Brief for Appellants

    •  «

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

N0o

RONALD BRADLEY, et al.,
Plaint if fs-Appe Hants,

vs.

WILLIAM G. MILLIKEN, et al.,
Defendants-Appellees,

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

Defendant-Intervenor.

BRIEF FOR APPELLANTS 

Preliminary Statement

Appellants file this Brief both as their submis­
sion in chief to this Court on the pending appeal, and also 
in support of their Motion for Summary Reversal or in the 
Alternative for Injunction Pending Appeal, and for Leave to 
Proceed Upon the Original Papers filed herewith.

r/\
i



The necessity for expedited action by this Court 
arises because this is an appeal from the denial of the motion 
below seeking implementation of the April 7, 1970 plan of 
school desegregation exactly as adopted and unrescinded by the 
Detroit School Board. Extraordinary procedures shortening 
the normal processing time for an appeal are required if 
tenth graders are to be accorded their Constitutional right 
to attend a high school with an improved racial balance effec­
tive with the February 1, 1971 commencement of the second 
semester of the current school year. Failure to give such 
relief would be to give full force and effect to the first 
sentence of Section 12 of Act 48 of the 1970 Michigan Legis­
lature —  a provision ruled unconstitutional by this Court on
October 13, 1970 in Bradley v. Milllken, ____  F.2d  No.
2079^ (6th Cir., October 13, 1970).

There is ample precedent in this and other Circuits 
for expeditious appeal in school desegregation cases. E.g., 
Bradley v. Milliken, supra; Singleton v. Jackson Municipal 
Separate School Dist«, 419 F.2d 1211, 1222 (5th Cir. 1969); 
Boykins v. Fairfield Bd. of Educ., 421 F.2d 1330, 1331 n.l,
1332 (5th Cir. 1970); United States v. School Bd. of Franklin 
City, 428 F.2d 373 (4th Cir. 1970). Appellate procedures 
should be "suitably adopted" to follow the "immediacy" require­
ment of the substantive law as stated in Alexander v. Holmes 
County Bd. of Educ., 396 U.S. 19 (19&9)* See Moses v. Wash­
ington Parish School Bd., 421 F.2d 658 (5th Cir. 1970).

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•  #

Issues Presented for Review

On April J, 1970, the Detroit Board of Education 
adopted a high school desegregation plan affecting twelve 
Detroit high school entering-tenth-grade classes in September, 
1970. The operation of that plan was suspended prior to its 
implementation by Section 12 of Act 48 of the 1970 Michigan 
Legislature. October 13, 1970, on appeal from the district 
court’s denial of a preliminary injunction, this Court declared 
that section of the law unconstitutional and remanded the 
cause. December 3, 1970, the lower court denied plaintiffs’ 
motion to implement the April 7 plan for the second semester 
of the current school year, delayed the trial on the merits 
a second time, and ordered into September, 1971 effect a "free 
choice" plan.

1. Did the court below err in perpetuating, for 
the second semester of the 1970-71 school year, the racial 
separation of pupils effected by Act 48?

2. Did the court below err in granting defendants' 
motion for a second continuance of the trial on the merits?

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#

Statement

Procedural History
This action was commenced August 18, 1970 to deseg

regate the public schools of the City of Detroit. The matter 
was tried August 27, 1970 before Honorable Stephen J. Roth, 
United States District Judge, on plaintiffs-appellants'

1/ This action is a classic Fourteenth Amendment suit seek­
ing complete desegregation of the Detroit public school 

system, as well as declaratory and injunctive relief against 
certain provisions of Act 48 of the 1970 Michigan Legislature. 
By way of preliminary relief, plaintiffs sought to: (l) en­
join defendants from giving any force or effect to §12 of Act 
48; (2) require September, 1970 implementation of the April 7 
partial high school desegregation plan on an accelerated basis, 
eliminating therefrom the three-year stair-step approach and 
the brother-sister exception; (3) enjoin defendants from im­
plementing the eight racially segregated administrative 
regions drawn pursuant to Act 48, or from taking any steps 
which would impair implementation of the seven racially inte­
grated regions as adopted by the defendant Board on April 7 > 
1970; (4) enjoin the defendant Board from all further school 
construction until a Constitutional plan of operation had been 
approved; (5 ) require September, 1970 assignment and/or 
reassignment of faculty members in accordance with the system- 
wide ratio of black and white faculty members.

The district court scheduled the August 27 hearing as a 
full trial on the merits, but on the second day of the hear­
ing (August 28, 1970), the court limited its scope to the 
matters presented in plaintiffs’ Motion for Preliminary In­
junction. The.thrust of plaintiffs’ presentation on the 
trial days of August 28 and September 1, 1970 was directed at 
§12 of Act 48 and implementation of the April 7 plan by the 
commencement of the school year, which began on September 8, 
1970.

The relationship of §12 of Act 48 to the April 7 plan (i.e., 
§12 suspended and, in effect, prohibited implementation and 
operation of the April 7 plan) is set out in this Court’s 
October 13, 1970 opinion. Bradley v. Milllken, supra, slip 
op. at pp. 13.
2/ "A. " references are to the Appendix to this Brief. By

separate motion filed herewith, plaintiffs seek leave to

Motion for Preliminary Injunction y

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•  •

1970, the district court denied the motion for preliminary 
relief and dismissed the action as to the Governor and 
Attorney General of Michigan.

