Reply Brief for Plaintiffs-Appellees

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT
NO. 72-8002

RONALD BRADLEY, et al.,
Plaintiffs-Appellees

vs.

WILLIAM J. MILLIKEN, et al.,
Defendants-Appellants

On Appeal from the United States District Court 
for the Eastern District of Michigan, 

Southern Division

REPLY BRIEF FOR PLAINTIFFS-APPELLEES

J. HAROLD FLANNERY 
PAUL R. DIMOND 
ROBERT PRESSMAN

61 Kirkland Street 
Cambridge, Mass. 02138

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

E. WINTHER McCROOM
3245 Woodburn Avenue 
Cincinnati, Ohio 45207

Attorneys for Plaintiffs-Appellees

LOUIS R. LUCAS 
WILLIAM E. CALDWELL

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

NATHANIEL R. JONES 
1790 Broadway 
New York, New York 10019

BRUCE MILLER 
LUCILLE WATTS

3246 Cadillac Towers 
Detroit, Michigan



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT
NO. 72-8002

RONALD BRADLEY, et al.,
Plaintiffs-Appellees

vs*

WILLIAM J. MILLIKEN, et alo,
Defendants-Appellants

On Appeal from the United States District Court 
for the Eastern District of Michigan, 

Southern Division

REPLY BRIEF FOR PLAINTIFFS-APPELLEES

INTRODUCTION

This reply brief for plaintiffs-appellees is in two 
parts along the lines of what we believe to be the material 
issues genuinely presented for this Court's consideration. 
Treated first and more extensively are the questions— whose 
significance is one of the few matters of agreement among 
the parties— grouped under the issue, the scope of the 
violation and the remedy.

Thereafter we turn to the numerous lesser questions, 
many of them raised in a scattershot, makeweight fashion 
suggesting that even their exponents place limited cre­
dence in them. In this category we address such matters



as the asserted necessity for a three-judge court, the 
significance of intent and proximate cause in official 
discrimination, Rule 41(b), and the school-by-school 
approach to systematic segregation.

Fundamentally, however, the district court was correct 
as to the nature and scope of the violation, after which 
any lesser remedy would be constitutionally insufficient 
and unsound.*

* Page references in this Brief to State's Brief 
and the Allen Park intervenors* (Intervenor School Dis­
tricts') Brief are to the substituted printed copies of 
those briefs.

2



I. The Scope of the Violation and the Remedy

The Court below held that state educational policies 
and practices contributed to the constitutional violation 
found. It then proceeded to fashion a remedy which would 
practicably provide Detroit children with "just schools," 
in place of schools which are a racially identified com­
ponent of the relevant area.

The other parties have concentrated on this aspect 
here, with the suburban and state defendants challenging 
it in almost every particular; and we have previously 
acknowledged it to be "the central question on appeal" 
(Brief, p. 110, note 75)."" Even the United States, which 
was authorized by this Court’s Order of July 20, 1972, to 
"intervene for argument on the question of the constitu­
tionality of Section 803," sua sponte devotes almost half 
of its 42-page Brief to gratuitous observations on these 
issues.

In the main, the suburban and state defendants' metro­
politan arguments tend, in our judgment, to focus upon the

1/ To be sure, contentions concerning the Detroit vio­
lations have been advanced. However, we have elected to 
treat those secondarily for several reasons. First, anumber 
of them, such as the significance of intent and causation in 
school cases, are familiar and not difficult questions of 
law (Detroit Board Brief, pp. 22, 33); secondly, others, 
such as the pervasiveness and lasting effects of proven prac­
tices, are traditionally matters for trial court determination 
(State Brief, 72-75, 76-77); and lastly, a number of parties 
to the appeal have effectively accepted the court s findings, 
some explicitly (defendants-intervenors Magdowski, et al„, 
Brief, p. 3), others arguendo (defendants-intervenors-appel-

(cont’d on next page)
-3-



general aspects of such questions as the remedial autho­
rity of federal courts and the de facto autonomy of local 
districts, and to gloss over the district court’s pain­
staking and voluminous findings as to those very issues—  
in the context of the violation detailed in this case.

