Opposition to Petition for a Writ of Certiorari (Draft)

    CENTER FOR LAW AND EDUCATION
H A R V A R D  U N IV E R S IT Y

October 2, 1973

Larsen Hall 
14 Appian Way
Cambridge, Massachusetts 02138 
617-495-4666

Mr. Norman Chachkin 
NAACP Legal Defense Fund 
10 Columbus Circle 
New York, New York 10019

Dear Norman:
I enclose my copy of Dimond's draft opposition to 

cert, in Bradley v. Milliken.

As you can see, my handful of proposed changes are 
trivial indeed, and I shall not be unhappy if you choose 
to disregard them for reasons of convenience or substance.

Best wishes.

Very truly yours,

J. Harold Flannery 
Acting Director

cc: Paul Dimond



COUNTER-STATEMENT OF THE ISSUE PRESENTED

. . As set forth more fully hereafter in this Response, 

respondents Bradl^g", et. al. (the plaintiffs in this cause), submit 

that this classic school segregation case is not in an appropriate 

posture for Supreme Court review. The petitioners seek basically 

interlocutory review of remedial issues in the absence of any remedial 

plan and a full hearing on remedy below. The Court of Appeals has 

directed that plaintiffs amend their complaint to conform to the evidence,, 

that a full hearing on remedy be held and that the Michigan State 

Legislature be given an opportunity to act before any final plan 

is ordered by the District Court. Proceedings are underway in the 

District Court in compliance with those directions. In such circumstances, 

this Court cannot properly consider the very issues - -  for example, 

the practicalities of the local situation relative to remedy, the effectiveness 

of the alternative plans available, the extent of transportation required, the 

scope of the remedy compared to the violation, and the precise manner 

in which school district boundaries need be permeated for the limited 

purpose of accomplishing relief - -  which are essential to review 

in a case like this. Therefore, if the Court wishes to review this case, 

it should wait until the proceedings below have been completed. In the present 

posture, only one possible issue can be considered by this Court (and then 

only within the limitations imposed by an incomplete record with no 

remedial plan nor full hearing on remedy):

May local and intermediate school district boundaries 

fashioned by the State serve as[a stone walljto otherwise 

constitutionally required school desegregation?

-d -



Counter-statement of the Case

In critical particulars the statements of the case by the 

petitioners are inaccurage and incomplete and thereby fail to provide 

this Court with a basis for understanding what has transpired below - 

and the present posture of the case for review. We therefore make the 

following counter statement of the case:*

A. PRELIMINARY PROCEEDINGS

Plaintiffs commenced this action over three years ago,

August 18, 1970, against! the Detroit Superintendent and Board of Education,

the Michigan State Superintendent and Board of Education, the Governor
1 *

and Attorney General, (1) to challenge the dejure segregation of the
-puhLc

Detroit Public Schools as a result of historic^policies, practices and

actions • and (2) to secure complete relief, now and

reshereafter, from the^official segregation of well over 125, 000 black 

children in virtually all black schools from white children in virtually 

all white schools. The complaint was precipitated by the State of 

Michigan's then most recent direct imposition of school segregation on 

these children, both black and white. Exercising the State's plenary 

power over schools, the legislature acted with unusual dispatch in adopting 

Act 48 (1) to reorganize and decentralize the Detroit School District,

(21 to substitute segregated regional sub-districts (3) to revalidate the

*We apologize to the Court for the length of this Counter - 
statement of the Case; it is necessitated, however, by petitioners' failure 
to present with accuracy what is necessary to a ready understanding of 
the merit of the issues for present review. Indeed, petitioners' failure in this 
regard is sufficient reason to deny certiorari standing alone. Sup. Ct. Rule 23(4)

■*" Prior to the hearing on violation the Detroit Federation of 
Teachers and a group representing white homeowners within Detroit intervened 
as parties defendant to oppose desegregation.

-a-



external boundaries of the Detroit School District, (4) to nullify the 

first significant steps twoard high school desegregation ever taken by the 

Detroit Board, and (5) to interpose for all pupil assignments within Detroit 

criteria which [as later found by the District Court] "had as their purpose 

and effect the maintenance of segregation". '

Plaintiffs prayed for a preliminary injunction to reinstate 

the partial plan of high school desegregation adopted by the Detroit 

Board but thwartec^^ct 48, pending a full hearing on the merits.

After a preliminary hearing, the District Court denied all preliminary 

relief and dismissed the Governor and Attorney General by ruling 

and order of September 3, 1970. On plaintiffs' appeal the Court of 

Appeals for the Sixth Circuit affirmed the denial of preliminary relief but 

(1) held those portions of Act 48 which nullified the initial steps taken by 

the Detroit Board to desegregate high schools and interposed segregative 

pupil assignment criteria to be unconstitutional and (2) reversed the 

District Court and directed that the Governor and Attorney General remain 

parties defendant. Bradley v. Milliken , 433 F. 2d 897. Defendants did 

not appeal from}or apply for review of, that decision. •

. On remand, the plaintiffs sought again to require the

immediate implementation of the April 7 Plan as a matter of interim 

reTief to remedy the mischief created by the enactment of the 

unconstitutional statute, without determination of the more general 

issues raised in the complaint. The district Court permitted the 

Detroit Board of Education to propose alternative plans and approved 

one of them (which later proved upon implementation to be wholly ineffective^; 

plaintiffs again appealed, but the Court of Appeals remanded the matter 

"with instructions that the case be set forthwith and heard on its m erits," 

stating :

- 3  -



"The issue in this case is not what might be a
desirable Detroit school plan, but whether or not
there are constitutional violations in the school
system as presently operated, and if so, what relief
is necessary to avoid further impairment of constitutional
rights. " 438 F. 2d 945, 946 (6th Cir. 1971) (emphasis supplied)



B. VIOLATION

As directed, the District Court began on April 6, 1971,

hearing on the merits with respect to violation. For 41 trial days

throughout the spring and summer of 1971, the District Court heard

testimony and received exhibits. The parties undertook a painstaking

inquiry into the factors and agencies responsible for the obvious pattern

of racial segregation in the Detroit Public Schools. To be sure, from

its inception the evidence focused primarily on the Detroit Public Schools,

where over 125, 000 black children were assigned to virtually all black

schools, identified as black by official state action. Y et, contrary to

petitioners' assertions, the evidence was not limited solely to the

internal operation of the Detroit Public Schools. To be frank, plaintiffs

like the District Court and the other parties, did not know the ^
oyv v>0 jnor Mne. e.y.'fa-nh ^

extent of the unconstitutional disease until well into the hearing. But in

explaining how these black schools were created and maintained, the proof

of the pattern of state action effecting school segregation - -  its scope,

causes and faer-reaching results - -  extended beyond the geographical

limits of Detroit almost from the first days of the trial. * The evidence

compelled viewing the Detroit Public Schools as part of a state-wide

. • lasystem of public education not a detached island of segregation.

1
This proof, however, did not go to the actions of any 

suburban school districts but rather to the activities and results 
of actions of State and Detroit defendants and the operation of specific 
state laws and policies. This evidence of discrimination and contribution 
(cont. on next page) 

la The District Judge perhaps most of all, was reluctant so to 
expand his view. The difficult lot of District Judges in school desegregation 
cases is a familiar matter, and the District Judge's early actions showed 
no receptiveness to judicial intervention to require affirmative action 
to remedy constitutional violations found. The evidence, however, would 
not disappear, and the District Judge opened his judgment to what he heard.



1 ( c o n t . )

to the unconstitutional condition ran only against the state defendants - 
the chief state school officer, the state Board of Education which is 
charged with general supervision of public education, the chief state 
legal officer and the state's chief executive - -  and Detroit defendants.
The evidence presented related primarily to (1) the State's policies 
and practices affecting segregation within and of the Detroit Public Schools 
vis-a-vis its suburban neighbors with respect to Act 48, school 
construction, merger of districts, pupil assignment across school 
district boundaries for the purpose of segregation, and disparity of bonding 
and transportation funding and (2) to actions by Detroit defendants 
which, almost inevitably, had results on the racial identity of 
neighboring suburban schools.

-  -



The e v id e n ce  r e v e a le d  a long h is to ry  o f  de jure  state act ion

following Brown resulting in massive school segregation. In 1960-61

of 251 Detroit regular public schools, 171 had student enrollments 90%

or more one race (71 black, 100 white); 6l% of the 126, 278 black students

were assigned to the virtually all black schools. In 1970-71 (the school year in

progress when the trial on the merits began), of 282 Detroit regular public

schools, 202 had student > >___ _

enrollments 90% or more one race (69 white, 133

black); 74. 9% of the 177, 079 black students were assigned to the

virtually all black schools.
2 . .In the metropolitan areas surrounding the Detroit public

3
schools the pattern of segregation and containment was primarily

expressed in this record by effective exclusion of black children

from a rapidly expanding set of new schools over whose construction 
state

defendant/school authorities had substantial responsibility: between

1950 and 1969 over 400, 000 pupil spaces were added in school districts 

now serving less than 2% black student bodies. (A (P. M .14, 15)).

By 1970 these suburban areas^assigned a student population of

625, 746 pupils, 620,272 (99.13%) of whom were white, to these virtually

all white schools.