Plaintiffs immediately appealed to this Court; the
matter was heard by the Chief Judge upon plaintiffs' Motion
for Injunction Pending Appeal, and then by a panel of this
Court on an expedited basis pursuant to the order of the

3/Chief Judge denying the Motion. October 13, 1970* this 
Court reversed the judgment of the district court insofar as 
it dismissed the State defendants and insofar as it upheld 
the constitutionality of §12 of Act 48. The district court's 
denial of plaintiffs' motion for preliminary injunction was 
affirmed, however, because

y : .

The complaint in the present case seeks relief 
going beyond the scope of the plan of April 7,
1970, and Act 48, such as the assignment of 
teachers, principals and other school personnel

2/ (continued) proceed on the original papers without the 
necessity of filing the Appendix required by Rule 30, 

F.R.A.P.. See Rule 30(f), F.R.A.P.. Due to printing limi­
tations, plaintiffs are filing only four (4) copies of the 
Brief Appendix at this time but will submit additional 
copies as soon as they are reproduced. ■
3/ The Motion for Injunction Pending Appeal, heard in Nash­

ville, on September 8, 1970 before the Chief Judge pursuant 
to Rule 8, F.R.A.P., sought only to enjoin the effect of §12 
of Act 48 insofar as. it impeded implementation of the April 7 
plan and to preserve the status quo by immediate implementation 
of the plan. In his September 11 order denying the Motion, 
the Chief Judge advanced the appeal for hearing on the merits 
before a panel of this Court on October 2, 1970 (A. 5" ).

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to each school in accordance with the ratio 
of white and Negro personnel throughout the 
Detroit school system, and an injunction 
against all future construction of public 
school buildings pending Court approval. As 
previously stated, the District Judge not 
only conducted an expeditious hearing on the 
application for a preliminary injunction, 
but has advanced the case on his docket to 
November 2, 1970 and allotted two weeks for 
the trial. \!V

We conclude that the Issues presented in 
this case, involving the public school 
system of a large city, can best be determined 
only after a full evidentiary hearing.

Bradley vl Milliken, supra, slip op. at p. 14.

Upon remand, plaintiffs filed in the district court
on October 30, 1970 a motion limited to requesting immediate

5/implementation of the April 7 plan. November 4, 1970, the 
district court continued the trial on the merits to December
8 and conducted instead a hearing on plaintiffs' motion to

6/implement the April 7 plan.

4/ The November 2 trial date was subsequently changed by the 
district court to November 4 because of a judges' confer­

ence .
5/ This motion did not seek elimination of the stair-step 

and brother-sister features of the April 7 plan but 
merely implementation of the plan as to students who entered 
the tenth grade in September and as to those who will enter 
the tenth grade at the beginning of the second semester, 
February 1, 1971*
6/ Plaintiffs acquiesced in the continuance upon the basis 

that the district court set a definite December trial date

\

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#

At that hearing, Superintendent Drachler testified
that his staff was studying the April 7 plan in light of the 
pupil racial count which had just been completed, in an ef­
fort to determine whether the April 7 plan needed certain
modifications so as to accomplish the desired result (11/4 Tr.

7/38-40). At the conclusion of the hearing, the district 
court took under advisement the motion to implement the April
7 plan, stating that

(i)n order to provide the Board of Education 
with an opportunity to demonstrate what Mr. 
Bushnell (Detroit Board's attorney) says 
they are planning to do and what they hope to 
do and what they hope to achieve in the way 
of implementing the April 7, Plan or an updated 
version of it, I will give the Board an op­
portunity to, not later than November 16, 
submit a plan which the Court may find accept­
able and one designed to become effective aS/n> 
of February 1, 1971 (A. {y ).

November 6, 1970, the district court entered an order 
requiring

that no later than November 16, 1970, 
Defendant Detroit Board of Education submit

7/ The transcripts of the three hearings in this cause nave 
not been paginated consecutively. Transcript citations 

are therefore preceded by the date on which each hearing 
commenced. The first hearing was held August 27, 28 and 
September 1, 1970; the second, November 4, 1970; and the 
third, November 18, 19 and 25, 1970.
8/ That portion of the November 4 transcript containing the 

district court's oral ruling was typed separately and is 
reproduced in the Brief Appendix, A. -Xo*
9/ The district court's reference to "what Mr. Bushnell says 

they are planning to do" relates to statements similar to 
the following: "And there has been a consensus as between
board superintendent and counsel that this board in light of 
the Court of Appeals decision is under an obligation to 
either implement the April 7 plan or its equivalent, depend­
ing upon how the facts develop . . . "  (ll/4 Tr. 27). See 
also, 11/4 Tr. 53; 11/4 Tr. 55; 11/4 Tr. 56.