Thus the suburban intervenors argue that the remedial 
powers of federal courts are limited, that Brown and its 
progeny are racial exclusion not identifiability cases, 
that Michigan law does not sanction dual systems, that 
only Detroit failed to maintain a unitary system, and that 
the court strove for racial balance without inquiring into 
the legality of suburban systems’ conduct. (Green Brief, 
p. 8; Allen Park Brief, pp. 20-21, 28-29, 31-32, 4, 7, 14-15 )<> 

The state defendants argue that they have not discrimi­
nated personally, that the Legislature has imparted the 
relevant powers to local districts aot the state board, and 
that federal courts have declined to hear or grant relief 
in cases challenging inequitable transportation arrangements 
and taxing and spending formulae. (State Brief, pp. 34 et seq.,
42, 14, 16, 22, 24-25, 59-69).

Issues such as whether suburban districts may legiti­
mately be affected by relief absent a showing that they have 
discriminated independently or that their lines are created

1/ (cont'd)” lants Green, et al., Brief, pp. 2,8), and still others 
who did not review the record (defendants-intervenors-appel- 
lants Allen Park Public Schools, et alo, Brief, p. 50)„

-4



or maintained for racial reasons (Allen Park Brief, pp.
4, 14-15, 34) are not abstractions here; their resolution 
is inseparable from the actual circumstances affecting 
constitutional rights. Similarly, the case does not 
challenge state policies, such as the transportation aid 
formula, generally or as urban v. rural discrimination 
(State Brief, pp. 59-69), but rather, as illustrating 
educationally baseless practices which contributed, inevi­
tably and foreseeably, to racially dual sets of schools. 
Moreover, this appeal does not involve relief based upon 
the district court's prediliction for racial balance or 
other legislative-type consiaerations(Allen Park Brief, p0 
33; State Brief, pc 83) but whether any district court 
could have done otherwise where the only asserted justifi­
cation for continuing the racial identity of Detroit's 
schools is that the state and certain of its other units 
would have it that way.

Therefore, let us review the relationship between the 
violation and the remedy as contained in the record in this

J Jcase.

2/ We continue to adhere to our view that metropoli­
tan desegregation would be required in this case purely as 
a matter of remedy. That is, if Detroit children could not 
be afforded "just schools" without inclusion of the suburbs, 
then such inclusion would be mandated even if the unconsti­
tutional condition were traceable solely to a particular state 
agent— the Detroit Board. Regardless whether their policies 
contributed to the violation, the states must, in the last 
analysis, remedy constitutional defaults where their instru­
mentalities will not or can not.It is also our view, however, that this case does not 
present this question to this Court in its "pure" form.  ̂
Rather, the district court found a preponderance of credible evidence that specific state policies and practices were causal

(cont'd on next page)
-5-



As a threshold matter it is undisputed that the 
Detroit component of the state system is two-thirds black 
while the tri-county components outside are more than 97 
percent white; indeed, omitting from the computation such 
traditionally black suburban pockets outside Detroit as 
Inkster, River Rouge, and Ecorse discloses that the remain­
ing components are more than 99 percent white. It is also 
undisputed that a Detroit-only desegregation plan, "in 
itself state action" (see United States v. Texas Education 
Agency. F.2d (No. 71-2508, 5th Cir., decided
August 2, 1972, slip op. at 39)(cited hereinafter as Austin), 
would perpetuate that inter-system racial identifiability.
Cf. Austin at pp. 37 and 49. Therefore, if there is a 
causal relationship between state action and that effect,then 
there is a violation; and cures which do not eliminate the 
effects as well as the violation are inadequate.

We need only find a real and significant 
relationship, in terms of cause and 
effect, between state action and the 
denial of equal educational opportunity 
occasioned by the racial and ethnic sepa­
ration of public school students.

* * * *

2/ (cont’d) . .—  factors in the violation, and that such policies 
either did not serve a compelling state interest or did not 
do so in the most nondiscriminatory way reasonably available. 
(A. Ia 515-516, la 525-526.) In this, among other respects, 
our case differs from Spencer v. Kugler, 326 F.Supp. 1235 
(D.N.Jo 1971).

3/ The defendants arguments, citing the recent Supreme 
Court"~3’ecisions in Emporia and Scotland Neck, to the effect ̂ 
that the district court.here, by noting inter-district statis

(cont'd on next page)
-6-



Discriminatory motive and purpose, 
while they may reinforce a finding 
of effective segregation, are not 
necessary ingredients of constitu­
tional violations in the field of 
public education.

Cisneros v. Corpus Christi Independent School District,
F.2d (No. 71-2397, 5th Cir., decided August 2, 1972,
slip op. at 12-13, cited hereinafter as Cisneros).

What then were the relevant state actions and their 
effects?

First, the court found, and it is undisputed, that the 
state's pupil transportation reimbursement formula discrimi­
nated against Detroit and in favor of suburban non-city dis­
tricts, plus some suburban city districts by virtue of a 
"grandfather clause". (A. IXa 630).