Corresponding the massive pupil segregation was the 

clear racial pattern in the allocation of faculty to schools: in Detroit 

and throughout the metropolitan area black teachers were disproportionately 

assigned to schools with predominantly black student bodies and white 

teachers . disproportionately assigned to schools with predominantly 

white student bodies. Faculties mirrored the racial composition of the 

student bodies of schools, thereby further earmarking them as'white' 

or ’black' schools.

- 5  ~



2.
Hamtramck (28. 7% black) and Highland Park (85.1% black) 

are surrounding by the Detroit school district. (P. M. 13).

3. There are also historic areas of black containment 
which are located in Ecorse, River Rouge, Inkster, Westland, the 
did Carver School District (Ferndale and Oak Park), and 
Pontiac. As in Detroit, the black children in these districts also 
remained substantially segregated in 1970-71. (See P. M. 13).

4. Exclusive of the school populations of the districts 
named in notes 2 and 3, supra.

- S £\ ”



The facts disclosed: two sets of schools, one virtually 

all black core in the City of Detroit, surrounded by another virtually 

all white ring beginning within the City but extending throughout 

the suburban area beyond the geographical limits of the Detroit 

School Qistrict. Some 60 hearing days of trial proof, 8, 000 pages 

of transcript, hundreds of exhibits constituting thousands of pages 

of written material and over 100 maps and overlays demonstrated the 

action and inaction on the part of school authorities, in coordinate 

step with other governmental and private discriminationwhich had 

the natural and foreseeable effect of segregating black and white 

children in their respective schools. To understand how 

this massive segregation of school children came about is to examine 

in detail, as the courts did below, the history of discriminatory 

state action which accomplished the present condition.

As to pupil assignment practices the evidence showed, 

in summary, that sustained and systematic state action at the state and 

local levels was responsible for school segregation within Detroit, 

and that by equally effective practices the Detroit system and its 

suburban neighbors had been rendered racially identifiable in the 

practical and legal senses. No single school authority act effected 

racial separation as totally and efficiently as the pre-Brown laws of 

the South, but a variety of administrative practices combined 

effectively with several state policies - -  like Act 48 and the 

discriminatory operation of state reimbursement of transportation costs

construction, and bonding authority -  to produce substantially similar 

results. In addition, all was done that needed to be done - -  including

-c-

schoc



active participation in housing discrimination and massive segregative

practices of school construction and site location throughout the

metropolitan area - -  in order to insure that the residential racial

segregation which characterizes the Detroit community would be built

upon, validated and augmented in a brick and mortflur dual system of

public schooling. And where the segregative school construction
4a

coupled with residential segregation proved inadequate to the task,

as in racially changing neighborhoods and out lying black "pockets",

school authorities consistently added still other purposeful and effective

supplements, such as optional (or dual overlapping) attendance zones,

segregative transfer policies, and the manipulation of school attendance
5

zones, feeder patterns and grade structures. Based

upon the compelling evidence, the District Court so found on September

27, 1971, and, eventually, was affirmed by the Court of Appeals sitting
d7a -  2d*) (hOft-l'JS.a)

en banc. 338 F. Supp 58^; aff'd en banc , _____F. 2d_____(June 12, 1973) .̂

4a The residential segregation was shown by the evidence, and , , . , to-e, +W.8- , i af- , . . . .found by the courts below, to^product, în"Nparfc,aAcomprehensive public 
and quasi-public racial discrimination whicn^ehcouraged^tke^specific 
acts of segregation and the natural environment for segregation created 
by dejure school authorit 

&. - > 57o.; H Ac\) ,
action. (" £3 a - oAa. T&a ; 3“$ o, ’ 77a - ’J i a

5. As dramatic examples of the dejure action shown, consider
the Center region in Detroit which was carved to the alley to contain black children 
in black schools and optional zones which were selectively placed at the 
cutting edge of the black inner city core to allow whites to escape to
white schools. See Ruling on Issue of Segregation44a-, k5o, ; en banc Opinion [20<x-l2% j 
As another dramatic example of the purposeful imposition of school ''
segregation by operation of many of the factors cited in the text consider the 
Higginbothom community in Detroit and the adjacent Carver School District.
The Higgenbotham community had been built up as a black "pocket" by 
temporary war housing, designated for black occupancy, on the outskirts 
of Detroit and extended beyond the city limits into Oakland County and the 
old, almost all black Carver School District. The boundaries for the newly 
constructed black Higginbotham school in Detroit were created and maintained

- 7 -



5. ( c o n t . )

to coincide with the precise perimeters of the black 'pocket" in Detroit, 
which perimeters were also marked both by an actual cement wall built 
by the white neighbors and the boundarie£^the$J§ffi white schools imposed by 
school authorities to corieirt off the area. To the immediate North of 
the Higginbotham school, the black "pocket" extending outside 
Detroit was contained within the small Carver School District. That black 
district lacked high school facilities. The state and Detroit school 
defendants accomodated these black 'suburban' high school pupils for 
years by busing them past 'white' schools to virtually all 'black' 
high schools in the inner core of the City. These black
students were not housed in suburban high schools but were bused, for the 
purpose of segregation, across school district boundaries thereby further 
marking the neighboring suburban schools as 'white' and the inner core 
schools as 'black'. (The Carver School District was finally split 
in two and merged into the Ferndale and Oak Park School Districts. Yet, 
at the elementary level, all the suburban students in this black 'pocket' 
continued to attend upon two virtually all black suburban schools). See Ruling 
on Issue of Segregatiof^*Findings of Fact and Conclusions of Law in 
Support of Ruling on Desegregation Area and Development of Plan*^^5 
En Banc Opinion iSbp. - ocj^152.^)

-7* -



c. REMEDIAL PROCEEDINGS

1. Lower Court Motivations r

The District Court then set about the difficult

task of finding a complete remedy for the massive violation found

and its results. At a pre-trial conference on November 5, 1971, and later

by written order on November 5, 1971, it directed the Detroit defendants

to submit a plan limited to the City of Detroit and the state defendants

to submit a metropolitan plan for the desegregation of the Detroit 
5a

Public Schools. Although this Court sits to review judgments and 

not opinions - -  and surely not the motives of lower court judges - ­

petitioners base their petitions in large part on the supposed non-judicial 

motives underlying the judgments of the courts below. Such an attacK 

on these federal judges is wholly unfounded. The record needs 

to be set straight.

From the beginning of the search for complete remedy, the

District Court was guided by the prior commands of this Court and

settled equitable principles not any supposed "social goals" of

64"racial balance" and "majority white schools".

5a. State defendants appealed from the District Court's 
rulinjon violation and these planning orders. The Court of Appeals 
refused the gambit to review the case piecemeal at that time and this 
Court denied certiorari. 468 F. 2d 902, cert. den. 409 U. S. 844.

6. Petitioners repeated mis-citation of Judge Sobeloff's
concurring opinion in Brunson to support their argument that the lower 
courts were motivated by an abhorrence of "majority black schools" and 
a desire to achieve „ - "racial balance" is astounding in light of the
record and constitutes a demeaning disservice to Judge Sobeloff and the 
lower courts here. Indeed, the District Court held (1) that the defendants' 
persistent refusal to assign white children to "majority black" schools 
and purported attempts at/6nly "one-way" desegregation only b<j 
transfe^of black pupils to "white" schools were among the constitutional 
violationAand (2) xkxsoddx that a perimeter for a desegregation area in 
a "plan" submitted by state defendants must be rejected because on 
the re^rd  evidence its only basis was accomplishing"an arbitrary racial 
ratio. ^It is difficult to see how these holdings can be reconciled 
with petitioners.' assertions unless it is the petitioners who fear 
either black children in their schools or the assignment of white children



6. ( c o n t . )

to formerly 'black schools'. Like Judge Sobeloff, the District Court's 
action and intent are clear; to eliminate completely and forever 
the pervasive and invidious racial classification found in the system 
of public schooling, by the only means available; maximum actual 
desegregatiol??* Anc? finally, unlike Brunson „ there surely can be no 
argument that the lower courts here invoked any purported social policy 
like fear of "white flight" or "majority black schools" - -  to limit 
desegregation. See Findings of Fact in Support of Ruling on 
Desegregation Area, #1-3 and Fn. 1 (60a-6la, 89a).



In the first colloquy with counsel on remedy on October 5, 1973, the

District Court made clear that the commands of Davis and Brown II
Distr ict

were to control the future proceedings of the/-Court and the parties:

"I want to make it plain I have no preconceived notions 
about the solutions or remedies which will be required 
here. Of course, the primary and basic and 
fundamental responsibility is that of the school authorities. 
As Chief Justice Burger said in the recent case of Davis 
v. Board of School Commissioners:

1---- school authorities should make every effort to
achieve the greatest possible degree of actual 
desegregation, taking into account the practicalities 
of the situation. 1

"Because these cases arise under different local 
conditions and involve a variety of local problems their 
remedies likewise will require attention to the specific 
case. It is for that reason that the Court has repeatedly 
said, the Supreme Court, that each case must be judged 
by itself in its own peculiar facts.