-7-



• a high school attendance area plan to this 
Court consisting of that portion of tne 
action taken by Defendant Detroit Board of 
Education on April 7, 1970, going to the 
changing of attendance areas of certain 
named high schools in the City of Detroit, 
or an updated version thereof which achieves 
no less pupil integration; the said plan- 
to be submitted to this"Court is to become 
effective and shall be implemented on the 

/ first day of the Spring Semester of the school 
/ year 1970-1971, being February 1, 1971• (A.

% \)(emphasis supplied). 
i-

November 16, 1970, following a special Board of 
Education meeting, counsel for the Board filed, in addition 
to the April 7 (Plan "C") plan of integration,two addi­
tional plans referred to respectively as the "McDonald Plan" 
(Plan "A" or "Magnet School Plan") and the "Campbell Plan" 
(Plan "B" or "Magnet Curriculum Plan") (A. At its
meeting, the Board designated "priorities," assigning top 
priority to the McDonald Plan, followed by the Campbell Plan 
and the April 7 plan. The district court conducted a hearing 
on the plans November 18, 19 and 25, 1970*

November 19, 1970, the Detroit Board filed a motion 
to continue the trial on the merits "from December 8, 1970 to 
a date certain on or after Monday, January 18, 1971" (A. f D  ). 
Plaintiffs opposed the motion for continuance (11/18 Tr. 236).

At the conclusion of the evidence and following 
arguments of counsel on November 25, 1970, the district court

10/ The April 7 plan is contained in plaintiffs' Complaint as 
Exhibit D thereto (A. ) and also in the official minutes

of the April 7, 1970 meeting of the Board (Defendants' Exhibit
A.(,Vfcf>

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took the case under advisement but stated that the pretrial 
conference which had been set for December 3, 1970 would go 
on as scheduled (11/18 Tr. 368). On that date, however, the 
conference was obviated by the court's "Ruling on School Plans 
Submitted" (A. °JD ) and "Ruling on Motion for Continuance" (A.
I g & ). The same day, the district court entered its order in 
accordance with the rulings (A. |,)£0 and plaintiffs filed 
Notice of Appeal (A. |b*f )•

The Rulings Below
In its "Ruling on Motion for Continuance" the dis­

trict court granted the Board’s motion "for a continuance to 
a date to be fixed by the Court"; counsel for plaintiffs were 
subsequently advised in Chambers that the trial would take 
place some time in late March or April, the exact date to be 
fixed at a later time.

In its "Ruling on School Plans Submitted," the 
district court, despite its finding "that any action or failure 
to act by the Board of Education designed in effect to ’delay, 
obstruct or nullify’ the previous (April 7th) step toward 
improving racial balance in the Detroit schools is prohibited 
State action, approved the McDonald Plan and ordered that

1 1/ The court also held, on the basis of this Court’s October 
/ 13 decision and the cases cited by this Court in its 

opinion (slip op. at pp. 10-1 1 ), that "where a school district 
has taken steps enhancing integration in its schools it may 
not reverse direction. In the setting of our case nonaction 
is (or amounts to) prohibited action" (A. >•

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♦
"preparations should be started immediately for its insti 
tution at the beginning of the next full school year in 
September 1971" (A. (emphasis supplied).

The April 7 Plan
This Court already has considerable familiarity with 

the April 7, 1970 plan of high school desegregation from the 
previous proceedings in this cause. By way of reiteration, 
the April 7 plan provided changes which would "affect 18 
junior high school feeder patterns out of 55 and will influence 
12 senior high schools" (Defendants' Exhibit F at 504, A. )•

The passage of time has not made any basic change in 
the effect. The staff task force report (see infra)
describes the situation as follows:

Although changes in racial percentages have 
occurred during the past year, the relation­
ship of the paired schools in that plan are 
still, relatively, the same. (12/) That is,
Redford, Cody, Osborn, Denby, Western and Ford 
have a significant majority of white students. 
Mackenzie, Cooley, Mumford, Pershing, Kettering 
and Southwestern have a preponderance of black 
students. It should be noted that all boundary 
changes occur within the established eight re­
gions, with the exception of the Denby-Kettering, /x 
areas. (Plaintiffs' Exhibit 13, A. ia>)-

12/ An increase in racial isolation in Detroit's high schools 
— / was noted by Superintendent Drachler at the November 4 
hearing (11/4 Tr. 5)*
13/ "If, the April 7 plan is compared to the current 8-region 

organization, it is apparent that all facets of that plan 
may be initiated within the current organization, except Denby- 
Kettering. The fact of a violation of region boundaries as a 
requirement to re-institute April 7 should not be a major de­
terrent to carrying out the plan. Precedent exists currently 
in the Post-Cooley, Burroughs-Kettering, and the Vernor- 
Vandenberg-Ford combinations for student attendance areas which 
do not fit adult voting areas." (Plaintiffs' Exhibit 13, A*p^lf )

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' „ \ '■ 
\

) ■

\ \ 
s

The April 7 plan would be effectuated by changing 
the attendance area boundary lines separating the twelve 
high schools from a north-south to an east-west direction 
(11/4 Tr. 38), affording more efficient utilization of exist­
ing public transit routes in Detroit (11/18 Tr. 254-55). It 
would involve the movement of only 1% of Detroit’s public 
school enrollment for the 1970-71 school year (8/27 Tr. 222, 
231) and would affect only 3% to 4$ of the total system popu­
lation over the three-year full implementation period (8/27 Tr. 

