Opinion

    Nos. 72-1809 -  72-1814

FOR THE SIXTH CIRCUIT

Ronald Bradley, et al.,
Plaintiffs-Appellees,

v.
W illiam G. Milliken, Governor of 

Michigan, etc.; Board of E duca­
tion of the City of Detroit,

Defendants-Appellants,
and

Detroit F ederation of Teachers 
L ocal 231, American F ederation 
of Teachers, AFL-CIO,

Defendant-Intervenor- Appellee, 
and

Allen Park Public Schools, et al., 
Defendants-lntervenors-Appellants 

and
Kerry Green, et al.,

Defendants-lntervenors-Appellees.

A p p e a l  from the 
United States District 
Court for the Eastern 
District of Michigan, 
Southern Division.

Decided and Filed June 12, 1973.

Before Phillips, Chief Judge, W eick, E dwards, Celebrezze, 
Peck, McCree, Miller, Kent and L ively, Circuit Judges.

Phillips, C.J., delivered the opinion of the Court, in which 
Edwards, Celebrezze, Peek, McCree and Lively, JJ., joined. 
Weick, J. (pp. 82-111) and Miller, J. (pp. 130-131) filed dis­
senting opinions and Kent, J., (pp. 112-129) filed a separate



opinion concurring in part and dissenting in part. Judge Kent 
died May 28, 1973 after the opinions were in the hands of 
the printer.

Phillips, Chief Judge. This is a school desegregation case 
which, as originally filed, was directed against the school sys­
tem of Detroit, Michigan, but on this appeal involves both 
Detroit and school districts located in the surrounding met­
ropolitan area.

The present appeal is the fourth time that the case has been 
before this court since the complaint was filed August 18, 
1970. The earlier decisions of this court are reported at Brad­
ley v. Milliken, 433 F.2d 897 (1970); Bradley v. Milliken, 438 
F.2d 945 (1971); and Bradley v. Milliken, 468 F.2d 902, 
cert, denied, 409 U.S. 844 (1972). (On November 27, 1972 
the original panel dismissed for want of jurisdiction an 
“emergency motion” by the Detroit Board of Education 
that State officials be required to provide funds to keep the 
Detroit public schools operating for 180 regular days of 
instruction during the current school year. —  F.2d .) 
On February 27, 1973, the Supreme Court denied re­
view in Bloomfield Hills School District v. Both, West Bloom­
field School District v. Roth, and Birmingham School District
v. Roth,___U.S. — , 41 U.S.LAV. 3460. In these cases this court
had denied applications for writs of mandamus or prohibition 
against District Judge Roth. The School Districts contended 
that the District Judge usurped jurisdiction by failing to con­
vene three-judge courts and by subjecting the School Districts 
to his ruling and order in the school desegregation case in spite 
of the fact that the Districts were not parties to the desegre­
gation proceedings and had not been found to have committed 
any act of de jure segregation. The action of the Supreme 
Court was without prejudice to the right of the School Dis­
tricts to file application to intervene in the present action.)

Oral arguments were heard before a panel of this court 
on August 24, 1972. An opinion was announced by the panel 
on December 8, 1972, affirming two orders of the District 
Court, viz: (1 ) Ruling on Issue of Segregation, reported at

2 Bradley, et al. v. Millikan, et al. Nos. 72-1809 - 14



338 F.Supp. 582, and (2 ) Findings of Fact and Conclusions 
of Law on “Detroit only” plans of desegregation, dated March 
28 1972. The decision of the panel vacated the remaining 
three orders on appeal (enumerated below), but affirmed m 
principle the ruling of the District Court on the propriety of 
a metropolitan remedy to accomplish desegregation.

On lanuary 16, 1973, this court granted rehearing m banc. 
Under the provisions of Rule 3 (b ) of the local ru es o t is 
court, the effect of granting rehearing in banc is to vacate 
the previous opinion and judgment of the court, to stay the 
mandate and to restore the case on the docket as a pending

aPOral arguments before the court in banc were heard Feb­
ruary 8, 1973. . , i .1

No specific desegregation plan lias been ordered by e
District Court. The procedural history of the litigation is set 

forth below.
Before this court at the present time are four interlocutory 

orders from which we have granted appeal pursuant to 23 
U.S.C. § 1292(b) and one final order, viz:

1. Ruling on Issue of Segregation, dated September 27,
1971, reported at 338 F.Supp. 582; ^

2. Findings of fact and conclusions of law on Detroit only 
plans of desegregation, dated March 28, 1972;

3. Ruling on Propriety of a Metropolitan ^ m ed y to Ac­
complish Desegregation of the Public Schools of the City o 
Detroit, dated March 24, 1972;

4. Ruling on Desegregation Area and Development of 
Plan, and Findings of Fact and Conclusions of Law m suppor 
thereof, dated June 14, 1972; and

5 Order dated July 11, 1972, directing Michigan State 
officials to purchase 295 school buses (which this court con­
siders to be a final order).

On lulv 13 1972, following oral argument, the original panel 
granted a motion for a temporary stay of the District Courts

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al.



4

order of July 11, 1972, ordering the purchase of 295 school 
buses.

On July 17, 1972, following oral argument, the original panel 
directed that its stay order remain in effect until entry by the 
District Court of a final desegregation order or until certification 
by the District Court of an appealable question as provided by 
28 U.S.C. § 1292(b).

Thereafter, on July 19, 1972, the District Court certified that 
the orders set forth above involve controlling questions of 
law, as provided by 28 U.S.C. § 1292(b), and made a deter­
mination of finality under Rule 54 (b ), Fed. R. Civ. P.

On July 20,1972, the original panel entered an order granting 
the interlocutory appeal concluding that:

“[A]mong the substantial questions presented there is at 
least one difficult issue of first impression that never has 
been decided by this court or the Supreme Court. In so 
holding we imply nothing as to our view of the merits oi 
this appeal. We conclude that an immediate appeal may 
materially advance the ultimate termination of the litiga­
tion.”

The motion for leave to appeal was granted and the case 
was advanced for oral arguments on the merits on August

24, 1972. _
The July 20, 1972 order of the original panel included the 

following stay order, which has remained in effect pending 
final disposition of the appeal on its merits:

“The motion for stay pending appeal having been con­
sidered, it is further ORDERED that the Order for Ac­
quisition of Transportation, entered by the District Court 
on July 11, 1972, and all orders of the District Court con­
cerned with pupil and faculty reassignment within the 
Metropolitan Area beyond the geographical jurisdiction 
of the Detroit Board of Education, and all other proceed­
ings in the District Court other than planning proceedings, 
be stayed pending the hearing of this appeal on its merits 
and the disposition of the appeal by this court, or until fur­
ther order of this court. This stay order does not apply to

Bradley, et al. v. Milliken, et al. Nos. 72-1809 -14



the studies and planning of the panel which has been ap­
pointed by the District Court in its order of June 14, 
1972, which panel was charged with the duty of pre­
paring interim and final plans of desegregation. Said 
panel is authorized to proceed with its studies and plann­
ing during the disposition of this appeal, to the end that 
there will be no unnecessary delay in the implementation 
of the ultimate steps contemplated in the orders of the 
District Court in event the decision of the District Court 
is affirmed on appeal. Pending disposition of the appea 
the defendants and the School Districts involved shall 
supply administrative and staff assistance to the aforesaid 
panel upon its request. Until further order of this court 
the reasonable costs incurred by the panel shall be pa 
as provided by the District Court’s order of June 14, 19/2.

This court also has granted leave to appeal to various in­
tervening parties and leave to file numerous amicus briefs. 
The briefs and arguments of all the parties have been con­
sidered in the disposition of this appeal.

We agree with two of the rulings of the District Court sum­
marized above: (1 ) The Ruling on the Issue of Segregation 
and (2 ) the Findings of Fact and Conclusions of Law on 
“Detroit-only” plans of desegregation. We hold that the find­
ings of fact of the District Court as set forth in these rulings 
are not clearly erroneous, Rule 52 (a ), Fed. R. Civ. P., but to le 
contrary are supported by substantial evidence.

As to the District Court’s third ruling pertaining to the pio- 
m-ietv of a Metropolitan remedy, we agree in part and re­
verse in part. We vacate this and the two remaining orders 
and remand to the District Court for further proceedings as 
hereinafter set forth in detail in this opinion.

I. Chronology of Proceedings

On April 7, 1970, the Detroit Board of Education adopted 
a plan to effect a more balanced distribution of black and 
white students in the senior high schools through enactment 
of changes in attendance zones involving some 12,000 pupils,

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al.

r».-



to become effective over a three year period. Three months 
later this modest effort was thwarted by the legislature of 
the State of Michigan through enactment of Act 48 of the 
Public Acts of 19/0. Section 12 of the Act delayed implementa­
tion of the plan. The four members of the Board who sup­
ported the April 7 plan were removed from office through a 
citizen initiated recall election. The new members of the 
board and the incumbent members who had originally op­
posed the April 7 plan thereafter rescinded it.

The complaint in this case was filed by individual black 
and white school children and their parents, and the Detroit 
branch of the NAACP against the Board of Education of the 
City of Detroit, its members, and the then Superintendent 
of Schools, as well as the Governor, the Attorney General, 
the State Board of Education and the State Superintendent 
of Public Instruction of the State of Michigan. (The State 
of Michigan as such is not a party to this litigation. References 
thereto should be read as references to the public officials, 
State and local, through whom the State is alleged or shown 
to have acted.)

The complaint alleged that the Detroit public school system 
was and is segregated on the basis of race as the result of 
actions and policies of the Board of Education and of the 
State of Michigan. The complaint specifically challenged the 
constitutionality of Act 48 of the Public Acts of 1970 of the 
State of Michigan, which in effect repealed the April 7, 1970 
high school desegregation plan formulated by the Detroit 
Board.

The case was heard originally on plaintiffs’ motion for a 
preliminary injunction to restrain the enforcement of Act 
48. In response to this motion the District Judge denied a pre­
liminary injunction, did not rule on the constitutionality of Act 
48, but granted the motion of the Governor and Attorney Gen­
eral of Michigan for dismissal of the cause as to them. On 
appeal this court held that § 12 of Act 48 was an unconstitu­
tional interference with the lawful protection of Fourteenth 
Amendment rights, that there was no abuse of discretion in

6 Bradley, et al v. Milliken, et al. Nos. 72-1809 - 14



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 7

denying a preliminary injunction, and that the Governor 
and Attorney General should not have been dismissed as par­
ties defendant at that stage of the proceeding. The case was 
remanded to the District Court for an expedited trial on 
the merits. 433 F.2d 897.

On remand plaintiffs moved for immediate implementation 
of the April 7 plan. On December 3, 1970, following an 
evidentiary hearing on that plan and two updated plans, the 
District Court ordered implementation of the “Magnet” or 
“McDonald” plan effective at the beginning of the next full 
school year, pending ultimate disposition on the merits. Plain­
tiffs appealed and filed a motion for summary reversal. This 
court again held that the District Court had not abused its 
discretion in refusing to adopt the April 7 plan prior to an 
evidentiary hearing on the allegations of constitutional viola­
tions in the complaint. We remanded the case with in­
structions to proceed to trial expeditiously on the merits of 
plaintiffs’ allegations concerning the Detroit public school 
system. 438 F.2d 945. The trial of the case on the issue of 
segregation began April 6, 1971, and continued until July 
22, 1971, consuming 41 trial days. On September 27, 1971, 
the District Court issued its ruling on the issue of segrega­
tion, holding that the Detroit public school system was racially 
segregated as a result of unconstitutional practices on the part 
of the defendant Detroit Board of Education and the Michigan 
State defendants. 338 F.Supp. 582.

A decision on a motion to join a large number of suburban 
school districts as parties defendant was deferred on the 
ground that the motion was premature, in that no reasonably 
specific desegregation plan was before the court. The Detroit 
Board of Education was ordered to submit desegregation plans 
limited to the City, while State defendants were directed 
to submit plans encompassing the three-county metropolitan 
area. An effort was made to appeal these orders to this 
court. On February 23, 1972, this court held the orders to be 
non-appealable and dismissed the .appeal. 468 F.2d 902, cert, 
denied, 409 U.S. 844 (1972).



After further proceedings concerning proposals for a Detroit 
only desegregation remedy and the presentation of three plans 
therefor, the District Judge on March 24, 1972, issued a 
ruling entitled “Ruling on Propriety of Considering a Metro­
politan Remedy,” and on March 28, 1972, he issued “Findings 
oi Fact and Conclusions of Law on Detroit Only Plans of 
Desegregation.” He rejected all Detroit only plans, saying 
m part: Rehef of segregation in the public schools of the 

ity of Detroit cannot be accomplished within the corporate 
geographical limits of the city.”

Subsequently, the District Court issued an order on June 
, 19/2 entitled Ruling on Desegregation Area and Order 

for Development of Plan for Desegregation.” In this ruling 
and order the District Court established tentative boundaries 
or a metropolitan remedy and provided for a panel of nine 

members to design plans for integration of the Detroit schools
and those of 53 metropolitan school districts within certain 
guidelines.

The panel recommended preparatory purchases of school 
buses prior to implementation of an interim plan in Septem­
ber 19/2 Following a hearing, the District Court on July 
11 ordered State defendants to purchase or otherwise acquire 
295 school buses.

In view of the intervening Congressional action by the en­
actment of the “Broomfield Amendment,” certification was 
made to the Attorney General of the United States that the 
constitalioMlity of § 803 of the Education Amendments of 
197.., Iub. L. No. 92-318, 86 Stat. 235, had been called into 
question. The Department of Justice intervened, filed a brief 
and participated in the oral arguments before this court.

II. The Issues

All of the parties to this litigation in one form or another 
present three basic issues which we phrase as follows:

L Are the District Court’s findings of fact pertaining to 
constitutional violations resulting in system-wide racial segre-

8 Bradley, et al. v. Millikan, et al. Nos. 72-1809 - 14



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 9

gation of the Detroit Public Schools supported by substan­
tial evidence or are they clearly erroneous?

2. Based on the record in this case, can a constitutionally 
adequate system of desegregated schools be established with­
in the geographic limits of the Detroit school district?

3. On this record does the District Judge’s order requiring 
preparation of a metropolitan plan for cross-district assign­
ment and transportation of school children throughout the 
Detroit metropolitan area represent a proper exercise of the 
equity power of the District Court?

III. The Constitutional Violations

(A) Constitutional violations found to have been committed 
by the Detroit Board of Education:

(1 ) Segregative zoning and assignment practices.

(a ) The District Judge found that the Detroit 
Board of Education formulated and modified 
attendance zones to create or perpetuate racial 
segregation. He also found that the feeder sys­
tem for junior and senior high schools was de­
signed to maintain rather than eliminate black 
or white schools at the higher levels. Its prac­
tice of shaping school attendance zones on a 
north-south rather than an east-west orientation 
resulted in attendance zone boundaries con­
forming to racial dividing lines.

(b ) He further found that the Detroit Board of 
Education’s policies involved a substantial 
number of instances of transporting black chil­
dren past white schools with available school 
space.

He also found that it was the policy of the Board
of Education to create optional attendance areas



10

which permitted white students to transfer to all 
white or predominately white schools located nearer 
the city limits.
The District Judge also found that the policies of 
the Detroit Board of Education (and State Board 
of Education) concerning school construction in 
some instances had the purpose of segregating stu­
dents on a racial basis and in many others resulted 
in maintaining or increasing segregation.

The District Judge’s findings of fact pertaining to al­
teration of zones and feeder patterns are as follows:

“The Board has created and altered attendance zones, 
maintained and altered grade structures and created and 
altered feeder school patterns in a manner which has 
had the natural, probable and actual effect of continuing 
black and white pupils in racially segregated schools. 
The Board admits at least one instance where it pur­
posefully and intentionally built and maintained a school 
and its attendance zone to contain black students. 
Throughout the last decade (and presently) school at­
tendance zones of opposite racial compositions have been 
separated by north-south boundary lines, despite the 
Board’s awareness (since at least 1962) that drawing 
boundary lines in an east-west direction would result in 
significant integration. The natural and actual effect of 
these acts and failures to act has been the creation and 
perpetuation of school segregation. There has never been 
a feeder pattern or zoning change which placed a pie- 
dominantly white residential area into a predominantly 
black school zone or feeder pattern. Every school which 
was 90% or more black in 1960, and which is still in use 
today, remains 90% or more black. 338 F.Supp. at 58S.

The legal conclusion of the District Judge is as follows:

“5. The Board’s practice of shaping school attendance 
zones on a north-sputli rather than an east-west orienta­
tion, with the result that zone boundaries conformed to

Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14



racial residential dividing lines, violated tlie Fourteenth 
Amendment. Nortlicross v. Board of Ed. of Memphis,
6 Cir., 333 F.2d 661.” 338 F.Supp. at 592-93.

ft ft ft

“9. The manner in which the Board formulated and 
modified attendance zones for elementary schools had 
the natural and predictable effect of perpetuating racial 
segregation of students. Such conduct is an act of de 
jure discrimination in violation of the Fourteenth Amend­
ment. United States v. School District 151, D.C., 286 F. 
Supp. 786; Brewer v. School Board of City of Norfolk, 4 
C ir, 397 F.2d 37.” 338 F.Supp. at 593.

There is, of course, other legal support for the con­
clusions set out above. Davis v. School District of Pontiac, 
443 F.2d 573, 576 (6th Cir.), cert, denied, 404 U.S. 913 (1971); 
United States v. Board of Education, Ind. School District No. 
1, 429 F.2d 1253, 1259 (10th Cir. 1970); United States v. 
Jefferson County Board of Education, 372 F.2d 836, 867-68 
(5th Cir. 1965), aff’d in banc, 380 F.2d 385 (5th Cir. 1966), 
cert, denied sub nom, Caddo Parish School Board v. United 
States, 389 U.S. 840 (1970); Clemons v. Board of Education, 
228 F.2d 853, 858 (6th Cir.), cert, denied, 350 U.S. 1006 
(1956); Spangler v. Pasadena Board of Education, 311 F. 
Supp. 501, 522 (C.D. Cal. 19 /0 ). > _

Witness Charles Wells, defendant School Boards assistant 
superintendent in charge of the Office of Pupil Personnel 
Services, read into the record and testified in support of the 
minutes’ of a meeting of the Citizens Association for Better 
Schools. Mr. Wells was the president of the Citizens As­

sociation at the time the meeting was conducted. His testi­
mony includes the following:

“Q. (By Mr. Lucas) Go ahead, sir.
“A. ‘November 3, 1960.

‘TO: Honorable Nathan Kaufman, Chairman
Committee on Equal Education Opportunity.

Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al. 11

\ %
iss

*.-*r**zsr

/



‘We should like to begin our presentation by reviewing 
with you briefly the development of our organization. We 
feel it is significant as it represents an attempt on the 
part of people who make up this organization to effective­
ly deal with the frustrations historically inherent in at­
tempting to provide for minority group children an ade­
quate education within the Detroit Public School System. 
A majority of the people of the Negro race moved into 
the now Center District from other school districts with­
in the limits of the City of Detroit. Although better 
housing conditions were but one of the motives for such 
a move, of equal importance was a desire to provide their 
children with a more equitable and enriched educational 
experience.

‘They were aware of the increased population within 
their new geographical area, and accepted the counselling 
of the then new administration of the Board of Edu­
cation, to the effect that additional tax monies would 
have to be made available if educational standards within 
the City of Detroit were to be improved, or even main­
tained. Consequently, each of them made a strong per­
sonal investment in the millage campaign of Spring 1959. 
In this campaign, initially, their efforts did not meet the 
wholehearted approval of the Negro community, since 
from past experience, particularly involving other millage 
campaigns, members of the Negro community had ob­
served that the results of the expenditures of monies 
obtained from additional taxes, had little effect on the 
facilities, the equipment, or the curriculum available to 
their children.

‘Despite this resistance, they were aware that there 
would be less justification for demanding adequate edu­
cational opportunities for their children if they did not 
accept their responsible share for the successful passing 
of the millage program. As a consequence of their ef­
forts, their respective schools voted overwhelmingly for 
the millage program, and they logically expected that 
positive results would follow their efforts.

Bradley, et al. v. Milliken, et al. Nos. 72-1809 -14



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 13

‘Their first disillusionment occurred only a few months, 
but yet a few weeks after the passage of the millage — 
they were rewarded with the creation of the present 
Center District. In effect this District, with a few minor 
exceptions, created a segregated school system. It ac­
complished with a few marks of the crayon on the map, 
the return of the Negro child from the few instances of 
an integrated school exposure, to the traditional pre­
dominantly uniracial school system to which he had for­
merly been accustomed in the City of Detroit.

‘Their attempts to meet this threat to their children’s 
educational experience through existing school organiza­
tions met with little success. Their conferences with 
District and City-Wide administrators including the super­
intendent, Dr. Samuel Brownell, resulted in only ration­
alizations concerning segregated housing patterns, and 
denials of any attempts at segregation. When it was 
pointed out that regardless of motivation, that segrega­
tion was the result of their boundary changes, little com­
promise was effected, except in one or two instances, 
where opposition leadership was most vocal and ag­
gressive.

‘Concurrent with boundary changes, it was alarming­
ly noticeable that the school population within the Cen­
ter District was rapidly increasing, and that the priority 
building program would have little positive effect in 
dealing with the problem. Attempts to discuss this prob­
lem with school and district administration gave promise 
of only minimal relief.

‘Finally, it had been earlier noted by new residents 
moving into what is now the Center District that prior 
to and during its change from a uniracial (predominant­
ly white) to a biracial system and again to a uniracial 
(predominantly Negro) school system that the quality 
of their children’s previous educational experiences did 
not eqiup them to compete on an equal basis with resi­
dent children in the same grade and classifications.

‘These experiences made them aware that no one or­
ganization composed of one or several schools, could ef-



fectively coordinate the mutual concern of the many 
parents residing within the Center District. Tims out of 
the several discussions of groups of people whose primary 
concern was the adequate and equitable education of their 
children, this organization was born. It is felt that no 
better description of its purpose, its objective, and its 
reason or reing can be found than in the preamble to 
its Constitution, which is:

PREAMBLE: Our interest is in equal educational op­
portunities for all persons within the City of Detroit.

We do not believe that such opportunities are possible 
within a segregated school system.

‘We oppose a policy of containment of minority groups 
within specified boundaries, an example of which is the 
Center District While the above is of utmost concern 
to us we are also aware that there is need for improve­
ment and enrichment of the standards within this district 
in practice as well as in theory.

‘We believe that once standards have become reason­
ably adequate that such standards should be maintained.
It shoidd be further recognized that future population 
shifts brought about by urban redevelopment will ad­
versely affect the above goals in the Center District unless 
there is anticipation of the impact of this population 
growth upon this district.

, Slnce tlie inception of our organization we have noted 
the following:

The public school system of the City of Detroit is 
divided into nine administrative districts, one of which 
is the Center District.

Yet, every day, when the children in this city leave 
their homes to go forth to public schools, approximately 
one out of every four leaves a home in the Center District.
Of the 154,969 children enrolled in public elementary 
schools as of September 30, 1960, 36,264 or 23.4 percent 
of these children leave a home in the Center District

14 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14



Nos. 72-1809 -1 4  Bradley, et a l v. Milliken, et al. 15

‘There are 221 elementary school buildings in the De­
troit Public School System. Of these 28 are in the Center 
District. This means, then, that the 23.4 percent of the 
total elementary school population is accommodated in 
12.7 percent of the buildings.

‘Fifteen percent of these children sit in classes of 40 to 
44 students per class. This is in comparison to:

East .13 percent
North .05 percent
Northeast .04 percent
Northwest .08 percent
South .01 percent
Southeast .01 percent
West .05 percent

‘Sixty-two and one-half percent of all the children in 
the city’s elementary schools who sit in classes of 45 to 
49 are children in the Center District. These schools in 
the Center District find their capacities short by 6,352 
pupil stations. In other words, their capacities are over­
taxed to the extent of 16 percent; and the future build­
ing program, as set forth by the superintendent s report 
of October 17, 1960, will make available only 11,189 ad­
ditional pupil stations within the next ten-year period.
However, this will be insufficient to meet the demands of 
the Center District. Therefore, it is apparent that a 
school bussing program will have to become a permanent 
part of the school housing program. Thus the manner 
in which the bussing program is administered becomes a 
matter of acute concern.

‘Presently, children are being bussed by grades. Under 
this system a number of problems are created:

1) It makes necessary a reorganization of the 
bussing school, as well as the school into which the 
children are bussed.

2) They are not'integrated into the school into 
which they are bussed, except in minor instances.

|

| ,• ;
■ ■ ■ J



Bradley, et ah v. MUliken, et al. Nos. 72-1809 - 14

3) There is a possibility of the separation of the 
family unit.

4) Parents are unable to establish a good rapport 
with the teachers and administrators in the new 
school since there exists a time limit in which these 
children will be members of that school.

It is recommended that a policy of bussing by geo­
graphical areas instead of by grades be instituted so as 
to eliminate the above problems.

The emphasis on curricula objective are not compara­
ble in the various school districts of the Detroit School 
System. There is a tendancy in the Center District to 
stereotype the educational capacity of the children. This 
means that children entering the schools in this district 
whose background enables them to comprehend an en­
riched educational program, are not challenged.

For example, one student in the Hutchins Intermediate 
School who desired to prepare for entrance into an East­
ern college found that Latin was not offered, and only 
after considerable effort by members of the community, 
along with his family, was Latin placed back in the school 
curriculum. Many other instances can be cited upon 
request.

‘Conversely, children whose initial capacity is retarded 
by deprived socio-economic circumstances also go un­
challenged. The District Administrator has admitted that 
no program exists to take care of these children.

‘The curriculum and counselling as they now exist, 
do not encourage students to achieve their maximum ca­
pacities. We feel that the responsibility for any inequities 
in the educational experience offered to any group of 
children within a given school system must be assumed 
by those persons charged with the overall responsibility 
of administering that system.

‘Therefore, we recommend that strong policies be adopt­
ed by tire top administration to erase inequities of the



Detroit Public School System, and a policy of super­
vision through all levels of administration be instituted 
at all levels of administration to insure equal educational 
opportunities to all children.

‘The Citizens’ Association for Better Schools.’

“Q. Do you join in that statement in submission to the 
committee?

“A. Yes, I did.”

Mr. Wells cited the example of the Center (administrative) 
District, where attendance boundaries were shaped in a gerry­
mandered fashion to conform to the racial residential pattern.

“Q. With regard to that same situation, you were ex­
pressing a problem which your committee had met in 
attempting to discuss this. Can you tell me how you 
came to be discussing this with the Board at that time?