3/ (cont'd)tical disparities, was striving for racial balance 
is to us a non sequitur. (State Brief, pp. 85-36, 88 
Allen Park Brief, p. 33.) Those decisions, which curbed 
efforts to create new, more identifiable systems, involved 
districts already surrounded by counties whose school systems 
also averaged more than 50 percent black. Bureau of the 
Census, General Social Economic Characteristics (1970), Tables 
119-120, 125.

4/ The state defendants seem to argue (State Brief, 
p. 42“ et seq.) that this is an unconsented suit against _ 
the State, barred by the Eleventh Amendment, because plain­
tiffs have not alleged specific discriminatory intent on 
the part of named state officials. At least since Ex Parte 
Young, 209 U0S„ 123 (1908), suing the officials in charge 
has been the way to challenge state policy that is alleged 
to be effectively discriminatory. Indeed, unless two of 
these defendants are alleging that a third one is himself 
singling out particular Michigan school districts for 
discriminatory treatment, this is the pattern in their own 
Serrano-type test case: Milliken and Kelley v„ Green, #53809,
Mich. Sup. Ct0

-7



The uncontroverted effects of this state policy were two: 
Detroit's comparative inability to provide pupil transpor­
tation induced the construction of more numerous, 
smaller schools, which because of discriminatory housing 
patterns were more segregated than fewer larger schools 
would have been. (A.IIIa 93-95,223-24,IVa 129-30). In addition, 
suburban schools were thus made more attractive to those 
families desiring school transportation for their children—  
at the very time when black families were excluded from 
such districts by discriminatory housing practices. Compare 
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S„
1, 20-21 (1971). (See Plaintiffs' Brief at 36-39).

We are not contending here that the transportation 
discrimination, standing alon in a racially homogeneous 
setting, is unconstitutional (see State Brief, pp. 74-75).
We are contending, however, that the inevitable and foresee­
able effect of the state policy, for which no compensating 
justification was advanced, was to make suburban schools more 
attractive— and Detroit less attractive— in the context of 
white mobility and black containment, Compare Cisneros, 

above, at 14-15.
Second, it is not disputed that, as state policies 

(such as the transportation formula and bonding authority 
and equalization payments, discussed below) were causing 
Detroit to be perceived as a disfavored school system, new 
school construction was rampart in the suburbs while seats

-8-



were going begging in Detroit. (A. iVa 232-36, IXa 372). 
During part of this period state defendants had direct 
statutory control over new construction, and during all of 
it they had residual constitutional responsibility for state 
action at all levels. Again, because of discriminatory 
housing patterns only white families could readily respond 
to the lure of new schools in apparently favored districts.

Also again, the state defendants' arguments that they 
did not personally effect residential segregation or dis­
criminatory site selection and construction practices 
(State Brief, pp. 34-40) is beside the point. See Cisneros, 
above, at 15-18. The issue is not whether the state and 
suburban defendants conspired with specific intent to 
accomplish today's inter-district segregation. Nor are we 
challenging abstractly an uneconomical state policy whose 
only vice in a racially homogeneous setting might be its 
extravagance. Rather, the gist of the constitutional vio­
lation is that a state policy has effectively synchronized 
with other racial discrimination to produce segregated 
schools——wholly without independent justification for the 
policy in terms of a compelling, or even plausible, state 
interest. Compare NoA.A.C„P. v. Alabama, 357 U.S0 449 

(1958); Brewer v. Norfolk School Board, 397 F.2d 
37, 41-42 (4th Cir. 1968). See A. Ia 515-516.

-9



Third, it is undisputed that until 1971 Detroit's 
authority to issue school construction bonds without a 
popular vote was limited to 3 percent of the assessed 
valuation of taxable property, while all other districts 
could go to 5 percent. The state defendants argue (State 
Brief, p. 60 et seq.) that the Supreme Court has sustained 
other state school bonding provisions, and in this Court 
for the first time, if we read their argument correctly 
(Brief, p. 61), that the limitation was not actually dis­

criminatory.
Be that as it may, this is not a geographic inequality 

case. The point, again, is that made by the Supreme Couru 
in Swann. Families gravitate toward schools, and by policies 
that made Detroit an educational stepchild the state vir­
tually insured that before long the system would be serving 
primarily those families confined, within its perimeter by 
residential racial restrictions.