\ 232-33). The plan would not cause any increase in the number 
of schools operating on extended-day sessions (ll/l8 Tr. 295) 
with a few individual exceptions, there would be no problem of 
subject-matter continuity for those students who would change 
schools under the plan (11/4 Tr. 8-9); it would not require 
building or equipment changes (11/4 Tr. 13); and only one or 
two teacher changes would be necessitated by the April 7 plan 
(11/4 Tr. 16 ).

The following table demonstrates the effect of the 
April 7 plan as compared to the current enrollment and 
racial composition of Detroit’s 21 attendance-area high 
schools:

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* +

Current Enrollment**
PiJ^ected 
% Black 
Without April

Projected 
% Black 
Under April

High Schools* Total Black % Black 7 Plan*** 7 Plan****
1. Central 2140 2140 100%
2. Chadsey 1654 907 54.8%
3. CODY 3516 141 4% 3.3% 9.7%
4. COOLEY 2876 2192 76.2% 61.5% 53%
5. DENBY 2949 73 2.5% 2.4% 19.3%
6. Finney 2658 973 36.6%
7. FORD 3082 617 20% 13.5% 16.3%
8. KETTERING 3472 3373 97.1% 91.4% 81.3%
9. King 1879 1876 99.8%

10. MACKENZIE 3250 3145 96.8% 90.7% 83.8%
11. MUMFORD 3059 3001 98.1% 95.8% 94.9%
12. Murray-Wrigh t 2072 1974 95.3%
13.

/Northeastern
f 1437 1339 93.2%

14. Northern 1767 1748 98.9%
15. Northwestern 2981 2977 99.9%
16. OSBORN '3071 431 14% 17.5% 22.6%
17. PERSHING 3244 2069 63.8% 58.3% 50.9%
18. REDFORD 3781 107 2.8% 3.6% 11.4%
19. Southeastern 2710 2630 97%
20. SOUTHWESTERN 1767 1312 74.3% — 71.3%
21., WESTERN 2241 827 36.9% — 39.2%

* The underlined schools are the twelve high schools affected 
\ by the April 7 plan.

** The "Current Enrollment" columns are taken from the defendant 
Board' s Oct.1970 racial count (Plaintiffs' Exhibit 10) and the 
percentages are computed therefrom.

*** This column is taken from the "Without Change" columns of the 
April 7 plan (Exhibit D to Complaint; A. 6 3 ) and repre­
sents the Board's April 7, 1970 projections as to the 1970-71 
racial composition of the 12 high schools without the April 7 
plan.

**** This column represents the April 7, 1970 projections as to the 
effect of the April 7 plan on the 12 high schools. (Exhibit D 
to Complaint; A.

\ ' .-12-



+

At the November 4 hearing. Superintendent Drachler 
reiterated his belief that integration is a necessary ingred­
ient of quality education (see Bradley v. Milliken, supra, slip 
op. at pp. 3-4), stating that the April 7 plan was good and 
that it was his hope the Board would select a plan of inte­
gration along April 7 lines (11/4 Tr. 29). The Superintendent 
apparently now feels, however, that no plan should be imple­
mented until next September because of administrative difficul­
ties (11/18 Tr. 288, 295, 315), although he testified on 
September 1, 1970 (seven days before the school year began), 
that his staff "would need anywhere from four to six days to 
reschedule these approximately 3000 students (who would be 
affected by the April 7 plan)" (8/27 Tr. 224). The Superin­
tendent also testified at the first hearing that 50 to 100

14attendance area changes are made each year (8/27 Tr. 188-91).

Another member of the school administration and
two School Board members with training in education, supported

15/the April 7 plan.

14/ In contrast to the procedure followed with regard to the 
April 7 feeder pattern changes for the purpose of inte­

gration, the Superintendent normally makes changes in feeder 
patterns every semester without Board approval (11/18 Tr. 225).
15/ Board Member Dr. Cornelius Golightly, Associate Dean of

the College of Liberal Arts and Professor of Philosophy at 
Wayne State University (ll/l8 Tr. 151) and a member of the 
Milwaukee Board of Education for six years (11/18 Tr. 155), 
testified that the April 7 plan "is educationally sound" and 
"in terms of the plans presented it is simple, straightforward, 
involves established and proven ways in which you would inte­
grate . . . ." (11/18 Tr. 156-57, 159-60).

Board Member Gardner, an attorney with a Master’s Degree 
in Education who taught for 8 years in Detroit’s public schools 
(11/18 Tr. 2l6, 218), testified that in his opinion "implemen­
ting the April 7, plan would bring about the immediate

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»  •

The April 7 plan is the only one- existing which 
has been worked out logistically and which has detailed pro 
cedures for implementation. It is the only plan that will 
affect, by February, 1971, the students deprived of their 
constitutional rights by §12 of Act 48.