“A. It was not with the Board of Education, I be­
lieve it was with the administration of the school system.

“Q. The administrative staff?
“A. Including the superintendent.
“Q. All right.
“A. Our initial concern about the boundaries of the 

center district grew out of the concern we had in 1960 
about the changing of the attendance areas between the 
Central High School and the Mackenzie High School.

“Q. Is that the optional attendance area also set up in
that? (

“A. A part of that was optional. Well, let’s put it 
that way, a part of it had been optional, the proposal was 
to eliminate the option. In the process of eliminating the 
option what it would mean would be that by and large 
the few black children who had been attending Mackenzie 
would have been pulled back into the Central area.

“Q. Mackenzie at that time was a majority white 
school?

“A. Predominately white.
“Q. Central by that lime had become black?

Nos. 72-1809 -14 Bradley, et al. v. Milliken, et al. 17



Bradley, et al. v. Milliken, et al. Nos. 72-1809 -14

“A. Predominately black.
“Q. So the cancellation of the optional area which 

had been there had the effect of preventing black chil­
dren choosing Mackenzie, is that correct?

“A. That is right.
“Q. Were there any other schools — there is a ref­

erence made to the establishment of the center district 
boundaries — were there any other schools which had 
not previously been in certain feeder patterns that were 
drawn back into the center district?

“A. I am trying to remember now as I said eleven 
years.

“Q. I understand.
“A. If I remember correctly, the Sherrill School which 

also had been a part of it, that portion north of Tireman 
had been attending Mackenzie and they in turn, the total 
school then would have been returned to the Chadsey 
area.

“Q. What about Tappan and that area, are you fa­
miliar at all with changes that took place?

“A. Tappan was the junior high school in which Win­
terhalter, the elementary school in the area south of 
Davison just west of Ewald Circle attended. At that 
time the students from that area attended Tappan and 
all students from Tappan attended Mackenzie.

“The new change would mean that the students from 
Winterhalter, and I think McKerrow which is just below 
Winterhalter would have attended Tappan through the 
9th grade, but then had been pulled back into the center 
district to attend Central High School.

“The other students in Tappan would have gone to 
Mackenzie.

“Q. The other students in Tappan, were they pre­
dominately white students?

“A. Yes. Our concern about this region really at that 
time was that we could draw a line which separated the 
black residents from the white residents and almost to 
the alley and that in effect was the boundary line of 
the center district.”



There was evidence that school feeder patterns were changed 
so as to make particular junior high schools or senior high 
schools either generally white or generally black, as shown 
in the following testimony:

“MR. CALDW ELL: Your Honor, I have copies of
the Mumford High School district in 1959 which is taken 
from Plaintiff’s Exhibit 78-A, and this makes it easier to 
see the schools.

“Q. Let’s get back to the 1962-’63 overlay.
“Prior to the 1962-’63 -  first of all, will you point out 

to the Court where the Vandenberg and Vcmor Schools
are. .

“A. This triangle to the northwest corner of this area.
(indicating)

“Q. Prior to 1962-63 where did the Vemor and Van- 
derburg youngsters go to high school?

“A. Mumford High School.
“Q. A boundary change was made in 1962-63?
“A. That’s right.
“Q. Where did those youngsters go to school in that 

year?
“A. Ford High School.
“Q. How long did that feeder pattern continue?
“A. Until 1966-67 when they returned to Mumford.
“Q. All right.
“MR CALDW ELL: Plaintiffs’ Exhibit 128-A, your

Honor, reflects that in 1960 Vandenburg and Vemor were 
0 percent black. Mumford was 16.1 black, Ford was .1 
percent black. With regard to Vandenburg and Vemor 
there was a gradual increase in the black population unti 

• 1966 when Vandenburg was 39.5 percent black and Ver-
nor was 39.8 percent black.

“Then in 1967 the change was made taking Vandenburg 
and Vemor back into Mumford. Vandenburg had be­
come 70 percent black, Vemor had become 63.2 percent 
black. That year the change was made and Mumford 
was 78.1 percent black, Ford was 4.1 percent black.

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 19

i . I



Q. I believe that feeder pattern continued into the 
current school year?

“A. That is right.
Q. Those schools now feed back into Ford High 

School this year?
“A. That is right.”

The effect of such a policy was attested to by Dr. Gordon 
Foster of the University of Miami, director of the Florida 
School Desegregation Consulting Center:

Q. The effect, Doctor, then, of the removal of Van- 
denberg and Vernor from the Ford feeder pattern into 
the Mumford feeder pattern, what was the effect in terms 
of race?

“A. The effect of this move in 1967-68 of the transfer 
back of the two elementary schools was to increase the 
segregation at Mumford, to take blacks from the Ford 
High School and, therefore, increase the segregated pat­
tern there, and, in my opinion, it reinforced inevitably 
the perception that Ford would be kept white as a 
matter of basic policy and that Mumford would be a 
racially contained isolated high school attendance area.”

Similar testimony regarding the segregative effect of alter­
ing school feeder patterns was given with respect to the 
Jefferson and Hutchins Junior High Schools, Garfield and 
Spain Junior High Schools, Burton and Irving Elementary 
Schools, Higginbotham Elementary School, Jackson and Foch 
Junior High Schools, Stellwagen, Keating and Clark Elemen­
tary Schools, Cleveland and Nolan Junior High Schools, Cour- 
ville Elementary School, Ford and Brooks Junior High Schools, 
Osborne and Pershing High Schools, Parkman Elementary 
School, the Ellis, Sills, Newberry and Sampson Elementary 
Schools, and Northwestern and Chadsey High Schools.

The District Judge made the following findings of fact 
pertaining to busing black children to black schools past 
white schools:

20 Bradley, et al. v. Millikan, et al. Nos. 72-1809 - 14



“The Board, in the operation of its transportation to 
relieve overcrowding policy, has admittedly bused black 
pupils past or away from closer white schools with avail­
able space to black schools. This practice has continued 
in several instances in recent years despite the Board s 
avowed policy, adopted in 1967, to utilize transporta­
tion to increase integration.

“With one exception (necessitated by the burning of 
a white school), defendant Board has never bused white 
children to predominantly black schools. The Board has 
not bused white pupils to black schools despite the enor­
mous amount of space available in inner-city schools. 
There were 22,961 vacant seats in schools 90% or more 
black.” 338 F.Supp. at 588.

The legal conclusion of the District Judge follows:
“8. The practice of the Board of transporting black 

students from overcrowded black schools to other identi- 
fiably black schools, while passing closer identifiably white 
schools, which could have accepted these pupils, 
amounted to an act of segregation by the school authori­
ties. Spangler v. Pasadena City Bd. of Ed., D.C., 311 
F.Supp. 501.” 338 F.Supp. at 593.

Additional support for the District Judge’s legal conclusion 
includes- United States v. School District 151, 286 F.Supp. 786, 
798 (N.D. 111. 1967), aff’d, 404 F.2d 1125, 1131 (7tli Cir. 
1968), on remand, 301 F.Supp. 201, 211, 222 (N.D. 111. 1969), 
aff’d, 432 F.2d 1147, 1150 (7tli Cir. 1970), cert, denied, 402 
U.s/943 (1971); United States v. Board of School Commis­
sioners, Indianapolis, Ind., 332 F.Supp. 655, 669 (S.D. Ind. 
1971) aff’d 474 F.2d 81 (7th Cir. 1973).

The following testimony pertains to busing black children 
from overcrowded black schools past white schools with 
available pupil capacity to other black schools:

“Q. I am trying to anticipate, Mr. Ritchie s question.
Have you noted some examples of the bussing of black
children from black schools to other black schools?

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 21

•*



22 Bradley, et al. v. Milliken, et al. Nos. 72-1809- 14

“A. I have.
Q. Could you give us a couple illustrations?
MR. BUSI1NELL: While Dr. Foster is looking

through his notes, might I make the request that we 
made yesterday that on conclusion of his testimony we 
have access to the notes made?

MR. LUCAS: At the conclusion, yes. We have no
objection to that.

“A. In 1960-61, and we don’t have any record for 
61-62 so I am not certain as to that year, students were 
transported from Angell to Greenfield Park. This has 
already been part of our testimony, I believe, 186 students 
and students from Angell to Higginbotham, 118 students. 
In 1969 -

“Q. Excuse me, Doctor, let me ask you if the Angell- 
Higginbotham — were there white schools available with 
space, from your examination of the records?

“A. Yes, there were.
“Q. Between Angell and Higginbotham?
A. Yes, sir, I believe I testified to that before.

“Q. All right.
“A. In 1969 the Ruthruff Elementary School which 

was 99 percent black transported 143 children to Herman 
Elementary, 55 percent black.

* O O

“Q. (By Mr. Lucas, continuing) Dr. Foster, would 
you step to the map.

“I think we were talking about the Ruthruff-Herman 
Schools.

“A. Yes. We were testifying at recess about trans­
portation of blacks past white schools. In 1969 we stated 
that Ruthruff Elementary which is here in the south­
eastern portion of the Mackenzie High School zone on 
the large 1970-71 attendance area map, in 1969 trans­
ported 143 children to Herman Elementary School which 
is just below the blue area on the undermap here — 
Herman Elementary School (indicating). Herman in 
1969 was 55.6 percent black. Ruthruff was 99.1 percent 
black and I think it is important to note that the access



I

to Herman goes right past the Parkman Elementary 
School which at that time had 136 spaces available and 
according to their capacity figures —

“Q. Parkman was what percentage?
“A. Parkman I don’t have the figure for ’69 and ’70. 

Parkman was 12.8 percent black.”
o o o

“A. Another example was the Parker Elementary 
School which is in the general center of the Mackenzie 
High School zone. Parker in 1970 was 79.4 black; 61 
children were bussed from Parker again to the Herman 
Elementary School which at that time was 58.5 percent 
black and again past the Parkman Elementary which in 
1970 was 12.8 percent black.

“Q. Did Parkman have capacity at that time, Doctor?
“A. Parkman in ’70, according to my data, had 121 

spaces.
O © $

“Q. Excuse me, would you give us the A. L. Homes.
“MR. BUSHNELL: I thought the Court ruled on that?
“THE COURT: He says he is pursuing a non-cumula­

tive matter here. If that be true he may go ahead.
“A. A. L. Holmes School, children were bussed from 

this school over to the McGraw School which is in the 
south end of the Northwestern District in center city. 
In 1970-71 the Post Junior High School, which is lo­
cated —

“MR. BUSHNELL: If the Court please, Mr. Lucas
just pointed out the location of Post which the witness 
obviously couldn’t find on the map.

“THE COURT: Well, he hasn’t moved it.
“A. I noted the west section of Cooley instead of the 

east. The Post Junior High School and Clinton Schools, 
which are in the east section of the Cooley High School 
attendance zone transported 54 students to the Jefferson 
School which is now in the Murray zone and it is lo­
cated in the eastern section of the Murray High School 
attendance area. I think it is important to note that

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 23

t- WrtlpV • » '- w



24 Bradley, et al. v. Milliken, et ah Nos. 72-1809 - 14

these students who were bussed came from a consider­
able distance north and there were several possibilities —

“Q. Excuse me, were the Post children in a black 
school or white school?

“A. The Post School this year, 1970-71 was 99.3 per­
cent black. The Clinton School from which they also 
came was 97 percent black.

“Q. What about Jefferson?
“A. Jefferson was 87.6 percent black. There were two 

or three other possibilities much closer to the Post-Clinton 
area. One would have been in the western portion of the 
Mackenzie district here (indicating).

“Q. What is the racial composition?
“A. At this time it had 35.4 percent black with a ca­

pacity of 109 stations available. Another possibility would 
have been the Vetal School in the Redford zone, the 
southern portion of the Redford High School zone, which 
at this time was 2 percent black with vacancies of 203 
pupil stations and a third alternative could have been 
the Coffey School to the east of the Ford attendance area 
which at this time was 29 percent black with 69 pupil 
stations available.

“Q. Did you say to the east was part of the Ford 
attendance area or outside of that, Doctor?

“A. It’s in the Ford attendance area.
$ o e

“THE COURT: Well, to save time why don’t we pro­
ceed on the assumption that that was his testimony. 
But if it proves otherwise we will strike it.

“MR. LUCAS: Thank you, sir.
“Q. (By Mr. Lucas) Doctor, I understand that the 

policy of the district is that bussing to relieve overcrowd­
ing would be done in such a manner as to improve in­
tegration at the receiving school. From your examina­
tion of the current bussing examples which you have 
given, do you have an opinion as to whether or not that 
policy has or has not been followed?

“A. Well, I think* from the examples I have given so 
far it would give an indication that integration could



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 25

have been effected in a much better way if the children, 
instead of going to the schools would have been dropped 
off at other schools where the racial balance was quite 
different.

O © O

Q. Are there any white schools from your examina­
tion of data, Doctor Foster, between Angell and Higgin­
botham which had capacity at that time?

“A. Yes, there were several which were a good deal 
closer to Angell than Higginbotham. The effect of this 
sort of zoning pattern was to provide segregated student 
ratios at all three of the elementary schools, and in 
terms of things that could be done or could have been 
done at that particular time to correct the segregated 
situation, it is my opinion that, first of all, the students 
being bussed from Angell could have been dropped off 
at any number of places on the way to Higginbotham, 
schools which had the space and had a better racial 
composition for this sort of input. This having been 
done, zone lines could have been redrawn at these three 
schools to have approached a racial balance situation 
which, in my opinion, would have helped to stabilize the 
situation at that time. This would have also assisted in 
the overcrowding at Pasteur and a couple of classrooms 
extra at Higginbotham.

“Q. Do you have an opinion, Doctor, as to the per­
ception created by the maintenance of the Higginbotham 
School under those circumstances, including the transpor­
tation of black students from Angell into it?

‘A. Well, it is obvious that if you transport black 
children past white schools to an all black school that the 
community is going to perceive this as a segregated in­
tent, a segregated action. If you have a boundary situa­
tion which isolates and enforces black students to a par­
ticular area when the boundary lines could be changed 
to effectuate a better pattern racially, then it seems to 
me that community perception would also be that the 
school is not doing what it .could in terms of integration 
and equal opportunity.



transported past such schools as Fitzgerald and Clinton 
which had more than enough capacity to handle them?

“A. W c have made no denial of that.

For some years it was a Board of Education policy to trans­
port classrooms of black children intact to white schools where 
they were educated in segregated classes.

Testimony as to the intact busing practice follows:

“Q. (By Mr. Lucas, continuing) Will you go into the 
Detroit system, Doctor, on transportation.

“A. Answering it generally, counsellor, my answer 
would be that the intact bussing is the practice of trans­
porting classrooms of children intact from one school to 
another and leaving them intact when they are educated 
at the receiving school.

“Q. Doctor, when such transportation occurs from a 
school which is 90 percent or more black to a school which 
is predominantly a white school, what effect, if any, does 
this have in terms of racial segregation on those chil­
dren?

“A. This would lead to what we call classroom seg­
regation or segregation within a particular school. It 
could be sometimes resegregation, but essentially it is a 
segregated situation within a school which could be seg­
regated or not segregated generally.

“Q. Doctor, in your experience with school segregation 
and school desegregation plans, is this a technique which 
you have had to deal with in the past?

“A. On occasion, yes, sir.
“Q. Doctor, did you examine data or relevant informa­

tion with respect to the transportation practices in the 
Detroit school system in connection with this type of 

' bussing, intact bussing?
“A. Yes, sir. .
“Q. What did your examination reveal, Doctor?
“A. It is my understanding from the data that there 

was intact bussing generally in the late ’50 s, as I said, 
and early ’60’s.

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 27



“Q. How did that intact transportation operate, Doc­
tor?

“A. It involved transporting classrooms in whole from 
one school to another receiving school and at the receiv­
ing school the classrooms were kept intact for instructional 
purposes.

“Q. Was this policy changed at any time, Doctor, as 
far as you know?

“A. It is my understanding it was changed in the 
middle ’60’s but I don’t remember the exact date.

“Q. -What would the change be, Doctor? What type 
of bussing would result in terms of relieving overcrowd­
ing?

“A. You simply gather children up on a geographical 
basis and transport them and assign them at random 
to whatever grade they are in the receiving school rather 
than keeping them in an intact classroom.”

Segregating children by race within schools has been held 
repeatedly to be unconstitutional. Jackson v. Marvell School 
District No. 22, 445 F.2d 211, 212 (8th Cir. 1970); Johnson 
v. Jackson Parish School Board, 423 F.2d 1055 (5th Cir. 19/0) .

The record indicates that in at least one instance Detroit 
served a suburban school district by contracting with it to 
educate its black high school students in a Detroit high school 
which was overwhelmingly black by transporting them away 
from nearby suburban white high schools and past Detroit 
high schools which were predominately white.

The District Judge found on this score that for years black 
children in the Carver School District were assigned to black 
schools in the inner city because no white suburban district 
(or white school in the city) would take the children.

This finding is supported by the testimony of Detroit School 
Superintendent Drachler, which follows:

“Q. When was the Carver District in existence as a 
separate entity?

“A. The Carver District? The Carver is not in De­
troit.

28 Bradley, et al. v. Milliken, et al. Nos. 72-1809- 14



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 29

“O. Is it a separate school district whose students at­
tended some Detroit high schools, in particular Northern.

“A. Oh, I see what you’re referring to. I am told that 
back in ’57, ’58, at that time I was not in Central Oitice 
there were some students from Carver District who di 
not have a place for adequate high school facilities. An 
arrangement was made with Detroit for the Carver^stu­
dents to come in on buses and go to Northern Hig 
School. Now, the nearest school to Carver was Mum- 
ford at the time. And they did go past Mumford toward
Northern.

“Q. Is Carver a black district?
“A. Yes, black and very poor. _
“Q. Has Carver District subsequently merged with

Detroit?
“A. Oak Park.
“Q. With Oak Park?
“A. That’s right. .
“Q. And at that time the transportation was termi-

“A That’s right. By the way, as a result of those 
youngsters coming, there was a rumor spread that De­
troit children were being bussed, say from the H>ggm 
botham, which is north -  Higginbotham area which r 
north of Mumford High School area but in Detroit, that 
they were being bussed to Northern too because they 
were black students, people saw black students from the 
Eight Mile area coming down. But to the best o y 
knowledge these were outside students.

“Q. There were black children being bussed to Hig­
ginbotham, weren’t they?

“A. There were black children being bussed to Hig- 
' ginbotliam.

“Q. From Angell? .
“A From Angell past some white schools. And when

the issue was brought to Doctor Brownell’s attention by 
Luc loo o ___ 0 coi-ipc nf instances

in olaniif



like that. There was the Angell, there was from the 
military fort in the southwest, they were bussing their 
own children up to the Noble, and Doctor Brownell, as 
soon as it was brought to his attention, abolished that 
as well as the optional areas.

Q. Was this so-called intact bussing, that is a class 
being brought as a unit?

A. Generally speaking, yes. That policy of changing 
to geographic bussing occurred about ’62-’63 as a result 
of the Equal Education Opportunities Committee.

“Q. Was all of the bussing done in the City of De­
troit of an intact nature until the Equal Opportunities 
study?

“A. To the best of my knowledge it was. I know 
when my children were being bussed, they were bussed 
intact.”

(2 ) Optional Areas.

The record demonstrates that in many instances when 
neighborhoods in Detroit began to experience some inmigra­
tion of black families, it was Board of Education policy to 
create optional attendance zones, thereby allowing white stu­
dents to change schools to all white or predominately white 
schools, generally located farther toward the city limits. For 
many years the record indicates this practice to have been 
pervasive. It continued in at least one instance up to the 
1970-71 school year.

As to optional attendance zones, the District Judge found:

“During the decade beginning in 1950 the Board cre­
ated and maintained optional attendance zones in neigh­
borhoods undergoing racial transition and between high 
school attendance areas of opposite predominant racial 
compositions. In 1959 there were eight basic optional 
attendance areas affecting 21 schools. Optional attendance 
areas provided pupils living within certain elementary 
areas a choice of attendance at one of two high schools. 
In addition there was at least one optional area either 
created or existing' in 1960 between two junior high

30 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14



schools of opposite predominant racial components. All 
of the high school optional areas, except two, were in 
neighborhoods undergoing racial transition (from white 
to black) during the 1950s. The two exceptions were: 
(1 ) the option between Southwestern (61.6% black in 
1960) and Western (15.3% black); (2 ) the option be­
tween Denby (0% black) and Southeastern (30.9% black). 
With the exception of the Denby-Southeastern option 
( just noted) all of the options were between high schools 
of opposite predominant racial compositions. The South­
western-Western and Denby-Southeastern optional aieas 
are all white on the 1950, 1960 and 1970 census maps. 
Both Southwestern and Southeastern, however, had sub­
stantial white pupil populations, and the option allowed 
whites to escape integration. The natural, probable, fore­
seeable and actual effect of these optional zones was to 
allow white youngsters to escape identifiably black 
schools. There had also been an optional zone (elimi­
nated between 1956 and 1959) created in an attempt 
. . .  to separate Jews and Gentiles within the system, 
the effect of which was that Jewish youngsters went to 
Mumford High School and Gentile youngsters went to 
Cooley. Although many of these optional areas had 
served their purpose by 1960 due to the fact that most 
of the areas had become predominantly black, one op­
tional area (Southwestern-Western affecting Wilson Jun­
ior High graduates) continued until the present school 
year (and will continue to effect 11th and 12th grade 
white youngsters who elected to escape from predominant­
ly black Southwestern to predominantly white Western 
High School). Mr. Henrickson, the Board’s general fact 
witness, who was employed in 1959 to, inter alia, elimi- 

, nate optional areas, noted in 1967 that: ‘In operation 
Western appears to be still the school to which white 
students escape from predominantly Negro surrounding 
schools.’ The effect of eliminating this optional area 
(which affected only 10th graders for the 1970-71 school 
year) was to decrease Southwestern from 86./% black in 
1969 to 74.3% black in 1970.” 338 F.Supp. at 587-88.

Nos. 72-1809 - 14 Bradley, et al v. Milliken, et al 31



32 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14

From these facts the District Judge arrived at the following 
legal conclusion:

“7. The Board’s policy of selective optional attendance 
zones, to the extent that it facilitated the separation of 
pupils on the basis of race, was in violation of the Four­
teenth Amendment. Hobson v. Hansen, D.C., 269 F.Supp. 
401, aff’d sub norm, Smuck v. Hobson, 408 F.2d 175. 
[(D.C. Cir. 1969)].” 338 F.Supp. at 593.

Additional support for the District Judge’s legal con­
clusion includes: United States v. Texas Education
Agency, 467 F.2d 848 (5th Cir. 1972); Northcross v. Board, 
of Education of Memphis, 333 F.2d 661, 665-66 (6th 
Cir. 1964) (different but analogous situation); United States 
v. Board of School Commissioners of Indianapolis, 332 F. 
Supp. 655, 668 (S.D. Ind. 1971) aff d 4 /4  F.2d 81 (7th Cir. 
1973); Spangler v. Pasadena City Board of Education, 311 
F.Supp. 501, 502 (C.D. Cal. 1970).

The effect of use of optional zones was described in Dr. 
Foster’s testimony:

“The first method or technique I might cite that is 
used to maintain segregation would be the use of op­
tional zones.

“Would it be possible for me to step to the board to 
illustrate?

“Q. Please do.
(The witness proceeded to the blackboard.)
“A. Optional zones are sometimes also referred to as 

dual zones or dual overlapping zones. I think it will 
be easier for me to illustrate this briefly.

(The witness drew a sketch on the board.)
“A. If you have, let’s say, two high school districts, 

District X and District Y, frequently when you set up 
an optional zone you carve the zone out of one district, 
occasionally two, but assume we carve it out of District 
Y and the children in this optional zone are then per­
mitted to go to either high school X or high school Y,



this becomes in a sense an overlapping zone because 
if we refer to the boundaries of school District 
this point it not only includes the previous boundary but
also takes in the optional zone.

"District Y in turn would include its previous bound­
aries, also including the optional zone. I think this may 
explain the origin of the connotation of the word over-

^ ‘Essentially optional zones are set up for two or three 
reasons one is to allow white students or black studei ts 
the option of attending one of the two attendance areas 
which make up the boundaries of the zone and another 
is for, occasionally for religious purposes to provide al­
ternatives for persons of different religions. > omt 11 
these are set up for socio-economic reasons and I have 
on occasion seen them set up by boards of superin­
tendents as political gimicks in order to help pass a bond 
issue or one thing or another or a school board or super­
intendent will set up temporary optional zones as a favor 
to certain constituents in return for assistance m helpi g 
the school board with one thing or another.

"I think in the frame work in which we operate they 
are used primarily for maintaining segregated patterns.

e 0 *>
“Q Dr Foster, have you made a study and analysis 

of optional zones in the Detroit school system?
“A. Yes, I have.”

Dr. Foster’s analysis of the purpose and effect of each op 
tional zone in existence in the Detroit School Distnc* ’s 
exemplified in his testimony on the Mackenzie-Central option. 

"O Doctor Foster, do you have an opinion as to the 
administrative use of the optional attendance zone m 
1960 between and prior to that m Mackenzie-Central

ai “A. Yes. I think it was used primarily -  you mean

aS“Q thW eTasSeto° whether or not it had any administra­
tive value that you know of, Doctor, aside from race.

Nos. 72-1809 - 14 Bradley, et al v. Milliken, et al.



34

A. In terms of assignment I can see no advantage to 
it.

©  ©  ©

“Q. Do you have an opinion as to its use in terms of 
segregation or desegregation, Doctor Foster?

A. In my opinion it was used as an optional zone 
to allow whites during the period it was in existence in 
the 50 s and also until such time as it was done away 
with in 1962 to be assigned to predominantly white Mac­
kenzie High School.

“Q. Doctor Foster, from your examination of the 1950 
census and in turn the 1960 census exhibits, do you have 
an opinion as to the effect of such an optional zone on 
the community residence pattern in the community?

© © ©

“A. Community people and residents in a situation 
such as this generally have a perception that there is 
something wrong with their school, that the whites need 
an optional zone to get out into a less black situation and, 
therefore, this increases their perception of racial isola­
tion and, in fact, physical containment.

Q. Does this have an effect, Doctor, in terms of the 
residence pattern? I believe you testified in 1950 the 
optional area was entirely white or zero to 4.9 per cent 
white.

© © ©

“A. In my opinion this tends to increase the instability 
of the community because they generally feel this is an ad 
hoc temporary interim situation and it increases white 
flight in this sort of situation.

