Draft Memorandum Opinion and Order

    UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al,
Plaintiffs,

-vs-
WILLIAM G. MILLIKEN, et al,

No. 35257

Defendants,
and

DETROIT FEDERATION OF TEACHERS 
LOCAL 231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,

Intervening Defendant,
and

DENISE MAGDOWSKI, et al.
Intervening Defendants.

_____________________________________________ /

MEMORANDUM OPINION AND ORDER
This class action was commenced in August 1970 by plaintiffs, 

the Detroit Branch of the National Association for the Advance­
ment of Colored People and individual parents and students on 
behalf of themselves and similarly situated parties. Defendants 
are the Board of Education of the Detroit Public Schools and its 
former superintendent, Dr. Norman A. Drachler, the Governor, 
Attorney General and State Superintendent and State Board of Edu­
cation of the State of Michigan. In their complaint, plaintiffs

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attacked a statute of the State of Michigan known as Act 43 of 
the 1970 Legislature on the ground that it put the State of 
Michigan in the position of unconstitutionally interfering with 
the execution and operation of a voluntary plan of partial high 
school desegregation (known as the April 7, 1970 Plan) which had 
been adopted by the Detroit Board of Education to be effective 
beginning with the fall 1970 semester. Plaintiffs also alleged 
that the Detroit Public School System was and is segregated on 
the basis of race as a result of the official policies and actions 
of the defendants, including both the District and State defendants 

and their predecessors in office.
Additional parties have intervened in the litigation since 

it was pommenced. The Detroit Federation of Teachers (DPT) which 
represents a majority of Detroit public school teachers in collective 
bargaining negotiations with the defendant Board of Education, has 
intervened as a defendant, and a group of white parents has also 
intervened as defendants.

Initially the matter was heard on plaintiffs' motion for 
preliminary injunction to, inter alia, restrain the enforcement of 
Act 48 and to require the April 7 Plan to.be implemented. On that 
issue, this Court initially ruled that plaintiffs were not entitled 
to a preliminary injunction since there had been no proof that 
Detroit was a segregated school system. The Court of Appeals held, 
however, that any such interference by the state with a determina­
tion of a local board to pursue the goals of racial equality was 
forbidden and that, at a minimum, the state must avoid steps whose 
effect can only be to heighten or maintain racial segregation.



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The plaintiffs then sought to have this Court direct the 
defendant Detroit Board to implement the April 7 Plan by the 
start of the second semester in order to remedy the deprivation 
of constitutional rights wrought by the unconstitutional statute. 
In response to an order of the Court, defendants suggested two 
other plans in addition to the April 7 Plan which they preferred 
over the April 7 Plan. The Court rejected the plaintiffs' argu­
ments against the "magnet" plan at that time and approved it 
rather than ordering April 7 implemented. Again, plaintiffs 
appealed but the Court of Appeals refused to pass on the merits 
of any plan until a trial on the merits. The case was remanded 
with instructions to proceed immediately to a trial and decision 
on the merits of plaintiffs' substantive allegations about the 
Detroit School System.

That trial began April 6, 1971 and has continued until this 
time with the exception of several brief recesses necessitated 
by demands upon the time of Court and counsel. Plaintiffs 
introduced substantial and extensive evidence in support of their 
contentions, including expert testimony, factual testimony, School 
Board documents and demonstrative exhibits. At the close of 
plaintiffs' case in chief, the Court ruled that they had presented 
a prima facie case of state-imposed segregation in the Detroit 
Public Schools; accordingly, the Court enjoined (with certain 
exceptions) all further school construction in Detroit pending 
the outcome of the litigation.



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The Court has also denied the motion to dismiss filed by the 
state defendants at the close of plaintiffs*proof. The proof 
adduced by the plaintiffs was not solely limited to the role 
played by the Detroit Board, its predecessors and employees in 
bringing about the present highly segregated condition of the 
public schools. It also demonstrated inescapably that the State 
of Michigan and its agencies have, by acts and omissions seemingly 
violative of its obligation under the Michigan Constitution (Article 
VIII, Sections 1 & 2) and avowed policies of the State Board of 
Education contributed toward bringing about this result.