As early as Brown II the Court had this to say;

'Full implementation of these constitutional 
principles may require solution of varied local 
school problems. School authorities have the 
primary responsibility for elucidating, assessing, and 
solving these problems; courts will have to consider 
whether the action of school authorities constitutes good 
faith implementation of the governing constitutional 
principles. '

'In fashioning and effectuating the decrees, 
the courts will be guided by equitable principles.
. . . At stake is the personal interest of the plaintiffs 
in admission to public schools as soon as practicable on 
a nondiscriminatory basis. ' . • ■

"I might say in that regard, as you lawyers know 
the Supreme Court took a little over a year to implement 
Brown I and Brown II. So they themselves, with better 
minds than mine and to the number of nine, had difficulty 
in resolving the problems that those four cases presented."^  
(T. 6-7)

7. The petitioners quotation of the District Court's remarks
at this same colloquy with respect to the "social goal "  of school segregation 
cases are, therefore, taken wholly out of context. Where petitioners 
suggest the District Court was motivated by naked "social concerns," 
it is patent that the District Court made a reasoned statement of the constitutional 
principles and defendants’ initial responsibilities in coming forth with 
remedial plans and the practical problems presented by court-ordered



7. (cont. )

desegregation. After all, judicial intervention is required and permitted 
only when the commands of the constitution have been violated by public 
authority. Righting the constitutional wrong of school desegregation 
happens, unfortunately, to have proven a very difficult social revolution. 
Read in context, then, the District Court's remarks about the difficulties 
of such judicial intervention should be read as an admonition to 
Plaintiffs that the Alexander command of "now" be understood in light 
of the practical difficulties of devising and implementing a plan to provide 
complete relief. That petitioners seek to place on this colloquy a 
judicially illicit interpretation is just another mark of their mis-statement 
of the case to this Court.

- V



If there  w e r e  any doubt on this s c o r e ,  the D is t r i c t  Court

thereafter reiterated the basis for its action-

"1. On September 27, 1971# this court issues! its Ruling on Issue of Segregation. On October 1971, 
this court issued from the bench guidelines to bind the 
parties in the submission of plans to remedy the constitutional 
violation found, i.e., school segregation; and in particular 
this court noted that the primary objective before us was 
to develop and implement a plan which attempts to 'achieve 
the greatest possible degree of actual desegregation, taking 
into account the practicalities of the situation.'
The same day this court reiterated these requirements 
by orders 'that the Detroit Board of Education submit a 
plan for the desegregation of its schools within 60 days' 
and 'that the State defendants submit a metropolitan plan 
of desegregation within 120 days.* In response to these 
orders hearings were held, and thereafter rulings issued, 
on Detroit-only plans (see Findings of Fact and Conclusions 
of Law on Detroit-Only Plans of Desegregation) and on the 
propriety of considering remedies which extend beyond the 
corporate geographic limits of the City of Detroit.
(See Ruling on Propriety of Considering a Metropolitan 
Remedy to Accomplish Desegregation of the Public Schools 
of the City of Detroit.) Between March 28, 1972 and 
April 14, 1972, hearings were held on metropolitan proposals 
for desegregation of the Detroit public schools.

"2. From the initial ruling on September 27,
1971# to this day, the basis of the proceedings has been 
and remains the violation: de jure school segregation.
Since Brown v. Board of Education the Supreme Court has 
consistently held that the remedy for such illegal 
segregation is desegregation. The racial history of this 
country is writ large by constitutional adjudication 
from Dred Scott v, Sanford to Plessy v, Ferguson to 
Brown-! The message in Brown was simple: The Fourteenth
Amendment was to be applied full force in public schooling.
The Court held that 'state-imposed' school segregation 
immeasurably taints the education received by all 
children in the public schools; perpetuates racial 
discrimination and a history of public action attaching 
a badge of inferiority to the black race in a public 
forum which importantly shapes the minds and hearts 
of succeeding generations of our young people; and amounts to an invidious racial classification. Since Brown 
the Supreme Court has consistently, and with increasing 
force, held that the remedy upon finding de jure 
segregation is prompt and maximum actual desegregation of 
the public schools by all reasonable, feasible, and 
practicable means available. This court finds that 
there is nothing in the law, wisdom, or facts, and the 
particular circumstances and arguments, presented in this 
case which suggest anything except the affirmance of these 
principles in both fact and law.

- !C-



»? The task before this court, therefore,

despite effort- oi xne ited ,separate but equal*
fo?:pVr§t is not whether to desegregate. That question 

bern foreclosed by the prior and settled commands of 
\ l l Supreme ?ourt and the Sixth Circuit. Our duty now is 
to 'grapple with the flinty, intractable realities of 
implementing the constitutional commands.'

Finally, the District Court could nd  order racial balance 

for any schools or area because he had approved and ordered no 

plan of desegregation; indeed no plan of desegregation has ever been 

before the District Court despite its orders. (See Statement of the Case, 

infra ). Instead the District Court in its order requiring further 

planning directed that,"within the limitations of reasonable travel 

time and distance factors" and "within the [proposed]
planning

clusters" (which differed in their racial composition^beguided by 

the flexible racial ratio thatnno school, grade or classroom be 

substantially disproportionate to the overall pupil racial composition." 

Ruling on Desegregation Area and Development of Plan(l01a-102a.) In view of 

the state defendants default in refusing to submit a plan of desegregation 

and otherwise failing to assist the District Court in developing a remedial

plan (see Statement of the Case, infra_____), this admonition from

the District Court to plan for actual desegregation hardly constitutes 

an abuse of discretion.

8.The petitioners present claims that the lower court 
-iudicial motives to accomplish 'racial balance1 andacted with non-judici , t ,. ,.

'majority white schools' is just a smokescreen to understanding the
constitutional issues. The District Court properly gave ----- ------ -
to Petitioners’1 similar attempt below to raise "social policy 1 considerations 
to justify continued segregation and a return to the doctrine of "separate
but equal":

I I



8. (cont. )

. # In the main such proof entirely misses thepoints the violation here found has to do with school 
segregation caused in substantial part by force of public 

authority and action; yet the intervening defendants’ questions 
and offer of proof speak mainly to educational theory and 
recent and sometimes contradictory research about narrowly 
measured educational effects, mostly on achievement test scores, 
of quite^limited beginnings of racial, or socio-economic 
integration of various types and as compared with the 
effects of dollar or other resource inputs and continued 
segregation. This court does not understand, however, 
that such research, from the Coleman report to its many 
reanalyses, formed the primary bases for the Brown 
decision or any of its progeny. See e.g., Brunson v. Bd. 
of Trustees, 429 F.2d 820, 826 (4th Cir. 1970) (J, Sobeloff, 
concurring). In the context similar to newly intervening 
defendants* objections to desegregation, the Supreme Court 
in Swann specifically held that such factors constitute an 
impermissible limit upon the duty to desegregate. 402 U.S. 
at 24, Fn. 8, Citation to such research, either in support 
or^rejection of school desegregation, misses the primary 
points insofar as pupil assignments are concerned, the system of public schooling in every state must be operated in a 
racially non-discriminatory, unified fashion; until that 
objective is met, the very system of public schooling 
constitutes an invidious racial classification. The adoption 
of an education theory having the effect of maintaining a 
pattern of de jure segregation is therefore clearly impermissible.

In this Court petitioners, having been told by the lower courts that the 
constitutional command of racialmo^-discrimination in public education 
governs over social goals^' ir>~ 'i*k£diiiyatte:n̂ pt to argue, without foundation, 
that it was the lower courts who were motivated by "social goals" rather 
than the commands of the constitution. ,



Similarly, the Court of Appeals in its opinions makes clear

its concern for limiting judicial intervention to the cure of any violation

found after a hearing on the merits. For example, on plaintiffs' second

appeal, the Court of Appeals specifically refused to consider preliminary

relief, even though a constitutional violation had already been found in

Act 48, stating specifically that the issue for the judiciary in school

desegregation cases is not what is desirable but whether there is a
remedy .

constitutional violation and, _if_ so, what r-oli oî is necessary to provide

relief. See 438 F. 2d 945, 946 (quoted supra_____). And the Court of

Appeals made clear that racial ratios were appropriate only as flexible 

starting points in devising an evaluating actual plans, as authorized in 

Swann . See En Banc opinion/l84a-185ajL A reading of the en banc 

opinion makes clear that the Court of Appeals, like the District Court, 

was forced to approve a metropolitan approach by the strict application of 

constitutional precepts to the massive violation, its far-reaching results, 

and the unique practicalities of the local situation found, all of which were 

supported by compelling evidence.