Alternative Proposals
As previously stated, the Detroit Board on November 

16, 1970 submitted two alternatives to the April 7 plan: the
McDonald Plan and the Campbell Plan. Although the Board 
superficially assigned top priority to the McDonald Plan, four 
of the seven Board members who testified at the last hearing 
preferred plans other than the McDonald Plan: Campbell (11/18

15/ (continued) required integration and that at the very same
time one of the other plans can be included and join with 

the April 7, plan to give a wider integration to the system" 
(11/18 Tr. 217. See also, 11/18 Tr. 167-68 (Dr. Golightly); 
11/18 Tr. 99 (MrsTUampb'ell)). "(T)he April 7, plan could be 
implemented faster and more complete than the other two plans.
I think it is less expensive and actually causes least movement 
than any of the other plans and it is just a matter of being 
a little simpler to accomplish" (11/18 Tr. 219. See also, 11/18 
Tr. 172-73 (Dr. Golightly)).

Dr. Freeman A. Flynn, Divisional Director of the Department 
of Intergroup Relations in the system’s Division of School- 
Community Relations, who has been a teacher, department head, 
assistant principal and principal prior to assuming his present 
position in 1968 (ll/l8 Tr. 245), also testified in favor of 
the April 7 plan. Although he felt it "was a modest effort at 
desegregation," he favored the April 7 plan because he "felt 
that given the social dynamics of the community the plan might 
address itself to those social dynamics and might tend to im­
prove the emotional climate and psychological climate of the 
schools" (11/18 Tr. 253). As a professional educator, he felt 
"that the April 7, plan is a reasonable program for the school 
system to adopt" (11/18 Tr. 257). He supported it at the time 
it was adopted (11/18 Tr. 253) and believes "it is a reasonable 
plan to adopt in February" (11/18 Tr. 258). Dr. Flynn found 
that under the plan "there are probably no students who would
have to go further to school than what students currently do who attend Finney High School or Southwestern High School under 
the currently operating high school plan" (11/18 Tr. 276).

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*

Tr. 108-10); Rambo (11/18 Tr. 141-47, 149-50); Golightly 
(11/18 Tr. 156-57, 159-63); Gardner (11/18 Tr. 217-18)

A. The McDonald Plan
The district court described the McDonald Plan as 

follows (A.
The McDonald Plan is intended to achieve inte­
gration by providing a specialized curriculum 
at certain high schools. Each of such special­
izing schools would serve two of the eight 
regions of the school system, with the expecta­
tion of drawing students from a wider area, 
thus bringing about a built-in and, hopefully, 
a greater degree of integration. The categories 
of specialization would be Vocational, Business, 
Arts and Science. The plan is voluntary, and 
all high schools, including the so-called magnet 
schools, would offer a regular high school 
curriculum for student’s living Tn the present 
High school attendance areas. "(empHasis supplied)

The McDonald Plan on the other hand, we believe, 
offers the student an opportunity to advance in 
his search for identity, provides stimulation 
through choice of direction, and tends to estab­
lish security. (11/) That it will promote 
integration to the extent projected remains to 
be seen, but based on the experience in this

l6/ Member McDonald, of course, preferred his plan (11/18 Tr.
20), while Board President Hathaway preferred either the 

McDonald or Campbell Plan over the April 7 plan (11/18 Tr.
229, 231, 232). (Both have opposed the April 7 plan since its 
inception). Member Mogk expressed no preference (11/18 Tr. 
173-79)* Thus, only two members actually expressed any sort 
of preference for the McDonald Plan. (Compare the district 
court’s finding that the Detroit Board "has on its own shown 
a preference for the McDonald Plan . . ." (A. US' »•
17/ These "identity," "stimulation" and "security" criteria 

are nowhere found in the record, in the form of expert 
testimony or otherwise, but apparently stem from the District 
Judge’s personal views on education and what the law ought 
to be.

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•  •

same school system, i.e., Cass Technical 
High School (18/) it holds out the best 
promise of effective, long-range integration.
It appears to us the most likely of the three 
plans" to provide the children of the City of 
Detroit with quality education as we have 
defined it. The McDonald Plan has been char­
acterized by the plaintiffs as an experiment.
The short answer to this is that all plans 
are experiments, just as is life itself. To 
sum up, in our view the McDonald Plan is the 
best of the plans before the Court.

The plan "is based upon the concept of excellence in education
acting as a magnet to voluntarily draw students of all races
and socio-economic classes together for educational progress"
( A - * *  )(emphasis supplied). Parents desiring to send their
children to another high school would bear transportation
expenses, unless the majority of the parents in a particular
region favored transportation at Board expense (11/18 Tr. 55)*
However, four of the current seven Board members believe that
the McDonald Plan would not result in pupil integration because

1 9 /, 2 0 /
of its "free choice" aspects.

