Plaintiffs' Memorandum in Support of Motion for Order Adjudging Defendant's Detroit Plans to be Legally Insufficient

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,

Plaintiffs

-vs-

WILLIAM G. MILLIKEN, et al.,

Defendants

-and-

DETROIT FEDERATION OF TEACHERS, 
LOCAL NO. 231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,

Defendant- 
Intervenor

-and-

DENISE MAGDOWSKI, et al.,

Defendant- 
Intervenor

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PLAINTIFFS * MEMORANDUM IN SUPPORT OF MOTION 
FOR AN ORDER ADJUDGING DEFENDANT DETROIT PLATS 
TO..BE LEGALLY INSUFFICIENT AND FOR OTHER RELIEF

The major thrust of plaintiffs’ motion is simple; pending further 

litigation, and in particular the hearing on metropolitan plans, state and 

local defendants should take all steps necessary to implementation of the 

best available plan of desegregation presently in the record, namely 

plaintiffs’ plan of desegregation, even if such plan is imperfect and not 

completely adequate. U.S. v. Bd. of Ed. of Baldwin County. 423 F.2d 1013 

(5th Cir. 1970); Carter v. West Feliciana Parish School Board, 396 U.S. 

226(1969), 396 U.S0 290(1970); Bradley v. Richmond, 325 F.Supp. 828(E.D. Va

1970). Such legal requirement also comports with the equities in this case



such planning and acquisition, especially as it relates to transportation,

must soon begin if either &n intra-city or metropolitan plan is to be
1/implemented in the fall. Moreover, the steps contemplated by this motion 

are in the main consistent with the needs of either approach.

The bases for striking Plans A and C and declaring plaintiffs' plan, 

pending the hearings re metropolitan plan, the best available alternative 

rest in the facts of record in this cause and the applicable legal requirements 

as set forth in Swann v. Charlotte-Mecklenberg Bd 9 of Ed., 402 U.S. l(l97l); .

Davis v. Ed. of School Commissioners, 402 U.S. 33(l97l); Green v. County School 

Bd., 391 U.S. 430(1968); Monroe v. Bd. of Commissioners, 391 U.S. 450(1968); 

Brunson v. Bd. of Trustees of Clarendon County, 429 F.2d 820, 823(4th Cir. 1970) 

(Sobeloff, J., c o n c u r r i n g ) I n  summary the controlling legal standards are:

1. the objective is to achieve the maximum actual desegregation 
possible and eliminate racially identifiable schools;

2. the practicalities of the situation limiting the extent of 
desegregation can not include arbitrary upper limite on the 
percentage of black pupils in schools;

3. community hostility to desegregation and white flight cannot 
serve to limit the extent of actual desegregation;

4. choice plans which fail to achieve maximum actual desegregation 
are unconstitutional;

5. the only permissible choice plan is a majority-to-minority 
transfer provision, unfettered by a conflicting and counter-pro­
ductive set of choice options, and then only as the' final element 
of an otherwise comprehensive plan of desegregation.

Based on these controlling legal principles, it is clear that plans A and C

27----------------------------As this Court admonished the parties as early an June 24, 1971: "i think 
that those who are involved in this lawsuit ought to be preparing for eventu­
alities, and I mean within the limits, the maximum and the minimum, so that if 
the time comes for judicial intervention . » . it would be well for the parties 
to be prepared . . . .  If the Court in this case finds that the situation calls 
for some other judicial action than the School Board ought to be preparing 
themselves to meet that eventuality. But the State defendants too. I don't 
think that the State defendants should hide, put their heads in the sand and 
avoid considering what may happen if certain developments already made plain in 
this case take shape 
2/

Any doubt about the applicability of these requirements was removed by 
Bradley v. Milliken, 438 F 02d 945, 947 FNl(6th Cir. 1971) and Davis v. School 
District of the City of Pontiac 443 F.2d 573(6th Cir. 1971), cert. den. 92 
S.Ct. 233(1971)

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do not even purport to be plane of desegregation and do not even purport to 

promise actual desegregation for the 1972 fall term. Rather than detail 

fully once again the infirmities of Plans A and C, which have either been 

admitted or remain unrebutted, we incorporate by reference "Plaintiff’s 

Response to Defendant Detroit Board’s Report on the Magnet School Program", 

"Plaintiffs’ Response to Board’s Plans;" and Plaintiffs’ Proposed Supplementary 

Findings of Fact filed herewith. It may be helpful, however, to discuss the 

invidious nature of the magnet middle school.

