
In a very real sense, there can be no doubt that the
condition of many African-Americans in our society is a lasting
legacy of a time when people of color as a matter of law were
denied equality of opportunity. However, the Supreme Court has
made it clear that not all vestiges of de jure segregation are
"the concern of the law," but only those that "have a causal link
to the de jure violation being remedied." Freeman v. Pitts, 503
U.S. 467, 496 (1992).
With regard to the Green factors, causality is
presumed. As the Majority explains, "the Green factors have
become per se vestiges of de jure segregation." Majority at 58.
Causality is also presumed for the ancillary relief measures
contained in the 1978 Order. But the issue of establishing
causality is a more difficult one in the case of the identified
performance disparities.
I agree with the Majority that under the typical
scenario, "[b]ecause the performance disparities claimed by
Appellant are not among (or even similar to) the Green factors or
the vestiges identified in the 1978 Order, we will not simply
presume . . . that these are vestiges of de jure segregation."
Majority at 59. I also agree with the Majority, however, that if
the district court ultimately were to find that the school
district has not achieved unitary status, the burden would shift
and the plaintiffs would be entitled to a presumption of
causality. See id. at 60 (citing Vaughns by Vaughns v. Bd. of
Educ. of Prince George's County, 758 F.2d 983, 990-91 (4th Cir.
1985)).
As I explain supra, I believe that remand is
appropriate in the instant matter for further findings regarding
classroom assignment. If the district court were to conclude on
remand that students are assigned to different levels of
education based on race, under Vaughns v. Vaughns such a finding
would create a presumption of causal relationship between the dejure
violation and the disparities in achievement, and the
evidentiary burden would shift to Appellees. We note, too, that
this presumption would be entirely consistent with the district
court's own finding that "lower levels of instruction may not
encourage achievement and may adversely affect the ability of a
student to attend college." Coalition, 901 F. Supp. at 801,
49.
Because any conclusion the court draws regarding class
placement may affect its conclusion that "[t]here is no credible
evidence demonstrating that the differences between black and
white children's success in school can be attributed to the
former de jure segregated school system," id. at 823, I would
vacate the court's conclusion regarding the so-called areas of
concern and remand for reconsideration in light of the above.
E. Exclusion of Jan de Leeuw's testimony
The Coalition argued on appeal that the district court
improperly excluded expert testimony it sought to present to
rebut the defendant' own experts, and that it was prejudiced by
the exclusion. The Majority correctly notes that "[a] trial
judge's exclusion of testimony cannot be disturbed on appeal
'absent a clear abuse of discretion.'" Majority at 56 (citing
Semper v. Santos, 845 F.2d 1233, 1238 (3d Cir. 1988); Fashauer v.
New Jersey Transit Rail Operations, 57 F.3d 1269, 1287 (3d Cir.
1995)). However, review is plenary when the district court's
evidentiary ruling "implicates 'the application of a legally set
standard.'" Lippay v. Christos, 996 F.2d 1490, 1496 (3d Cir.
1993) (quoting Savarese v. Agriss, 883 F.2d 1194, 1200 (3d Cir.
1989)).
1. Factual findings
On November 2, 1994, the district court issued an order
setting up, inter alia, the framework for pre-trial discovery.
In particular, the court ordered that by November 9, 1994, "each
party [should] designate which of its experts [would] testify at
trial and the specific subject matter as to which each expert
[would] testify." Coalition to Save our Children v. Delaware
Board of Education, Nos. 1816-1822-SLR, slip op. at 4 (D. Del.
Nov. 2, 1994) (Order) (JA 318). The court further ordered the
parties to "exchange expert reports, the content of which will
comply with Fed. R. Civ. P. 26(a)(2)(B)" by November 23. Id.,
slip op. at 5 (JA 319).