2. Practicalities of the Local Situation

In several particulars, the lower courts were confronted 

by proof of violation and certain practicalities of the local situation which 

were unique in their scope, breadth, and depth:

(1) A massive violation by purposeful state and local
defendant's action and state law which accomplished racial 
segregation within, among, and of the Detroit Public 
Schools;

~ / 2 -



(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

( 10)

A pattern of a central core of all black schools in 
the city surrounded by a ring of all white schools 
beginning within the city but extending beyond the 
city limits throughout the suburbs, a result, 
substantially, of the massive violation;

A violation imposed by the state, and therefore 
'state-wide' in scope, in some instances running ■ i
along school district lines (Act 48, bonding, transportation^) 
and in other instances extending across the geographic 
limits of Detroit almost without regard for school 
district lines (e. g. , school construction, faculty 
assignments, the Carver School District incident);

As a matter of fact, the integral relationship of the 
economic and social development and governmental action 
throughout the metropolitan area;

The deliberate fixing of the residential patterns of racial 
segregation throughout the metropolitan area, in 
substantial part by state and federal action (including 
action by school authorities and state policies which 
built upon and augmented this residential segregation);

The close proximity of white schools in the suburbs 
immediately adjacent to black schools in the city;

the natural environment for segregation created by 
the dual structure for future population movements and 
schooling;

The subordinate nature under state and federal law 
of intermediate and local school authorities and the 
absolute power of the state over its subordinate 
instrumentalities as demonstrated by the record;

The lack of relationship between the existing school 
district boundaries and other governmental units 
and legitimate state interests; and

The practical and historic permeability of school district 
boundaries for pupil transfers and other purposes.8a

8a. Both the District and Circuit Courts made a careful 
exploration and exposition of the subordinate status of school districts under 
local law,, the general supervisory powers of the state school authorities under 
state lawf'/tne equitable need to limit judicial intervention to preserve 
existing state policy and organs of decentralization of school administration 
insofar as consistent with substituting a unitary school system for the dual 
system found. The lower courts here carefully considered the "individual 
and collective interest^'fof Swann, 402 U. S. at Ib^and the state's interest both 
in keeping school govern/close to the people and setting its perimeters.
Wright, 407 U. S. 451, 469, 478. After such careful consideration, the
lower courts properly found, contrary to petitioner^ KHXxkKaax statements of questions
presented, that local and intermediate school districts are not " geographically

~ 13 -



8a (cont. )

and politically separate, identifiable and unrelated. " See'Allen Park 
Petition at 3.



In such c i r c u m s t a n c e s ,  d e se g re ga t io n  l im ited  only to the

City o f  Detro it  could  be said to substitute ' just '  s ch o o ls  for  the 'black'

and 'white '  s ch oo ls  found only if all  o f  these p r a c t i c a l i t i e s ,  the scope

Xof  the vio lation and its r e s u l t s , " '  ^axxkMxacmccxrrxix»  k k kkxpraaodxkhhrt 

and the r e c o r d  o f  ev idence  be low  w e re  to be  ignored and Detro i t  to be  viewed,  

s o le ly  for  consti tutional  p u r p o se s ,  as an iso lated  island. As  a p r ac t i ca l  

m atter  o f  real i ty ,  such D e tr o i t - o n ly  d e se g re ga t io n  would m e r e l y  a lter ,  but 

not e rad icate ,  the fundamental taint of  s t a te - im p o s e d  segregat ion  by 

ju d ic ia l  expansion o f  the c o r e  o f  'b lack  s c h o o l s '  to the geographic

l im its  o f  the City of  D etro i t  and p r e se r v a t io n  o f  the adjacent  r ing of 'white

8 b *s c h o o l s '  intact in the res t  o f  the m etropo l i tan  area .

F o l low ipg  a hear ing  on plans' of  de se g re ga t io n  l im ited  

to the geographic  l imits  o f  the City o f  Detro it ,  and based  upon the 

co m p e l l in g  e v id ence  o f  r e c o r d ,  the D is t r i c t  Court so  held and was a f f i rm e d
<*v\ 'tpoi.<A£

in pertinent part  by the Court  of  A p p ea ls .  Se-a —E-Zd—  (-EinJELanc.l,,
’£Ca)

Ruling on Issue  o f  Segregation/, Findings  o f  Fact  and C on c lu s ions  of  Law
( $ . (tec oyvo

on D e tr o i t - o n ly  plans o f  D esegrega t ion )  aswl/Findings o f  Fact  and 

C on c lu s ions  o f  Law in Support of  Ruling on D e se g re g a t io n  A r e a  and

D eve lopm ent  Plan,?/* - $ la ,77a -  'i’&a)- ( 'r \ i?C<3 1 ,

I

X  ,Even if the p r i m a r y  violation w e r e  l im ited  s o l e ly  to the
operat ion  o f  the, Detro it  Public  Schoo ls ,  it would require' / f l ight o f  fancy

resufts  A?  that vio lation do not have a r e c i p r o c a l  e f fect  on
ftearby white suburban sch oo ls , ,  Where  o ver  125, 000 black  ch i ldren  a re  segregatedv irtv *. ib . . . .bv o f f i c ia l  act ion in o v e r  13u .sch o o ls ,  it is m an i fe s t  that such m a s s i v e  y - A c
segrega t ion  wil l  have rea l  and substantial im pact  on nearby^schoo ls .

internal 
to a r g u e )(f

Such a finding is obv ious ly  not a con c lu s ion  that D e tr o i t - o n ly  
d e se g re g a t io n  is inadequate just  b e c a u s e  ' 'Detroit would be le ft  a predom inant ly  
b lack  schoo l  d i s t r i c t " .  G r o s s e  Poi.nte Pet it ion at 13. P e t i t ion ers ,  there fo re ,  
invoke a non ■sender in arguing that the dec is ion  is in con f l i c t  with .
Wright  v. E m p o r i a , 407 U. S. 451.

-M -



In the h is to ry  of  consti tutional ju r i s p ru d e n c e ,  respondents  

a r e  not aw are  o f  any instance w here  such a c l e a r  constitut ional  violation 

as h e re  has gone without r e m e d y  after being found. Unless  plainti ff  

s ch o o l  ch i ldren  a re  f o r e v e r  to learn under the r e g im e  of unconstitutional ,  

s ta te - im p o s e d  schoo l  segregat ion ,  s o m e  r e m e d ia l  plan for  d e se g re g a t io n  

a c r o s s  the boundaries  o f  the D etro i t  School  D is t r i c t  is requ ired .  Under 

the c i r c u m s t a n c e s  noted, the D is t r i c t  Court  so  held and was a f f i rm e d
fa - s 2O1;&>-a '5 ,

by the Court  of  Appeals  en banc.  See Ruling on Propriety/ ;  En Banc( /5  /* - /75«)

-15  -



0. PROCEDURAL COMPLEXITIES
1. No actual Plan of Desegregation
Although the District Court ordered State defendants to

submit a metorpolitan plan for the desegregation of the
Detroit Public Schools, the State defendants failed to submit
an actual plan of desegregation. They chose instead, to submit
six "plans" without recommendation or record support. Four
proposed concepts alternative to maximum actual desegregation;
a fifth described a statistical method of determining the
number of transfers involved in achieving any particular
racial mix; and a sixth discussed, primarily, new governance and
administrative structures for any larger area of actual pupil desegregation
and also proposed a particular area for initial pupil desegregation. (6la-64a)

. » ,
The Detroit Board and intervening defendants Magdowski, et. al.,
proposed alternative perimeters for the area necessary and practicable ,
effectively to eliminate the official segregation of the Detroit
Public Schools, Plaintiffs submitted a modification of the three
perimeters already proposed. (65a) /

As a result of the state defendants' default in failing to submit
an actual plan of desegregation, the initial hearing on metropolitan
relief was limited primarily to consideration of the general contours
of a plan, particularly the perimeter for actual pupil desegregation,

fata- eand how to proceed with further planning. After hearing, and the 
parties’ submission of proposed findings of fact and conclusiom 
of law, the District Court issued an order, July 14, 1972, (1) setting 
the contours for actual desegregation for further planning pending 
hearing on an actual plan, (2) establishing a panel to develop a 
plan for pupil desegregation, (3) directing state defendants to



consider administrative practicalities associated with any eventual 
desegregation order, and (9) setting a schedule for further proceedings 
to consider any plans and recommendations made by the court- 
appointed panel and the state defendants and to permit the parties 
an opportunity to present objections and alternatives. See ^
Ruling on Desegregation Area and Development of Plans and Findings 
of Fact and Conclusions of Law in Support Thereof. (60a-13da*

Thereafter, upon recommendation of the court-appointed panel 

and after hearing, the District Court on July 11. 197? ordered the 
purchase of 295 buses, necessary to implement any me tropoli^tan^pL 
for the actual desegregation of the Detroit Public Schools. / Upon 

' the representation by the State defendants that they lacked authority 
to (and would not) pay for these buses, the District Court at the 
same time joined the State Treasurer as a defendant pursuant to

Rules 19 and 21, F. R. Civ. P.
Following emergency appeals,from these rulings, the Court

of Appeals stayed the order directing purchase of transportation 
equipment pending entry by the District Court of a final desegregation 
order or until certification by the District^Court of an appealable

. , , , 9p it c r §1292(b), / On July 19» 1972 .question as provided by 2o U . b . o . ,  ■ J under

the District Court certified his prior rulings/an* 28 U.S.C.
11292 (b) and made a determination of finality under Rule (b),
Fed. R. C iv .  P, The Court of Appeals immediately granted the interlocuto

appeal on an emergency basis and stayed all further proceedings in 
the District Court, except planning, pending appeal. (113a!.