The defendants have now completed presentation of their proof 
and plaintiffs have presented a short rebuttal. The parties are 
required by previous order of the Court to prepare proposed

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findings of fact and conclusions of law for submission to the
Court by July 26, 1971. However, the Court deems it desirable
at this time, because of the important public nature of the
questions involved as well as the requirements of Supreme Court
decisions which the Court holds are applicable to this situation,
to issue an interim order directing the parties to begin developing
a remedy for the unconstitutional conditions the Court finds to

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exist. Because of the length of the trial and the several pauses 
the Court has had ample opportunity to consider and evaluate the 
evidence as it was presented. This Court was further required to 
expedite all aspects of this matter by the Court of Appeals and is 
obligated under the law, because of its conclusion that the present 
racial segregation in the Detroit schools results from a pattern



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of acts and omissions by the State defendants and the defendant 
Detroit School District in violation of the Fourteenth Amendment, 
to require the defendants to act immediately to eliminate this 
segregation and its effects.

The Court will make some general interim findings at this 
time upon which the interim decree is based and the Court is 
confident that its detailed findings of fact and conclusions of 
law, which will be issued as expeditiously as possible after careful 
consideration of the record and the proposed findings of the 
parties will fully support the general conclusions hereinafter 
stated.

The Court finds that the Detroit Public Schools have been
racially segregated as a result of official state actions of the
Detroit Board of Education, the State Department of Education,
their agents and predecessors. While there have been efforts to
eliminate some of the more obvious segregation practices, the
most significant effort to reduce segregation, the defendant
District's plan of April 7, 1970, described by a number of District
witnesses as a "modest" start, was frustrated by affirmative state
acts which have been found by the Court Appeals to violate the

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Constitution of the United States.

The state defendants, in a variety of ways established in 
this record, have exercised their powers over the Detroit schools 
in a way which, by direct act, selection of particular alternatives 
and omissions, has resulted in racial segregation. The defendant 
Detroit Board of Education, as a subordinate unit of state govern­
ment, has, by similar exercise of the powers delegated to it,



contributed substantially to the segregated patterns of pupil 
and faculty assignment in the Detroit schools. Recent actions 
of both sets of defendants have served to deliberately reinforce 
this pattern of "containment" or segregation. This court finds 
that under the law and where there has been this showing of 
state action in violation of the Fourteenth Amendment it has the 
authority and the duty to act.

The Court is convinced by the weight of the evidence that it 
is not dealing with a situation of fortuitous racial imbalance 
existing in the schools because of voluntary housing choices. 
Rather, the proof reflects not only that Negroes were limited in 
their choices and segregated residentiaily by public and private 
actions^, but that the defendants availed themselves of opportunitie 
to contain an expanding Negro population in identifiable Negro 
schools when changes in housing patterns occurred.

The Court concludes, therefore, that the situation before 
it, like that in Pontiac, is distinguishable from cases involving 
so-called de facto segregation and that in this instance the 
defendants have an affirmative duty to '.take whatever steps are 
necessary to remedy the situation and eliminate the illegal 
segregation. This affirmative duty must be met at once under 'the 
relevant decisions of the Supreme Court and the Court therefore 
concludes that it is appropriate to require defendants immediately 
to prepare to put before the Court in accordance with the law the 
full, range of alternatives which might be said to fulfill their 
affirmative duty in order that the Court may select that which



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achieves the greatest possible amount of actual desegregation 
and order its immediate implementation.

Although the Court previously expressed approval, at least 
on a trial or interim basis, of the magnet concept as embodied in 
the so-called McDonald Plan, two considerations prompt the Court 
to withdraw that approval at this time. First of all, the testi­
mony of the Board's own staff at the trial establishes that the 
McDonald Plan as actually implemented has failed to produce and is 
unlikely to produce at any time in the future the degree of inte­
gration that was predicted for it. In light of the fact that the 
Court has now concluded that the defendants bear an affirmative 
duty to desegregate these schools immediately, as well as the 
essential similarity of the magnet plan to the discredited "freedom

v,of choice" concept (as noted by the Court of Appeals), the magnet 
plan would not appear to meet the Board's obligation to desegregate 
its schools. Second, the Court's previous approval of the McDonald 
Plan v/as based upon its projections vis a vie the results of the 
April 7th plan. At this juncture, the sufficiency of any proposed 
desegregation plan is to be judged according to the measure of the 
constitutional deprivations which the Court finds were created and 
perpetuated by the state and local defendants. In other words, in 
equity the scope of the remedy is measured by uhe extent of the 
wrong.