©  ©  ©

“Q. Doctor Foster, does the use of these techniques in
some areas have an effect in terms of the perception of 
the community of schools besides the actual two schools 
to which the option was involved?

© © ©

“A. Thank you. Yes, I think the perception is not only

Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 35

of rank and file community residents, but people of con­
siderable influence in the community, along with School 
Board administration people, School Board members, 
School Board officials. In many cases they have sub­
stantiated this perception that I have recounted; that the 
optional zones did lead to greater pupil segregation 
and a feeling of frustration that the school authorities 
were not doing what was called for in terms of desegre­
gation, and it had a generally debilitating effect on the 
image of the schools as far as all of these groups were 
concerned.”

Mr. Henrickson, defendant School Board’s principal wit­
ness and divisional director of planning and building studies 
in the School Housing Division, did not deny the discriminatory 
effect of at least some of these optional zones.

“Q. In 1959 optional areas frustrated integration, did 
they not?

“MR. BUSIINELL: Objection to the form of the ques­
tion.

“THE COURT: He may answer.
“A. Some of these areas in 1959 had no effect what­

ever with movement of black or white students. They 
were either all black or all white. Some of them such 
as the Western-Southwestern area can be said to have 
frustrated integration and continued over the decade.”

(3 ) Building Construction.

The District Judge found and the record contains evidence 
that the Detroit Board of Education practices in school con­
struction generally tended to have segregative effect; the great 
majority of schools were built in either overwhelming all 
black or all white neighborhoods so that the new schools 
opened as one race schools.

The District Judge’s school construction findings were as 
follows:



36 Bradley, et al. v. Milliken, ct al. Nos. 72-1809 - 14

“In 1966 the defendant State Board of Education and 
Michigan Civil Rights Commission issued a Joint Policy 
Statement on Equality of Educational Opportunity, re­
quiring that

Local school boards must consider the factor of racial 
balance along with other educational considerations 
in making decisions about selection of new school 
sites, expansion of present facilities . . . .  Each of 
these situations presents an opportunity for inte­
gration.’

Defendant State Board s ‘School Plant Planning Hand­
book’ requires that

‘Care in site locations must be taken if a serious 
transportation problem exists or if housing patterns 
in an area would result in a school largely segregated 
on racial, ethnic, or socio-economic lines.’

The defendant City Board has paid little heed to these 
statements and guidelines. The Slate defendants have 
similarly failed to take any action to effectuate these 
policies. Exhibit NN reflects construction (new or ad­
ditional) at 14 schools which opened for use in 1970-71; 
of these 14 schools, 11 opened over 90% black and one 
opened less than 10% black. School construction costing 
$9,222,000 is opening at Northwestern High School which 
is 99.9% black, and new construction opens at Brooks 
Junior High, which is 1.5% black, at a cost of $2,500,000. 
The construction at Brooks Junior High plays a dual seg- 
regatory role: not only is the construction segregated, it 
will result in a feeder pattern change which will remove 
the last majority white school from the already almost 
all-black Mackenzie High School attendance area.

“Since 1959 the Board has constructed at least 13 small 
primary schools with capacities of from 300 to 400 pupils. 
This practice negates opportunities to integrate, ‘con­
tains’ the black population and perpetuates and com­
pounds school segregation.” 338 F.Supp. at 588-89.



Other cases in which such findings have been held to con­
stitute a de jure act of segregation include: Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 21 (1971); 
Cisneros v. Corpus Christi Independent School Dist., 467 F.2d 
142 (5th Cir. 1972), pet. for cert, filed, 41 U.S.L.W. 3225 (Oct. 
31, 1972); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), 
petition for cert, filed, 41 U.S.L.W. 3114 (U.S. Aug. 28, 1972), 
Davis v. School District of Pontiac, 443 F.2d 573, 576 (6th 
Cir.), cert, denied 402 U.S. 913 (1971); Sloan v. Tenth School 
District, 433 F.2d 587, 590 (6th Cir. 1970); United States 
v. Board of Education of Tulsa, 429 F.2d 1253, 1259 (10th 
Cir. 1970); Brewer v. School Board of Norfolk, 397 F.2d 
37, 42 (4th Cir. 1968); United States v. Board of Public 
Instruction, 395 F.2d 66, 69 (5th Cir. 1968); Kelley v. Alt- 
heimer, Arkansas Public School Dist. No. 22, 378 F.2d 483, 
496-97 (8th Cir. 1967); Johnson v. San Francisco Unified School 
District, 339 F.Supp. 1315, 1326, 1341 (N.D. Cal. 1971); 
United States v. Board of School Commissioners of Indianapolis, 
332 F.Supp. 655 (S.D. Ind. 19/1) afj d 474 F.2d 81 
(7th Cir. 1973); Spangler v. Pasadena City B o a r d o f  
Education, 311 F.Supp. 501, 522 (C.D. Cal. 19 /0 ), 
United States v. School District 151, 286 F.Supp. 786, 798 
(N.D. 111.), aff’d, 404 F.2d 1125 (7th Cir. 1968); Lee v. Macon 
County Board of Education, 267 F.Supp. 458, 472 (M.D. Ala.), 
afj’d per curiam sub nom., Wallace v. United States, 389 U.S.
215 (1967).

Record evidence pertaining to Detroit Board of Education 
building construction practices and their results include.

“Q. Doctor Foster, I show you a document in evi- 
' dence, Plaintiff’s Exhibit 70. I direct your attention to 

page 15 of the exhibit. The exhibit is School 1 lanning 
Handbook, Bulletin 412, revised, January, 1970, Michigan 
Department of Education. Directing your attention to 
Chapter 2, the School Site, and the last full paiagraph in 
the left-hand column on page 15, Doctox-, would you read 
that paragraph? r

Nos. 72-1809 - 14 Bradley, et al v. Milliken, et al. 37



“A. ‘Care in site location must be taken if a serious 
transportation problem exists or if housing patterns in 
an area would result in a school largely segregated on 
racial, ethnic or socio-economic lines.

“Q. Doctor, would you step down to the map, please? 
Do you have a copy, Doctor, of Plaintiffs Exhibit /9;

“A. Yes, I do.
“Q. Doctor, would you examine Plaintiff s Exhibit 153, 

which shows new school construction, 1960 to 1970? Per­
haps you had better step back here. Doctor, the black 
squares on here represent schools opening 80 to 100 per 
cent black in pupil enrollment. Would you direct your 
attention to the Drew Junior High School on the map 
and examine the exhibit and tell me when Drew was 
opened?

“A. According to the exhibit, the Drew Junior High 
School was opened in 1970.

“Q. And what was it opened as in terms of its en­
rollment, Doctor?

“A. 1,587 students.
“Q. And its percent black?
“A. 95 per cent black.
“Q. And the Eileen Primary School, Doctor, can you 

locate it on the map?
“A. The Eileen Primary is in the Cooley High School 

zone, I believe.
“Q. And when did it open, Doctor?
“A. 1970.
“Q. And what was its enrollment and its pupil popula­

tion in terms of black?
“A. 333 students. The per cent black was 99.1.
“Q. Would you examine the map and locate the E. 

M. Turner Primary?
“A. Yes.
“Q. What year was that opened, Doctor?
“A. The Turner Primary was opened in 1969.
“Q. And its enrollment of pupil population?
“A. 362 pupils, 97.5 percent black.

38 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14



“Q. Can you find the Stewart School on there, Doc­
tor?

“A. The Stewart Sciiool is in the same general area 
as Turner, a little to the south.

“Q. What year was it opened?
“A. 1970.
“Q. Its population and percent black?
“A. 766 enrollment, 98.8 percent black.
“Q. Marxhausen Primary, Doctor, can you locate that

on the map?
“A. Marxhausen is in the Finney zone.
“Q. Is that near or far away from the A. L. Holmes 

School, Doctor?
“A. As I remember, rather close to the Holmes School. 
“Q. Can you locate the Holmes School with reference 

to that?
“A. The Holmes School is the next one to the north­

west. ,
“Q. And what was its pupil population when it

opened?
“A. Marxhausen was opened in 1970 with a pupil 

population of 302, 92.4 percent black.
“Q. Would you locate Mack Primary, Doctor?
“A. Mack Primary is also in the Finney zone.
“Q. And when did it open?
“A. Mack opened in 1970 with an enrollment of 173, 

98.8 percent black.
“Q. Could you locate the Angell Primary area, Doc­

tor?
“A. The Angell area is in the Northwestern attendance

zone. . „
“Q. And what was its enrollment and percent black!'

. “A. Angell was 1,282 students when it opened in
1970. The percent black was 99.9 

“Q. Is there an asterisk by that particular school,
Doctor?

“A. On the exhibit?
“Q. Yes.
“A. Yes, there is. ,

Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al 39



40 Bradley, et al. v. Milliken, et at. Nos. 72-1809- 14

“Q. Would you refer to the cover and tell us what 
that asterisk indicates?

“A. It says, ‘The racial count data included in ex­
isting school with the same name.’

“Q. Can you locate the Stark School, Doctor?
“A. The Stark School is in the Southeastern zone. 
“Q. And what was its enrollment?
“A. The enrollment was 822 when it opened in 1969. 
“Q. And the percent black?
“A. 98.4 percent black.
“Q. Can you locate the new King Senior High School, 

Doctor?
“A. The new King Senior High School?
“Q. Yes.
“A. Here.
“Q. When did it open?
“A. It opened in 1968.
“Q. What was its enrollment?
“A. 1,897 pupils.
“Q. And its percent black?
“A. 98.8 percent black.
“Q. Can you locate the Field Annex, Doctor?
“A. Just to the northeast of King, the Field Annex. 
“Q. And what was its enrollment?
“A. 461.
“Q. Its per cent black?
“A. 90.5 per cent black.
“Q. Can you locate the Glazer School, Doctor Foster? 
“A. The Glazer School is in the Central zone.
“Q. And when did it open?
“A. In 1967.
“Q. And what was its enrollment, Doctor?
“A. 850 students.
“Q. What was its per cent black?
“A. 100 per cent black.”

Similar testimony was given with respect to the Stevenson, 
Cortez, Beaubien, Sander, St. Clair Annex, Murray, Kettering, 
Krolik, Joy, Tendler, Belleville, McGraw, Knudsen, Keidan,



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 41

Jamieson, Butzel, Woodward, Tendler and Norvell Schools. 
White schools built to accommodate white residential areas in­
cluded Fox, Lessenger, Murphy, Taft, Fleming, Earhart, 
Reeves, Brooks and McKenny Annex.

“Q. Thank you, Doctor.
“Doctor Foster, from your examination of the pattern 

of construction in this school system, 1960 to 1970, do you 
have an opinion as to the effect of that pattern of con­
struction on segregation in the Detroit School System?

“A. My opinion is that construction practices were 
followed in such a way as to increase segregation. I 
say this because of the large number of schools that were 
opened that were either all black or all white or with 
a disproportionate number of one race or the other upon 
opening.

O O t>

“Q. (By Mr. Lucas) Does the location of a school 
in a particular place have a long term effect on a school 
system? &

“A. In terms of the nature of the pupils assigned to 
the school, do you mean?

"Q. Yes, sir.
“A. Yes, it does.
“Q. Are there alternatives in schoolhouse construction 

which can or should be considered by a school district 
in terms of affecting the racial composition of student 
bodies?

“A. In terms of site selection there are, yes.
“Q. What are some of the alternatives which can or 

should be utilized, in your opinion, Doctor?
“A. It is customary in this day and age to consider 

the problem of integration or segregation very carefully 
' in selecting sites for school buildings and, well, this was 

pointed out, I believe, in the bit I read from the Michigan 
State Department.

“Q, What effect in terms of perception of the com­
munity does it have when a school is opened with an 
overwhelming enrollment of one race or the other?



“A. Generally the community perceives, in my opin­
ion, that the school has been thought of as being, going 
to be an all white school or all black school and in either 
case generally that it is racially isolated.”

(B) The constitutional violations found to have been committed 
by the State of Michigan.

(1) School districts in the State of Michigan are instru­
mentalities of the State and subordinate to its State Board of 
Education and legislature. (See §V  (A ), pp. 56-62, infra.) 
Hence, the segregative actions and inactions of the Detroit 
Board of Education previously outlined are the actions of an 
agency of the State of Michigan.

(2 ) In 1970 the Detroit School Board undertook implemen­
tation of its April 7 desegregation plan applicable to its high 
schools. On meeting considerable resistance thereto, it none­
theless proceeded. At that point the State Legislature inter­
vened by Act 48 of the Public Acts of 1970 specifically over­
ruling the Detroit Board of Education’s desegregation plan. 
While this statute has since been invalidated by judgment of 
this court, 433 F.2d 897, its contribution to preventing desegre­
gation and to continuing and increasing segregation of the De­
troit school system cannot be overlooked.

(3 ) Under Michigan law, M.S.A. § 15.1961, school build­
ing construction plans must be approved by the State Board of 
Education. Prior to 1962 the State Board also had specific 
statutory authority to supervise school site selection. The 
proofs concerning the effect of Detroit’s school construction 
program are therefore largely applicable to show State re­
sponsibility for the segregative results.

(4 ) During the critical years covered by this record the 
School District of Detroit was denied any allocation of State 
funds for pupil transportation, although such funds were made 
generally available for students who lived over a mile and 
a half from their assigned schools in rural Michigan.

42 Bradley, el al. v. Milliken, et al. Nos. 72-1809- 14



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 43

(5 ) Finally, the cross-district transportation of black high 
school students from the Carver School, located in Ferndale 
school district, to a black high school in Detroit could not 
have taken place without the approval, tacit or express, of the 
State Board of Education. (See supra pp. 28-30).

The District Judge’s findings pertaining to constitutional 
violations by the State of Michigan are as follows:

“The State and its agencies, in addition to their gen­
eral responsibility for and supervision of public education, 
have acted directly to control and maintain the pattern 
of segregation in the Detroit schools. The State refused, 
until this session of the legislature, to provide authoriza­
tion or funds for the transportation of pupils within 
Detroit regardless of their poverty or distance from the 
school to which they were assigned, while providing in 
many neighboring, mostly white, suburban districts the 
full range of state supported transportation. This and 
other financial limitations, such as those on bonding and 
the working of the state aid formula whereby suburban 
districts were able to make far larger per pupil expendi­
tures despite less tax effort, have created and perpetuated 
systematic educational inequalities.

“The State, exercising what Michigan courts have held 
to be is ‘plenary power’ which includes power ‘to use a 
statutory scheme, to create, alter, reorganize or even 
dissolve a school district, despite any desire of the school 
district, its board, or the inhabitants thereof,’ acted to 
reorganize the school district of the City of Detroit.

“The State acted through Act 48 to impede, delay and 
minimize racial integration in Detroit schools. The first 
sentence of Sec. 12 of the Act was directly related to 
the April 7, 1970 desegregation plan. The remainder of 
the section sought to prescribe for each school in the eight 
districts criterion of ‘free choice’ (open enrollment) and 
‘neighborhood schools’ ( ‘nearest school priority accep­
tance’), which had as their purpose and effect the main­
tenance of segregation.



44 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14

“In view of our findings of fact already noted we think 
it unnecessary to parse in detail the activities of the local 
board and the state authorities in the area of school con­
struction and the furnishing of school facilities. It is our 
conclusion that these activities were in keeping, generally, 
with the discriminatory practices which advanced or per­
petuated racial segregation in these schools.” 338 F. 
Supp. at 589.

The District Judge arrived at the following legal conclusions:

“11. Under the Constitution of the United States and 
the constitution and laws of the State of Michigan, the 
responsibility for providing educational opportunity to 
all children on constitutional terms is ultimately that of 
the state. Turner v. Warren County Board of Education, 
D.C., 313 F.Supp. 380; Art. VIII, §§ 1 and 2, Mich. Con­
stitution; Daszkiewicz v. Detroit Ikl. of Ed. of City of 
Detroit, 301 Mich. 212, 3 N.W.2d 71.

“12. That a state’s form of government may delegate 
the power of daily administration of public schools to 
officials with less than state-wide jurisdiction does not 
dispel the obligation of those who have broader control 
to use the authority they have consistently with the con­
stitution. In such instances the constitutional obligation 
toward the individual school children is a shared one. 
Bradley v. Sell. Bd. of City of Richmond, D.C., 51 F.R.D. 
139, 143.

“13. Leadership and general supervision over all pub­
lic education is vested in the State Board of Education. 
Art. VIII, § 3, Mich. Constitution of 1963. The duties 
of the State Board and superintendent include, but are 
not limited to, specifying the number of hours necessary 
to constitute a school day; approval until 1962 of school 
sites; approval of school construction plans; accreditation 
of schools; approval of loans based on state aid funds; 
review of suspensions and expulsions of individual stu­
dents for misconduct [Op.Atty.Gen., July 7, 1970, No. 
4705]; authority over transportation routes and disburse-



Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al.

ment of transportation fundi; teacher certification and 
the like. M.S.A. 15.1023(1), M.C.L.A. § 388.1001. State 
law provides review procedures from actions of local 
or intermediate districts (see M.S.A. 15.3442, M.C.L.A. 
§340.442), with authority in the State Board to ratify, 
reject amend or modify the actions of these inferior state 
agencies. See M.S.A. 15.346/; 15.1919(61); 15.1919(68
b)- 15.2299(1); 15.1961; 15.3402, M.C.L.A. §§340.467, 
388.621, 388.628(a), 388.681, 388.851, 340.402; Bridge- 
hampton School District No. 2 fractional of Carsonville, 
Mich. v. Supt. of Public Instruction, 323 Mich. 615, 36 
N.W.2d 166. In general, the state superintendent is 
given the duty ‘[t]o do all things necessary to promote 
the welfare of the public schools and public educational 
instructions and provide proper educational facilities for 
the youth of the state.’ M.S.A. 15.3252, M.C.L.A. 
§340.252. See also M.S.A. 15.2299(57), M.C.L.A.
§ 388.717, providing in certain instances for reorganiza­
tion of school districts.

“14. Slate officials, including all of the defendants, 
are charged under the Michigan constitution with the 
duty of providing pupils an education without discrimina­
tion with respect to race. Art. VIII, § 2, Mich. Constitu­
tion of 1963. Art. I, § 2, of the constitution provides:

‘No person shall be denied the equal protection 
of the laws; nor shall any person be denied the en­
joyment of his civil or political rights or be discrimi­
nated against in the exercise thereof because of re­
ligion, race, color or national origin. The legislature 
shall implement this section by appropriate legisla­
tion.’ ” 338 F.Supp. at 593-94

■ Some of the evidence in this record supporting the District 
Judge’s findings of State acts which discriminatorily affected 
the Detroit Board of Education and contributed to pupil 
segregation follows. The State statutory scheme of support of 
transportation for school children directly discriminated against 
Detroit. Dr. John W. Porter, the State Superintendent of



Public Instruction in Michigan, testified as to the State trans­
portation aid formula:

“Q. (By Mr. Lucas) Dr. Porter, does the State pay 
the cost of pupil transportation in the State of Michigan?

“A. The State pays roughly 75 percent of the cost. 
Last year the appropriation was $29 million.

“Q. Do you know what percent of the school children 
in the State of Michigan are transported to the school 
at public expense?

“A. Yes, I do. 40 percent of all students in Michigan 
. are transported. That equates out to about 833,000 stu­

dents last year.
“Q. Dr. Porter, is there some formula in terms of 

distance which makes a child eligible for transportation 
that would be aided by the state?

“A. Yes. It is a very complicated formula that 197 
computations, and we are in the process right now of 
reducing this —

“Q. (Interposing) You mean the financial formula is 
complicated. But, in terms of distance from his home 
to the school —

“A. A mile and a half outside the city limits. Until 
this year the legislature amended the Act based upon the 
recommendations of the State Board of Education to allow 
for in-city transportation which we had never had before. 
The legislature did not appropriate funds for that. So, 
now the funds that are now used are basically for rural 
areas and suburban areas where the students live a mile 
and a half from the school.

“Q. When you say ‘city,’ is there some limitation? 
For instance, would Grosse Pointe, Harper Woods, areas 
like that that surround the City of Detroit, are they 
eligible for transportation?

“A. In the in-city. But, if the students come across 
the city boundary lines they live more than a mile and 
a half, which is quite prevalent throughout the state, 
then they .are eligible for the funds.

46 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14



Nos. 72-1809 - 14 Bradley, et al. v. MiUiken, et ah 47

|

\

Q. Well, I think my question may have been con­
fusing. Is there some type of city -  is it just anyplace 
incorporated as a city that is differentiated from the rural 
areas, or certain cities eligible for this state aid at the 
present time and receive the funds —

THE COURT: I think what Mr. Lucas is trying to
get at is whether under the old practice whether any 
city has ceased state aid for transportation within the 
city.

“A. Yes, we have a number of instances where the city 
would be receiving aid for transportation, because the 
law says that if the bus in order to get the students to 
the school crosses outside of the city boundary, the city 
is then eligible for aid, and we, and we have a number 
of instances where that exists.

“THE COURT: In other words, where the student
originates his ride outside the city limits transportation is 
assisted?

“A. That’s right, or where the student lives in the 
city but the bus has to go outside of the city and come 
back he is also eligible. This, however, does not negate 
local city officials, school board officials from providing 
transportation. There is no prohibition against that.

Q. (By Mr. Lucas) You said the legislature changed 
the law but didn’t provide the money. Now, they are 
eligible for state aid but it is unfunded now, is that what 
you are saying?

A. The law was changed last year to permit in-city 
bus transportation but in changing the law the legislature 
said our department had to disburse the funds to the 
eligible existing areas which meant that since they did 
not increase the amount of funds appropriated we could 
not provide for in-city transportation.

“Q. If a child lives in the city and lives more than a 
mile and a half from the school to which he is assigned 
he may not receive the state aid because it is unfunded 
at the present time?

“A. That is correct.



48 Bradley, et al. v. Milliken, et al. Nos. 72-1809- 14

“Q. But if lie lives the same distance away and lived 
outside the City of Detroit, for example, then he could 
receive state aide?

“A. That is correct, or any other area.”

The clearest example of direct State participation in en­
couraging the segregated condition of Detroit public schools, 
however, is that of school construction in Detroit and the 
surrounding suburban areas. Until 1962 the State Board of 
Education had direct statutory control over site planning 
for new school construction. During that time, as was pointed 
out above, the State approved school construction which 
fostered segregation throughout the Detroit Metropolitan area 
(See supra pp. 35-42). Since 1962 the State Board has con­
tinued to be involved in approval of school construction plans.

IV. Conclusion as to Constitutional Violations

The discriminatory practices on the part of the Detroit 
School Board and the State of Michigan revealed by this record 
are significant, pervasive and causally related to the substan­
tial amount of segregation found in the Detroit school system 
by the District Judge.

There is, of course, a significant distinction between this 
record and those school segregation cases which have flooded 
the courts since Brown v. Topeka, supra. This distinction is 
that Michigan has never enforced segregation by State laws 
which provided for separate black and white school systems, 
as was the pattern prior to 1954 in many other States. As 
a consequence, there always have been some instances of 
actual school integration in Detroit and still more instances 
of token school integration.

Defendants seek to insulate themselves from remedial action 
by federal courts by pointing to the long standing public policy 
of Michigan, as expressed in its statutes, of integration of 
public education. However, this court is not blind to the 
fact that governments can act only through the conduct of



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al.

tlieir officials and employees and that unconstitutional actions 
of individuals can be redressed. See, e.g., Clemons v. Board 
of Education, 228 F.2d 853 (6th Cir.), cert, denied, 350 U.S. 
1006 (1956).

The record in this case amply supports the findings of the 
District Court of unconstitutional actions by public officials 
at both the local and State level.

Historically de jure segregation has come about through 
statutory command explicitly establishing dual school systems. 
Michigan’s declared public policy is urged as a controlling 
distinction. No matter how important this distinction may 
be, it does not in our judgment negate the de jure segregation 
findings entered in this case by the District Judge. As said 
in United States v. The Board of School Commissioners of 
the City of Indianapolis, 474 F.2d 81, 83 (7th Cir. 1973): 
“[T]he actions of the Board of School Commissioners and its 
duly-appointed representatives and agents may be sufficient 
to constitute de jure segregation without being based on state 
law, or even if they are in derogation of state law forbidding
segregation.” , ,

The record contains substantial evidence to support the tincl- 
ing of the District Court that the segregation of the Detroit 
public schools, however rooted in private residential segiega- 
tion, also was validated and augmented by the Detroit Board 
of Education and Michigan State Board action of pervasive in­
fluence through the system. Even if the segregation practices 
were a bit more subtle than the compulsory segregation statutes 
of Southern States, they were nonetheless effective.

It is our view that the findings of fact pertaining to actions 
of the Detroit Board of Education and the State of Michigan 
which caused or contributed to Detroit school segregation 
are not clearly erroneous and that the District Court was 
therefore authorized and required to take effective measures 
to desegregate the Detroit Public School System. Brown v. 
Board of Education of Topeka [I], 347 U.S. 483 (1954); Brown 
v. Board of Education of Topeka [II], 349 U.S. 294 (1955);



50 Bradley, et aJ. v. Millikan, et al. Nos. 72-1809- 14

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 
1 (1971); Davis v. Board of Commissioners, 402 U.S. 33 
(1971).

This record contains a substantial volume of testimony con­
cerning local and State action and policies which helped 
produce residential segregation in Detroit and in the metro­
politan area of Detroit. In affirming the District Judge’s 
findings of constitutional violations by the Detroit Board of 
Education and by the State defendants resulting in segregated 
schools in Detroit, we have not relied at all upon testimony 
pertaining to segregated housing except as school construction 
programs helped cause or maintain such segregation.

V. The District Court’s Ruling that no Detroit 
Only Desegregation Plan is Possible

Subsequent to the entry of its findings of constitutional 
violations on the part of the Detroit Board of Education and 
the State of Michigan resulting in system-wide segregation of 
Detroit public schools, the District Court requested plans for 
Detroit only desegregation. His findings of fact pertaining 
to these plans warrant repetition:

“FINDINGS OF FACT AND CONCLUSIONS OF LAW
ON

DETROIT-ONLY PLANS OF DESEGREGATION

“In accordance with orders of the court defendant 
Detroit Board of Education submitted two plans, limited 
to the corporate limits of the city, for desegregation 
of the public schools of the City of Detroit, which we 
will refer to as Plan A and Plan C; plaintiffs submitted 
a similarly limited plan, which will be referred to as the 
Foster Plan. Hearings were had on said plans on March 
14, 15, 16, 17 and 2i, 1972. In considering these plans 
the court does not limit itself to the proofs offered at the 
hearing just concluded; it considers as part of the evidence 
bearing on the issue ( i.e., City-Only Plans) all proofs sub­
mitted in the case to this point, and it specifically incor-



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 51

porates herein by reference the Findings and Conclusions 
contained in its “Ruling on Issue of Segregation,” filed 
September 27, 1971.