The Coalition submitted its list of experts on November
17. Among those listed was Dr. Jan de Leeuw, Director of the
UCLA Statistical Consulting Center. Redesignation of Expert
Witnesses, Coalition to Save our Children v. State Board of
Education, C.A. No. 1816-1822 SLR, slip op. at 2 (D. Del. Nov.
17, 1994) (JA 346). Dr. de Leeuw was to "be called as an expert
witness in the fields of statistical consultation, data analysis,
and related matters." Id.
Dr. de Leeuw submitted his Report on Creation and Use
of Database (hereinafter the "de Leeuw Report") on November 29,
1994. JA 4041. The report deals exclusively with the
preparation and construction of the database. One section,
entitled "Goal of Analysis," explains:
The analysis consists of providing expert
witnesses with tables. The tables depicted
the racial composition of districts and
schools with regard to outcomes of interest.
These tables provide the actual number and
percentages of students who fall within each
of these categories. In addition, the tables
include marginal (or conditional)
percentages.
De Leeuw Report at 14 (JA 4055).
An attorney for the school system wrote to the court on
December 1 protesting that "the expert reports provided by
Plaintiff were incomplete," Letter from Rodman Ward, Jr. to Judge
Sue L. Robinson (Dec. 1, 1994) (JA 362), and asking that the
Coalition provide "expert reports that comply fully with Rule
26(a)(2)(B)" by December 9. Id.; see also Letter from Rodman
Ward, Jr. to Thomas D. Barr (Dec. 2, 1995) (JA 384). The
Coalition apparently did not supplement Dr. de Leeuw's report by
that date. Board's Brief at 55.
Dr. de Leeuw was deposed on December 15. After being
initially asked if he would be "offering any opinions in this
matter," he responded, "Opinions, no. I have to describe the
database construction, and I don't think that involves any
opinions." Deposition of Jan de Leeuw, Dec. 15, 1994
(hereinafter the "de Leeuw Deposition") (JA 1562). However,
Thomas Henderson, a counsel for the Coalition, intervened later
during the deposition to "give [the Board's counsel] notice that
[Dr. de Leeuw] may testify as to materials and analyses, data . .
. in the defendants [sic] reports." Id. (JA 1563). Describing
this intervention as "a real problem," Andre G. Bouchard, the
school system's counsel, requested that he be given notice if the
Coalition intended to call Dr. de Leeuw to testify about
"anything outside of his report." Id. Mr. Henderson responded,
"Well, I heard your request and it's on the record, and I will
consider that." Id.
The same day, the Coalition informed the defendants of
its intention to call three new rebuttal experts. One of these
witnesses was Dr. Franklin Fisher, a professor of economics at
M.I.T., who was to testify on the statistical analysis methods
used in the reports by Dr. Rossell, Dr. Armor and Dr. Walberg,
three of the Board's witnesses. JA 858. The defense objected
during a hearing held on December 27, on the ground that Dr.
Fisher's testimony would simply "duplicate what [it] thought Mr.
Deleeuw [sic] was supposed to do." JA 860. The next day, the
court sustained the objection and excluded the new experts'
testimony:
The deadline for naming experts is long past.
The general context of defendants' experts'
testimony and methodology used by these
experts should have been of no surprise to
the plaintiff. Defendants would be
prejudiced if these experts were allowed to
testify. And plaintiff has not claimed
prejudice in the absence of their testimony.
Tr. 1572 (JA 863). The Coalition did not appeal the court's
ruling.
On January 3, 1995, the day of Dr. de Leeuw's
testimony, the Coalition's counsel handed to the defendants what
defendants describe as "91 pages of charts and statistical data,"
Board's Brief at 56, and signaled that it intended to call Dr. de
Leeuw to offer rebuttal testimony regarding the analyses of three
experts for the defendants, Drs. Armor, Achilles and Reschly.
Boards' Brief at 56. The new testimony sought from Dr. de Leeuw
was to be the same as that which the Coalition expected to elicit
from Dr. Fisher, and that the court excluded on December 28. JA
1229. This time again, however, the court excluded the testimony
on the ground that the Coalition's effort failed to comply with
the court's previous orders and with Rule 26.