The Court has determined, therefore, to direct the defendants, 
by v/ay of interim decree pending issuance of detailed factual 
findings and legal conclusions', to prepare desegregation plans for

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Detroit. In considering the dimensions of plans which the Court 
desires to have presented to it, the Court is conscious of the 
motion made near the close of defendants' proof by the intervening 
defendants that some 85 school districts surrounding the City of 
Detroit be added as parties for the purpose of sharing in any 
desegregation plan ordered into effect by the Court. The Court is 
aware, as it has stated many times during the trial, of the racial 
composition of the Detroit public schools in the City of Detroit 
and also of the racial composition of the suburban areas surrounding 
the city. The Court has remarked several times upon the practical 
problem of drawing a desegregation plan for a school system pro­
jected to be 80% black by 1980 which is and will be surrounded 
immediately by large white suburban areas from which blacks are 
largely excluded.

The Court is also aware of the ultimate responsibility of the 
state defendants for the conduct of education throughout the State 
of Michigan and the ultimate authority or the state defendants to 
restructure the administrative organization of school districts to 
carry out the State's educational policies and meet its obligations. 
This has partially been accomplished through the creation of the 
Wayne County Intermediate School District for the exercise of 
certain functions and the consolidation of districts within it for 
educational purposes, although that entity in no way limits any 

further regionalization.



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The aforesaid motion has not been heard as of this time nor 
has the Court reached any conclusion as to its merits. However, 
inasmuch as the state defendants are properly before the Court and 
have been found liable along with the Detroit Board of Education 
to take affirmative action to accomplish desegregation, the Court 
concludes that it is appropriate to direct the state defendants to 
consider, make recommendations upon and prepare alternative desegre­
gation plans involving an area or areas larger than the City of 
Detroit in order to most feasibly accomplish "the greatest possible 
degree of actual desegregation." It may be that r.o other parties 
will be needed at this time in order to effectuate the equity 
power of this court.

Finally, the Court concludes that the defendants must be
required to take some immediate steps to substantially improve
the desegregation picture in the Detroit public schools not later
than the 1971-72 school year*s commencement. Notwithstanding
whatever alternatives the Court might select when the full range
of such alternatives is available, the Court is required by decisions
of the United States Supreme Court to see that the unlawful existing
status of the Detroit Public Schools is changed at once. Therefore,
even if the process of preparing, submitting and passing upon and
selecting the best plan is not completed, defendants will be
required to take such steps as they are able in order to achieve
the greatest possible amount of actual desegregation in Detroit for
the coming school year. The Court will also consider delaying the
opening of schools if it appears that a short delay will make it

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possible to implement a superior plan without educational harm. In
consideration of the foregoing the Court enters the following decree:



1. The defendant Detroit Board of Education shall prepare 
and submit within ten days a plan for faculty and staff assignment 
within the Detroit Public Schools so that for the 1971-72 school 
year the racial composition of the faculty and staff in each school 
reflects approximately the racial composition of the system's 

entire faculty and staff.
2. The defendant Detroit Board of Education shall:

a. Prepare and submit within twenty days a plan of pupil 
assignment within the Detroit Public Schools that accomplishes 
for the 1971-72 school year the greatest possible degree of 
actual desegregation so that to the extent reasrbie no schools 
are .substantially disproportionate in the racial composition 
in comparison to the system as a whole at each grade level.

b. Prepare and submit within forty days a plan of pupil 
assignment within the Detroit Public Schools to be implemented 
at the earliest possible date and in no event later than the 
commencement of the 1972-73 school year that eliminates all 
schools substantially disproportionate in their racial compo­
sition in comparison to the system as a whole at each grade 
level and achieves the greatest possible degree of actual 

desegregation.
c. In such plans of pupil assignment, utilize no method 

which has the effect of segregating pupils within the class­
rooms of any particular school or schools, whether such assign­
ment be accomplished by track or any other method.