“The court makes the following factual findings: 

“PLAN A.

“1. The court finds that this plan is an elaboration and 
extension of the so-called Magnet Plan, previously au­
thorized for implementation as an interim plan pending 
hearing and determination on the issue of segregation.

“2. As proposed we find, at the high school level, 
that it offers a greater and wider degree of specialization, 
but any hope that it would be effective to desegregate 
the public schools of the City of Detroit at that level is 
virtually ruled out by the failure of the current model to 
achieve any appreciable success.

“3. We find, at the Middle School level, that the 
expanded model would affect, directly, about 24,000 
pupils of a total of 140,000 in the grades covered; and 
its effect would be to set up a school system within the 
school system, and would intensify the segregation in 
schools not included in the Middle School program. In 
this sense, it would increase segregation.

“4. As conceded by its author, Plan A is neither a 
desegregation nor an integration plan.

“PLAN C.

“1. The court finds that Plan C is a token or part-time 
desegregation effort.

“2. We find that this plan covers only a portion of 
the grades and would leave the base schools no less 
racially identifiable.

“PLAINTIFFS’ PLAN

“1. The court finds that Plaintiffs’ Plan would accom­
plish more desegregation than now obtains in the system, 
or would be achieved under Plan A or Plan C.



52

“2 We find further that the racial composition of 
the student body is such that the plan’s implementation 
would clearly make the entire Detroit public school system 
racially identifiable as Black.

“3. The plan would require the development of trans­
portation on a vast scale which, according to the evidence, 
could not be furnished, ready for operation, by the open- 
in" of the 1972-73 school year. The plan contemplates 
the transportation of 82,000 pupils and would require 
the acquisition of some 900 vehicles, the hiring and train­
ing of a great number of drivers, the procurement of space 
for storage and maintenance, the recruitment of main­
tenance and the not negligible task of designing a trans­
portation system to service the schools.

“4. The plan would entail an overall recasting of the 
Detroit school system, when there is little assurance that 
it would not have to undergo another reorganization if a 
metropolitan plan is adopted.

“5. It would involve the expenditure of vast sums of 
money and effort which would be wasted or lost.

“6. The plan does not lend itself as a building block 
for a metropolitan plan.

“ 7  xhe plan would make the Detroit school system 
more identifiably Black, and leave many of its schools 
75 to 90 per cent Black.

“8. It would change a school system which is now 
Black and White to one that would be perceived as 
Black, thereby increasing the flight of Whites from the 
city and the system, thereby increasing the Black student
population.

“9. It would subject the students and parents, faculty 
and administration, to the trauma of reassignments, with 
little likelihood that such reassignments would continue 
for any appreciable time.

“In summary, we find that none of the three plans 
would result in the desegregation of the public schools 
of the Detroit school district.

Bradley, et al. v. Millike,n, et al. Nos. 72-1809 - 14



“CONCLUSIONS OF LAW

1. The court has continuing jurisdiction of this action 
for all purposes, including the granting of effective relief. 
See Ruling on Issue of Segregation, September 27, 1971.

2. On the basis of the court’s finding of illegal school 
segregation, the obligation of the school defendants is to 
adopt and implement an educationally sound, practicable 
plan of desegregation that promises realistically to achieve 
now and hereafter the greatest possible degree of actual 
school desegregation. Green v. County School Board, 
391 U.S. 430; Alexander v. Holmes County Board of 
Education, 396 U.S. 19; Carter v. West Feliciana Parish 
School Board, 396 U.S. 290; Swann v. Charlotte-Mecklen- 
burg Board of Education, 402 U.S. 1.

3. Detroit Board of Education Plans A and C are 
legally insufficient because they do not promise to effect 
significant desegregation. Green v. County School Board 
supra, at 439-440.

4. Plaintiffs Plan, while it would provide a racial mix 
more in keeping with the Black-White proportions of the 
student population than under either of the Board’s plans 
or as the system now stands, would accentuate the racial 
identifiability of the district as a Black school system, 
and would not accomplish desegregation.
_ 5. The conclusion, under the evidence in this case,
is inescapable that relief of segregation in the public 
schools of the City of Detroit cannot be accomplished 
within the corporate geographical limits of the city. The 
State, however, cannot escape its constitutional duty to 
desegregate the public schools of the City of Detroit by 
pleading local authority.

»  O flr

“School district lines are simply matters of political con­
venience and may not be used to deny constitutional 
rights. If the boundary lines of the school districts of 
the City of Detroit and the surrounding suburbs were 
drawn today few would doubt that they could not with-

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 53



stand constitutional challenge. In seeking for solutions 
to the problem of school segregation, other federal courts 
have not “treated as immune from intervention the ad­
ministrative structure of a state’s educational system, to 
the extent that it affects the capacity to desegregate. Geo­
graphically or administratively independent units have 
been compelled to merge or to initiate or continue co­
operative operation as a single system for school de­
segregation purposes.”1

“That the court must look beyond the limits of the 
Detroit school district for a solution to the problem of 
segregation in the Detroit public schools is obvious; that 
it has the authority, nay more, the duty to (under the 
circumstances of this case) do so appears plainly an­
ticipated by Brown II,2 seventeen years ago. While 
other school cases have not had to deal with our exact 
situation,3 the logic of their application of the command 
of Brown II supports our view of our duty.

“FOOTNOTES

54 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14

“1 Bradley v. Richmond, supra [slip opinion p. 68].
“ 2 Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, pp. 300-301.
-  -naney v. county noara or isaucation of Sevier County. 

410 F.2d 920 (8th Cir. 1969); Bradley v. School Board of the 
City of Richmond, supra, slip opinion pp. 664-65; Hall v St 
Helena Parish School Board, 197 F.Supp. 649 (E.D. La. 1961) 
aff’d. 287 F.2d 376 (5th Cir. 1961) and 368 U.S. 515 (1962)- Lee 
v. Macon County Bd. of Educ., 448 F.2d 746, 752 (5th Cir 1971) • 
Gomillion v. Lightfoot, 364 U.S. 339 (1960); Turner v. Littleton- 
Lake Gaston School Dist., 442 F.2d 584 (4th Cir. 1971)- United 
States v. Texas 447 F.2d 551 (5th Cir. 1971); Lemon v. Bossier 
Parish School Board, 446 F.2d 911 (5th Cir. 1971).”

The District Judge’s finding that no Detroit only plan 
can achieve desegregation of the Detroit public school system 
points up another substantial distinction between this case 
and the classical school segregation case. This record presents 
a wholly new fact pattern in a school segregation case so far 
as this Circuit is concerned. This court never before has been 
confronted by a finding that any less comprehensive a solution



Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al 55

than a metropolitan area plan would result in an all black school 
system immediately surrounded by practically all white subur­
ban school systems, with an overwhelmingly white majority 
population in the total metropolitan area.

Relevant to and supportive of the District Judge’s findings 
are these school census figures showing trends toward segre­
gation in the Detroit schools during the last decade:

1960 100 of 251 schools were 90% or more white 
71 of 251 schools were 90% or more black 
68% of all schools were 90% or more one race.

1970 69 of 282 schools were 90% or more white 
133 of 282 schools were 90% or more black 
71.6% of all schools were 90% or more one race.

1960-61 65.8% of the total number of black students in 
regular schools were in 90% or more black schools.

1970-71 74.9% of'the total number of black students in 
regular schools were in 90% or more black schools.

This record reflects a present and expanding pattern of 
all black schools in Detroit (resulting in part from State ac­
tion) separated only by school district boundaries from near­
by all white schools. We cannot see how such segregation 
can be any less harmful to the minority students than if the 
same result were accomplished within one school district.

The boundaries of the Detroit School district are identical to 
the geographical boundaries of the City of Detroit. This means 
that the Detroit school district, like the City, contains with­
in its boundaries two entirely separate cities (and school 
districts), Hamtramck and Highland Park, and surrounds a 
third City (and school district), Dearborn, on three sides. 
Immediately adjacent to the boundaries of the Detroit school 
district are seventeen school districts. An overwhelming ma­
jority of these districts, other than Detroit, Highland Park,



River Rouge and Ilamtramck, are entirely white or contain 
only a token number of black students.

Like the District Judge, we see no validity to an argument 
which asserts that the constitutional right to equality before the 
law is hemmed in by the boundaries of a school district.

A. Status of School Districts under Michigan Law

This conclusion is supported by the status of school districts 
under Michigan law and by the historical control exercised 
over local school districts by the legislature of Michigan and 
by State agencies and officials, which we now discuss.

As held by the District Court, it is well established under the 
Constitution and laws of Michigan that the public school 
system is a State function and that local school districts are 
instrumentalities of the State created for administrative con­
venience.

The Northwest Ordinance of 1787 governing the Territory 
of Michigan provided:

“Religion, morality and knowledge, being necessary to 
good government and the happiness of mankind, schools 
and the means of education shall forever be encouraged.” 
Art. III.

With this genesis, Michigan’s four Constitutions have clearly 
established that the public school system in that State is solely 
a State function. The Constitution of 1835 in Article X, 
Section 3, provided, in part: “The legislature shall provide 
for a system of common schools . . .” The Constitution of 
1850, Article XIII, Section 4, provided, in part: “The legis­
lature shall . . . provide for and establish a system of primary 
schools . . .” Section 1 of the same Article provided, “. . . 
the Superintendent of Public Instruction shall have general 
supervision of public instruction . .

The Constitution of 1908 in Article XI, Section 2, provided 
that the Superintendent of Public Instruction “shall have

56 Bradley, et al. v. Millikan, et al. Nos. 72-1809 - 14



general supervision of public instruction in the State. Article 
XI, Section 9, provided, in part as follows:

“The legislature shall continue a system of primary 
schools, whereby every school district in the State shall 
provide for the education of pupils without charge for 
tuition . . .”

The Constitution of 1963, the present Constitution of the 
State of Michigan, in Article VIII, Section 2, provides, in part, 
as follows:

“The legislature shall maintain and support a system 
of free public elementary and secondary schools as defined 
by law.”

In interpereting the above educational provisions of the 
Constitution of 1850, the Michigan Supreme Court stated: 
“The school district is a State agency. Moreover, it is of 
legislative creation . . .” Attorney General v. Lowiey, 131 
Mich. 639, 644, 92 N.W. 289, 290 (1902). Again, interpreting 
the Constitution of 1850, the Supreme Court of Michigan m 
Attorney General v. Detroit Board of Education, 154 Mich. 
584, 590, 118 N.W. 606, 609 (1908), adopted lower court 
language which read:

“Education in Michigan belongs to the State. It is no 
part of the local self-government inherent in the township 
or municipality, except so far as the legislature may chose 
to make it such. The Constitution has turned the whole 
subject over to the legislature . . .”

The Supreme Court of Michigan interpreted Article XI, 
Section 9, of the Constitution of 1908 to mean:

“The legislature has entire control over the schools 
of the Statu subject only to the provisions above referred 
to. The division of the territory of the ate into districts, 
the conduct of the school, the qualifications of teachers,

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 57



58 Bradley, et ah v. MiUiken, et ah Nos. 72-1809 - 14

the subjects to be taught therein are all within its con­
trol.” Child Welfare v. Kennedy School Dist., 220 Mich. 
290, 296, 189 N.W. 1002, 1004 (1922).

In the leading case concerning construction of this section 
of the Michigan Constitution of 1963, the Michigan Supreme 
Court said:

‘‘It is the responsibility of the State board of education 
to supervise the system of free public schools set up by 

' the legislature and, as a part of that responsibility, to 
promulgate regulations specifying the number of hours 
necessary to constitute a school day for elementary school 
students as well as for other classifications or groupings 
of students, to determine the curricula and, in general, 
to exercise leadership and supervision over the public 
school system.” Welling v. Livonia Board of Education, 
382 Mich. 620, 624, 171 N.W.2d 545, 546 (1969). See also 
Governor v. State Treasurer, 389 Mich. 1, 13, 203 N.W.2d 
457 (1972).

Michigan has not treated its school districts as sacrosanct. 
To the contrary, Michigan always has regarded education as 
the fundamental business of the State as a whole. Local 
school districts are creatures of the State and act as instru­
mentalities of the State under State control. Cf. Senghas v. 
L ’Anse Crease Public Schools, 368 Mich. 557, 118 N.W.2d 
975 (1962); McLaughlin v. Board of Education, 255 Mich. 
667, 239 N.W. 374, (1931).

The record discloses a number of examples of State control 
over local public education in Michigan.

1. Following the holding of Welling v. Livonia Board of 
Education, supra, that there was no minimum length of day 
required under the 180-day school attendance rule absent a 
State Board of Education regulation, the Michigan State 
Board of Education, acting under its Constitutional mandate 
without legislative authority, established an administrative 
rule requiring- local school boards to provide a minimum



number of hours per school year. See, School Districts Child 
Account for Distribution of State Aid, Bulletin No. lOOo, 
Michigan State Department of Education (1970).

2. Public Act 289 of 1964 (MSA § 15.2299 (1 ) et sec/., 
MCLA §388.681 et seq.) required Michigan school districts 
to operate K-12 systems. When Public Act 289 became ef­
fective, 1,438 public school districts existed in Michigan. By 
the beginning of 1968, this figure had been reduced to /38, 
meaning that 700 school districts in Michigan have disap­
peared since 1964 through reorganization. Annual Repoit, 
Committee on School District Reorganization, 1968 Journal 
of the Senate 422-423 (March 1, 1968).

3. Pursuant to Act 289 of 1964, supra, the State Board of 
Education ordered the merger of the Brownstown No. 10, 
Hand, Maple Grove and Carson school districts, all in Wayne 
County. The action is best explained by the fact that Browns­
town was, at that time, the wealthiest school district in the 
State, indeed, with a property valuation of $310,000 backing 
each child, perhaps the wealthiest district in the nation, while 
the other three districts were extremely poor.

4. When the Sumpter School District was on the verge of 
bankruptcy in 196S, the State Board of Education, acting 
under Public Act 239 of 1967 (MSA § 15.2299(51) et seq., 
MCLA § 388.691 et seq.), merged the district with four 
adjoining districts, including the Airport School District. 
Significantly, though Sumpter was in Wayne County, Airport 
was in Monroe County, showing that county lines are not 
inviolate in Michigan.

5. The Nankin Mills School District in Wayne County was 
'beset with financial problems and had no high school. Again, 
pursuant to Act 239, the State Board of Education in 1969 
ordered this school district to merge with the Livonia, Garden 
City and Wayne Community schools.

6. When the Inkster School District in Wayne County was 
on the verge of financial bankruptcy, the Michigan legislature

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 59



passed Public Act 32 of 1968 (MSA § 15.1916 et seq., MCLA 
§388.201 et seq.) enabling the district to borrow $703,000 
but on the condition that if the district could not balance its 
budget, the State Board of Education could reorganize, merge 
or annex the district. The legislative history of Act 32 indicates 
at least two legislators voted against the bill in the House of 
Representatives because of the excessive control given to the 
State Board of Education:

“I voted No on House Bill No. 3332 because in setting 
up the machinery to bail out distressed districts, it takes 
from the local communities the control over their own 
educational system by providing for excessive arbitrary 
reorganization powers in the hands of the Board of 
Education. .

“This bill certainly sets up the State Board of Educa­
tion to be a dictator of all school districts that run into 
financial problems.” 1968 Journal of the House of Repre­
sentatives 1965.

7. Too small and too poor to operate a high school, the all­
black Carver School District in suburban Oakland County 
reached a crisis in 1960 when other surrounding white districts 
refused to accept Carver pupils on a tuition basis. The Carver 
district was merged with Oak Park.

8. The State Board of Education and Superintendent of 
Public Instruction may withhold State aid for failure to 
operate the minimum school year. MSA § 15.35/5, MCLA 
§ 340.575. In 1970, funds were withheld from the City of 
Grand Rapids School District. 17 Michigan School Board 
Journal 3 (March, 1970). For Attorney General Opinions 
holding that State aid may be withheld by the State Board of 
Education from school districts for hiring uncertified teachers, 
defaulting on State loans and for other reasons, see Op. Atty. 
Gen. No. 880, 1949-1950 Report of the Attorney General 104 
(January 24, 1949, Roth); No. 2333, 1955 Report of the At­
torney General 561 (October 20, 1955, Kavanaugh); No.

60 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14



Bradley, at al. v. Milliken, et al. 61
Nos. 72-1809 - 14

4097, 1961-1962 Report of the Attorney General 553 (October 

8, 1962, Kelley).
9 The State of Michigan contributes, on the average, 347 

of the operating budgets of the 54 school districts included tn 
the proposed Metropolitan Plan of Integration. In eleven of the 
54 districts, the States contribution exceeds 5 »  and nr eight 
more, it exceeds 40*. State aid is appropriated from the Gen­
eral Fund, revenue raised through state-wide taxation and 
is distributed annually to the local school districts under a 
formula devised by the legislature. See ^  g Public Act 134 
(1971), MSA §15.1919(51), MCLA i, 388.611.

Though the local school districts obtain funds from the 
assessment of local property, the ultimate authority m insur­
ing equalized property valuations throughout the State is
State Tax Commission. MSA § 7.631, et see,., MCLA § 209101
et seq.; MSA § 7.206, MCLA §211.148; MSA s (-52, MCL
§ 21134 The State’s duty to equalize is required by the
Mi big an Constitution, Article IX, Section 3 Tins State
equalized valuation” serves as the basis for calculating loca
q ,  viV.lds Sec Ranking of Michigan Public High School revenue yields, see, nunM»b i y 7 7Q7n  RniiPt;T

_  School Districts by Selected Financial Data, m o r t a l .  
1012, Michigan State Department of Education (19/1) .

10 The Michigan School Code reaffirms the ultimate con­
trol of the State over public education. Local school districts 
must observe all State laws relating to schools, ho d school a 
mwmum number of days per year,* employ only cerhfled 
teachers3 teach civics, health and physical education and 
4 , ..duration.4 excuse students to attend rel.g.ous mstruc-

' 1 MSA § 15.3252 (c ) , MCLA § 340.252 (c) .
2 MSA § 15.3575, MCLA § 340.575.
3 M SA I§ 15.1023(10) (a), 15.3570, MCLA IS SBS.tOlOta), m 5 7 ^  

(C).



tion classes,5 observe State requirements when teaching sex 
education,6 7 make annual financial and other reports to the 
Superintendent of Public Instruction/ adopt only textbooks 
which are listed with the Superintendent of Public Instruc­
tion8 9 and must follow all rules and regulations of the State 
Department of Education.

Local school districts, unless they have the approval of 
the State Board of Education or the Superintendent of Public 
Instruction, cannot consolidate with another school distiict, 
annex territory,10 divide or attach parts of other districts,11 
borrow monies in anticipation of State aid,12 13 or construct, re­
construct or remodel school buildings or additions to them.

The power to withhold State aid, of course, effects enormous 
leverage upon any local school district, since on the average 
34 per cent of the operation budget of the 54 school districts 
included in the proposed Metropolitan Plan is paid for by the 
State.

In the instance of the City of Detroit, the State exhibited 
its understanding of its power over the local school district 
by the adoption of Act 48 of the Public Acts of 19/0 which 
repealed a high school desegregation plan previously adopted 
by the Detroit Board of Education. See 433 F.2d 897.

5 MSA §  15.3732(g), MCLA § 340.732(g).

6 MSA § 15.3789, MCLA § 340.789.

7 MSA §15.3612, MCLA § 340.612; MSA §§ 15.3616, 15.3688, MCLA 
§§ 340.616, 340.688.

8 MSA § 15.3887(1), MCLA § 340.887(1).

9 MSA § 15.3402, MCLA § 340.402.

10 MSA § 15.3431, MCLA § 340.431.

11 MSA § 15.3447, MCLA § 340.447.

12 MSA § 15.3567(1), MCLA § 340.567 (a).
13 MSA §15.1961, MCLA § 388.851, Op. Atty. Gen. No. 1837, 1952­

1954 Report of the Attorney General 440 (Nov. 8 1954).

62 Bradley, et al. v. Milliken, et al. Nos. 72-1809- 14



Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al. 63

B. De Jure Acts of Segregation

Thus, the record establishes that the State has committed 
de jure acts of segregation and that the State controls the 
instrumentalities whose action is necessary to remedy the 
harmful effects of the State acts. There can be little doubt 
that a federal court has both the power and the duty to 
effect a feasible desegregation plan. Indeed, such is the 
essence of Brown II. Brown v. Board of Education, 349 U.S. 
^94, 300-01 (1955). In the instant case the only feasible 
desegregation plan involves the crossing of the boundary lines 
between the Detroit School District and adjacent or nearby 
school districts for the limited purpose of providing an effective 
desegregation plan. The power to disregard such artificial 
barrieis is all the more clear where, as here, the State has 
been guilty of discrimination which had the effect of creating 
and maintaining racial segregation along school district lines. 
See Section III B, pp. 42-48, supra. United States v. Scotland 
Keck Board of Education, 407 U.S. 484, 489 (1972); Wright 
v. City of Emporia, 407 U.S. 451, 463 (1972); United States v. 
State of Texas, 447 F.2d 441, 443-44 (5th Cir. 1971); Haney v. 
County Board of Education of Sevier County, 429 F.2d 364, 
368 (8th Cir. 19 / 0). See also Davis v. Board of School Com­
missioners, 402 U.S. 33, 36-38 (1971).

 ̂ There exists, however, an even more compelling basis for 
the District Courts crossing artificial boundary lines to cure 
the State s constitutional violations. The instant case calls 
up haunting memories of the now long overruled and dis­
credited “separate but equal doctrine” of Plessy v. Ferguson, 
163 U.S. 53/ (1896). II we hold that school district bound­
aries are absolute barriers to a Detroit school desegregation 
plan, we would be opening a way to nullify Brown v. Board 
of Education which overruled Plessy, supra.

This court in considering this record finds it impossible 
to declare “clearly erroneous” the District Judge’s conclusion 
that any Detroit only desegregation plan will lead directly



64 Bradley, et al. v. Milliken, et al Nos. 72-1809- 14

to a single segregated Detroit school district overwhelmingly 
black in all of its schools, surrounded by a ring of suburbs and 
suburban school districts overwhelmingly white in composition 
in a State in which the racial composition is 87 per cent 
white and 13 per cent black.

We deal with a record which demonstrates more than 
ample support for the District Judge’s findings of unconstitu­
tional segregation by race resulting in major part from action 
and inaction of public authorities, both local and State. This 
segregation is found in the school system of the inner city 
of a metropolitan area 81% white against 19% nonwhite. Under 
this record a remedial order of a court of ecpiity which left 
the Detroit school system overwhelmingly black (for the fore­
seeable future) surrounded by suburban school systems over­
whelmingly white cannot correct the constitutional violations 
herein found.

VI. The District Judge’s Order to Prepare A 
Metropolitan Area Desegregation Plan

The third major issue in this case pertains to the validity 
of the District Judge’s ruling on desegregation area and order 
for development of a plan of desegregation dated June 14, 
1972, accompanied by a statement of findings of facts and 
conclusions of law in support thereof.

At the outset it is obvious from what we have said pertain­
ing to the inadequacy of any Detroit only desegregation plan 
that this court feels that some plan for desegregation beyond 
the boundaries of the Detroit School District is both within 
the equity powers of the District Court and essential to a 
solution of this problem. We reiterate this, keeping in mind 
the admonition from Chief Justice Marshall:

'The government of the United States has been 
emphatically^ termed a government of laws, and not of



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 65

men. It will certainly cease to deserve this high appel­
lation, if the laws furnish no remedy for the violation 
of a vested legal right.” Marbunj v. Madison, 5 U.S. 
(1 Cranch) 137, 163 (1803).

We reject the contention that school district lines are 
sacrosanct and that the jurisdiction of the District Court to 
grant equitable relief in the present case is limited to the 
geographical boundaries of Detroit. We reiterate that school 
districts and school boards are instrumentalities of the State. 
See Cooper v. Aaron, 358 U.S. 1, 16 (1958). As early as 
Brown II the Supreme Court pointed out that:

“[T]he courts may consider problems related to ad­
ministration, arising from the physical condition of the 
school plant, the school transportation system, person­
nel, revision of school districts and attendance areas into 
compact units to achieve a system of determining admis­
sion to the public schools on a nonracial basis, . . . ” 349 
U.S. at 300-01.

The Supreme Court has held that school boundary lines 
cannot be changed or new school systems created where the 
result is a larger imbalance in racial ratios in school systems 
where all vestiges of enforced racial segregation have not been 
eliminated. United States v. Scotland Neck Board of Edu­
cation, 407 U.S. 484 (1972); Wright v. Council of the City 
of Emporia, 407 U.S. 451 (1972). This is true regardless of 
“dominant purpose.” Wright v. City of Emporia, 407 U.S. at 
462.

If school boundary lines cannot be changed for an uncon­
stitutional purpose, it follows, logically that existing boundary 
lines cannot be frozen for an unconstitutional purpose.

We therefore conclude that the District Court in the present 
ease is not confined to the boundary lines of Detroit in fash­
ioning equitable relief. *



66 Bradley, et al. v. Millike n, et al Nos. 72-1809 - 14

Bradley v. School Board of the City of Richmond, 462 F.2d 
1058 (4th Cir. 1972), afj’d hy an equally divided court, —  
U.S. —  (May 21, 1973), is distinguishable in several respects. 
In that case the District Court ordered an actual consolidation 
of three separate school districts, all of which the Court of 
Appeals for the Fourth Circuit declared to be unitary. In 
the instant case the District Court has not ordered consolida­
tion of school districts, but directed a study of plans for the 
reassignment of pupils in school districts comprising the met­
ropolitan area of Detroit. In the Richmond case the court 
found that neither the Constitution nor statutes of Virginia, 
previously or presently in effect, would have permitted the 
State Board of Education, acting alone, to have effected a 
consolidation of the three school districts into a single system 
under the control of a single school board. The Fourth Circuit 
held that compulsory consolidation of political subdivisions 
of the State of Virginia was beyond the power of a federal 
court because of the Tenth Amendment to the Constitution 
of the United States. The decisions which now are under 
review did not contemplate such a restructuring.