Subsequently, pending the appeals, the panel and s 
defendants filed reports on their planning. Of particular note, 
the State defendants' report on administration of any eventual 
desegregation plan recommended that, at least on an interim basis,



existing school districts be maintained as governmental instrumentalities
with desegregation accomplished by contract, and pupil and faculty
transfers, between school districts as already authorized under
state law. They also recommended that any eventual alteration
of the school districts' boundaries and reorganization of state,
intermediate and local school authority entities should be left to

, bthe legislature and the people.
On June;. 12, 1973, after briefs, hearing and decision by a panel 

of judges, and grant of.petitioners’ motions for rehearing en banc,
The Court of Appeals*, a 1 though-agreeing.tha 1 -the-Bi-st-nitH~-€-ourt

■■ s .
properly should consider limited relief ■ extending“b'eyond-the-gengraphio 
limits - of the Detroit School-District- solely to remedy the-constitutional 
violation found,'vacated for procedural reasons the Ruling on 
Desegregation Area and Development of- a Plan (except for^authorizing 
the court-appointed panel to proceed with its studies). Any semblance 
of even the outlines of a remedial plan was thereby eliminated from 
consideration at this juncture of the case. The Court of Appeals, 
however, did (1) adopt the parties’ suggestion to give the legislature 
the opportunity to act in any restructuring of existing school districts 
and (2) approve the principle that desegregation extending beyond the

a. The District Court suggested the availability of 
such an approach in its Findings of Fact and Conclusions of Law in 
Support of"Ruling on Desegregation Area and Development of a Plan. (80a-81a).

b. . On appeal, plaintiffs supported this recommendation 
as a workable method of proceeding to accomplish complete relief 
from the constitutional violation with as little intrusion into the 
State's internal political structure as possible.



geographic limits of the Detroit School District was required to 
cure the unconstitutional segregation disclosed by the record.
On these petitions for^ertiorari, there is simply no plan of
d e se g r e g a t io n  available  to frame review by this f 0'-ri-

c About all that is clear is that any eventual desegregation
plan will utilize,at least on an interim basis, existing school

framework for relief.



2. The Statute o f  Suburban Schoo l  D is t r i c t s .

vi

mi

During the s u m m e r  o f  1971 ev idence  the hear ing on 

olation began to suggest  that full r e l i e f  fo r  the vio lation being proven 

ght extend beyond the geographic  l im its  o f  the City o f  Detro it .  It was 

(and rem ains)  pla int i f fs '  pos it ion  that suburban sch o o l  d is t r i c t s  need not 

be  m ade  par t ies  defendant (and t h e r e fo r e  would not be  bound by any 

o rd e r )  until and unless  the state defendants,  with their spec i f i c

p o w e r s  and genera l  r e sp o n s ib i l i t y  o f  superv is ion  o f  public  education throughout

the State, had shown their  p r a c t i c a l  incapacity  to im plem ent  fully any

plan o rd e re d .  At that point in t ime,  par t icu lar  suburban sch o o l  d i s t r i c t s ,

or  other  entities,  might  wel l  havQ shown th e m se lv e s  to be ' ' n e c e s s a r y  p a r t ie s "  

X
under Rule 19. -. * _

The or ig ina l  intervening defendants white h o m e o w n e r s  group, 

which  initially opposed  arry d e se g re ga t io n  but therea fter  ear ly  r e c o g n iz e d

the s ize  and 'extent  o f  the vio lation proven ,  They

f i led  a m otion to jo in all 8b schoo l  d is t r i c t s  in the te4**€-©trot^area.

The District Court held decision on the motion in abeyance pending 
submission of actual plans of desegregation,which might establish 
more particularly the perimeters of relief and the school districts

by the part ies .
involved^/ See Ruling on Issue of Segregation, / in colloq y
on October 5, 1972 on remedial steps, the District Court indicated
its desire to allow affected school districts an opportunity to be
heard prior to implementation of any final plan but was uncertain
how the practical mechanics should be handled in view of the posture
of the proceedings, the uncertainty as to which school districts
might be affected, to what degree, and the vast number of potential

(44a) ,additional litigants./ As no plan of metropolitan desegregation has
even been before the District Court, this Court simply cannot

, . d
know how the District court would have resolved the issue.



Pla int i f f s '  pos it ion  that the Suburban D is t r i c t s  a re  not now 
'n e c e s s a r y  p a r t ie s '  is supported  by two additional fa c to rs :  f i rs t ,  no
com pla int  nor p r o o f  has ever  been  m ade  against  the conduct  of  any suburban 
s ch o o l  d is t r i c t ;  and second ,  schoo l  d is t r i c t s  have no power  or  con tro l  
o v e r  their own boundaries  as they can be a ltered ,  or  d es troyed ,  at any t im e 
by  the state, c f .  Gri f f in  v. State B o a rd  o f  Educat ion , 239 F. Supp 560, 566 
(E. D. Va. 1965); Hoots v. Com m onw ealth  of  Pen n sy l vania, 359 F. Supp 
807, 821-822 (W. D. Pa. 19731. c f .  Hunter v. City o f  Pittsburgh , 207 U. S. 161 , 
178-179 (19071.

d. Although the original motion of the intervening defendants
was later withdrawn, the issue continued to be pressed on the 
District Court, first by state defendants and then the intervening 
school districts.



only 43 of the
iP ...... ■ .■* /Despite the public notoriety of th is  case, 

suburban school d is t r ic ts  chose to f i l e  motions to intervene 

and then only between February 9 and 17, 1972, many months 

after  the words "c r o s s -d is t r ic t  busing" f i r s t  canonaded around 

the State and several months after  the D is tr ic t  Court had set  

a schedule for the f i l i n g  of remedial plans and objections  

thereto. On March 15, 1972, the d i s t r i c t  6ourt granted these 

motions to intervene, as well as the motion to intervene
- J x

f i le d  by a group of white suburbanites also seeking to contain 

any possible desegregation within the geographic lim its  of the 

City of D etroit . In granting these motions, the D is tr ic t  Court
. m

did place certain re str ic t io n s  on the intervenors conduct in 

future proceedings in the in terests  „of making ju d ic ia l  administration  

of further hearings among the numerous parties p ossib le . See 

Ruling and Order on P etitions for Intervention. At the f i r s t  

day of the.hearings on metropolitan r e l ie f  the D is tr ic t  Court
. t

made clear , however, that these lim itations would give way to 

the in terests  of ju stic e  upon showing.x

Immediately a fter  the D is tr ic t  Court's Ruling on Desegregation 

Area and Development of Plan?three other suburban school d is t r ic ts

X The D is tr ic t  Court stated at the opening of the hearings on 
metropolitan r e l i e f :

"Some of the newly intervening parties have f i le d  objections  
to the conditions of intervention which I have not given fu l l  
consideration to . Presently, I believe a l l  the Court need say 
change as ju stic e  may require as the proceedings p rogress ."  
3 /2 8 /7 2  Tr. 4

Throughout the hearing the D is tr ic t  Court modified the re str ic tio n s  
to permit cross-examination by a l l  counsel and even keep the record 
open for submission of evidence on tangential issu es .



chose to apply to the .Court of Appeals for writs of mandamus

or prohibition against Judge Roth. The Court of Appeals denied

the applications without prejudice to the school d i s t r ic t s '

right to intervene on July 17, 1972 and August 7, 1972. On

February 27, 1973, the Supreme Court denied review of that decision

without prejudice to the right of the School D is tr ic ts  to f i l e

application to intervene in the present action . ___ U .S .___ , 41

U.S.L.W. 3460. (See also l l la \  These three suburban school

d is t r ic ts  chose not to avail themselves of the opportunity to

intervene in the D is tr ic t  Court or in the Court of Appeals.

The remaining suburban school d is t r ic t  chose ju st  to s i t  t ig h t .

On appeal from the District Court's rulings, the Court of
Appeals held with respect to procedural issue:

"that school districts 'which are to be affpcted 
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," (Slip Op 6 8).■ .V - ' . - ... ' ■ .; « " f> • ... ,

Based thereon, the Court of Appeals also vacated the two orders 
and rulings by the District Court which described, even if but • 

tentatively, the scope of any metropolitan plan and the school 
districts likely to be affected by any final desegregation order.
The Court of Appeals remanded to the D is tr ic t  CJCourt with instructions  

for further proceedings.

that .
Plaintiffs subm.it/such a determination of what constitutes a

it is
"necessary party" under Rule 19 is erroneous because/much too 
broad. And, even if the Court of Appeals were correct as to what 
constitutes a "necessary party" under Rule 19, it erred in its

r jn fhU riflingapplication of that determination(byAvacating parts of the/Orders 
and rulings of the District Court quite precisely because the District 
Court has not yet ordered any desegregation plan implemented. In the



absence of the District Court ordering a final desegregation plan 
affecting any person, we can not see how the District Court has 
yet committed any error under any vi.ew/of the procedural issue at 
this stage in the proceedings. Plaintiffs chose not to seek review 
of the Court of Appeal1̂ ' decision, however, because (1 ) the issue 
is not of sufficient importance to warrant Supreme Court review and 
(2) compliance in the District Court with the directions for remand 
by the Court of Appeals can be accomplished without further delay in 
securing actual relief from the constitutional violation by the 1 9 7 4 . 1 9 7 5  

school year.

3. The Remand

In remanding the case to the D is tr ic t  Court for further

proceedings, the Court of Appeals directed that the D is tr ic t  Court:
% *

1* Give the Legislature of the State of Michigan

an opportunity to act "to  provide a complete remedy 

from the unconstitutional segregation disclosed in the 

record (177a) and p articu larly  an opportunity "to  

. determine the orgainzational and governmental structure

of an enlarged desegregation area to remedy the • 

unconstitutional segregation" (188a-189a);

2. Give the p la in t i f f s  and other p a rtie s , an opportunity

to amend their pleadings to conform to the evidence. . . ,  

to add additional parties and to ask for any additional

appropriate r e l i e f " ;  (178a)
. . sekfflpi, \ck

Xei give any /against whom r e l ie f  i s  sought an "opportunity  

to o ffe r  additional evidence, and to cross-examine 

available witnesses who have previously te s t if ie d ^ 'a n y  

issue raised by the pleadings, including amendments

thereto, as may be relevant and admissible to such issu es"  

(178a) FNj

3.