The magnet middle schools have been held out by the Detroit Board to this 

Court as at least a partial success. The constitutional inadequacy of this 

particular magnet concept as a plan of desegregation, however, is clear: 

the 50-50 or 40-60 ratio sets an arbitrary upper limit on desegregation; such 

arbitrary racial ratio, even if implemented for all schools in the system, 

would leave substantial numbers of black children in all black schools when 

reasonably available alternatives would, at least for some time, place sub­

stantial numbers of whites and blacks in every school in the system; Plan A 

middle schools only purport to effect a very small number of all children in 

grades 3-8, none in grades K-2; the magnet middle school cannot be implemented 

on a system-wide basis because it attracts only as long as it remains an 

exceptional school in the system, only as long as extra dollars, energy and 

other education resources are invested in the middle school; and middle school 

choices take precedence over, and are other than, the permissible majority to

minority transfer provision.



These Inadequacies are obvious; but two additional infirmities make the 

middle school not only inadequate but also invidiously discriminatory. First, 

the few middle schools with approximate 50-50 ratios are racially identifiable 

schools in a system where almost all other schools remain predominantly black 

or white. Compare City Hearing Tr. 359-36l(Foster). Thus the middle schools 

are preceived as "whiter" by white children in predominantly black schools, 

this constituting part of their "magnet." The magnet schools operate as an 

option for these children to transfer out of black schools; of the 909 white 

students who transferred out of their old attendance area into a middle school, 

501 transferred from school in which they were in a "small minority." (Progress 
Report, Pp. 10-11 and Appendix Magnet School Transfer Reports, Nov. 1, 1971;

Rankin, Tr. 608, 612, 615) (Compare McDonald, Tr. 70-72, March 14, 1972)

The primary purpose and effect of the middle school is thus unveiled: although
" t h e .in/City of Detroit there are many, many more white pupils in predominantly

white schools than black, the magnet middle schools "attracted''a large majority
3/ 4/of its transferees from whites fleeing black schools.-'

The rational, "non-racial" reason for such white flight (as Dr. Guthrie

characterized it) suggests the second invidious characteristic of the middle

school: predominantly black schools have once again been discriminated

against in the provision of educational resources, whereas the middle schools
5/

have been favored in the amount of some $305/pupil. Thus, the middle schools 

become a separate and favored set of schools, while the vast majority of 

segregated schools are further deprived of educational resources. Plaintiffs’ 

expert witness, Dr* Foster, testified that the middle school offers "unequal 

educational opportunity" and sets up a system of private schools within a

—/a  transferee is here defined as a pupil who transferred from his old attendanc 
area school to the middle school. See Progress Report, Appendix, Magnet School 
Transfer Reports, Nov. 1, 1971.
i/rhe corollary of this racial identification by a 50-50 ratio is that there 
comes a time, if the middle schools are successful, when blacks no longer have t 
choice of attending simply because they number 6 5 of the total school populatio

And the spending of the same extra dollars per pupil in every school would 
merely bankrupt the system while making all schools alike, none with any, non­
racial, magnetic attraction.



public school system (City Plearing Tr. 294); Defendant’s expert witness,

Dr® Guthrie, seemed to find it incredible that any system would implement the 

magnet school concept and could find no reasonable classification on which 

it could be based. (City Hearing Tr. 489-492): For the price of creating

some purported "optimum," mix the middle school concept sets up a new type 

of dual school system. ,• '

These two invidious characteristics of the magnet middle school show 

that not only is the middle school an inadequate remedy, but it also 

constitutes an independent violation of the constitution. The middle school, 

therefore creates a situation which, if anything, adds another layer of 

unconstitutionali.ty to the pattern of discrimination previously found by the 
Court. .

Respectfully submitted,

PAUL R. DIMOND
J. HAROLD FLANNERY
ROBERT PRESSMAN
Center for Law & EducatL on
Harvard University
Cambridge; Massachusetts 02138
LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
Ratner, Sugarmon « Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

NATHANIEL R. JONES 
General Counsel, N.A.A.C.F. 
1790 Broadway 
New York, New York 10019

Eo WINTHER McCROOM 
3245 Woodburn Avenue 
Cincinnati, Ohio 45207
JACK GREENBERG 
NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019



Certificate of Service

I, Paul R. Dimond, of counsel for plaintiffs, hereby certify that I 

have served the foregoing upon the defendants Detroit Board, state 

officials, teachers association, and Denise Magdowski by mailing, postage 

prepaid, copies to their counsel of record on"March.> 24, 1972.

fcujjl? D cma cnaO
PAUL R. DIMOND 
J. HAROID FLANNERY 
ROBERT PRESSMAN 
Center for Law & Education 
Harvard University 
Cambridge, Mass. 02138

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