Furthermore, the court in the Richmond case cited provisions 
of the Constitution and statutes of Virginia in support of its 
holding that —

“The power to operate, maintain and supervise public 
schools in Virginia is, and always has been, within the 
exclusive jurisdiction of the local school boards and not 
within the jurisdiction of the State Board of Education.” 
462 F.2d at 1067

The record in the present case amply supports the finding 
that the State of Michigan has not been subject to such limi­
tations in its dealings with local school boards.



Nos. 72-1809 -14 Bradley, et al. v. MiUiken, et al 67

VII. Rights of Other School Districts To Be 
Made Parlies and To Be Heard

In his “Ruling on Propriety of Considering a Metropolitan 
Remedy” the District Court defined the metropolitan area 
“for the present purposes” to comprise the three counties of 
Wayne, Oakland and Macomb. In his “Findings of Fact and 
Conclusions of Law in Support of Ruling on Desegregation 
Area and Development Plans” the District Court noted that 
“the court has taken no proofs with respect to the establish­
ment of the boundaries in the counties of Wayne, Oakland 
and Macomb.” In his “Ruling on Desegregation Area and 
Order for Development of Plan of Desegregation” the District 
Court defined the desegregation area to include some 53 
school districts. Certain of these school districts have inter­
vened in this case, but have not yet been afforded an oppor­
tunity to offer proof. Some of the other school districts are 
not parties to the litigation.

In United States v. Texas Education Agency, 467 F.2d 848, 
873 (5th Cir. 1972), the Court said:

“The discriminatory acts of the school authorities in­
fect the entire school system; they are particularly obvi­
ous in the so-called ‘pockets’. Some schools may be the 
‘result’ of state-imposed segregation even though no spe­
cific discriminatory school board action may be shown 
as to those schools. Had the school authorities not spe­
cifically segregated the minority students in certain 
schools, other schools may have developed as desegregated 
facilities. Thus, though they may not be ‘pockets of

, discrimination’, these schools are the ‘results’ of discrimi­
nation.”

Under the authorities heretofore discussed, these school 
districts are arms and instrumentalities of the State of Michi­
gan. Nevertheless, under Michigan law, they may sue and 
be sued. See M.S.A. §§ 15.3154,-15.3192.



i

Rule 19, Fed. R. Civ. P. provides that a person who is 
subject to service of process shall be joined as a party to 
the action if “in his absence complete relief cannot be ac­
corded among those already parties.” Under this rule joinder 
of necessary parties is required if jurisdiction over them can 
be obtained and if joinder will not defeat federal jurisdiction 
of the case.

We hold that school districts which are to be affected by 
the decree of the District Court are necessary parties under 
Rule 19. As a prerequisite to the implementation of a plan 
in this case affecting any school district, the affected district 
first must be made a party to this litigation and afforded an 
opportunity to be heard.

While agreeing with the District Court in its conclusion that 
it can consider a metropolitan remedy, we express no views 
as to the desegregation area set forth in the orders of the 
District Court.

We vacate the order of March 28, 1972, entitled “Ruling 
on Propriety of a Metropolitan Remedy to Accomplish De­
segregation of the Public Schools of Detroit.

This Court recognizes that, as set forth above, the legisla­
ture of the State of Michigan has power to provide a com­
plete remedy for the unconstitutional segregation disclosed 
in this record. It, too, has responsibility for following the 
great mandates of the United States Constitution.

If, however, the legislature fails to act, or if it acts in a 
manner inconsistent with the expeditious and efficient elimina­
tion of the unconstitutional practices and conditions described 
in this opinion, the District Court shall proceed to fashion 
such a remedy, including an interim remedy if found to be 
necessary, as it shall determine to be appropriate within the 
guidelines of this opinion.

On remand, any party against whom relief is sought, in­
cluding school districts which heretofore have intervened and 
school districts which hereafter may become parties to this

68 Bradley, et al. v. Milliken, et al. Nos. 72-1809- 14



Nos. 72-1809 - 14 Bradley, ct al. v. Milliken, et al. 69

litigation, shall be afforded an opportunity to offer additional 
evidence, and to cross-examine available witnesses who previ­
ously have testified, on any issue raised by the pleadings, in­
cluding amendments thereto, as may be relevant and ad­
missible to such issues. The District Court may consider 
any evidence now on file and such additional competent evi­
dence as may be introduced by any party. However, the 
District Court will not be required to receive any additional 
evidence as to the matters contained in its Ruling on the 
Issue of Segregation, dated September 27, 1971, and reported 
at 338 F. Supp. 582, or its Findings of Fact and Conclusions 
of Law on the “Detroit-only” plans of desegregation, dated 
March 28, 1972. We hold that the findings of fact contained 
in these rulings are not clearly erroneous, Rule 5 2 (a ), Fed. 
R. Civ. P., but to the contrary are supported by substantial 
evidence.

Upon remand, the plaintiffs and other parties shall be per­
mitted to amend their pleadings to conform to the evidence 
(see Rule 15(b ), Fed. R. Civ. P .), to add additional parties 
and to ask for any additional appropriate relief, the details 
of such amendments to be under the continuing supervision of 
the District Court.

We also vacate the District Court’s Ruling on Desegrega­
tion Area and Development Plan, dated June 14, 1972, except 
those parts of the order appointing a panel charged with the 
duty of preparing interim and final plans of desegregation. 
The panel appointed by the District Court is authorized to 
proceed with its studies and planning under the direction of 
the District Court. Pending further orders of the District 
Court or this Court, the defendants and school districts in­
volved will continue to supply administrative and staff assist­
ance to the panel upon its request. Until further order of 
the court, the reasonable costs incurred by the panel will be 
paid as provided by the District Court’s order of June 14, 1972.

The order of the District Court directing the purchase of 
school buses, dated July 11, 1972, also is vacated, subject to the



Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14

right of the District Court, in its discretion, to consider the 
entry of another order requiring the purchase of school buses 
at the appropriate time.

VIII. Equitable Relief

In this opinion we have emphasized the broad powers of 
a District Court to fashion equitable relief in school desegre­
gation cases. For the guidance of the District Court on remand, 
we now review the decisions on this subject in further depth.

1) The Fundamental Constitutional Holding:

We conclude that in the field of public education the 
doctrine of ‘separate but equal’ has no place. Separate 
educational facilities are inherently unequal. Therefore, 
we hold that the plaintiffs and others similarly situated 
for whom the actions have been brought are, by reason 
of the segregation complained of, deprived of the equal 
protection of the laws guaranteed by the Fourteenth 
Amendment.” Brown v. Board of Education, 347 U.S. 
483, 495 (1954).

2) The Supreme Court’s Initial Description of the Equitable 
Remedy:

“In fashioning and effectuating the decrees, the courts 
will be guided by equitable principles. Traditionally, 
equity has been characterized by a practical flexibility in 
shaping its remedies4 and by a facility for adjusting mid 
reconciling public and private needs.5 These cases call 
for the exercise of these traditional attributes of equity 
power. At stake is the personal interest of the plaintiffs 
in admission to public schools as soon as practicable on a 
nondiscriminatory basis. To effectuate this interest may 
call for elimination of a variety of obstacles in making 
the transition to school systems operated in accordance 
with the constitutional principles set forth in our May 17, 
1954, decision. Courts of equity may properly take into

4 See A l e x a n d e r  v. H illm a n , 296 U.S. 222, 239.
5 See H e c h t  C o. v. B o w le s , 321 U.S. 321, 329-330.



Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al. 71

account the public interest in the elimination of such 
obstacles in a systematic and effective manner. Bu 1 

should go without saying that the vitality of these con­
stitutional principles cannot be allowed to yield simply 
because of disagreement with them.

“While giving weight to these public and private con­
siderations, the courts will require that the defendants 
make a prompt and reasonable start toward full compli­
ance with our May 17, 1954, ruling. Once such a start 
has been made, the courts may find that additional time 
is necessary to carry out the ruling in an effective man­
ner. The burden rests upon the defendants to establish 
that such time is necessary in the public interest and is 
consistent with good faith compliance at the earliest 
practicable date. To that end, the courts may consider 
problems related to administration, arising from the 
physical condition of the school plant, the school trans­
portation system, personnel, revision of school districts 
and attendance areas into compact units to achieve a 
system of determining admission to the public schools on 
a nonracial basis, and revision of local laws and regula­
tions which may be necessary in solving the foregoing 
problems. They will also consider the adequacy ol any 
plans the defendants may propose to meet these prob­
lems and to effectuate a transition to a racially nondis-
criminatory school system. --------  ̂ .* »
transition, the courts will retain jurisdiction of these! cases. 
Brown v. Board of Education of Topeka [II], 349 U.b. 
9,04 300-01 (1955)

During this period of

3) Delay Is No Longer Tolerable:

“In determining whether respondent School Board met 
that command by adopting its ‘freedom-of-choice plan, 
it is relevant that this first step did not come until some 
11 years after Brown I was decided and 10 years after 
Brown II directed the making of a prompt and reason­
able start.’ This deliberate perpetuation of the uncon­
stitutional dual system can only have compounded the



72 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14

harm of such a system. Such delays are no longer toler­
able, for the governing constitutional principles no longer 
bear the imprint of newly enunciated doctrine.’ Watson 
v. City of Memphis, supra, at 529; see Bradley v. School 
Board, supra; Rogers v. Paul, 382 U.S. 198. Moreover, 
a plan that at this late date fails to provide meaningful 
assurance of prompt and effective disestablishment of a 
dual system is also intolerable. ‘The time for mere 
deliberate speed has run out,’ Griffin v. County School 

Board, 377 U.S. 218, 234; ‘the context in which we must 
interpret and apply this language [of Brown II] to plans 
for desegregation has been significantly altered.’ Goss 
v. Board of Education, 373 U.S. 683, 689. See Calhoun 
v. Latimer, 377 U.S. 263. The burden on a school board 
today is to come forward with a. plan that promises 
realistically to ivork, and promises realistically to work 
now.” Green v. County School Board, 391 U.S. 430, 438­
39 (1968) (Emphasis added.)

4) State Imposed Segregation Must be Completely Removed 
at Earliest Practicable Date:

“The obligation of the district courts, as it always has 
been, is to assess the effectiveness of a proposed plan 
in achieving desegregation. There is no universal answer 
to complex problems of desegregation; there is obvious­
ly no one plan that will do the job in every case. The 
matter must be assessed in light of the circumstances 
present and the options available in each instance. It 
is incumbent upon the school board to establish that its 
proposed plan promises meaningful and immediate 
progress toward disestablishing state-imposed segregation. 
It is incumbent upon the district court to weigh that 
claim in light of the facts at hand and in light of any 
alternatives which may be shown as feasible and more 
promising in their effectiveness. Where the court finds 
the board to be acting in good faith and the proposed 
plan to have real prospects for dismantling the slate- 
imposed dual system ‘at the earliest practicable date,’ 
then the plan may be said to provide effective relief.



Of course, the availability to the board of other more 
promising courses of action may indicate a lack of good 
faith; and at the least it places a heavy burden upon the 
board to explain its preference for an apparently less 
effective method. Moreover, whatever plan is adopted 
will require evaluation in practice, and the court should 
retain jurisdiction until it is clear that state-imposed seg­
regation has been completely removed. See No. 805, 
Raney v. Board of Education, post, at 449.” Green v. 
County School Board, 391 U.S. 430, 439 (1968) (Empha­
sis added.)

5) The Court Has The Power and The Duty to Eliminate 
Effects of Past Discrimination:

“We hear in mind that the court has not merely the 
power hut the duty to render a decree which will so far 
as possible eliminate the discriminatory effects of the 
past as well as har like discrimination in the future.” 
Louisiana v. United States, 380 U. S. 145, 154 (1965) 
(Emhasis added). Compare the remedies discussed in, 
e. g., NLRB v. Newport News Shipbuilding & Dry Dock 
Co., 308 U. S. 241 (1939); United States v. Crescent 
Amusement Co., 323 U. S. 173 (1944); Standard Oil Co. v. 
United States, 221 U. S. 1 (1911). Sec also Griffin v. 
County School Board, 377 U. S. 218, 232-234 (1964). 
Green v. County School Board, 391 U.S. 430, n. 4 at 438 
(1968) (relating to the remedial command of Brown II)

6) Resegregation is Impermissible:

“Like the transfer provisions held invalid in Goss v. Board 
of Education, 373 U.S. 683, 686, ‘[i]t is readily apparent 

, that the transfer [provision] lends itself to perpetuation 
of segregation.’ While we there indicated that Tree- 
transfer’ plans under some circumstances might be valid, 
we explicitly stated that ‘no official transfer plan or 
provision of which racial segregation is the inevitable 
consequence may stand tinder the Fourteenth Amend­
ment.’ Id., at 6S9. So it .is here; no attempt has been

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 77



made to justify the transfer provision as a device de­
signed to meet ‘legitimate local problems/ ibid.; rather 
i patently operates as a device to allow resegregation 
of the races to the extent desegregation would be 
achieved by geographically drawn zones. Respondent’s 
aigument in this Court reveals its purpose. We are 
frankly told m the Brief that without the transfer option 
it is apprehended that white students will flee the school 
system altogether ‘But it should go without saying 

lat the vitality of these constitutional principles cannot 
be allowed to yield simply because of disagreement with 
them. Brown II, at 300.

We do not hold that ‘free transfer can have no place 
in a desegregation plan. But like ‘freedom of choice’ 
i it cannot be shown that such a plan will further rather 
than delay conversion to a unitary, nonracial, nondis- 
crunoratory school system, it must be held unacceptable. 
See Green v. County School Board, supra, at 439-441.

“We conclude therefore, that the Board ‘must be re­
quited to formulate a new plan and, in light of other 
courses which appear open to the Board, . . . fashion 
steps which promise realistically to convert promptly to 
a system without a white school and a ‘Negro school, 
but just schools. Id., at 442. Monroe v. Board of Com-

S ' P  391 U'S' 45° ’ 459'60 (1968) (E “ Phasis

7) The Remedial Tools:

In Swann v. Board of Education, 402 U.S. 1, 15 (1971) 
Chief Justice Burger, writing for a unanimous Court, said: ’

“If school authorities fail in their affirmative obligations 
undei these holdings, judicial authority may be invoked. 
Once a right and a violation have been shown, the scope 
o a district court’s equitable powers to remedy past 
wrongs is broad, for breadth and flexibility are inherent 
in equitable remedies.

74 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 75

‘The essence of equity jurisdiction has been the 
power of the Chancellor to do equity and to mould 
each decree to the necessities of the particular case. 
Flexibility rather than rigidity has distinguished it. 
The qualities of mercy and practicality have made 
equity the instrument for nice adjustment and recon­
ciliation between the public interest and private 
needs as well as between competing private claims.’ 
Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944), 
cited in Brown 11, supra, at 300.”

a) The Flexible Ratio:

“As the voluminous record in this case shows, the 
predicate for the District Court’s use of the 71%-29% 
ratio was twofold: first, its express finding, approved by 
the Court of Appeals and not challenged here, that a 
dual school system had been maintained by the school 
authorities at least until 1969; second, its finding, also 
approved by the Court of Appeals, that the school board 
had totally defaulted in its acknowledged auty to come 
forward with an acceptable plan of its own, notwithstand­
ing the patient efforts of the District Judge who, on 
at least three occasions, urged the board to submit plans. 
As the statement of facts shows, these findings are 
abundantly supported by the record. It was because of 
this total failure of the school board that the District 
Court was obliged to turn to other qualified sources, and 
Dr. Finger was designated to assist the District Court to 
do what the board should have done.

“We see therefore that the use made of mathematical 
ratios was no more than a starting point in the process 
of shaping a remedy, rather than an inflexible require­
ment. From that starting point the District Court pro­
ceeded to frame a decree that was within its discre­
tionary powers, as an equitable remedy for the particu­
lar circumstances. As we said in Green, a school authori­
ty’s remedial plan or a district court’s remedial decree is 
to be judged by its effectiveness. Awareness of the racial



Nos. 72-1809- 14

composition of the whole school system is likely to be 
a useful starting point in shaping a remedy to correct 
past constitutional violations. In sum, the very limited 
use made of mathematical ratios was within the equitable 
remedial discretion of the District Court.” Swann v. 
Board of Education, 402 U.S. 1, 24-25 (1971).

b) Noncontiguous School Zoning:

The maps submitted in these cases graphically dem­
onstrate that one of the principal tools employed by 
school planners and by courts to break up the dual school 
system has been a frank — and sometimes drastic — 
gerrymandering of school districts and attendance zones. 
An additional step was pairing, ‘clustering,’ or ‘grouping’ 
of schools with attendance assignments made deliberate­
ly to accomplish the transfer of Negro students out of 
formerly segregated Negro schools and transfer of white 
students to formerly all-Negro schools. More often than 
not, these zones are neither compact nor contiguous; 
indeed they may be on opposite ends of the city. As an 
interim corrective measure, this cannot be said to be 
beyond the broad remedial powers of a court.

“Absent a constitutional violation there would be no 
basis for judicially ordering assignment of students on a 
racial basis. All things being equal, with no history of 
discrimination, it might well be desirable to assign pupils 
to schools nearest their homes. But all things are not 
equal in a system that has been deliberately constructed 
and maintained to enforce racial segregation. The reme­
dy for such segregation may be administratively awkward, 
inconvenient, and even bizarre in some situations and 
may impose burdens on some; but all awkwardness and 
inconvenience cannot be avoided in the interim period 
when remedial adjustments are being made to eliminate 
the dual school systems.

“No fixed or even substantially fixed guidelines can 
be established as to how far a court can go, but it must

76 Bradley, et al. v. Milliken, et al.



Nos. 72-1809 - 14 Bradley, ei al. v. Milliken, et al

be recognized that there are limits. The objective is 
to dismantle the dual school system. ‘Racially neutral’ 
assignment plans proposed by school authorities to a dis­
trict court may be inadequate; such plans may fail to 
counteract the continuing effects of past school segrega­
tion resulting from discriminatory location of school sites 
or distortion of school size in order to achieve or main­
tain an artificial racial separation. When school authori­
ties present a district court with a loaded game board, 
affirmative action in the form of remedial altering of 
attendance zones is proper to achieve truly non-discrim­
inatory assignments. In short, an assignment plan is not 
acceptable simply because it appears to be neutral.

“In this area, we must of necessity rely to a large ex­
tent, as this Court has for more than 16 years, on the 
informed judgment of the district courts in the first in­
stance and on courts of appeals.

“We hold that the pairing and grouping of noncontigu­
ous school zones is a permissible tool and such action is 
to be considered in light of the objectives sought. Judicial 
steps in shaping such zones going beyond combinations 
of contiguous areas should be examined in light of what 
is said in subdivisions (1 ), (2 ) , and (3 ) of this opinion 
concerning the objectives to be sought. Maps do not 
tell the whole story since noncontiguous school zones 
may be more accessible to each other in terms of the 
critical travel time, because of traffic patterns and good 
highways, than schools geographically closer together. 
Conditions in different localities will vary so widely that 
no rigid rules can Ire laid down to govern all situations. 
Swann v. Board of Education, supra, at 27-29. (Empha­
sis added.)

c) Transportation of Students:
“The scope of permissible transportation of students as 

an implement of a remedial decree has never been de­
fined by this Court and by the very nature of the problem 
it cannot be defined with precision. No rigid guidelines



78 Brndleu, et aiv. Million,ct 72-1S0914

U> t l l 1 n r C-f transp0rtf 0n can be given for application 
of s tuatfon G P1'°blemS presented in thousands
M rfo ?  7? / ; ." S tY:mporiation has been an integral
v e r b a l  h /  1 eduCation s,J stem for years, and teas 

. Ul sinple most ^Portent factor in the transi-
slhoo F  l u ° ne'r0T  schooIhoilse to the consolidated 
Chihtn  g miIlWn °f the Nation’s public school 
1  n i  l aT ° XUnatchj 39%’ were transported to their 
schools by bus in 1969-1970 in all parts of the country.

a c c ^ r f T Y "  buS tr1ansportation as a normal and
in this a l  t ° f edUCatl0nal P0lic‘y is readiIy discernible dns and the companion case, Davis, supra. The Char-

f school anthorities did not purport to assign students 

and A en3^  f  ° gl,aph,icalIy d™ n  zones until 1965
i e 4  ? L n - I " 7  am °St Unlimited transfer Privi-
1 7 /  7  1 Vistnet Courts conclusion that assignment 

u c ten o the school nearest their home serving their 
tirade would not produce an effective dismantling of the 
dual system is supported by the record.

T W  the remedial techniques used in the District 
Courts order were within that court’s power to pro­
well Je ll J j  rChef; imPlcmentation of the decree is 
well within the capacity of the school authority.

"The decree provided that the buses used to implement 
the plan would operate on direct routes. Students would 
be picked up at schools near their homes and trans­
posed to the schools they were to attend. The trips 
for elementary school pupils average about seven miles 
and the District Court found that they would take ‘not 
over 3d minutes at the most.’ This system compares 
favorably with the transportation plan previously operated 
in Charlotte under which each day 23,600 students on 
all grade levels were transported an average of 15 miles 
one way for an average trip requiring over an hour In 
hese circumstances, we find no basis for holding that the 
ocal school authorities may not be required to employ 

bus transportation as one tool of school desegregation.



Nos. 72-1809 - 14 Bradley, et al v. Milliken, et al.

!

Desegregation plans cannot be limited to the walk-in 
school.

“An objection to transportation of students may have 
validity when the time or distance of travel is so great 
as to either risk the health of the children or significantly 
impinge on the educational process. District courts must 
weigh the soundness of any transportation plan in light 
of what is said in subdivisions (1 ) , (2 ) , and (3 ) above. 
It hardly needs stating that the limits on time of travel 
will vary with many factors, but probably with none 
more than the age of the students. The reconciliation of 
competing values in a desegregation case is, of course, a 
difficult task with many sensitive facets but fundamentally 
no more so than remedial measures courts of equity have 
traditionally employed.” Swann v. Board of Education, 
supra, at 29-31. (Emphasis added.)

In North Carolina v. Swann, 402 U.S. 43, 46 (1971), the Chief 
Justice said: “As noted in Swann, supra, at 29, bus transporta­
tion has long been an integral part of all educational sys­
tems, and it is unlikely that a truly effective remedy could 
be devised without continued reliance on it.”

d) Equity Power to Require Payment of Tax Funds for 
Integrated Schools:

In the exercise of its equity powers, a District Court may 
order that public funds be expended, particularly when such 
an expenditure is necessary to meet the minimum requirements 
mandated by the Constitution. Griffin v. County School Boaicl 
of Prince Edward County, 377 U.S. 218, 233 (1964); Eaton v. 
New Hanover County Board of Education, 459 F.2d 684 (4th 
Cir. 1972); Brewer v. School Board of City of Norfolk, 456 
F.2d 943, 947, 918 (4th Cir.), cert, denied, 406 U.S. 933 
(1972); Plaquemines Parish School Board v. United States, 
415 F.2d 817 (5th Cir. 1969).

This opinion heretofore has emphasized that the Legisla­
ture of Michigan has an opportunity to determine the or-



80 Bradley, et al. v. Milliken, et al. Nos. 72-1809- 14

ganizational and governmental structure of an enlarged de­
segregation area to remedy the unconstitutional segregation 
results set forth in this opinion. In the event the Legislature 
fails to act effectively and expeditiously, the foregoing and other 
cases cited in this opinion outline the broad scope of equitable 
relief that may be fashioned by the District Court in this case 
on remand after all school districts to be affected are afforded 
an opportunity to be heard as hereinabove provided.

IX. Other Issues

Numerous other issues are presented which do not require 
discussion.

We do not consider it necessary to construe the “Broom­
field Amendment,” Pub. L. No. 92-318, 86 Stat. 235, § 803, 
known as the Education Amendments of 1972, since no final 
desegregation order has been entered.

Deal v. Cincinnati Board of Education, 419 F.2d 1387, 1392 
(6th Cir. 1969), cert, denied, 402 U.S. 962 (1971) is not con­
trolling. There the District Court made findings of fact that 
there had been no unconstitutional conduct on the part of 
the Cincinnati Board of Education. This court held that 
these findings of fact were not clearly erroneous. Rule 52 (a ), 
Fed. R. Civ. P.

All other contentions presented by the parties contrary 
to the conclusions reached in this opinion have been considered 
and are found to be without merit.

X. Conclusion

1. The Ruling of the District Court on the Issue of Segre­
gation, dated September 27, 1971, and reported at 338 F.Supp. 
582, is affirmed.

2. The findings of fact and conclusions of law on “Detroit- 
only” plans of desegregation, dated March 28, 1972, are af­
firmed.

/



Nos. 72-1809- 14 Bradley, el al. v. Milliken, ct al. 81

3. The Ruling on Propriety of a Metropolitan Remedy to 
Accomplish Desegregation of the Public Schools of the City 
of Detroit, dated March 24, 1972, is affirmed in part, but 
vacated for the reasons set forth above.

4. The Ruling on Desegregation Area and Development 
of 1 Ian, dated June 14, 19 / 2, is vacated except as hereinabove 
prescribed.

5. The order dated July 11, 19/2, directing the purchase 
of school buses is vacated.

The case is remanded to the District Court for further 
proceedings not inconsistent with this opinion.

No costs aie taxed. Each party will bear his own costs.

E dwards, Celebrezze, Peck, McCree, and L ively IT. 
concur.



82 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14

W e ic k , Circuit Judge, dissenting: Eighty-seven years before 
the landmark decision of the Supreme Court in Brown v. 
Boaid of Education, 34? U.S. 483 (1954) was announced, the 

b - S ate of Michigan, in Public Acts of Michigan,
1867, Act 34 § 28, had abolished segregation in the public 
school system which had prohibited Negro children from 
attending the same public schools as white children. This 
statute in relevant parts reads as follows:

All residents of any district shall have an equal right 
to attend any school therein. . . .”

The Supreme Court of Michigan, in an opinion written for 
the court by Chief Justice Cooley, construed the statute in 
1869 and held it applicable to Detroit and that Detroit con­
stituted one school district. In granting a writ of mandamus 
requiring the school board to admit a Negro child who had 
been denied admission, Chief Justice Cooley said:

It cannot be seriously urged that with this provision in 
force, the school board of any district which is subject to 
it may make regulations which would exclude any resident 
of the district from any of its schools, because of race or 
color, or religious belief, or personal peculiarities. It is too 
plain for argument that an equal right to all of the schools, 
irrespective of such distinctions, was meant to be estab­
lished.” People, ex rel. Workman v. Board of Education 
of Detroit, 18 Mich. 399, 409 (1869).