2. Legal analysis
The Coalition argues that the court's exclusion of Dr.
de Leeuw's rebuttal testimony is contrary to Rule 703 of the
Federal Rules of Evidence, as well as "normal practice and the
common usage of expert witnesses." Appellant's Brief at 47. The
Coalition further argues that exclusion of Dr. de Leeuw's
testimony "does not make sense since Dr. de Leeuw's testimony was
fashioned, and could only have been fashioned, after the cross-
examination of the School System's witnesses and the production
of data bases and disk files that were made during trial." Id.at 47-48.
Finally, the Coalition argues that the excluded
testimony "would have demonstrated a series of methodological and
analytical flaws fatally undermining [the Coalition's]
testimony." Id. at 47. Because the district court failed to
consider the importance of Dr. de Leeuw's proffered testimony, I
would remand.
(a)
I note, first, that Rule 703 of the Federal Rules of
Evidence is inapposite to the dispute at hand. Rule 703 states,
inter alia: "The facts or data in the particular case upon which
an expert bases an opinion or inference may be those perceived by
or made known to the expert at or before the hearing." The
subject of the dispute over Dr. de Leeuw's testimony, and the
reason for his exclusion, is the scope of his expertise as
defined in the Coalition's November 30 report, and more
specifically "whether at this late stage in the proceeding the
plaintiff should be given the opportunity to present affirmative
evidence by an expert never before qualified in" the area of
student achievement. JA 1230 (statement by The Court).
Similarly, the cases cited by the Coalition as
evidencing "normal practice and the common usage of expert
witnesses" are of no relevance in the instant case. The issue in
the first two cases was whether an expert should be allowed to
testify after attending the testimony of other witnesses,
allegedly in violation of an order by the court excluding all
witnesses from the courtroom during trial. United States v.
Crabtree, 979 F.2d 1261, 1270 (7th Cir. 1992), cert. denied, 114
S. Ct. 216 (1993); United States v. Bramlet, 820 F.2d 851, 855
(7th Cir.), cert. denied, 484 U.S. 861 (1987). Nor does the
third case cited by the Coalition, an unreported district court
opinion, offer any support for its argument. Laysears v.
Schindler Elevator Corp., No. Civ. A. 94-3152 (E.D. Penn. Sept.
27, 1995).
(b)
The Coalition next argues that Dr. de Leeuw's testimony
could only have been fashioned after cross-examination of the
Board's witnesses and the production of databases and disk files
during trial. There are two problems with this argument. The
first is that regardless of when specific data was given to the
Coalition, the Coalition was aware all along that the school
system would present statistical analyses as part of its
argument, and it was aware by late November of the areas for
which statistical analysis would be presented. The second
problem has to do with the chronology of what information was
available and when. As just noted, as of November 30, the
Coalition knew the subjects on which the school system's various
experts would testify, and the extent to which they relied on
statistical analysis. JA 1289. As to specific experts,
"anything that Dr. Achilles relied on in his testimony was
entirely in the appendix to the report on the 30th in terms of
all the backup data for his tables." JA 1290. Regarding Dr.
Reschly's testimony, "the backup tables for all of that data [the
data on which Dr. Reschly relied] were all contained in the
appendix that [the school system] delivered on November 30th."
Id. Finally, as to Dr. Armor, it appears from the school
system's uncontroverted testimony that "[h]is methodology is
described in his report. The statistical analysis is described
in his report. The assumptions that he made in his regression
methodology is described carefully and fully in his report." Id.
Therefore, the only data that was missing as of December 1 was
specific census data used by Dr. Armor in his work -- but again,
while the Coalition may not have had all the data as of November
30, it knew the scope and methodology of the testimony to be
presented by the school system. Therefore, the district court
was certainly acting within its discretion when it found that the
Coalition failed to comply with its orders regarding Dr. de
Leeuw's belated testimony.