18/ Se?gfpp. - infr>.
19/ BoarB^rwfftte^-C^mpbell criticized the voluntary aspect of 
—  the McDonald Plan on this basis: "It seems to me that
the specialization, that students would voluntarily leave the 
familiar and move into a strange situation for their entire 
high school career because it had a better teacher or because 
it had more automobile engines than their home school had. I 
find that assumption difficult to accept" (11/18 Tr. 108).
Two of Mrs. Campbell's responses to the district court’s ques­
tions are representative:

THE COURT: You put it in this focus, then, as 
I see it. basically the difference between the approach 
in Plan B, and Plan A, is that Plan A is purely 
voluntary, isn’t it?

A. That’s correct. (11/18 Tr. 109)

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A concept similar to the current McDonald Plan 
was previously rejected as a substitute to the April 7 plan 
by the Detroit Board as it was constituted on April 7> 197°*

19/ (continued)
THE COURT: It * s your judgment that the

voluntary aspect of the plan will be its defeat 
so far as substantial progress is concerned, that 
is, Plan A; that that is really the achilles heel 
of Plan A. You don’t think it will bring forth 
the response that is expected.

A. That's correct. (11/18 Tr. 110).
Board member Rambo, in reference to the voluntary aspect 

of the McDonald Plan, said: "my reading of past experience in
other places leads me to feel that it would not be an unsound 
thing to consider some —  and you (the Court) used the term —  
help in the choice of selecting a curriculum, help possibly 
from the system" (11/18 Tr. 146).

Similarly, Board member Golightly had reservations about 
the voluntary aspects of the McDonald Plan and preferred the 
April 7 plan as a plan of school desegregation (11/18 Tr. 16 7)• 
Board member Gardner preferes the April 7 plan supplemented by 
the Campbell Plan "because I happen to believe that no inte­
gration will occur in the City of Detroit if there is not an 
element of requirement. I think the voluntary concept of the 
A plan proposed by member McDonald . . .  it is impractical in 
this world today and particularly in the City of Detroit to 
accomplish integration" (ll/l8 Tr. 217-18).
20/ The McDonald Plan as presented to the district court also 

contained a proposal for February 1, 1971: that "all
senior high schools shall be open to enrollments which will 
contribute to the integration of the school up to a total 125$ 
of their capacity . . . with the further provision that any 
high school already in excess of 125 per cent shall receive 
open enrollments up to 10 per cent over their current enrol­
lment" (A. 'hv )• Plaintiffs urged that any plan of integration 
which placed the burden on black children and their parents 
would be unconstitutional (11/18 Tr. 334) and, in view of 
the testimony of Superintendent Drachler and Member McDonald 
(based on past experience with open enrollment), that such a 
policy would at best result in one-way integration. The 
court apparently perceived the defect: (question to Dr. Drach­
ler) "As I understand it, you have misgivings about the effect 
or about Plan A, bringing about integration in terms of white 
students moving into black schools, predominantly black 
schools" (11/18 Tr. 291). Cf. Green v. County School Bd. of 
New Kent County, 391 U.S. 430, 441-42 (1988).

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#

Board Member McDonald was one of the two Board members who 
voted against the April 7, 1970 plan of desegregation (the__ g 7
other be.ing current Board President Hathaway)(A. ' ). As
the defendant Board states in its Answer to the Complaint,
"as recently as April 14, 1970 . . . Member Patrick A. McDonald
formally introduced a ’magnet1 plan to the Detroit Board of
Education . . . "  (A. lib ). (The plan itself is attached to
defendants’ Answer as Exhibit 2, A. ). This "magnet"
plan was introduced by McDonald as an alternative to the April
7 plan (11/18 Tr. 30, 36-37)., but was tabled by vote of the

21/ 22/
Board on April 14, 1970 (11/18 Tr. 32-33)• '

B. The Campbell Plan
The district court referred to the Campbell Plan 

as follows (A. ):
For the purposes of our present ruling we 
consider the Campbell, or "Magnet Curriculum" 
Plan, albeit perhaps an "exciting concept of 
secondary education," as one which does not 
lend itself to early implementation because 
of the programming and operational difficulties 
which attend it. It is a distinctive departure 
from past and present practices, and lacks a 
background of experience. The most obvious 
question mark concerning it is its impact upon

21/ The "magnet" plan which was rejected on April 14, 1970 is 
like the plan approved below, with the exceptions that it 

involved 5 geographic areas rather than the present 4, and it 
did not contain the "middle school" (see n. 22 infra) and "open 
enrollment" aspects of the present plan (11/18 Tr. "31, 34-35).
22/ In addition to magnet high schools and open enrollment, the 

McDonald Plan also contains a "middle school" proposal to 
create one school in each of the eight regions housing the fifth, 
sixth, seventh and eighth grades. Enrollment would be limited 
to 500 in each of the schools, and each would have a controlled 
racial quota 50$ black and 50$ white. Admission "would be on 
a voluntary basis and would necessitate application by inter­
ested parents" (A. ; 11/18 Tr. 12-14).