The issues in this case do not concern the right of any 
Negro child in Detroit to attend any school he desires in 
that City. They do involve the authority of a district judge to 
adopt a so-called metropolitan plan designed to integrate the 
Negro school children living in Detroit with white children 
living in three adjoining counties and attending public schools 
in fifty-two additional school districts, eighteen of which dis­
tricts have never been made parties to this lawsuit. Condi­
tions were imposed on the districts allowed to intervene which 
rendered their intervention ineffective.



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 83

The District Judge followed the pattern of Judge Merhige 
in the Richmond case whose decision was reversed by the 
Fourth Circuit in Bradley v. School Board of the CAty of Rich­
mond, 462 F.2d 1068 (4th Cir. 1972), aff’d by equally divided 
Court, —  U.S. —  (Nos. 72-549, 72-550, May 21, 1973), 41 
U.S.L.W. 4685. The fact that Richmond involved dismantling 
of a dual system was regarded as unimportant by the District 
Judge.

In an unprecedented opinion, a panel of this Court and now 
a majority of the en banc Court have upheld findings of the 
District Court that segregation exists in Detroit and that it 
cannot be dismantled with a Detroit-only plan of desegregation 
and the District Court may consider and adopt a metropolitan 
plan.1

Just to start such a plan involves the expenditure of about 
$3,000,000 for the purchase of 295 buses and untold millions 
of dollars to operate them and for other expenses. It will in­
volve about 780,000 children and, if ordered by the court, will 
force the busing of black children, against their will and with­
out the consent of their parents, from the inner city of Detroit 
to one or more of the fifty-three different school districts in 
four counties, and the white children of these districts will be 
forcibly bused to the inner city. None of these children have 
committed any offense for which they should be so punished. 
It will disrupt the lives of these children and their parents. The 
metropolitan plan was ill conceived and is a legal monstrosity. 
However, such a plan will achieve a racial balance or quota in 
the desegregation area, which is what plaintiffs are seeking.

The District Court made no findings that any of the fifty- 
two school districts outside of Detroit had practiced desegrega-

1 While the present undefined desegregation area consists of three 
additional counties and 53 school districts, this could, of course, be 
expanded so as to include as many as the District Judge may order. 
The plan seeks to achieve a racial balance or quota in each public 
school in the system of 75% white and 25% black in a state which 
is 87% white 'and 13% black. The Plan violates Public Acts of 
Michigan, 1867, Act 34 § 28, by ordering children living in one district 
to attend school in another district.



81 Bradley, et al. v. Milliken, et al. Nos. 72-1809- 14

tion tactics against Negro children in their districts or in any 
other district, or that they were in any wise responsible for the 
concentration of Negroes or their segregation in Detroit.

These fifty-two school districts have been created by the 
legislature as separate and independent corporate units with 
power to sue and be sued. They are governed by locally- 
elected Boards of Education. In each district, the real estate 
of the people living therein is taxed for the support of their 
public schools.

The school districts were established by neutral legislation 
when the cities were incorporated. There was not an iota of 
evidence in the record that the boundaries of the Detroit 
school district, or any other school district in Michigan, were 
established for the purpose of creating, maintaining or per­
petuating segregation of the races. No such claim was ever 
made by the plaintiffs.

In 1910, long after the districts were created, the black 
population of Detroit was only 1.2% of the total population of 
the City. By 1970 it had increased to 43.9% of the total popula­
tion of 1,511,000. It is obvious that the great influx of blacks, 
as well as whites, to Detroit was influenced by the favorable 
industrial climate existing in Michigan and the ability of its 
industry, principally automotive, to provide jobs.

In the school year 1970-1971, there was 285,512 students in 
the public school system in Detroit of which 168,200 or 63.8% 
were black and 117,312 or 37.2% where white. The School 
Board of Detroit ought not to be blamed for the heavy con­
centration of blacks in the inner City, for housing conditions, 
or for discrimination by public or private agencies or in­
dividuals and ought not be be saddled with the duty to dis­
mantle the concentration. These same conditions exist in other 
cities throughout the country regardless of the type of 
school system in effect — whether de jure or de facto. Nor 
should the adjoining three counties and the fifty-two school 
districts be penalized because they are located near Detioit.

In his book Negroes in Cities, Dr. Karl Taeuber states



85Nos. 72-1809- 14 Bradley, et al v. Milliken, et al.

that residential segregation exists “regardless of the character 
of local laws and policies and regardless of other forms of 
discrimination”. He said substantially the same thing m his 
article “Residential Segregation” in the August, 196o issue of
Scientific American.

In Bradley v. School Board of City of Richmond, 462 F.2d 
1058 (4th Cir. 1972), a f d  by equally divided Court, —  U.S.
___(Nos. 72-549, 72-550, May 21, 1973), 41 U.S.L.W . 4685,
flip Court said: -

“The root causes of the concentration of blacks in the 
inner city are simply not known. . . .

And:
“Whatever the basic causes, it has not been school 

assignments and school assignments cannot reverse that
trend.”

The District Court was motivated in its decision by social 
considerations. In a pretrial conference on October 4, 1971 the 
District Court stated:

“We need not recite the many serious problems such a 
plan entails, suffice it to say that a plan of such dimensions 
can hardly be conceived in a day, to say nothing oi the 
time it will require for implementation. A large metro­
politan area such as we have in our case can not be 
made the subject of instant integration. We must bear m 
mind that the task we are called upon to perform is a 
social one, which society has been unable to accomplish. 
In reality, our courts are called upon, in these school cases,

' to attain a social goal, through the educational system, by 
using law as a lever.” App. IV, pp. 454, 455.

This is incredible!

It is submitted that the courts are not called upon to in­
testate the school system, using law as a lever. Nor should 
judges assume to act as legislators, for which they arc neither



Bradley, et al. v. Milliken, ei al. Nos. 72-1809 -14
86

fitted nor qualified. It is enough for judges to perform their 
judicial function and to abide by the separation of powers 
doctrine provided by our Constitution. . . .

The thesis of the panel which wrote the origin a opinion m 
this appeal is best stated in its own words in its slip opinion.

“This court in considering this record finds it impossible 
to declare ‘clearly erroneous’ the District Judge s con­
clusion that any Detroit only desegregation plan will lead 
S y  to a single segregated Detroit school district over­
whelmingly black in all of its schools, surrounded by a 
ring of suburbs and suburban school districts ovenvhelm- 
ingly white in composition in a State in which the racial 
composition is 87 per cent white and 13 per cent black. 
Big city school systems for blacks surrounded by suburban 
school systems for whites cannot represent equal protec­
tion of the law.” Slip Opm. p. 65.

The majority opinion adopts all of the paragraph except the 
last sentence which reads as follows:

“Big city school systems for blacks surrounded by 
suburban school systems for whites cannot represent equal 
protection under the law.

In my opinion, the retained part of the paragraph expresses 
the same thought as the sentence which has been deleted.

No decision of the Supreme Court or any other court con­
struing the Constitution supports tins thesis and it is not ou, 
rvmvinr'p fn rewrite the Constitution.
P The majority opinion sharply conflicts with Spencer v. Kng- 
for 306 F Supp. 1235 (D. N.J. 1972), affirmed 404 U S 1 0 ./

1972) In Spencer the black students sued the At oniey 
General of the State of New Jersey, the Commissioner of Edu­
cation anil the State Board of Education alleging ha they 
f. -1 .el bn achieve a racial balance among several districts of a 
state system of public schools. New Jersey like Michigan 
did not operate a dual system and the alleged imbalance w 
characterized as de facto segregation.



The three-judge Court which heard the case stated:

In none of the schools of which the plaintiffs complain 
is any black pupil ‘segregated’ from any white pupil. 
Indeed, complaint is made that the blacks who reside in 
the school district served predominate over the whites, 
thus affording an example of complete desegregation 
which was the expressed object of the court in the Brown 
case. At page 487 of the Opinion at page 688 of 74 S.Ct. 
in Brown it is stated that:

‘In each of the cases [from Kansas, South Carolina, 
Virginia and Delaware] minors of the Negro race, 
through their legal representatives, seek the aid of 
the courts in obtaining admission to the public 
schools of their community on a nonsegregated basis. 
In each instance, they had been denied admission to 
schools attended by white children under laws re­
quiring or permitting segregation according to race.’

Such is not the basis upon which each of the plaintiffs in 
the present case seeks relief in this cause. On the con­
trary plaintiffs would have a substantial portion of the 
pupils now in attendance in their respective schools or­
dered by the court removed from these schools and as­
signed to a school in another district. Alternatively 
plaintiffs would have the court abolish the respective 
districts in which their schools are located and assign 
them to other districts in which the disproportion between 
white and black students is reduced in one direction or 
the other. If, as plaintiffs contend, the proportionate black 
attendance in their respective schools adversely affects 

' the degree of excellence of education which they can 
receive there must be a point at which any excess of 
blacks over whites is likely to impair the quality of the 
education available in that school for the black pupils. No­
where in the Appendix filed by the plaintiffs or in the facts 
involved in any of the judicial precedents which they cite 
are we informed of the specific racial proportions which

Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al. 87



are likely to assure maximum excellence of the educational 
advantages available for the whites. Assuming further 
that efforts to achieve the ideal interracial proportion 
necessarily include the alteration of the population factor 
determinative of the redistricting, there can be no assur­
ance that the population factor will remain static. If so, 
it would be necessary to successively reassign pupils to 
another district as the rate of births and graduations alters 
the racial proportions creating the demand for the educa­
tional facilities as it changes from term to term. In sum, 
the difficulty complained of does not amount to uncon­
stitutional segregation.” (Id. at 1239-1240).

Speaking of school district boundaries, the Court stated:

“It is clear that these legislative enactments prescribe 
school district boundaries in conformity with municipal 
boundaries. This designation of school district zones is 
therefore based on the geographic limitations of the 
various municipalities throughout the State. Nowhere in 
the drawing of school district lines are considerations of 
race, creed, color or national origin made. The setting of 
municipalities as local school districts is a reasonable 
standard especially in light of the municipal taxing author­
ity. The system as provided by the various legislative en­
actments is unitary in nature and intent and any pur­
ported racial imbalance within a local school district 
results from an imbalance in the population of that mu­
nicipality-school district. Racially balanced municipalities 
are beyond the pale of either judicial or legislative inter­
vention.” (Id. at 1240).

Spencer is on “all fours” with our case.

The majority opinion conflicts with prior decisions of this 
Court with the unfortunate result that acts which do not 
violate the Constitution in Cincinnati, are held to be uncon­
stitutional in Detroit.

The two decisions \vith which the majority opinion is in

88 Bradley, et al. v. MiUiken, et al. Nos. 72-1809 - 14



Bradley, et al v. Milliken, et al. 89
Nos. 72-1809 - 14

.. , , n. . nrp r W  v Cincinnati Board of Educa-

i S c r ®  ( 6 . h  C i , « « ) .

55 (6th Cir. 1966), corf. domed, 389 U -S -8 '7 ( U  ^
244 F.Supp. 572. Twice the Supiemc lg71 it refused to 
opportunity to review Deal anti as 1.
do so, with only one Justice d.sscntmg, , i by

More than erglrty-two years ago Ohio he «  . ^
statute had abolished segregation in the P "b,lc s ided
State. The neighborhood school system,

in Cincinnati the races were imbalanced m th p 

C  schools were

portunities and school consh l̂ tl̂  o{ Education had no

the State Legislature. evidence of discrimination
The District Judge had excluded this ruling

in the public and private h o u s i n g ^ imination, if it existed, 
was correct on the ground that the d.s —  Board
was caused by persons not parties to that c a s e ^  ^  ^
of Education had no power to rcc > • j friiwing their

T O  » P P * f  )1“" ’e Z  I "  omcL,°Urey may
rights by pubhe-housm tlle Fourteenth

t t d r n r  C h  ttp r 'c d o  ^dvate actions amounting to dis-



90

criminatory practices, while there is no federal constitutional 
right available to appellants, they may seek relief from the 
state Civil Rights Commission, or in the state courts, if relief 
is denied under the provisions of the Ohio hair Housing Law. 
Deal I, 369 F.2d at 60 fn. 4.

The majority opinion also conflicts with Bradley v. School 
Board of Richmond, supra, and Swann v. Board of Education, 
402 U.S. 1 (1971).

Swarm stated that: “[The] objective is to dismantle the dual 
school system.” Id. at 28. Here there has been no dual school 
system to dismantle. Although not racially balanced, Detioit 
for many years had achieved a unitary school system in which 
no student was precluded from attending any school in the 
district. Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969). There are limits as to how far a district court 
can go. Swann at 28.

Swann also stated:

“If we were to read the holding of the District Court to 
require, as a matter of substantive constitutional right, any 
particular degree of racial balance or mixing, that ap­
proach would be disapproved and we would be obliged to 
reverse.” 402 U.S. at p. 24.

The metropolitan plan violates this principle which was 
applicable only to dual systems. It is even worse when the 
District Court applies broader orders to a unitary system than 
have ever been applied to dismantling of a dual system.

Swann, is violated by overloading the school system with 
excess “baggage.” Id. at 22.

Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14

2 The Supreme Court in J o n e s  v. M a y e r  C o ., 392 U.S. 409 (1968), 
has since held that Section 1982 of 42 U.S.C. applies to all discrimma-

U m .” J f S S y " S l n “ S ? l> S ° ® ' 'r  on p o m d  that the District
Court made findings of fact that there had been no unconstitutional 
conduct on the part of the Cincinnati Board of Education In B ia d  
Icy  the District Judge had found similar facts to constitute a viola­
tion of the Constitution. Both District Court decisions, although in­
consistent, have now beeh affirmed.



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et ah 91

TI1E DETROIT ONLY PLAN

The finding of the District Court that a Detroit only plan 
could not accomplish desegregation is not supported by the 
evidence and are clearly erroneous. The percentage of black 
and white children in the public schools in 1970-1971 was 
63.8% and 37.2% respectively. The racial composition of the 
state is 87% white and 13% black.

In Wright v. Council of City of Emporia, 407 U.S. 451 
(1972), the Supreme Court approved a pairing plan for the 
City and County which had a racial composition of 34% white 
and 66% black. Ih e existing ratios in Detroit are practically 
the same.

But the District Court in our case was concerned about its 
own forecast of population trends that the percentage of black 
students would increase from 63.8% in 1970 to 72% in 1980, and 
in 1992 would be all black. This forecast is wholly speculative.

Such an unsupported and speculative forecast cannot be 
made the basis for a metropolitan cross-district order. Even if 
true, which it is not, the Board of Education is not responsible 
for the population remaining static, or for the mobility of the 
races. This was made clear in Spencer, supra, id. at 1239, 1240, 
and also in Swann, supra, id. at 31, 32. Nor is the Board re­
quired from time to time to adopt plans to meet shifting 
population trends. Spencer, supra; Swann, supra.

Significantly, all that the plaintiffs are complaining about is 
the operation of the Detroit school system and the failure of 
the State defendants to properly supervise, control or finance 
it. Plaintiffs cannot complain about school district lines be­
cause those lines were neutrally drawn with the incorporation 
of the cities long before the Negroes had migrated north in 
large numbers. If school-zone lines in Detroit have not been 
properly drawn or if there are imbalances of black and white 
students, or imbalances on faculty or staffs in the Detroit 
schools, or if school buildings have been improperly located, or 
if plaintiffs have been discriminated against in any other



92 Bradley, al v. Milliken, et al. Nos. 72-1809- 14

respect, these inequities can all be remedied in the Detroit 
school system without forcibly moving Negroes and whites 
against their will across district lines into other counties and 
districts. An order requiring the adoption of a metropolitan 
plan under the facts of this case, merely to dismantle the con­
centration of blacks in the inner city, violates constitutional 
rights of both races and constitutes a flagrant abuse of judicial 
power.3 Swann recognized a limitation on the power of Dis­
trict Judges. Id. at 28. Chief Justice Vinson, in writing the 
opinion for the court in Oyama v. California, 332 U.S. 633 646 
(1948), stated:

“But assuming, for the purposes of argument only, that 
the basic prohibition is constiutional, it does not follow 
that there is no constitutional limit to the means which 
may be used to enforce it.”

Thus, the District Court may not enter orders in school 
desegregation cases which impinge upon and violate the con­
stitution rights of other persons.

Many Negroes as well as whites are opposed to integration 
of the races in the public school system by enforced busing.4 
A busing order directed at “benefiting” black students in 
Detroit (by distributiing the black student population through­
out the entire metropolitan area) produces a head-on clash of 
constitutional principles. Blacks are given an (alleged) benefit 
when other citizens “similarly situated”, i.e., other minority- 
group students and even inner-city white students, are not 
given such benefits but are discriminated against. This result, 
of course, is a classic denial of the equal protection of the

3 Indeed, there is no finding by the District Court of any pattern 
of purposeful segregation by the School Board or finding of any 
causal relationship between any alleged segregative acts of the 
Board of Education and the concentration of blacks in the inner 
city.

4 At the National Black Political Convention held in Gary, Indiana 
(March, 1972), mandatory busing and school integration were con­
demned as racist and as preserving a black minority structure.



Nos. 72-1809 - 14 Bradley, et al v. Milliken, et al

laws. Barbier v. Connolly, 113 U.S. 27, 32 (1885); Truax v. 
Corrigan, 257 U.S. 312, 333 (1921).

In a very recent thought-provoking article, appended hereto 
as Appendix A and entitled “Reverse Discrimination , Dr. 
Morton Teicher, Dean of the School of Social Science of the 
University of North Carolina, discussed the problems of de­
prived groups and remedies for past discrimination including 
quota systems. Since opinions of sociologists were relied upon 
in Brown I, it is important that they not be overlooked here. 
See also the discussion entitled “Busing: A Review of 3 he 
Evidence ”, The Public Interest No. 30 Winter 1973; “The 
Evidence on Busing,” The Public Interest No. 28 Summer 
1972; Ross, “Why Quotas Won't Work,” Reader’s Digest, Feb. 
1973’ p. 51.

The District Court’s metropolitan cross-district order, an 
order purportedly directed at furthering the purposes of the 
equal protection clause, itself clashes with this constitutional 
principle.

The metropolitan busing remedy ordered by the Court is, 
however, unconstitutional on a more fundamental level. It 
invalidly assumes that the equal protection clause of the 
Fourteenth Amendment protects groups and not individuals. 
The entire thrust of the District Court’s order is that the 
rights of blacks as a group must be redressed and that, in the 
process, the rights of individual black children ( and non-black 
children) may be disregarded.

Consider the burden on the individual students who are 
bused in order to achieve a “racial balance” throughout the 
entire Detroit Metropolitan Area. Individual black and white 
students who formerly walked to a nearby school would be 
forced to travel substantial distances to other schools. These 
are not individuals who are burdened because their parents 
have chosen to reside far from the nearest school in the district 
or because they have special educational needs attended to in 
but a single school in the district. These are individual chil-



94 Bradley, et al. v. Milliken, el al. Nos. 72-1809 - 14

dren who arc burdened with being bused solely because they 
are black or white, as the case may be.

Parenthetically, it should be noted that if there were any 
question that busing involves a substantial burden on the 
individual who cannot attend his neighborhood school, that 
question has been dispelled by the urgings of desegregation- 
case plaintiffs that black children can not be “unequally bur­
dened” by being the only students bused, the white students 
being permitted to attend their neighborhood schools, See e.g., 
Haney v. County Bd. of Education of Sevier Co., 429 F.2d 
364, 371-372 (8th Cir. 1970); Brice v. Landis, 314 F.Supp. 974, 
978-979 (N.D. Calif. 1969).

Yet in proposing a remedy for black students as a group 
based on a head count, the District Court entirely disregards 
these individual black and white students and their right not be 
burdened solely on account of their race.

The equal protection clause of the Fourteenth Amendment 
states:

“. . . nor shall any state . . . deny to any person within 
its jurisdiction the equal protection of the laws.” (Em ­
phasis added.)

The Supreme Court has recognized the individual nature of 
the equal protection clause on a number of occasions.5 In

5 Of course, merely because equal protection is an individual right 
does not mean, as implied in U n ite d  S t a t e s  v. J e f f e r s o n  C o. B d .  
o j E d u c a t io n , 372 F.2d 836 (5th Cir. 1966), that a class action will 
not be available under Rule 23 (a) for redress of discrimination. 
A class action lies where a number of persons have similar indi­
vidual rights infringed.

On the other hand, it does not follow that simply because a class 
action is available to redress discrimination individual rights can 
be obliterated by superimposing the “rights” of the class.

The individual plaintiffs, who charge in their Complaint the main­
tenance of a desegregated school system in Detroit, were all Negroes 
except one. Nevertheless, the District Court in determining the 
class held “that the plaintiffs in their action represent all school 
children in the City of Detroit, Michigan, and all Detroit resident



Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al.

Shelley v. Kracmer, 334 U.S. 1, 22 (1948), the Court was ex­
plicit:

“The rights created by the first section of the Fourteenth 
Amendment [the equal protection clause] are, by its 
terms, guaranteed to the individual, lhe rights estab­
lished are personal rights. [Courts n.29.] McCabe v. 
Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 161-162 
(1914); Missouri ex rel. Caines v. Canada, 305 U.S. 337 
(1938); Oyama v. California, 332 U.S. 633 (1948).

It simply defies logic to have a “constitutionally required 
remedy for a group of individuals which, in turn, uncon­
stitutionally denies equal protection to the individuals in the 
group as well as individuals in other groups, and which remedy 
unconstitutionally imposes burdens on students within and 
without the group solely because of their race, 'let this is pre­
cisely what the District Court has held. The Court states (cor­
rectly) that discrimination against the black race in Detroit 
must be remedied, but then orders massive interdistrict busing 
of students to achieve racial balances, denying individual 
blacks (and non-blacks) their right not to be substantially 
burdened solely on account of their race.

But the fundamental error of the District Court order was 
in treating the Michigan school system as a dual system when 
it was not, and in proposing the dismantling of concentration 
of blacks in Detroit and distributing them in fifty-two other 
school districts in three other counties. Virtually all of the 
cases relied upon by the plaintiffs to support the District 
Court’s rulings involved dual school systems.

Barents who have children of school age, . ... Thus white and 
black children and their parents, who are not situated similarly with 
the plaintiffs and may violently disagree with plaintiffs position, are 
arbitrarily placed in the same class. It will also be noted that 
the Complaint sought only the desegregation of the Detroit schools 
and made no claim against other counties and other school districts.



DUE PROCESS VIOLATIONS OF FIFTH  AND 
FOURTEENTH AMENDMENTS TO THE 

CONSTITUTION

Although, as stated by the majority, this is the fourth time 
that the case has been before us, the District Court has not 
as yet adopted any specific plan for desegregation; instead 
the District Court has entered a number of interlocutory or­
ders some of which are now before us for review under 28 
U.S.C. § 1292(b). These include rulings on the issue of Seg­
regation, findings of fact and conclusions of law7 on Detioit 
Only Plan of Desegregation, propriety of a Metropolitan 
remedy to desegregate Detroit Schools, Desegregation Area, 
and Order directing Michigan State officials to purchase 295 
school buses.

This procedure is unprecedented. Usually school desegre­
gation cases are reviewed on appeal only after a plan of de­
segregation has been adopted. It appears to us that the 
District Court has placed the cart before the horse. It has 
entered a number of far-reaching piecemeal interlocutory or­
ders from which no appeal could be taken without the court s 
permission, and which would bring about a fait accompli of 
a metropolitan plan without affording the defendants their 
right of appeal. This was in the absence of necessary and 
indispensable parties and to the prejudice of intervening school 
districts which had been denied effective participation in the 
proceedings.

The Complaint, which has never been amended, sought 
only the desegregation of the Detroit school system. There was 
no allegation that any other school district would be affected. 
As soon as it was determined that other school districts might 
be adversely affected, the District Court should have required 
the plaintiffs to make them parties defendant with a full 
opportunity to be heard on the merits of the case. These school 
districts were necessary and indispensable parties. This is the 
correct procedure, and was followed in Bradley v. School 
Board of the City of Richmond, 338 F.Supp. 67 (E.D. Va.

96 Bradley, ct al. v. Milliken, et al. Nos. 72-1809 - 14

gH
i



Bradley, et al v. Milliken, et al. 97
Nos. 72-1809 - 14

1971), reversed on other grounds, 462 h-2d 10^  |^os 72­
1972), a f d  by equally divided Court, -  ■ ■ ''
549, 72-550, May 21, 19/3) ,  41 U.S.L. . ■ • _

All school districts whose borders were being invaded . j  _

entitled, as a matter of ^  Z Z  a c c o rd

■ n X o it Only plan” and the “Metropolitan plan . They lud 
, 1  r i l l  to ofier evidence and endeavor to prove that there

B z i p Z Z E E Z B

llilisigis
rights were denied to the intervenes. .

While the orders of the District Court on these three issues 
were interlocutory, the judgment entered by the majonty .

S S S S S i

provide lor amentb

' m entdfVplcadings on remand, making new party defendants,
for taUmJendon and for offering additional testimony. These
* • • a wholly illusory with respect to the issues ofprovisions are wh > 1 y d the “Metropolitan

• r F T t o  : pir  "  y excludes these issues from 
reconsideration upon the remand. The only remedy available



Nos. 72-1809 - 1498 Bradley, el al. v. Milliken, ct al.

to the intervening school districts is to petition the Supreme 
Court for certiorari. The eighteen school districts, as well 
as any additional school districts which the District Court 
may add to the desegregation area upon the remand, are with­
out any remedy. Since they have never been made parties

1Cy. 'mr] n°J petltion the Supreme Court for a writ of certi­
orari. They have surely been deprived of their property riedits 
nolj onJy without due process of law, but without any process

The majority opinion, with its disapproval of the “Detroit- 
On y plan and its order to the District Court to consider 
anebadopt a so-called “Metropolitan” plan invading the borders
0 iree counties and the boundaries of fifty-two school dis- 
tncts, completely destroys local control of the public school 
system along with all of its advantages. Local control is a
1 aditional concept of the American public school system Its

ment and value were recognized by the Supreme Court in two 
very recent decisions. San Antonio Independent School Dist 
v. Rodriguez., —  U.S. —  (No. 71-1332, 41 U.S.L.W. 4407 
decided March 21, 1973); and Wright v. Council of the City 
of Emporia, 40/ U.S. 451 (1972). J

In San Antonio Independent School District, supra, Mr Jus­
tice 1 owell, wrote the opinion for the Court, cited and quoted
rom opinions of Chief Justice Burger and Justice Potter Stew- 

ait m W 11 ght, staling:

“The Texas system of school finance is responsive to 
these two forces. While assuring a basic education for 
every child in the State, it permits and encourages a large 
measure of participation in and control of each district’s 
schools at the local level. In an era that has witnessed 
a consistent trend toward centralization of the fune- 
H,ns of government, local sharing of responsibility for 

public education has survived. The merit of local' con­
trol was recognized last Term in both the majority and 
dissenting opinions in Wright v. Council of the Citu of

S 7 T A n , u 's ' 451 <1972)- sLjJhZZthue that [djirect control over decisions vitally affecting



Nos. 72-1809- 14 Bradley, et al. v. Milliken, et ah 99

the education of one’s children is a need that is strongly 
fell in our society.’ Id., at 469. The Chief Justice, in his 
dissent, agreed that ‘[l]ocal control is not only vital 
to continued public support of the schools, but it is of 
overriding importance from an educational standpoint as 
well.’ Id., at 478.