(c)
 Our analysis does not end with the district court's
finding, however. It has been the "consistent position" of the
Third Circuit that "'the importance of the excluded testimony is
one of the factors to be considered in deciding whether the trial
court abused its discretion in excluding a witness.'" Sowell v.
Butcher & Singer, Inc., 926 F.2d 289, 302 (3d Cir. 1991) (quoting
Meyers v. Pennypack Woods Home Ownership Assn., 559 F.2d 894, 904
(3d Cir. 1977), overruled on other grounds, Goodman v. Lukens
Steel, 777 F.2d 113 (3d Cir. 1985), aff'd, 482 U.S. 656
(1987)). Other factors include: "bad faith on the part of the
party seeking to call witnesses not listed in his pretrial
memorandum," Meyers, 559 F.2d at 904; "ability of the party to
have discovered the witnesses earlier," id.; "validity of the
excuse offered by the party," id.; "willfulness of the party's
failure to comply with the court's order," id.; and "the parties'
intent to confuse or mislead his [sic] adversary." Id.. As the
court in Meyers explained, the following "basic considerations"
should guide the court's decision:
(1) the prejudice or surprise in fact of the
party against whom the excluded witnesses
would have testified, (2) the ability of that
party to cure the prejudice, (3) the extent
to which waiver of the rule against calling
unlisted witnesses would disrupt the orderly
and efficient trial of the case or of other
cases in the court, and (4) bad faith or
willfulness in failing to comply with the
court's order.
Id.at 904-05; see also DeMarines v. KLM Royal Dutch Airlines, 580
F.2d 1193, 1201-02 (3d Cir. 1978).
Furthermore, "the likelihood of finding an abuse of
discretion is affected by the importance of the district court's
decision to the outcome of the case and the effect it will have
on important rights." In re Paoli Railroad Yard PCB Litigation,
35 F.3d 717, 750 (3d Cir. 1994) (citation omitted), cert. deniedsub nom.
General Electric Co. v. Ingram, 115 S. Ct. 1253 (1995).
There is no evidence in the record that the district
court considered the importance of Dr. de Leeuw's proffered
testimony or several of the other factors outlined in Meyers.
Therefore, I believe that we should vacate the district court's
decision to exclude Dr. de Leeuw's belated testimony and remand
to the district court for the more complete consideration of Dr.
de Leeuw's testimony that the law of this Circuit demands.

III. Conclusion
The presence of a number of young black students at the
argument of this matter should serve as a compelling reminder to
us that while we struggle over the sufficiency of proof and
allocation of burdens, our decision today directly affects the
education and future of many of these young people.
As I cannot join the opinion of the Majority on the
legal grounds outlined above, neither can I join the condemnation
of Coalition's counsel. Without the zealous advocacy
demonstrated throughout this case's history, much of what has
been accomplished in the past two decades would not have been.
Nor can I join in the Majority's criticism of "the
micromanagement of [segregated] school systems by the federal
courts." Majority at 67. The courts assumed their role in these
matters not out of an unquenchable thirst for power or a desire
to intrude upon the province of others, but because of the
failure of those charged with the responsibility of ending
segregation to fulfill the duties imposed upon them and respond
voluntarily to the commands of Brown. The courts' authority in
these matters does not spring from arrogance, nor does it merely
"inhere in equity jurisdiction." Id. It is rooted in the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution.
Much time has elapsed since the State of Delaware was
first ordered to desegregate its schools and, admittedly, much
has been accomplished. But unless and until we can be certain
that all of the vestiges of past discrimination have been
eliminated to the extent practicable, supervision should not be
abandoned. Considering that we are dealing here with the
education and future of a large number of tomorrow's leaders, to
trade additional time for greater equality is not a bad bargain.
Accordingly, I would remand for further consideration
and findings consistent with this opinion.