J The Court of Appeals continued:

The D is tr ic t  Court may consider any evidence now 
on f i l e  and such additional competent evidence as may be



FN. (cont.)

introduced by any party. However, the D is tr ic t  Court w il l  
not be required to receive any additional evidence as 
to the matters contained in i t s  Ruling on the ^Issue of  
Segregation dated September 27, 1971 or i t s  Findings of  
Fact and Conclusions of Law on D etroit-only  Plans. We 
hold that the finding of fact  contained in these rulings  
are not c lea rly  erroneous, Rule 5 2 (a ) ,  Fed. R. Civ. P.  ̂
but to the contrary are supported by substantial evidence.

Thus, the suburban petitioners, and other suburban defendants joined as 
parties pursuant to the directions of the Court of Appeals, are not 
thereby foreclosed from presenting evidence with respect to violation and the inadequacy of Detroit-only remedy in the District Court. Although 
they have no "right" to challenge these findings, they will have the 
opportunity to make a showing in the D-istrict Court that they actually 
have an evidentiary basis to challenge these findings. _ ,Apparently, therefore, the Court of Appeals determined that the 
flexible, equitable considerations underlying Rule 19 required 
that suburban school districts to be affected by any plan be 
permitted to show why they were not necessary for inclusion in any 
effective desegregation plan and, if so necessary, to participate fully 
in hearings to determine how they should be affected by assisting in the shaping of any plan. With respect to these remedial issues suburban 
school districts, arguably, have both relevant information and a substantial 

With respect to violation and Detroit-only remedy, however, 
no complaint has been made nor proof offered against the conduct of 
any suburban school district. With respect to these issues,_ •
suburban districts have no inherent interest or evidence. With 
respect to these issues, therefore, it is the suburban districts who 
should be required to show in the District Court what additional 
evidence or claim they may have. Despite their loud complaint 
about deprivation of procedural rights, xubpsasHa suburban petitioners 
in over 18 months of litigation have never been able even to suggest 
how such findings can be challenged by new claims of evidence.

-54c,-



4 . adhere to the principles of equitable r e l ie f  set  

by th is  Court and reviewed in depth by the Court of  

Appeals. (pp. 179a-189a)

The Court of Appeals also  authorized the court-appointed panel to  

proceed with i t s  task of preparing interim and f in a l plans of  

desegregation.

On remand, the p la in t i f f s  on August 3, 1973, moved the D is tr ic t  

Court (1) to jo in  a l l  other suburban school d i s t r ic t s ,  their super­

intendents, and boards of education as parties defendant, with 

the exception of Pontiafi, f Q-i in the metropolitan area and (2) 

to require state defendants formally to submit the charge of the 

Court of Appeals and the studies prepared by "the panel anchythemselves

to the le g is la tu re  for i t s  consideration. At a p r e - tr ia l  conference
% %

on August 15, 1973, p la in t i f f s  disclosed the nature of their contemplated 

amended pleadings * and the D is tr ic t  Court queried what action state  

defendants had taken, or were planning to take, to bring the matter
. - . __ . 9  ‘ ■

to the attention of the le g is la tu r e . At the p r e - tr ia l  conference 

among the p a rtie s , the D is tr ic t  Court directed p la in t i f f s  to f i l e  their  

amended complaint to conform to the evidence by September 1, 197 3., 

which fact petitioners  did not happen to mention to th is  Court in their  

p etition s  f i le d  September 6, 1973. Pursuant to the D is tr ic t  Court's  

order, the p la in t i f f s  timely f i le d  their amended complaint

f n j  The Pontiac School D is tr ic t  is  subject to the 
ju r isd ictio n  of the D is tr ic t  Court in another school desegregation case. 
See Davis v . School D ist . of Pontiac, 433 F.2d 873 (6th C ir . 1971),  
c e r t . den. 402 U.S. 913 (1971). P la in t i f fs  moved to add 
a l l  school d is t r ic t s  because of their prayer that those d is t r ic t s  
outside the area of actual pupil desegregation be subject to controls  
on new school construction in order to guarantee the s t a b i l i t y  of  
the desegregation plan within the smaller area; such provision w ill  
enable stable and e f fe c t iv e  desegregation plans to be implemented with 
a minimum of pupil reassignments (77a ) . ,



to conform to the evidence, which fact petitioners also failed 
to disclose to this Court. Following the urging by the District 
Court, the defendant Attorney General,on August 20, formally 
transmitted copies of the en banc opinion of the Court of Appeals 
to the President of the Senate and Speaker of the Michigan House 
of Representatives. On September 10, 1973, the District Court granted 
plaintiffs' motion to join the additional parties and instructed the 
United States Marshall to serve a copy of same, along with 
plaintiffs amended complaint, on the parties joined.

Thus, the District Court and the parties are already proceeding,
pursuant to the instructions of the Court of Appeals, to consideration
of metropolitan relief for the-violation found. Such proceedings
if continued to their conclusion should result in an actual plan♦ * 
of desegregation approved by the District Court, upon either adoption
by the legislature and/or submission by the panel or parties, after
a fair and full hearing involving all the parties possibly
affected,



ARGUMENT
T THIS CASE IS NOT NOW IN AN APPROPRIATEPOSTURE FOR REVIEW OF ANY QUESTION BY THIS

COURT.

As set forth in the counter - statement of the case, this 

school desegregation action is basically at an interlocutory stage.

No remedial plan of desegregation has ever been ordered or approved 

below. In the present posture, then, this Court obviously cannot 

evaluate the effectiveness of alternative plans available, the extent of 

transportation required, the scope of the remedy as compared with the 

violation and its results and reasonable time and distance factors, 

the precise manner and extent to which school district boundaries ^

need be permeated to accomplish relief. Thus this Court cannot review 

the many factors vital for full and fair consideration of this cas*e. , 

The Court of Appeals has remanded to the District Court, 

with instructions. Pursuant to those instructions, the legislature has 

been formally notified of the decision of the Court of Appeals; plaintiffs 

have amended their complaint and prayer for relief to conform to the 

evidence; and the District Court has added all intermediate and local 

school districts, their boards of education and superintendents, who 

might be affected in any way by any remedial plan,as parties defendant.

Now the legislature of the State of Michigan will have an

* The interlocutory appeals were heard by the Court 
of Appeals pursuant to certification and under determination/pursuant 
to Rule 54(b), F. R. Civ. P. and 28. U. S. C. 1292 (by.

- X I -



opportunity to consider and propose relief for the violation, and its

results, found. All the parties, and particularly the suburban school,

d i s t r ic t s ,  w ill  f i l e  responsive pleadings to the amended complaint; w il l  have

' the opportunity to prove which school districts should he involved in

any plan and how they should be a ffected ; and w i l l ,  upon making a showing of  

new le ga l claims or evidence, be able to challenge the findings of the D is tr ic t  

Court, affirmed by the Court of Appeals, with respect to v io la tio n  and the 

inadequacy of plans lim ited to  D etroit . *J

The court-appointed panel will develop an actual plan of desegregation,

and the parties will have the opportunity to file objections or alternatives
. •

thereto. After hearing on the issues raised by all these actions and 

pleadings, the District Court will be able to approve an actual plan 

of desegregation based upon the evidence, the law, and the arguments 

of the parties and in the context of a full and fair hearing among all affected 

parties. The Court of Appeals will "then have an opportunity independently 

•to review the evidence and the law. At that point in time, and only then,
S' V' •' . ;

w ill  the case be in an appropriate posture for review of any issues . 

this Court deems s u ff ic ie n t ly  important for i t s  review.

.*frhus,permitting the proceedings to be completed below 
will surely eliminate even the wildest "due process" claims 
advanced by petitioners and thereby moot one issue petitioners ask this 
Court to review.



There is no good reason to make an exception to this

Court's trad ition al refusal to review school segregation cases in the absence 
esp ecia lly  in the absence of Court and then

of a p la n , /  the completion of remedial hearings in the D i s t r i c t /o f Hthe ben efit

of consideration by a Court of Appeals, " Brown Shoe Co. v. United States,

370 U. S. 294, 355. Not only will the issues for review likely be narrowed 

by denying certiorari now, *J no substantial harm will be visited on 

petitioners other than the presentation of their case to the Courts 

below in the context of pleadings, presentation of evidence and actual 

plans submitted. For if petitioners still seek review oy this Court
Tu , ixlnjj

prior (implementation of any plan finally approved or ordered^ they -** — ..— -■ \  ̂ .

may pipon a proper showing .obtain a stay pending appeals from/the Court 

of Appeals or this Court. (And.the Court, of Appeals has shown*no ■—
P

reluctance to grant such stays heretofore in this case). Although it

may be/that "currently the major issue in public education is the 'perennially

divisive debate over who is to be transported where'. Milliken

'Petition at 51-52, quoting Justice Powell in Keyes, after Swann ,
busiW<» ' *V\<i 14 ¥10+ (K '|*\»+ »yA«niJtve. CowS+d'̂ +iÔ lL rŷ u.ir«JV.
K\is not, per se, a constitutional issue/unless "the time or distance

of travel is so great so as to risk either the health of the children

or significantly impinge on the educational process. 402 U.S. 1, 30-31.
M nre b . i t i >/ ,  (q.
(Respite petitioners' redrtlA threats of constitutional amendments and 

untoward political consequence.s,see Milliken petition at 52, this Court 

lacks all basis to review that 'divisive issue' in the absence of a plan

*/ See Fn. supra.