“The persistence of attachment to government at the 
lowest level where education is concerned reflects the 
depth of commitment of its supporters. In part, local 
control means, as Professor Coleman suggests, the free­
dom to devote more money to the education of one’s 
children. Equally important, however, is the opportunity 
it offers for participation in the decision-making process 
that determines how those local tax dollars will be spent. 
Each locality is free to tailor local programs to local needs. 
Pluralism also affords some opportunity for experimenta­
tion, innovation, and a healthy competition for educa­
tional excellence. An analogy to the Nation-State rela­
tionship in our federal system seems uniquely appropriate. 
Mr. Justice Brandeis identified as one of the peculiar 
strengths of our form of government each State’s free­
dom to serve as a laboratory . . . and try novel social 
and economic experiments.’ No area of social concern 
stands to profit more from a multiplicity of viewpoints and 
from a diversity of approaches than does public educa­
tion.” (41 U.S.LAV. at 4422)

As we have pointed out, the facts of the present case furnish 
no basis whatsoever for the Court to destroy local control of 
our public school system.

Unreasonable and intolerable conditions, however, were im­
posed by the Court on the intervention by the school districts.6

6 “The interventions granted this day shall be subject to the 
following conditions:

1. No intervenor will be permitted to assert any claim or defense 
previously adjudicated by the court.

2. No intervenor shall reopen any question or issue which has 
previously been decided by the court.

3. The participation of the intervenors considered this day shall



100 Bradley, el al. v. Milliken, et al. Nos. 72-1809 - 14

The school districts filed objections to the conditions which 
were never ruled on by the Court. These conditions alone 
constituted a denial of due process to the intervenors who were 
precluded from raising questions necessary for their own pro­
tection and who were denied the right to be heard fully on 
the merits of the case.

The type of intervention permitted by the District Court 
is graphically illustrated in the brief filed by counsel for the 
intervenors in which he complains about the following incidents 
with citation of supporting record references:

“Seven days after allowing appellants to intervene, as 
a matter of right but subject to oppressive conditions, 
[27] the trial court required the filing of written briefs 
on the legal propriety of a metropolitan plan of desegre-

be subordinated to that of the original parties and previous in­
tervenors. _

4. The new intervenors shall not initiate discovery proceedings
except by permission of the court upon application in writing, ac­
companied by a showing that no present party plans to or is willing 
to undertake the particular discovery sought and that the particular 
matter to be discovered is relevant to the current stage of the pro­

's. ceedings.
5. No new intervenor shall be permitted to seek a delay of any 

proceeding in this cause; and he shall be bound by the brief and 
hearing schedule established by the court’s Notice to Counsel, issued 
March 6, 1972.

6. New intervenors will not file counterclaims or cross-complaints; 
nor will they be permitted to seek the joinder of additional parties 
or the dismissal of present parties, except upon a showing that such 
action will not result in delay.

7. New intervenors are granted intervention for two principal 
purposes: (a) To advise the court, by brief, of the legal propriety 
or impropriety of considering a metropolitan plan; (b) to review 
any plan or plans for the desegregation of the so-called larger 
Detroit Metropolitan area, and submitting objections, modifications or

' alternatives to it or them, and in accordance with the requirements
of the United States Constitution and the prior orders of this court.

8. New intervenors shall present evidence, if any they have, 
through witnesses to a number to be set, and limited, if necessary, 
by the court, following conference.

9. With regard to the examination of witnesses, all new inter­
venors shall among themselves select one attorney per witness to 
act for them, unless one or more of the new intervenors show cause 
otherwise. These conditions of intervention shall remain subject 
to change or modification by the court in the interest of timely 
disposition of the case.

DATE: March 15, 1972.” App. at 408-410.



OS. 72-1809 - 14

cation (A. Ia397) The court did not require or permit 
oral argument. Less than 36 hours later the court issued 
its ‘Ruling on Propriety of Considering a Metropolitan 
Remedv to Accomplish Desegregation of the Public 
Schools of the City of Detroit’ (A. Ia439) rejecting the 
contentions of Intervenor School Districts. Testimony 
regarding metropolitan plans commenced four days later 
(a  weekend and Motion day falling between) at 10:10 
A M Prior to the noon recess, just two hours after in­
tervenor School District counsel had first appeared m 
the District Court and before completion of testimony 
of a single witness, the District Judge announced that 
counsel could stop by his office and pick up lus Findings 
of Fact and Conclusions of Law on Detroit-only Plans 
of Desegregation (A. Ia456) wherein the court announced 
its intention to seek a more desirable racial mix by means 
of a Metropolitan Plan.

Thus, without any opportunity for oral argument, with­
out opportunity to examine or cross-examine one witness, 
without opportunity to present one shred of evidence, 
and indeed, without opportunity to obtain copies of previ­
ous pleadings and testimony (let alone read same) the 
Intervenor School Districts had been effectively fore­
closed from protecting their interests. [28].

He further complains about the fact that the Couit per­
mitted him to take the deposition of Dr. David Armor, a soci­
ologist of Harvard University, and then refused to receive it

in evidence. , . . ,
Dr. Armor was a well-qualified expert. He had previously

written an article entitled “The Evidence on Busing pub­
lished in The Public Interest No. 28, Summer 1972, which ex­
ploded some of the existing theories on educational achieve­
ment resulting from busing.

In a subsequent article by Dr. Thomas F. Pettigrew and 
associates, they responded to Dr. Armor's article on busing and 
quoted from Judge Roth’s ruling excluding Ins deposition as

follows:

Bradley, et al v. Millikan, et al. 101



102 Bradley, et al. v. Milliken, et ah Nos. 72-1809- 14

“This fundamental fact was dramatically demonstrated 
by the judicial reaction to Armor’s deposition in the De­
troit school ease, a deposition based on an earlier draft 
of ‘The Evidence on Busing.’ On June 12, 1972. U.S. 
District Court Judge Stephen H. Roth ruled the deposition 
inadmissible as evidence on the grounds of irrelevancy. 
The deposition, in Judge Roth’s view, represented ‘a new 
rationale for a return to the discredited “separate but 
equal policy . . . .’ ”7 The Public Interest No. 30, Winter 
1973.

In an article entitled “The Double Double Standard” ap­
pearing in the same issue at page 119, Dr. Armor replied to 
the Pettigrew article stating among other things:

The double standard here is obvious. One willinglv 
applies social science findings to public policy if they are 
in accordance with one’s values, but declares them irrele­
vant if they contradict one’s values. . . Id. at 130.

The Supreme Court in Brown I relied heavily on testimony 
of sociologists as to the adverse effect of segregation on the 
educational achievement of Negro children. It is inconceiva­
ble that the District Court would hold contrary testimony of 
a sociologist irrelevant and exclude it. This was prejudicial 
error. In a court of justice not merely one side but both 
sides are entitled to offer evidence.

The District Court quashed a subpoena duces tecum is­
sued by the intervenors for Charles Wells, an employee of 
the Detroit Board of Education, to bring with him “all rec­
ords of the past two (2) years concerning incidents involving 
damage to property, safety of pupils or staff (whether perpe­
trated by other pupils, staff or outsiders) criminal activities, 
or fires in or o t school property as regards each school in the 
Detroit public school system.”

7 Judge Roth’s language is not understandable in view of the 1869 
decision of the Supreme Court of Michigan in P e o p l e ,  e x  r e l .  W o r k ­
m a n  v. B o a r d  o f  E d u c a t i o n  of D et ro it ,  szipra, upholding the right of 
Negro children to attend any school in their district.



Although the Court had previously received the testimony of 
Freeman Flynn, offered by plaintiffs on the subject of safety, 
it denied permission to the Intervenors to offer evidence on 
the same subject by quashing the subpoena. The Court was 
not that technical in admitting into evidence Exhibit 16, al­
though it was not properly identified, stating that the Court 
decided to follow Justice of the Peace Canes rule: We will 
let it in for what it is worth.” Indeed, he did, but did not 
apply Justice Cane’s rule to the deposition.

Due process required an opportunity to be heard which 
must be granted at a meaningful time and in a meaningful 
manner. Jenkins v. McKeithen, 395 U.S. 411 (1969); Jn Re 
Gault, 387 U.S. 1, 19-21 (1967); Armstrong v. Mango, 380 
U.S. 545, 552 (1965); In Re Oliver, 333 U.S. 257 (1948).

As well stated in Railroad Commisison of California v. Pa­
cific Gas & Electric Co., 302 U.S. 388, 393 (1938):

“The right to a fair and open hearing is one of the 
rudiments of fair play assured to c cry litigant by the 
Federal Constitution as a minimal requirement. Ohio Bell 
Telephone Co. v. Public Utilities Comm a, 301 U.S. 292, 
304, 305.”

The intervenors were entitled to the effective assistance of 
counsel, to have a reasonable time to examine the papers in 
the case and to prepare for trial, and to offer evidence in sup­
port of their contentions before the case is decided against 
them.

One other matter is worthy of comment. The District 
Court appointed a nine-member panel to set up a metropolitan 
plan of desegregation. Three members of the panel were 
from Detroit. Only one member was appointed to represent 
the fifty-two school districts whose school population exceeds 
that of Detroit by more than two times. This is a plain ex­
ample of unfairness.

The Detroit Board of Education, although vigorously deny­
ing the commission of any purposeful segregative acts com-

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, el ah 103

" " • S '*



104 Bradley, et al. v. Milliken, et al. Nos. 72-1809- 14

milted against Negroes and contending that plaintiffs have 
not proven their ease, has taken an unusual and extraordinary 
position. It supports the plaintiffs on the issue of a metro­
politan plan contending that if a constitutional violation has 
been shown, only such a drastic remedy will rectify it. It 
is obvious that the Detroit Board was motivated by its con­
cern that a 63.87-black and a 3 t.27-white quota was too heavi­
ly weighted with black pupils, and that it owed a constitu­
tional duty to dilute that quota and to distribute the black- 
pupil population of Detroit into the other three counties and 
fifty-two additional school districts, in order to effectuate a 
quota of about 2o7-black and 757-white children in each school.

It is submitted that no such constitutional duty exists and 
that the District Court erred in ordering it; Swann, supra.

THE ELEVENTH AMENDMENT TO THE 
CONSTITUTION PROSCRIBES SUITS AGAINST 

THE STATE OF MICHIGAN, AND IT HAS 
SOVEREIGN IMMUNITY

The plaintiffs have attempted to sue the State of Michigan 
by making the Governor, the Attorney General, and the Act­
ing Superintendent of Schools parties defendant. Later, when 
the District Court issued an order prior to the adoption of 
any plan for desegregation, to purchase 295 buses, it made 
the Treasurer of the State a party defendant in order to se­
quester funds in his hands.

It was the theory of the plaintiffs that under the doctrine 
of vicarious liability the state was liable for the acts and con­
duct of the Detroit Board of Education and of other political 
subdivisions, and that since the State is a party defendant it 
really was not necessary to make the Detroit School Board, 
or the school boards in the other districts, parties to the case. 
This theory has no legal support and is unsound. Each school 
district is a separate and independent corporate unit with 
Power to sue and to be sued, and has separate taxpayers whose



property is taxed for the support of the schools as well as for 
the payment of the district’s bond issues.

If, as plaintiffs contend, the State has been made a party 
defendant, then such an action against the State is proseiibed 
by the Eleventh Amendment.

The most recent decision of the Supreme Court upholding 
sovereign immunity of a state is Krause v. State of Ohio, 
---- U.S. —  (1972).

To the same effect is Ex Parte State of New York, 256 U.S. 
490 (1921), where the court made it clear that the applica­
bility of the Eleventh Amendment “is to be determined not by 
the mere names of the titular parties but by the essential 
nature and effect of the proceeding as it appears from the 
entire record.” Id. at 500.

The general rule was stated in Dugan v. Rank, 372 U.S. 
609 (1963), as follows:

“The general rule is that a suit is against the sovereign 
if ‘the judgment sought would expend itself on the pub­
lic treasury or domain or interfere with the public ad­
ministration,’ Land v. Dollar, 330 U.S. 731, 738 (1947), or 
if the effect of the judgment would be ‘to restrain the 
Government from acting, or to compel it to act. Larson 
v. Domestic & Loreign Corp., supra, at /04; Lx parte New 
York, 256 U.S. 490, 502 (1921).”

The Civil Rights Act has not yet been construed as an ex­
ception to the Eleventh Amendment.

The order issued against the State defendants provided:

“1. The Defendant Detroit Board of Education shall ac­
quire by purchase, lease or other contractual arrange­
ment at least 295 buses for use in the interim desegrega­
tion plan during the 1972-73 school year. All financial ob­
ligations incurred as the result of this Order shall be the 
sole financial obligation of the State Defendants, includ­
ing the added State Defendant State Treasurer Allison 
Green, as set forth below in Paragraph 2. Said order,

Nos. 72-1809 - 14 Bradley, et al. v. Millikan, et al. 105



106 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14

lease, or other contract shall be entered into by negotia­
tion and without the necessity for bids forthwith and in 
no event later than Thursday, July 13, 1972.

2. Ih e State Defendants shall bear the cost of this 
acquisition and State Defendants, including the added 
State Defendant Green, shall take all necessary steps 
utilizing existing funds and sources of revenue, to be 
acquired State funds, legislatively authorized and funds 
directed by the State Constitution to the State School 
Aid Funds and by re-allocation of existing or new funds 
to pay for said transportation acquisition either directly 
or through the Defendant Detroit Board.” App. at 576 
577.

This order imposed a personal liability on the State de­
fendants and would require them, if they complied with 
it, to misappropriate and misapply State funds in violation 
of state law. If they did not comply with it they could 
be punished for contempt.

In addition, the State defendants were ordered to pay the 
cost of the nine-member panel appointed by the Court to 
devise the Metropolitan Plan, (1 Ba 538). This cost was 
estimated at $22,500. All defendants were ordered to hire 
black counsellors and provide in-service training for teachers 
in the fifty-three school district desegregation area. The in­
itial cost of the in-training was about $3,000,000.

The District Court was without authority to impose a per­
sonal liability on the State defendants or to order them to 
misapply and misappropriate State funds in violation of State 
law.8

The legislature of Michigan is not likely to act on the sug­
gestion of the majority, accompanied by a veiled threat if it 
fails to so act, that it change school district boundary lines

8 The orders entered by the District Court have certainly been ex­
pended on the public treasury, have interfered with public administra­
tion, have restrained the State from acting, and have compelled it 
to act, which is the test for determining whether the action is against 
the State, under D u g a n  v. R a n k ,  s u p r a .  Such an action is clearly 
proscribed by the Eleventh Amendment.



107

to benefit a few at the expense of many, and thereby violate 
the constitutional rights of many. School district lines may 
not be changed for an unconstitutional purpose. United States 
v. Scotland Neck City Board of Education, 407 U.S. 484 (1972) ■ 
Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). 
Since an adequate remedy already exists within the Detroit 
school district to correct any constitutional violation therein, 
there is no occasion for the legislature to alter the existiim 
neutral, non-discriminatory school district boundaries.

Nos. 72-1809 -14 Bradley, el al. v. Millikan, et al.

? R ELIEF

Because of prejudicial errors of constitutional magnitude 
committed by the District Court, each of the orders from which 
an appeal has been taken should be reversed and a new trial 
granted with instructions to consider and adopt a Detroit- 
only desegregation plan to remedy any constitutional viola­
tions which it may find to exist in said Guy.

The Governor, the Attorney General and the Treasurer of 
the State should be dismissed, as they are unnecessary parties 
to a determination of the issues of the case.



APPENDIX A

108 Bradley, et al. v. Milliken, et al. Nos. 72-1809-14

REVERSE DISCRIMINATION

The development of “affirmative action programs for minori­
ty groups is posing some intractable problems. These prob­
lems arise from the existence of conflicting, fundamentally in­
compatible values. On the one hand, we social workeis value 
righting the wrongs perpetrated for too long on minority 
groups. On the other hand, we value the right of all persons 
to be treated equally.

Distributive justice requires the dissemination of benefits 
to all without depriving any individual or group of something 
it values. This is far more in keeping with fairness and equity 
than the idea of redistributive justice, which confers benefits 
on one group at the expense of others. Redistributive justice, 
then, leads to reverse discrimination.

Redistributive justice is advocated to atone for our failuie 
to live up to the belief in the capacity and the dignity of 
each human being. This failure does not negate the sound­
ness of that belief. Rather, it should spur us to correct the 
failure—not the belief. When practices fail to reflect princi­
ples, then we should change our practices, not our principles.

For social workers, the issue has come to the forefiont in 
agency and university hiring practices and admissions policies 
of schools of social work. Social agencies, especially those 
serving ghetto populations, are giving preference to minority 
group members in employment. Universities, beset by pres­
sures from the U.S. Department of Health, Education, and 
Welfare, are similarly giving preference to women and minori­
ty groups. Some schools of social work have adopted quota 
systems in dealing with candidates for admission.

These practices conflict with the fundamental social work 
belief in individual human dignity and the libertarian belief 
that each person is entitled to be judged and valued as an in­
dividual. Quota systems and preferential treatment arc arti-



Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al. 109

ficial restrictions on this right because they substitute irrele­
vant group characteristics such as race or religion for con­
sideration of an individual’s capacity and potential. Respect 
for the individual is a basic part of social work’s credo and 
commitment. We cannot reconcile this conviction with treating 
people only as representatives of a racial group.

When we try to eliminate discrimination and compensate 
for past wrongs by quota systems, we substitute one injustice 
for another. We deny the inherent equality of all people and 
undermine the proposition that each individual should have 
the same opportunity to achieve and to be judged according 
to his merits. We pit group against group and destroy the 
possibility of harmonious interaction. Quotas are pernicious 
instruments; they represent an unacceptable means for achiev­
ing a desirable end. “Preferential quotas are condescending, 
divisive and detrimental to the integrity of a university.”1

A quota system institutionalizes discrimination and must 
be vigorously opposed. Ultimately, it is a form of segrega­
tion. The progressive democratization of the university 
through the elimination of any criterion for admission other 
than merit has been one of the success stories of America. Now 
some of the benighted beneficiaries of that victory ally them­
selves with those antilibertarian forces that would have blocked 
their own access to education. They are ready to eradicate 
the victory of equal opportunity over discriminatory quotas, 
for which their forebears fought so hard. That victory has 
only been partially won. We cannot falter now by substituting 
a host of irrelevant and inappropriate considerations for merit. 
The test a university must apply to each candidate is merit— 
not inherited status.

Some advocates of quota systems believe that quotas will 
redress wrongs and thus produce equal opportunity, when 
actually they eliminate equal opportunity. Quotas have his­
torically been used for exclusion. They were an insidious man-

i Editorial, “Discrimination by HEW,” N e w  Y o r k  T i m e s ,  March 2, 
1972.



110 Nos. 72-1809-14

ifestation of institutionalized bigotry, covertly designed to ex­
clude unwanted groups. They were wrong in the past and 
they are wrong now, even though they are now designed to 
achieve inclusion, rather than exclusion. Discriminatory prac­
tices are wrong, no matter what their intent. Whether they 
are for or against particular groups, quota systems are morally 
indefensible.

bor social workers, the distinctions among people based 
on race, ethnic background, religion, or creed that inhere in 
quota systems are particularly abhorrent. Our regard for the 
individual and our objection to hereditary caste as a status de­
terminant should make quota systems especially impossible for 
us to accept.

boi schools of social work, the argument that quotas for 
admission will produce student bodies that represent the pro­
portion of racial, ethnic, or religious groups in society is a curi­
ous expression of bigotry. Proportional representation on a 
group basis is highly discriminatory. What taxonomy shall 
be used to categorize the groups that should be represented? 
Among the characteristics that defy classification are the fol­
lowing: cultural, economic, ethnic, gender, geographic, linguis­
tic, national, occupational, racial, religious, social class and 
tribal.

Some minority groups include the following: the aged, 
American Indians, Asian-Americans, Blacks, capitalists, Catho­
lics, Chicanos, easterners, factory workers, fanners, German- 
Americans, Hispanic Americans, Hungarian-Americans, im­
migrants, Irish-Americans, Italian-Americans, Jews, the lower 
class, migrants, nomads, northerners, Polish-Americans, the 
poor, Puerto Ricans, slum-dwellers, southerners, Swedish- 
Americans,' the upper class, wasps, westerners, and youths.

Who N not a member of a minority group? Who cannot 
find a place among this woefully incomplete list of minorities?

W e are all minorities. Each of us comes from a distinctive 
lacial, religious,' or ethnic stock. Each of us is a newcomer or 
a descendant of newcomers. Even the native Americans-the

Bradley, et al. v. Milliken, et al



Indians—came to North America from across the Bering Straits 
25,000 years ago. Each of us has lies to our own roots. Each 
of5us has pride in our origins. Each minority contributes to 
America-to its building, its evolution, and its maintenance.

Morton Teicher

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al 111

Morton Teicher, Ph.D., is Dean, School of Social Work, Uni 
versity of North Carolina, Chapel Hill, North Carolina.



Kent» Circuit Judge, concurring in part and dissenting in 
part: °

Whdc 1 cannot concur in the majority opinion in these cases 
1 am in accord with certain of the conclusions announced in 
that opinion.

To narrow the scope of this dissent it should be stated at 
the outset that I am in complete agreement with the majori­
ty s conclusion that on the record as presented and because 
°t the concessions made by counsel for the School District 
oi the City of Detroit during oral argument it appears without 
question that the Detroit city schools were unconstitutionally 
segregated and that an order for integration of those schools 
must be fashioned by the District Court. I am further in ac­
cord with the conclusion of the majority that the District 
Courts order for the purchase of buses for use in effectuating 
a plan of integration covering the metropolitan Detroit area 
is premature and must be stayed until an appropriate plan 
has been approved by the DiYrict Court. I agree that each 
ot the suburban school districts which may be affected bv 
any proposed metropolitan plan is a necessary party to the 
htigation within the meaning of Rule 19, Federal Rules of 
Civil 1 rocedure, as found by the majority and that the plead­
ings must be amended to join such school districts and bring 
all parties before the Court.

It is at this point that I separate from the majority and 
md myself compelled to state the reasons why I cannot join 

m the majority opinion. The majority opinion approves the 
Distiict Courts conclusion that a Detroit only integration plan 
would be insufficient to cure the unconstitutional segregation 
found to have been imposed in the Detroit city schools. Those 
who join in such a conclusion appear to me to have a mis­
apprehension of the record in this case.

As stated by the Court in Swann v. Charlotte-Mecklenbi 
Board of Education, 402 U.S. 1 (1971), at page 22:

irg
“The constant theme and thrust of every holding from 

Biown I to date is that state-enforced separation of races



in public schools is discrimination that violates the Equal 
Protection Clause. The remedy commanded was to dis­
mantle dual school systems.”

The “state-enforced separation of races” to which refer­
ence is made in the quoted material was not found to exist 
in the metropolitan Detroit area. While the District Judge 
made comments about the segregation of the races with ref­
erence to the situation existing within the City of Detroit 
as related to at least some of the suburban communities with­
in the counties of Wayne, Oakland and Macomb, which com­
ments have been quoted with approval and adopted by the 
majority of this Court, we cannot escape the conclusion of the 
District Judge, as stated in his formal opinion, 345 F.Supp. 914 
(E.D. Mich. 1972), at page 920, where the Court said:

“It should be noted that the court has taken no proofs 
with respect to the establishment of the boundaries of the 
86 public school districts in the coun'ies of Wayne, Oak­
land and Macomb, nor on the issue of whether, with the 
exclusion of the city of Detroit school district, such school 
districts have committed acts of de jure segregation.

With such a statement in the record it is beyond the com­
prehension of this writer to understand how the majority 
can approve the conclusion of the District Court which re­
quires that at least some of the 86 public school districts out­
side the City of Detroit should be embraced within a metro­
politan school district for the purpose of desegregating the 
Detroit city schools, the only district which has been found 
from the evidence to have “committed acts of de jure segre­
gation.” Without proof with regard to segregatory activities 
within the other school districts or in regard to district bound­
aries any conclusion by the District Court or by this Couit that 
school district boundaries of other districts had the effect of 
maintaining or creating unconstitutionally segregated schools 
within the City of Detroit is obviously based on irrelevant, 
unsubstantial evidence or totally unsupported assumptions.

Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al. 113



114 Bradley, et al. v. Milliken, ct al. Nos. 72-1809- 14

I am in accord with the application of the statement of the 
Court of Appeals for the Fifth Circuit (though not in the 
limitation to specific schools) in United States v. Texas Educa­
tion Agency, 467 F.2d 848 (5th Cir. 1972), cn banc, where 
at page 883 the majority opinion quoted the statement in 
Swann that the nature of the violation determines the scope 
of the remedy,” and then proceeded to conclude at page 884:

“The power of the district court will depend first upon 
a finding of the proscribed discrimination in the school 
system. Swann, 402 U.S. at 16, 91 S.Ct. 1267, 28 L.Ed. 
554. In determining the fa t of discrimination vel non, 
whether imposed by statute or as a result of official action, 
the district court must identify the school or schools which 
are segregated as a result of such discrimination. This 
identification must be supported by findings of fact. The 
importance of such a determination will be seen in some 
populous school districts embracing large geographical 
areas. There may be segregated schools which are the 
result of unconstitutional statutes or of official action. 
There may be other one race schools which are the product 
of neutral, non-discriminatory forces.”

If we accept the premise that “the nature of the violation de­
termines the scope of the remedy,” as announced by the 
United States Supreme Court, then, clearly, the remedy pro­
posed by the District Court, and approved by a majority of 
this Court, goes far beyond the “nature of the violation” since 
the District Court has already stated as a conclusion that no 
evidence was taken as to any violation with regard to anv 
suburban school district.