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3. State defendants shall prepare and submit within sixty 
days plans and recommendations for desegregation of staff and 
pupils in the Detroit Public Schools and such area or areas larger 
than the City of Detroit whose addition would most feasibly accomplish 
and maintain the greatest possible degree of actual desegregation

in the Detroit community.
4. In preparing the plan or plans required to be submitted 

by the state defendants, the defendants may employ any and all of 
the procedures or devices provided or authorized by the constitution 
and laws of the State of Michigan and any other such criteria and 
techniques as are educationally sound and administratively feasible; 
defendants may if they so desire use any concepts of decentraliza­
tion presently authorized by state law; however, any state law

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requirement that administrative units created for the purpose of 
decentralization be restricted to ‘‘'compact and contiguous zones" 
shall not be used where the effect of such restriction would be 
to create school zones or school administrative units which are 
racially isolated. No plan, however, may be made contingent for 
its implementation upon electoral approval. However, the pro­
visions of Michigan law with respect to the election of any succes­
sor district or districts may be utilized for the establishment of 
the governing board or boards of the reorganized district.

5. Each of the plans required to be submitted by the District 
and the state defendant(s) shall be supported by data showing with 
respect to all schools affected by the plans the 70-71 racial 
composition of faculty, staff and pupils, as well as the data

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showing racial composition of faculty, staff and pupils under the 
proposed plan of desegregation.

6. The ultimate responsibility for the preparation of the 
plans required by paragraph three of this order is that of the 
state defendants and all costs incurred shall be borne by them; 
provided, however, that the state defendants and the defendant 
Distract shall consult and cooperate, without reservation or 
qualification, in the development of such plans. The state 
defendants shall exercise ail of their constitutional and 
statutory powers to secure the effective compliance of all 
affected entities and individuals in the preparation of any plan.

7. All plans for the racial desegregation of pupils and 
teachers developed pursuant to the terms of this order shall 
themselves be equitable and nondiscriminatory; that is, some 
inconvenience to pupils and parents may be unavoidable, but the 
defendants shall take ail reasonable steps to insure that the 
burden of such inconvenience is not imposed disproportionately 
upon families of either race.

8. Pending the adoption of a final.plan of desegregation the 
construction injunction issued pendente' lite shall remain in full 
force and effect.

This the day g ; , 1971.

Stephen J. Roth
United States District Judge

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1/
Brown v. Board of Education, 347 U.S. 483 (1954) 349 U.S.

294, (1955) ; Swann v. Charlotte-Mecklenburg Board of Education,
____ U.S. ____, 91 S.Ct. 12G7, 1273-79 (1971); Davis v. Board of
School Commissioners, ____ U.S. ____ 39 U.S.L.W. 4447 (April 20,
1971) ; Spangler and United States v. Pasadena City Board of Edu­
cation, 311 F.Supp 501 (C.D.Calif., 1970); United States v. School 
District 151, 301 F.Supp. 201 (N.D.Ill., 1969) affirmed as modified
432 F.2d 1147, 1151 (7th Cir., 1970), cert, denied)____ U.S. ___ ,
39 L.W. 3486 (1971); Turner v. Fouche , 396 U.S. 346, 360 (1970); 
Davis v. School District of the City of Pontiac,, 309 F.Supp. 734
(E.D.Mich., 1970), affirmed, ____ ?.2d____ (6th Cir., 1971);
United States v, Montgomery County Board of Education, 395 U.S.
225, 231-232 (1969) and Swann supra (faculty) ; Green. v» County 
School Foard, 391 U.S. 43; Raney v. Board of Education, 391 U.S. 
443; Ilonroe v. Board of Commissioners, 391 U.S. 450 (free choice - 
open enrollment and transfer) [see: Bradley v. Mil liken -#21036 
slip op. page 3 note 1, Feb. 22, 1971]; Alexander v. Board of 
Education 396 U.S. 19, (prompt relief)$ Johnson v. San Francisco
Unified School District, #C-70 1331, ____ F.Supp. N.D.Calif.,April 28, 1971; ____ F.Supp. ____ June 2, 1971.
- Bradley Mil liken, 433 F.2d 897 (6th Cir., 1970) . Since
the appointment or Supt. Drachler xn 1966 come effort and progress 
has been made in attempting to correct some of the constitutional 
violations. However, there has not been any substantial correction 
of the effects of past violations (Tr. Vol. 38 p. 3347). Certain 
practices continue until the present day.
3/

U.S. v_. Texas Education Agency. 431 F.2d 1313, 1316 (5th 
Cir. 1970).