-



showing where the children are proposed to be transported.

The la t e s t  p o l i t ic a l  hue and cry from some parts of the land against  

desegregation* —  "c r o s s -d is t r ic t  busing" —  provides no reason for  

this Court to grant interlocutory review of th is  case.,contrary to i t s  

long proven practiced? in these school segregation cases.

the most carefully considered rulings of this Court do not escape this 
hostile reaction. See Swann, supra, 402 U. S. at 13; Cooper v. Aaron , 
358 U.S. 1 (1958); Griffin v. County School Bd. , 377 U. S. 278 (1964). 
After all, school segregation, at least in the Detroit area, did not 
happen and does not persist as a result of mere serendipity.



II. IN ADDITION THE PARTICULAR QUESTIONS
PRESENTED BY PETITIONERS EITHER ARE NOT WORTHY 
OF REVIEW OR ARE NOT PROPERLY RAISED BY THE 
DECISIONS BELOW AND THE RECORD IN THIS CASE.

State V iolations

Only the State defendants question the substantive determination

of violation below, and then only in the very limited context of particular

state policies and practices isolated from their relationship to the total

violation and circumstances of record as found by the lower courts.

Even in such isolation, state defendants seek Supreme Court review of

evidence and specific facts in opposition to the settled principles of this

Court. See U. S. v, Johnston , 268 U. S. 220, 227. In the actual context

of the total and massive violation of record^it is even more patent that
* ’ 

state defendants seek a wholly wasteful Supreme Court review of "concurrent

findings by two courts below in the absence of a very obvious and

exceptional showing of error. " Grover Mfg. Co. v. I,unde Co., 336 U.S. 271, .

275. State defendants have shown no reason to justify this Court's

review of the state's contribution to the pervasive violationj evidenced ‘

by a voluminous record.
Procedural Errors
The due process question presented by the Allen Park and

Grosse Pointe petitions.Ts so obviously premature as to require no

nil 1 1  I I 1 1 1  j II I 1 1 1 1 1 1  nt; as petitioners have not been ordered to do anything

and have not shown how they will be prevented from raising all issues

in the District Court upon a proper showing below, it is impossible to

understand how their procedural rights, if any,1 have been or will

2be violated. At this juncture no due process issue is present.

~3l -



1 P e t i t io n e rs  even fail  to show that they a r e  either
" p e r s o n s "  p ro te c te d  by  the Due P r o c e s s  Clause  or have standing to 
r e p re s e n t  the interests  of  other*  who m ay  be.  See State_oi_South 
Caro l ina  v. Kotzenbach ,  383 U.S. 301, 323 - 324; c f .  Hunter X.

161, 178-179 (1907b Indeed, in view o f  the 
^ i ^ ^ e l a y  in fi l ing their m ot ions  to intervene be low  as well  a,  

4 ^  the e lec t ion  of  their  suburban brethern  to rem ain  silent,  they all  
^  waived  their  r ights  under RuXe 19 end the Due P r o c e s s  Clause.

F e d e ra l  D i s t r i c t  C ou rts  should not be  held sub ject  to such knowm g 
Whipsaw, s e e  J o n a y _ v .  Vphnt^, _ F .  2 d _  (M arch  19, 19 ,3 .  S t h C t r . i

2. Indeed plainti ffs  submit  that the Court  o f  Appeals

e r r e d  (1) in holding that p e ‘ ° ^ s ^ C o i ^

u S r if——  ----- ,. ,,  ____ _ „ „  -R \ t . R ichm ond , 51 r . K. U. l ~>7 •" n e c e s s a r y  part ies '  . rnmpre Bradlfey v. Richmond, 51 F. R. D. UV . 
(The remedy for failure to g i ^ n e c  es sary part.es" an opportunity tobeIThe remedy for failure to give^ neceosai y r“ ‘ -----  1 " . , ■
heard in these circumstances is neither dismissal nor vacat.ng any orfer 
entered but rather remand to provide an opportunity to challenge prto
rulings upon showing). „



The Court of Appeals has directed the District Court 
to hear any party to be affected fully on all remaining remedial 
issues, presumably on the premise that such parties are before the 
Court only insofar as necessary for the complete relief contemplated. 
As no claim is made by plaintiffs that any suburban district is 
"guilty" of discriminatory conduct, such direction fits the equitable 
interest underlying Rule 19 and Due Process in the particular context 
of «^case. Moreover, there is no reason to assume that the 
District Court will not, in addition, give them the opportunity 
to challenge the findings and conclusions with respect to violation 
by others and the inadequacy of Detroit-only relief upon 
a proper showing of new claims or evidence**. Such a procedure 
provides petitioners with a fair and full opportunity to contest 
any and all issues, even if subsidiary,far* in excess of their 
rights, if any,**^ under the Constitution and the Federal Rules of 
Civil Procedure. cf.,e.g., Griffin v. Prince Edward County Bd._of 
Education, 377 U.S. 218 (1964)-. -

^Despite all their cries, petitioners in several briefs, 
arguments, and applications to this Court, the Court of Appeals 
and the District Court have failed to show even a single claam ofrelevai? piece of evidence not already raised or offered below.

**fi?laintiffs respectfully retain^their right, if this e 3r.0crants review on the procedural issue, to show that suburban districts are 
no? n L  "necessary parties" and have no rights protected by the 
Due Process Clause. See Discussion supra ---.



Metropolitan Relief
Finally, the petitioners proposed questions with respect

to the lower courts' determinations on the inadequacy of Detroit-only

plans of desegregation and the propriety of considering relief extending

beyond the geographic limits of Detrpit are premised on some imagined

state of the record and non-judicial motivations for decisions nowhere found

below. As set forth fully in the counter - statement of the case, petitioners

proposed questions (and statements of the casej omit or misrepresent

the record evidence of the scope and nature of the violation and its

results, the practicalities of the local situation, and the findings 
and conclusions of the courts below. The issues with respect to

r e l i e f  stated in these p e t it io n s , therefore , wholly f a i l  to 

describe any possible "metropolitan" ,or "m u lt i -d is tr ic t "^ is s u e  

raised by the evidence and judgments below at this  

juncture in the proceedings.



TIT THE ONLY QUESTION RAISED BY THE DECISIONS' BELOW-AND RECORD IN THIS CASE WITH RESPECT 
TO RELIEF EXTENDING BEYOND THE GEOGRAPHIC 
LIMITS OF THE DETROIT SCHOOL DISTRICT IS NOT 
WORTHY OF CERTIORARI.

We have shown in the counter-statement of the case that the oJ lj 

P ^uesho^^aiselty Lhiecisiorfbelow and record in this case at this 

juncture is whether local and intermediate school district boundaries 

fashioned by the State may serve as a stone wall to otherwise constitutionally 

required school desegregation.^ After a careful exploration of the 

voluminous record evidence, state law and policy, and the practicalities 

of the local situation, the courts below answered this question in the  ̂

negative in the particular circumstances unique to this case.

In making this decision the lower courts were guided . 

by and strictly applied the equitable and constitutional principles settled 

by this Court, in Brown I fr II, Cooper v. Aaron, Griffin v. .Prince Edward 

County, Green, Swann and Davis, and Wright y. Council of the City__of 

' Emporia . In Brown II this Court early recognized that the state's /

internal decentralization of administration over public education would 

have to accomodate the transition from state-imposed segregation and 

dual schools to a unified, racially non-di scriminatory system of public

education:

ŝ We reiterate, however, that this question^also, should not 
be reviewed because of the inappropriate posture of the case as set forth So.jin 
■mfca. The arguments in the text merely present alternative grounds 
for denying review of this question.

-3 4  -



"the courts may consider problems related to administration, 
arising from, the physical condition of the school plant, the 
school transportation systems, personnel, revision of 
school districts and attendance areas into compact units 
to achieve a system of determining admission to the public 
schools on a non racial bases, and revision of local laws 
and regulations which may be necessary in solving the 
foregoing problems. "  349 U.S. 294, 300-301.