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the.achievement of identity. It is best 
viewed as an educational concept meriting 
study by our educators.
The Campbell Plan (A. ̂  -51) is to some extent

similar-to the McDonald Plan in that it provides that certain
high schools would offer specialized curricula 23/, 24/

C. Staff Proposals
At least three other proposals for desegregation 

originated within the administrative staff, and one was

23/ The difference between the Campbell Plan and the McDonald
Plan lies in the proposal that a student would attend his 

base, attendance area high school for approximately one-half 
of his courses, those being the courses which are required for 
graduation. In addition, a student would participate in stu­
dent activities, athletics, student government and graduation 
ceremonies at his base high school (11/18 Tr. 74). The 
remaining one-half of his studies would be electives and might 
require attendance at another school. If his base school was 
the locale of the electives he chose, he would remain there.
Some testimony indicated that some method could be devised to 
eliminate this problem (11/18 Tr. 74, 80-8l). The plan would 
be effectuated by providing a series of free shuttle buses to 
take students between schools (11/18 Tr. 78). The premise, 
in the written plan submitted to the court, is that since stu­
dents would be able to take certain non-required courses in 
other schools, all required courses would continue to be pro­
vided at each base school.

The Campbell Plan has not been "fleshed out" in detail (ll/l8 
Tr. 84), but one of its problems at this stage of development 
is that required courses predominate in the first and second 
years of the high school curriculum while electives are generally 
taken in the junior and senior years (11/18 Tr. 144). Much of 
the operation of the plan, insofar as integration is concerned, 
depends on the selection of course offerings by the students 
(11/18 Tr. 95-96); the plan too easily lends itself to classroom 
and curriculum segregation. (See 11/18 Tr. 92-95)*
24/ The Board also considered and rejected two other proposals

proffered by members: an open enrollment plan suggested by
Board member Mogk (11/18 Tr. 182) and a different "magnet" plan 
offered by member McDonald himself (11/18 Tr. I89-9O).

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presented to the Board of
alternatives but basic to
tion of the April 7> 197°

25/further desegregation.

Education. The proposals contained 
each one was February 1 implementa- 
plan as the starting point for

25/ One of the rejected alternatives was a November 9 staff 
— / task force ’’Proposal for School Desegregation" which had 
been presented to the Board by Dr. Freeman Flynn (11/18 Tr. 
187-88). (Plaintiffs' Exhibit 13, A. / fcs). There are three 
aspects to this proposal: (l) implementing the April 7 plan
as it affects those students entering school on February 1, 
19 7 1; (2 ) reorganizing the grade structure on a 4-4-4, rather 
than 6-3-3 , basis "(a)s part of a long-range plan to provide 
further desegregation . . . "  (A. |*3)(in essence, this is a 
pairing proposal); (3 ) refining and expanding the magnet 
school approach (A. |Ql3) by "clos(ing), as regular junior or 
senior high schools, those schools with seriously declining 
enrollments, and reorganiz(ing) them as specialized schools 
or as experimental 'open' schools with a city-wide enrollment 
(A. | Vt) (11/18 Tr. 265-68). In contrast to this latter pro­
posal to utilize underfilled high schools to increase 
desegregation, the present Board policy with regard to over­
crowding —  to bus students to underutilized schools so as 
to increase integration at the receiving schools -- is not 
applied at the high school level (8/27 Tr. 153-54), despite 
the existence of six inner-city black high schools which are 
under capacity and six outer-city white high schools which 
are over capacity. -Lact ycai, 2OOP™bo 3000 lower-grado^gnpl 1 a 
wfi-pp nt; Board .exp&n£g--.nndfeg--£*»la—policy (8/27 Tiir“

In addition to the staff proposal of November 9, Dr. Flynn 
testified about two other desegregation proposals which were 
made following this Court's October 13 opinion: one recommen­
dation dated October 24, 1970 from Dr. Flynn's Department of 
Intergroup Relations to its parent Division of School-Community 
Relations (Plaintiffs' Exhibit 11, A.p>); and a series of 
"Proposals in the Matter of School Integration" dated November 
2, 1970, submitted to the daff task force (which subsequently 
made the November 9 proposal to the Board discussed above) by 
the Division of School-Community Relations (Plaintiffs^ Exhibit 
12 a . r V  )• These last two suggestions (Plaintiffs' Exhibits 
11*and 12) were objected to and were not admitted into evidence 
bv the district court but were filed as an offer of proof 
under Rule 43(c), F.R.C.P. (11/18 Tr. 265). Plaintiffs offered 
these three proposals not as alternatives to the McDonald and 
Campbell plans but to demonstrate the availability of more 
effective techniques of desegregation. Compare Green v. County 
School Bd. of New Kent County, supra, 391 U.S. at 439:

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#

Further Continuance of the Trial on the Merits
This Court, on October 13, 1970, in refusing to 

disturb the district court's denial of a preliminary injunc­
tion, noted the extent of the relief requested by plaintiffs 
(see note 1 supra) and the fact that the District Judge "has 
advanced the case on his docket to November 2, 1970 and 
allotted two weeks for the trial." Bradley v. Milliken, supra, 
slip op. at p. 14.

25/ (continued)
Of course, the availability to the board of 
more promising courses of action may indicate 
a lack of good faith; and at the very least it 
places a heavy burden upon the board to explain 
its preference for an apparently less effective 
method. . . .  It is incumbent upon the district 
court to weigh . . .  (a proposed plan) in 
light of the facts at hand and in light of 
any alternatives which may be shown as feasible 
and more promising in their effectiveness.