While the minority in the Texas Education Agency case 
disapproved of the suggestion of the majority that specific 
schools within a system must be found to have been segre­
gated, and healed separately, (4 /6  F.2d 888 where the minori­
ty speaks through Judge Wisdom), yet the minority does 
not find nor even suggest that it would be appropriate to 
expand the.order for relief beyond the system found to have



committed acts which violated the constitutional rights of the 
plaintiffs in the action.

Through the majority’s opinion runs the thread which holds 
it together. That thread is the unwillingness apparent in 
the minds of the majority to sanction a black school district 
within a city which it concludes will be surrounded by white 
suburbs. While the majority does not now state that such 
a demographic pattern is inherently unconstitutional, never­
theless, I am persuaded that those who subscribe to the ma­
jority opinion are convinced, as stated in the slip opinion 
of the original panel, “big city school systems for blacks sur­
rounded by suburban school systems for whites cannot rep­
resent equal protection of the law. While that statement 
has been removed from the opinion of the majoiity, yet the 
premise upon which the statement was obviously based must 
necessarily form the foundation for the conclusions reached 
in the majority opinion. It may be that such will become 
the law, but such a conclusion should not receive our approval 
on a record such as exists in this case.

As has been pointed out in the other opinions, the bound­
aries of the school district of the City of Detroit have been 
co-terminus with the boundaries of the City of Deti oit for 
more than 100 years. Those lines were laid out at a time 
when there was a minimal black population in the metropolitan 
area of Detroit, if there was such metropolitan area at the 
time the boundary lines were established.

The District Judge and the majority make much of the 
fact that “if the boundary lines of the school districts of the 
City of Detroit and the surrounding suburbs were drawn today 
few would doubt that they could not withstand constitutional 
challenge.” This interesting statement provides a fertile field 
for speculation but certainly has no validity. A proposal to 
adopt an amendment to the Constitution of the United States 
in the same manner and with the same people voting as 
adopted the Constitution of the United States would be stricken 
immediately. I know of no one who would suggest that be-

Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al, 115



116 Bradley, et al. v. MilHken, et al. Nos. 72-1809- 14

cause of changes in the methods of electing the membership 
of state legislatures that the Constitution of the United States 
thereby becomes unconstitutional. The quoted statement is 
to me a complete non sequitur.

I know of no authority which would permit a Court to 
announce a conclusion, based upon a violation of the Con­
stitution, absent the taking of proofs to establish such con­
stitutional violation, which proofs the District Judge stated 
he did not take in this case.

Absent proofs, which clearly were not taken, to establish 
a violation of the constitutional rights of these plaintiffs by 
the suburban school district personnel and by the State of 
Michigan in laying out suburban school district lines it would 
appear that we are in complete and absolute conflict with 
the prior decisions of this Court. In Deal v. Cincinnati Board 
of Education, 369 F.2d 55 (6th Cir. 1966), cert, denied 389 
U.S. 847 (1967) ( Deal 1), this Court rejected the contention 
that the state had an affirmative obligation to balance schools 
racially (in that case within the City of Cincinnati) “to 
counteract the variety of private pressures that now operate 
to restrict the range of choices presented to each school child. ’ 
369 F.2d at 59.

Deal 1 was cited with approval by this Court in Davis v. 
School District of City of Pontiac, 443 F.2d 573 (6th Cir. 1971), 
cert, denied 404 U.S. 913 (1971). The Court said at page 575:

“Appellants correctly contend that under Deal v. Cin­
cinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), cert, 
denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967), 
a school district has no affirmative obligation to achieve a 
balance of the races in the schools when the existing im­
balance is not attributable to school policies or practices 
and is the result of housing patterns and other forces over 
which the school administration had no control.”

The majority, while refusing to overrule Deal I and Davis, 
creates without evidence an obligation to achieve a balance 
of the races in schools not in a school district but in a metro-



area the opportunity i • secrre«ative practices.
M  not b e e n a n d  Pod*.

<* K“  336 F '2d 988>
998 (10th Cir. 1964):

“ a also contend that even though the Board
^  policy of intentional segregation

anpta, the Board has » ^
eliminate segregaJ, ’ to be authority to support
^ S e n ^  S t e r  rule is that although the Four-
t e e n t h A n t e n c h u e n t p ^ ^ g . l r ^ d ^ t c ^

™  constitutional right to have white 

children attend school with them.

Keyes v. School District No. 1,
990, 1005 (10th Cir. 1971), cert, granted 4 0 . U.S. 103o [ U l  )

“Our reluctance to embark on such a course stems
r i Vo in ignore a very serious educationalnot to m  a ties e cign ore a v JT ^  we are

and social ill, but trom tn. Board of Education,

™ “ oV T o98 Before tire powei of the federal courts 
“ invoked in this hind of case a constitutronal 
deprivation must be shown. Brown v. Board d  U■ i  *
(rrbhc schools solely on t h e ^

( ”c " m  t S C n  tbprohihi. racially in,bahurccd

considering the issue. - Deal v. Crnenrnat, Board of Edo-

\i0s 72-1809 - 14 Bradley, cl al v. MiUiken, ct al. H7



.1

118 Bradley, et ah v. Milliken, et al. Nos. 72-1809- 14

cation, 369 F.2d 55 (6th Cir. 1966); 419 F.2d 1387 
(1969); Springfield School Committee v. Barksdale, 34S 
F.2d 261 (1st Cir. 1965); Bell v. School City of Gary, 
Indiana, 324 F.2d 209 (7th Cir. 1963).”

United. States v. Board, of School Commissioners of City of 
Indianapolis, Indiana, 474 F.2d 81, 83, 84 (7th Cir. 1973):

- “Appellants first assert that there is no constitutional 
duty to remedy the effects of racial imbalance or to main­
tain any particular racial balance in the public schools. 
The Government does not quarrel with this assertion, and, 
indeed, insofar as it relates to purely de facto segrega­
tion, unaided by any state action, it is the law of this 
circuit, Bell v. School City of Gary, Indiana, 324 F.2d 
209 (7th Cir. 1963), aff’g 213 F.Supp. 819 (N.D.Ind. 
1963).”

A similar prayer for re-districting was before the District 
Court in Spencer v. Ktigler, 326 F.Supp. 1235 (D.N.J. 1971), 
and was rejected. The Supreme Court affirmed without opin­
ion, 404 U.S. 1027 (1972) with Mr. Justice Douglas dissenting.

While the Fifth Circuit in Cisneros v. Corpus Christi In­
dependent School District, 467 F.2d 142 (5th Cir. 1972), en 
banc, sustained a finding of unconstitutional segregation re­
sulting from a neighborhood school policy which effectively 
segregated Mexiean-Americans within a school district it did 
so based upon competent evidence.

The majority here announces, “If school boundary lines 
cannot be changed for an unconstitutional purpose, it follows 
logically that existing boundary lines cannot be frozen for 
an unconstitutional purpose.” (Pg. 65). Again it may be 
that this will become the law. Clearly, the cases cited have 
reached this conclusion as to the attendance lines existing 
within a specific school system. I know of no case which 
permits such q conclusion as to boundary lines existing be­
tween school districts, and while the conclusion that existing 
boundary lines cannot be frozen for an unconstitutional pur-



pose may flow logically from the premise announced it should 
be based upon competent evidence justifying a finding of 
fact that such boundary lines have been frozen for an un­
constitutional purpose, and the District Judge in this case 
announced that he took no evidence on that issue.

I do not understand how the majority can reach a conclu­
sion as to an appropriate remedy without evidence of any 
violation, particularly when in Deal I and Deal II a contrary 
conclusion has been reached. As stated at o69 F.2d, page 59.

“If the state or any of its agencies has not adopted im­
permissible racial criteria in its treatment of individuals 
then there is no violation of the Constitution.

and again in Davis this Court framed the issues as follows:

“Accordingly, the principal question before us is 
whether there is sufficient evidence in the record to sup­
port the determination of the District Judge that appel­
lants are responsible for the existing racial imbalance in 
the Pontiac School System.” 443 F.2d at 575. (Emphasis 
supplied).

and in responding to that issue this Court said:

“Although, as the District Court stated, each decision 
considered alone might not compel the conclusion that the 
Board of Education intended to foster segregation, taken 
together, they support the conclusion that a purposeful 
pattern of racial discrimination has existed in the Pontiac 
school system for at least 15 years. 443 F .2d at o/6.

Thus, the cases in this Court, prior to this case, appear 
conclusively to have been decided on the basis of discrimina­
tory intent, and unless we specifically reverse our previous 
decisions we cannot reach the conclusion announced by the 
majority in a case where the District Court specifically stated 
that it did not take any evidence to establish any discriminatory 
intent on the part of the ^suburban school districts who weie

Nos. 72-1809- 14 Bradley, et al. v. Milliken, et al 119



discriminatory intern. V e !/^  T s c h f o U ) L ^ A d T ' d  °* *

v t t e  fmzfTu (\°f ?■ 1 9 7 1 ) ’  ^  7 7 7
F.2d 209 ( 7 l! c  i o 7  “ 0“'l, C “ V «  C *y - M l * * ,  321 

;  7 c  ( C 1963)> cert- denied 377 U.S 9 9 4  /p k n  
United Siates v. S d W  Dhfrirt i n  r  7 ^
F.2d 1125 (7th C l , I 0 0 , 7 7 i t 7 0 2  7 7

^ 7 : 7 7 7 m 07 0io7Trao/i"rfi1'^
848 (5th c "  7 7 “  ¥- ^  W  7  f 7

in the" a ty eo r D ^ T a L l° J ^ tts f ^  ' * * '
of pupils within the Citv of Dor ! fol transP°rtation

S < £ z f f s  T T 1  “ r 3 ' - « ■ ” £  

7 7 : 7 : : 7 ' h City ot * » • « »  7  h„s:-f:7 sE?7 “"7 “
District Court and by , L  n ta r tu  f ^  lI“

W  been gnilty of ^

S 7 " r 7 '  ” 7  “ »*  ™ * supported by^ubstan-

partics -  such 1S 7 7 7 :

It seems obvious to me that the majority and the District 
Court have become confused and are unable to d; r  i 
between violation and remedy. As stated by the 7 7  
Court no evidence was taken as to any v io la te  in the lirilrg



Bradley, et al. v. Millikan, et al. 121
Nos. 72-1809 - 14 

of the boundaries of the suburban school systems n< as to
because of the relationship between J h e ^ b u ,

ban school systems and the schools o f t ie  iy
The errors to which we have already alluded were brought 

about by the failure on the part of the District Com o r 
quire that all interested parties be brought into rc e.
Sie earliest appropriate moment. ^  S h

^ t f r ^ r e n i s  u  ch d d S : L u lle d  in the De

sai'd t̂o several witnesses in this case how do youdesegregate 
a black city, or a black - 1 ico system^ App. VoL 
260. Subsequently, and on July 1/, i J 'b  A ,
Bled a motion in an effort to require the joinder of the 85 
suburban school districts as parties defendant and gaxe 

following reasons:
“1 That said suburban school districts am agents o 

the State of Michigan and subject to the jurisdiction a 
supervision of the State Board of Education.

“2. That said school districts are white segregated 
school districts.

«o Tw  Questions of law and fact common to the 
d e fe n d ltS e h o o ! District of the City of Detroit and 
proposed ’additional suburban school districts have been 
presented to this Court.

“4 In the event that this Court rules for the plain­
tiff in the absence of joinder of the proposed school dis­
torts complete relief cannot be awarded the p am tiff 
und in addition would impose an unconstitutional buidei 
^  tlm intervening defendant, in that ^  resu ting sc 1 0 0 I 
district of the City of Detroit would be and ih remai 
as established by the proofs already submitted an 
ferior school district.” App. I at 14^-3.



122 Bradley, et al. v. Milliken, et al. Nos. 72-1809 - 14

The tiial court did not rule upon this motion, but in the 
course of the proceedings discussed it in September, 1971, and 
concluded that the motion should not be considered at’ that 
time because “in considering the motion to add the listed 
school districts we pause to note that the proposed action has
to do with relief.” App. Vol. I, pg. 215, 338 F.Supp. 582, at 
595.

Between February 9 and February 17, 1972, four parties, 
Grosse Poiute Public Schools, Allen Park Public Schools, et 
ay  Southfield Public Schools and the School District for the 
City of Royal Oak, made motions for leave to intervene. These 
motions were finally granted on March 15, 1972, during the 
second day of hearing on the plans for desegregation in­
volving only the Detroit school system. Intervention, ac­
cording to the District Judge, was permitted under Rule 24 
J a )> ‘‘Intervention of Right,” and also under Rule 24(b ), 
lei missive Intervention. Before permitting such interven­

tion and on March 6, 1972, the District Judge set up a time­
table for the consideration of plans already submitted, which 
timetable was as follows:

“1. Hearing on desegregation intra-city plans will pro­
ceed, beginning at 10:00 a.m , Tuesday, March 14, 1972.

2. Recommendations for 'conditions’ of intervention 
t ° y e  submitted not later than 10:00 a.m., March 14, 
19/2.

“3. Briefs on propriety of metropolitan remedy to be 
submitted not later than March 22, 1972.

4. Tentatively and unless the court rules otherwise, 
hearings on metropolitan remedy to commence 10 00 a m ’ 
March 28, 1972.” App. I at 397.

When intervention was granted, the District Judge placed 
strict limitations upon the part which the intervenors would 
be peimitted to play. The order provides:

districts ° therS referred t0 included 38 additional suburban school



Nos. 72-1809 - 14 Bradley, cl al v. Milliken, el al 123

“The interventions granted this day shall he subject to 
the following conditions:

1. No intervenor will be permitted to assert any 
claim or defense previously adjudicated by the court.

2. No intervenor shall reopen any question or 
issue which has previously been decided by the court.

3. The participation of the intervenors consid­
ered this day shall he subordinated to that of the 
original parties and previous intervenors.

4. The new intervenors shall not initiate dis­
covery proceedings except by permission of the 
court upon application in writing, accompanied by 
a showing that no present party plans to or is willing 
to undertake the particular discovery sought and that 
the particular matter to be discovered is relevant 
to the current stage of the proceedings.

t
5. No new intervenor shall be permiUed to seek 

a delay of any proceeding in this cause; and he 
shall be bound by the brief and hearing schedule 
established by the court’s Notice to Counsel, issued 
March 6, 1972.

6. New intervenors will not file counterclaims or 
cross-complaints; nor will they be permitted to seek 
the joinder of additional parties or the dismissal of 
present parties, except upon a showing that such 
action will not result in delay.

7. New intervenors are granted intervention for 
two principal purposes: (a) To advise the court, by 
brief, of the legal propriety or impropriety of con­
sidering a metropolitan plan; (b) To review any 
plan or plans for the desegregation of the so-called 
larger Detroit Metropolitan area, and submitting ob­
jections, modifications or alternatives to it or them, 
and in accordance with the requirements of the 
United States Constitut' n and the prior orders of 
this court.



124

8. New intervenors shall present evidence, if any 
they have, through witnesses to a number to be 
set, and limited, if necessary, by the court, follow­
ing conference.

9. With regard to the examination of witnesses, 
all new intervenors shall among themselves select one 
attorney per witness to act for them, unless one or 
more of the new intervenors show cause otherwise.

These conditions of intervention shall remain sub­
ject to change or modification by the court in the 
interest of timely disposition of the case.” Ann la 
408-410. '

Bradley, cl al v. Milliken, et al Nos. 72-1809 -14

We point out that the intervening school districts (42 out 
of 85) came into the case while the court was already con­
sidering the Detroit only plans, were permitted a total of 
less than one week to prepare briefs in regard to a metropoli­
tan remedy, and found themselves faced with a ruling favor­
able to the consideration of such remedy within two davs 
after the date on which their briefs were due. All of this 
despite the fact that an effort had been made to bring the 
suburban school districts into the case almost eight months 
prior to the rulings in regard to the Detroit only plans and 
the metropolitan plan. The majority finds no fault with 
this timetable. It affirms the conclusions of the District Court 
in regaid to the Detroit only plan and the need for a metro­
politan plan without affording to the suburban school districts
any opportunity to be heard.

Those suburban school districts which are not yet parties 
to this action, 43 in number, have had no opportunity to be 
heard with respect to any alleged constitutional vio­
lation within their respective school districts or with 
respect to the existence of their respective school district 
boundaries. Of course, the pleadings do not assert any 
such violations but under the majority opinion a remedy 
will be imposed which will drastically affect the future school-



W  of their children without granting to them any oppor­
tunity to be heard with regard to any reasons winch nu 
support the adoption of such a remedy. The suburban school 
districts which were M a te d *  made parties to tins actio 
assert that because they have not beer, afforded the oppor 
tunity to offer evidence to demonstrate that they have n 
been^ guilty of any constitutional violation they have been 
denied the fundamental requirements of due piOvess -
response of the appellee to the claimed rights 0 the subrnb 
school districts is that there is no denial of life, lib. > 
property” within the meaning of the Fifth Amendment. 
aiso claim that the interests of the suburban school districts 
were adequately represented by “their parent state defendant 

An examination of the record in this case will effee we y t ■ 
pose of any claim that the interests of the suburban school 
districts were represented by the state defendants. Clearly 
the state defendants were defending against the claims of 
the plaintiffs that the state had by its actions created racial 
segregation within the school district of the City of Octroi . 
A,°I examine the record it does not appear that defendant 
felt compelled to offer evidence in defense of an unasserted 
e l m  that the existence of suburban school districts was widi- 
out other evidence a violation of the cons,ffu,Final n g l ^ U h  
students in the schools of the City of Detroit. Had the state 
defendants comprehended that the District Court intended to 
impose a metropolitan school district upon the schools „ 
three counties the writer is confident that t icy w on '• 
joined in the earlier motion to require the suburban sclioo 
districts to be named as parties defendant.

As-to the first argument of the appellees it rs d e a r horn 
the language of the Court in Bolling v. Sharpe, 347 U.S. 497 

1954) ,°that the segregation of schools is a denial of due process 
within the meaning of the Fifth Amendment. If segregation 
is a denial of the Fifth Amendment due process then clearly 
orders eliminating such segregation are a part of the du 
process rights. In that case the Court said:

Nos. 72-1809 - 14 Bradley, et al v. MiUiken, et al 125



I
i!

“Although the Court has not assumed to define ‘liberty’ 
with any great precision, that term is not confined to mere 
freedom from bodily restraint. Liberty under law ex­
tends to the full range of conduct which the individual 
is free to pursue, 0 0 347 U.S. at 499.

Even earlier, in Pierce v. Society of Sisters, 268 U.S. 510 (1925), 
the Supreme Court found a violation of the Fourteenth 
Amendment in matters relating to the liberty of parents to 
direct the upbringing and education of children under their 
control. Had we any doubt, it would have been settled in 
Wisconsin v. Yoder, 406 U.S. 205 (1972), where the Court 
permitted parents to withdraw their children from the state 
public school system and found a constitutional right in par­
ents to control the upbringing and religious training of their 
children. That the right under the Fifth Amendment ap­
plies to the states was recognized in Griswold v. Connecticut, 
381 U.S. 479 (1965), where the court noted at page 482:

“By Pierce v. Society of Sisters, supra, the right to edu­
cate one’s children as one chooses is made applicable to 
the States by the force of the First and Fourteenth 
Amendments.”

Being convinced that the interest of parents in the educa­
tion of their children represents a right protected by the Con­
stitution as to all parents and not only those parents whose 
children are required to attend segregated schools, we then 
reach the question of the application of due process to that 
right.

As pointed out by the Court in Armstrong v. Manzo, 380 
U.S. 545, 552 (1965):

“A fundamental requirement of due process is ‘the op­
portunity to be heard.’ 0 * 0 It is an opportunity which 
must be granted at a meaningful time and in a meaning­
ful manner.” '

126 Bradley, et ah v. Milliken, et ah Nos. 72-1809- 14



and in greater detail we find the same principal in Boddie 
v. Connecticut, 401 U.S. 371, 377-8 (1971), where Mr. Justice 
Harlan, speaking for the Court, stated:

“Prior cases establish, first, that due process requires 
at a minimum, that absent a countervailing state interest 
of overriding significance, persons forced to settle their 
claims of right and duty through the judicial process 
must be given a meaningful opportunity to be hear . 
Early in our jurisprudence, this Court voiced the doc­
trine that ‘[wjherever one is assailed in his person or is 
property, there he may defend,’ W indsor v̂ M cVeig h,
93 U. S. 274, 277 (1876). See Baldwin v. Hale, 1 Wall. 
223 (1864); Hovey v. Elliott, 167 U. S. 409 (1897). The 
theme that ‘due process of law signifies a right to be 
heard in one’s defence,’ Hovey v. Elliott, supra, at , ias 
continually recurred in the years since Baldwin \1 indsor 
and Hovey. Although ‘[m]any controversies have raged 
about the cryptic and abstract words of the Due Irocess 
Clause,’ as Air. Justice Jackson
Midlane v. Central Hanover Tr. Co., o39 U. S. 3G6 (19o0), 
‘there can be no doubt that at a minimum they require 
that deprivation of life, liberty or property by adjudi­
cation be preceded by notice and opportunity for hear­
ing appropriate to the nature of the case. Id., at 31 .

Thus, each party to a lawsuit should be advised as to the 
claims asserted by the other parties to the lawsuit and have an 
opportunity to be heard in respect to all such claims.

In this case no pleading has ever been filed suggesting any 
wrongdoing on the part of any suburban school district, none 
suggesting that the suburban schools and the schools of the 
City of Detroit constituted a dual school system or even 
intimating any possibility of a need for a metropolitan school 
district to eliminate the segregated conditions alleged to have 
existed in the schools of the City of Detroit. We can 
only speculate upon the timing of the first suggestion of a 
metropolitan district but it appears that the District Judge

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al 127



Nos. 72-1809- 14
128 Bradley, et al. v. Millikan, et al.

J  ,]„. . ’ and tllcre cai> 1* no question as to the
par wl ic£  a (C° “rt f°  l>,a“  certain limitations upon 
to -> ’»ol district would be pennitted
f y a!1 ° V  Ls’ 111 reSard to metropolitan school dis 
tncts. come up at the eleventh hour as suggested bv the 7
pellees one might, although it is doubtfuU ccept the condT 
mns tmposed by the District Judge. Such svas'not the ase

m  Ti r  C° ■ ° f  c d ^
30. ' ,|.r. 1339. 1333 . L, , , . . i ;  J g g J

O s x s i s & V F ’ L j  -

s a  is-ssEi



the part which is to be played by one who is joined as a 
party under Rule 19, as well as one who intervenes as a party, 
aspects of this case which are almost completely ignored by 
the majority and the District Court.

In conclusion I am constrained to say that I do not suggest 
that a metropolitan remedy is totally beyond the realm of 
consideration in this case upon an appropriate record. My 
whole purpose in writing this opinion is to point out that the 
majority and the District Court have fallen into a state of 
confusion in failing to distinguish between violation and reme­
dy and in failing to recognize the necessity for the finding of 
violation before the trial court embarks upon that bioad field 
of equity which permits a trial judge to devise a remedy which 
will adequately overcome the violation previously found to 
be in existence. I have also written because I am satisfied that 
the District Judge in failing to consider the necessity for join­
ing the suburban school districts pursuant to a motion filed 
more than a year before the disposition of the case was in 
error. The suggestion by the District Court that the subur­
ban school districts were only involved in the remedy points 
up the trap into which both the District Court and the ma­
jority of this Court have fallen in failing to recognize the 
necessity for finding a violation before a remedy may be im­
posed.

I would reverse the District Court and remand the case 
with instructions to require the joinder of the suburban school 
districts of the counties of Wayne, Oakland and Macomb 
with permission to the representatives of those distiicts, with 
reasonable limitations, to participate in all aspects of this law­
suit which may affect the suburban school districts, and with 
particular attention to the necessity for finding a constitutional 
violation which would justify the imposition of a metropolitan 
remedy.

Nos. 72-1809 - 14 Bradley, el al v. Milliken, et al. 129



Miller, Circuit Judge, dissenting.

It is my firm conviction that it is premature at this time 
lor the Court to adjudicate any of the questions arising from 
the various orders of the district court from which this ap­
peal is taken. This is true for the reason that school districts 
and parties to be affected by a metropolitan plan or remedy 
have not been afforded an opportunity to be heard or to pre­
sent evidence upon all of the issues involved.

The majority opinion does indeed state:

On remand, any party against whom relief is sought 
including school districts which heretofore have inter­
vened and school districts which hereafter may become 
paities to this litigation, shall be afforded an opportunity 
to offer additional evidence, and to cross-examine avail­
able witnesses who previously have testified, on any issue 
raised by the pleadings, including amendments thereto 
as may lie relevant and admissible to such issues. The 
District Court may consider any evidence now on file 
and such additional competent evidence as may be in­
troduced by any party.

130 Bradley, ct al. v. Millikan, et al. Nos. 72-1809 - 14

The effect of this conclusion is, in my opinion, vitiated bv 
the two succeeding sentences: '

However, the District Court will not be required to 
receive any additional evidence as to the matters con­
tained in its Ruling on the Issue of Segregation, dated 
September 27, 19/1, and reported at 33S F. Supp 58? 
or Rs Findings of Fact and Conclusions of Law on the 
ioVot r 0 1 « 7  I £  aVS of Segregation, dated March 28, 

" e 10 d that the findings of fact contained in 
these rulings are not clearly erroneous, Rule 52(a)

, j >l- . (; 1V- p;> but t0 the contrary are supported by 
substantial evidence. }

Parties to 'be affected and against whom relief is sought 
should be accorded, in compliance with basic principles of



Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 131

due process, an opportunity to be heard at a meaningful time 
and in a meaningful manner not only with respect to the 
ultimate scope of the remedy to be fashioned, but also with 
respect to important, significant and perhaps even controlling 
issues, including the issue of segregation, a “Detroit only” 
school plan and the propriety of a metropolitan remedy. If 
any one of these issues is resolved in favor of parties out­
side the Detroit School District, the nature and scope of a 
remedy embracing outlying districts would not be reached. 
Hence the outlying districts have a vital interest in each 
issue separately and should be heard on each in a true 
adversary sense. Until this is done our expression of view 
on the merits of the several questions is uncalled for and ill- 
advised. To permit these additional parties to be heard only 
in the restricted sense set forth in the majority opinion is to 
deny them basic rights guaranteed not only by Rule 19, Fed­
eral Rules of Civil Procedure, but by the Constitution itself.

I would, therefore, vacate all orders appealed from the dis­
trict court, remand the action for the joinder of all parties to be 
affected, and direct the district court to afford the parties a 
proper opportunity to be heard and to present evidence on 
the issues indicated above.