In Wright v. Council of the City of Emporia, 407 U.S. 451 (1972), and

companion cases, this £ourt held on the particular facts/presented

by that that school district lines may not be interposed as a

barrier to otherwise constitutionally required desegregation. Based

on the particular facts presented by other cases, lower courts
* ar J&er diaiSi&riS seMjtal

have similarly held that school district linesjmay not stand as an

^penetrable barrief to otherwise constitutionally required dese*grega-tion. ^

In this case the courts below paid particular heed to examining

the status of local school districts under state policy and practice and to

the balancing the state's legitimate purpose in establishing the internal
. erf . ,

framework for local participation and administration^with the constitutional* 

command to eliminate dejure segregation and all its vestiges now and 

hereafter. A heavy-handed consolidation and reorganization of school 

districts has not been approved; and a practicable remedy to desegregate 

across the boundaries of the Detroit School District by contracts and 

pupil transfers between existing school districts is available, thereby

*/Ilaney v. County Board of Education of Sevier County, 410

gfmmpi......... . p----fcBBrtasfed• 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 C
1971); Gomillion v. Lightfoot, 364 U.S. 339 (I960); 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 Pa.rish School Board.
446 F. 2d 911 (5th Cir. 1971): Hoots v. Commonwealth of Pennsylvania

F . Supp %Qrl ( W. D.  Pa  , ( |C r?  ) .



exi sl ing
leaving to the political processes any modification of/state, local and

intermediate school district authorities. All that the lower courts have

determined is that school district boundaries may be crossed in the

particular circumstances of this case for the limited purpose of

remedying the extensive constitutional violation found and its results .

Unless the Detroit School District must be viewed, solely for constitutional

purposes, as an isolated island (which as a matter of fact, state law and,

heretofore, federal law it is not), remedy limited to Detroit will not
-*

eliminate the dual system of schooling foundWif remedy is so limited
■ • • . . ■ e

to Detroit^the basic violation will persist: two sets of schools, 

a 'black' inner core surrounded*by an immediately adjacent 'white' 

ring, identified as such substantially by Ehe continuing force of the priorr „ <

discriminatory 'state action'. The lower courts quite properly applied

settled constitutional doctrines in holding that such a result constitutes
‘Stwire - ' ̂   ̂ . . . . _ ,no remedy,for the/violation i-mpes ‘on/ the, school children and all

black citizens. ( 5 3 a - 58a; 163a-165a; 172a-175a. See also  48a-52a; 86a

That on is not in conflict with the decisions •

of this Court or any Court of Appeals. First, this school desegregation

case does not present issues of property taxation.amA gross financial
A wa Ae4o>c/rh W ̂ <s ifi

restruc
0.H.0 derVO ITW (Jo • S£ iKced'lO*?

Co'M par'd.
S&GjSan Antonio Independent School District v. Rodriguez, 411 U.S. 1.

To the contrary, this case involves an invidious, state-imposed racial 

classification, (e. g. , 6la'.

Second, this case does not present the issue of whether 

school district lines must fall upon showing the mere existence of
C <-v<A \<> IN?

racial imbalance in schools and school district lines. Sr-e/Spencer

v. Kugler , 326 F. Supp 123 5 (D.N. J. 1977', aff'd mem 404 U. S. 1027

(19721. To the contrary this case involves findings, supported by

compelling evidence, of pervasive dejure segregation and its far-

reaching results which can only be remedied by crossing school

district lines for the limited purpose of substituting *just schools^
> av.d Abv-rc. uka&lrJ



Finally, whatever the merit of the Fourth Circuit's 

determination in Bradley .v. School Bd. of the C ity_o£R ichmond_,

462 F. 2d 1058, aff'd by equally divided Court, _ U .  S.----- , the decision

of  the Sixth C ircu i t  is not in con f l i c t .  R i c h m o n d ,  involved a c o u r t -  

o r d e r e d  conso l ida t ion  o f  a centra l  c i ty  s ch oo l  d i s t r i c t  with 

suburban d is t r i c t s .  In this c a s e  no conso l idat ion  has been  o rd e re d ;  

no m a s s i v e  restruc tur ing  into a single  d is t r i c t  under a single  bo a rd  is 

contem plated 'and  m e a s u r e s  have been taken to m in im iz e  any con f l i c t  between
o

federal law and state policy. In Richmond each of the suburban 

schools, including the suburban'district s, had a substantial black pupil* 

population and faculty. In this case (except in the few outlying^pockets 

where the few black children attend upon virtually all black schools) 

the suburban Detroit schools are virtually 100% white in both 

pupiliand faculty. In Richmond each of the school districts had already 

. complied with federal court orders or HEW proceedings to eliminate ^

the dual system of schooling inherited and were declared to be .

"unitary" by the Fourth Circuit. In this case, the 

^flinty and ^tractable V oblems of remedial desegregation 

upon finding/dejure violation are for the first time being confronted.

In Richmond, after reviewing the constitution and statutes of Virginia, 

the Fourth Circuit held 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. . . 462 F. 2d 1058, 106 i.

In this case, after careful review of the constitution, statutes, policies

-37-



and practices of Michigan, the lower courts held that the "present  

case amply supports the finding* that the State of Michigan has not been 

subject to such lim itations in i t s  dealings with lo ca l school boards."  

(175a). Rather, as held by both lower courts a fter  careful  

examination of state law and practice , loca l and intermediate 

school d is t r ic t s  in Michigan are subordinate governmental e n t it ie s

fashioned by the state to a s s is t  in the state function of public
-ta+*■'<?--Stage's . , , ..

educatTonf U e ^ - i n a ;  79a-81a;' 30a; 36a-38a) . In Richmond, the

Fourth C ircuit determined that the causes of segregation between

schools in the d iffe re n t  d is t r ic t s  did not include action by

school au th orities . 462 F.2d 1058, 1066. In th is  case, based upon the

evidence, the courts below found that dejure action by state

and Detroit school authorities state .p o lic ie s , esp ecia lly

with respect to school construction, haS?a pervasive impact on the

ra cia l segregation of school’s and in turn on residences throughout

the metropolitan area,thereby causing further ra cia l concentration

in schools. (23a-24a; 35a; 77a-78a; 151a-157a, l71a)*J

F in a lly , in Richmond after  reviewing the evidence and opinions of the

D is tr ic t  Court, the Fourth Circuit determined that the ^

D is tr ic t  Court erred in basing his order on the n on -jud icia l goal

of imposing a " f ix e d  ra cia l quota." 462 F.2d 1058, 1064. In this

case, a fter  reviewing the evidence and opinions of the D is tr ic t  Court,

*frhis Court has twice before sim ilarly  noted the c r i t ic a l  im­
portance of school authority action , expecially  with respect  
to school construction, on the racia l composition of ss^ 00^  1 
a metropolitan area. See Swann v. Charlotte-Mecklenbe_r| , 402 
n s  1 18 -20 ; Keyes v . School D i s t r ic t , 31 LW, 5002, buus.
p" fioners seek to ignore both the lower courts express 
findings,supported by substantial evidence, in th is  regard and this  
Court’ s express conclusions of the relevance of such proof to a 
determination of v io la t io n .



the Sixth Circuit determined that the District Court was guided
instead by the proper application of the equitable principles,

nz-iU-eAu -f-Ue- \JlQ (ceil*>&, "h *established by this Court, to^the-^practicalities of 'the 
local situation* Respite petitioners' attempts to make this a 
"racial balance" case, that is one thing this case most surely is not. 
See Counter-Statement of Facts, .

Thus, based on the record evidence, the massive violation 
and the practicalities of the local situation, the lower courts here 
strictly applied settled constitutional principles in determining 
that remedy limited to Detroit would not eliminate the pervasive 
racial segregation and identification of schools by official 
action; in the circumstances here, remedy beyond the geographic limits 
of Detroit is therefore^authorized and required. As noted by the 
Court of Appeals (173a-174a) in quoting Chief Justice Marshall



"The government of the United States has been 
emphatically termed a government of laws, and not of 
men. It will certainly cease to deserve this high 
appellation, if the laws furnish no remedy for the 
violation of a vested legal right. Marbury v. Madison ,
5 U.S. (1 Cranch) 137, 163 (1803U "

For the federal judiciary to fail to provide a remedy for the constitutional

violation found here would be the most ignoble page in its racial
FI ess ̂  Br-ea S c a rf

history since at least -B-r-ed" Sc.att and perhaps Me coy.

For the federal judiciary to refuse to consider crossing

artificial school district boundary lines for the limited purpose of

curing the State's constitutional violations would open the way to

a resurrection of the now long over-ruled and discredited 'separate

but equal1 doctrine of Plessy along school district lines. If school

desegregation is to stop short hereafter, at the school district line,

the full force and effect of the violation found in Detroit will be

perpetuated forever - -  two sets of schools, one black surrounded by

another white, both the result of racially discriminatory state action

of pervasive impact. As stated by the Court of Appeals, "if we hold

that school district boundaries are absolute barriers to a Detroit School

desegregation plan, we would be opening a way to nullify Brown v. Board

of Education. "  ____F. 2d____. The lower courts here have steadfastly

refused so to act. We respectfully submit that this Court should not
&

deign even to consider such a nullification of Brown by grantinq/writ of 

certiorari to review this issue.

-



CONCLUSION

WHEREFORE, for the foregoing reasons, these Respondents 
respectfully pray that the Petition for a Writ of Certiorari
be denied.

Jack Greenberg 
Norman Chachkin

10 Columbus Circle
New York, New York 10019

Paul R. Dimond
210 E. Huron Street
Ann Arbor, Michigan 48108

Louis R. Lucas 
William E. Caldwell

525 Commerce Title Bldg. 
Memphis,,Tennessee 38103

Nathaniel R. Jones 
1790 Broadway 
New York, New York 10019

J. Harold Flannery
Robert Pressman... _ . tc— tAKStti Hhcl/‘t Appian Way v-

Cambridge, Mass. 02138

Attorneys for Respondents 
Ronald Bradley, et. al., 
Plaintiffs Below