The October 24 proposal by the defendant Board’s Depart­
ment of Intergroup Relations made four recommendations for 
integrating Detroit's public schools: (l)reinstate the April
7 boundary changes on February 1, 1971 and increase the ef­
fectiveness of the April 7 plan by applying it to all 
incoming tenth graders and all students presently enrolled in 
the tenth and eleventh grades; (2 ) pair certain junior high 
schools; (3 ) close certain inner-city junior and senior high 
schools with declining enrollments and reorganize them as 
specialized or "open" schools together with a magnet concept; 
(4) transport students as in Berkeley, California to achieve 
a structur^rf^student racial ratio at each school in the 
system of at least 40$ minority race students (A. JgU- tqfc 
11/18 Tr. 249-52, 258-62). 1 ‘ ™

The November 2, 1970 submission by the Division of School- 
Community Relations to the staff task force contained five 
alternative suggestions: (l) implement the April 7 plan on
February 1, 1971; (2) increase the scope of the April 7 plan by 
making It effective as to eleventh graders, as well as current 
and incoming tenth graders; (3) pair certain junior high and 
elementary schools with less than 5% of either white or black 
students (the proposal notes that there are currently "(t)hirty 
nine elementary schools (which) have less than 5 black 
students and 94 schools have less than 5$ white students" (A.

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#

Following this Court's remand on October 13, 1970, 
plaintiffs, in an effort to avoid confusing the issues sur­
rounding the April 7 plan and §12 of Act 48 with the issues 
involved in the trial on the merits, filed a limited motion 
to require the Detroit Board to implement the April 7 plan. 
On November 4, 1970* the scheduled trial date, the district
court sua sponte continued the trial on the merits to December
8, 1970, and conducted a separate hearing on plaintiffs*

26/motion to implement the April 7 plan.—

During the course of the latest hearing, which 
commenced on November 18, the defendant Detroit Board on 
November 19 filed a motion to continue the trial on the merits 
"from December 8, 1970* to a date certain on or after Monday, 
January 18, 1971" (A. ). As grounds for the motion, the
defendant Board set forth four reasons: (1) "Plaintiffs*
counsel has estimated that presentation of his proofs will
----------------- 7----------- - ” ’
25/ (continued) ( M )  ) ,* (4) utilize a magnet concept by

reorganizing inner-city schools with declining enrollments 
(5) cross-bus as in Berkeley, ̂ California "for a structured 
student ratio" (A. ; 11/18 Tr. 263-64). .

The Division’s report to the task force notes one 
disadvantage of the magnet concept —  "integration of students 
will not./immediately result from the magnet school concept.
The city-wide attraction to both white and black parents is 
a function of sufficient time to ’prove* to the community 
the educational strength and the merit of the specialized 
magnet schools" (A. ̂ 0  ).
26/ As previously noted (n. 6 supra), plaintiffs assented to

this procedure on the condition that the district court set 
a definite December trial date, as plaintiffs had gone to 
considerable trial preparation, scheduled the appearance of 
numerous witnesses, and desired a speedy determination of their 
rights.

-22-



#  •

27/require eight to twelve trial days"— \ and "Defendants' 
proofs will require a minimum of two weeks" which would cause 
interruption of the trial by the holidays; (2) the Detroit 
Board is in the process of administrative decentralization 
pursuant to Act 48; (3) ten new Board members would be taking 
office on January 1, 1971* and it would "be a severe denial 
of due process" not to give the incoming board "full opportunity 
to have actively participated in the trial on the merits" 
should the court order any relief; (4) the trial on the 
merits should await action by the Supreme Court on school 
desegregation matters now pending before it (A. jo -/3).

In its "Ruling on Motion for Continuance" the 
district court granted the Detroit Board's motion, stating as 
its reasons: (1) commencing trial on December 8 "would
result in fragmentation of the proceedings because of the 
impending holidays"; (2) the Detroit Board was engaged in 
preparation for administrative decentralization to take effect 
on January 1, 1971; (3) "it would be grossly unfair to the new 
central Board of thirteen members, only three of whom would be 
carry-overs, not to allow them time in which to warm their 
chairs and prepare for their participation in the trial on 
the merits"; (4) "there is a possibility that decisions in 
cases now before the Supreme Court of the United States

27/ This same estimate was given to the court on November 4, 
1970, at which time it selected the December 8 trial 

date.

-23-



will be forthcoming in the near future, and they may well 
affect the format and trial of this cause"; (5 ) that the 
Court's ruling on plaintiffs' motion to implement the April

I ^ D|7 plan had resolved "the most urgent issue in the case" (A.ry ).

Plaintiffs were subsequently advised in Chambers 
that the district court would not schedule the trial on the 
merits to commence until some time in late March or April.

-24-



•  •

ARGUMENT

"THE COURT: ... Naturally, but for the
J

legislative action and the recall move­
ment, the April 7 plan would have been 
fully implemented this fall, would it not? 
A [Superintendent Drachler] Yes, sir." 
(11/4 Tr. 33).

- 25-