This policy, like the others, was not supported below 
by a showing of compelling state interest, and even here 
we are told only that the inequity, if any, was eliminated 
in May of 1971 (State Brief, pc 61)• In view of £he obliga­
tion to eliminate discriminatory effects "root and branch," 
that remedy is too little and too late. Green v. New Kent 
County, 391 U.S. 430.

Fourth, a point similar to the foregoing ones was made 
with respect to the effects of the state aid formula upon

-10



Detroit in comparison to the suburban districts. The state
defendants have responded (State Brief, p. 77 et.seq.), if
we read them correctly, that some suburban districts are
badly off and that federal courts do not entertain actions
framed in terms of pupils' "needs," citing Mclnnis vy

5/
Ogilvie, 394 UCS. 322 (1969).

We repeat that this case is not Serrano v0 Priest or 
even Millikcn and Kelley v, Green0 Where state policies 
operate without a compelling justification to stigmatize 
some school districts as practically bankrupt or otherwise 
undesirable, and where because of racial discrimination only 
some families can move to districts commonly perceived to 
be more favored, the state's contribution to inter-district 
segregation is inevitable, foreseeable, and impermissible.
The "game board" is so "loaded" that a new one is required. 
Swarm, 402 U.S. at 28.

The foregoing examples may not exhaust the roster of
state contributions to Detroit's inability to provide its
children with "just schools," and further inquiry might well
disclose others; but standing largely uncontroverted they
constitute substantial evidence in support of the trial

6/
court's findings.

5/ Contrary to this litigation position, the State Depart­
ment of Education's Associate Superintendent for Business and 
Finance, Robert McKerr, testified to the Senate Select Commit­
tee on Equal Educational Opportunity, on October 26, 1971, to 
the effect that Detroit compares unfavorably to its suburban 
districts. Hearings, Part 19A, pp. 9466-67.6/ The state continues to take steps to preserve the segre­
gation of the relevant schools. This Court will recall that it 
voided, at an early stage of this case, a portion of Act 48 
which purported to mandate neighborhood schools as a puprl 
attendance criterion in Detroit. Bradley v0 Millikeji, 433 F.2d 
897 at o Since the parties were last here, the State
School Aid Act of 1972 (PA 258, Reg. Sess. of 1972)

-11-



In summary as to the metropolitan violation, we note 
that the suburban districts have argued (Allen Park Brief, 
pp. 14-15, 34) that the correct standard as to violation 
is whether district lines have been created, maintained or 
operated in furtherance of an impermissible policy. Al­
though not agreeing with this standard, we believe it has 
been met. The state must justify policies underlying the 
effects achieved here. It has justified neither the policies
nor the effects. Austin, above, at 50.

In the recent words of the United States Court of Appeals
for the Fifth Circuit:

The explicit holding of Cisneros I, 
which we now affirm, was that actions 
and policies of the Board, had, in 
terras of their actual effect, either ^

. created or maintained racial and ethnic
segregation in the public schools of 
Corpus Christi.

Cisneros, above, at 13. The constitutional principle can 
be no different where the state is a prime causer and the 
district lines are the effects.

~  ^has^become law. It authorizes more than 34 million 
dollars for pupil transportation and continues to discriminate 
against Detroit as described above. Moreover, Section 79
^ ' No appropriations allocated under this act

for the purpose of covering transportation 
costs or any portion thereof shall be used 
for the payment of any cross busing tô  
achieve a racial balance of students with­
in a school district or districts. .

Compare Lee vc Nyquist, 318 F. Supp. 710 (D.N.Y. 1970),
affirmed, 4U2 \CTT935 (1971); North Carolina state Board
of Education v0 Swann, 402 U.SC 43,^5 ̂ X9717 Kelley.,v. ̂ ttetropoTitari 'County~¥d., Nos. 71-1778-79, slip op. at 30 (6th 
Cir. May 30̂  I S I Q ) ,

12-



We understand the state and suburban arguments against 
the district court's remedial framework of June 14, 1972, to 
be essentially two: first, that Michigan's present legal
and administrative arrangements preclude such relief; and 
secondly, that substantial cost and inconvenience will be 
involved. This Court is urged, in effect, to be appalled 
at the novelty and magnitude of the probable course of 
events below.

It is tempting to answer that Brown v. Board of Educa­
tion and Baker v. Carr were also quite disruptive of existing 
arrangements, and that, in the recent words of the Austin 
decision (slip. op. at 53): "Equal educational opportunity
must be provided despite cost and inconvenience."

We think it important that this Court be apprised of how 
cautiously, indeed meticulously, the court below proceeded 
in reaching its order of June 14. Any intimation that 
the district court has unnecessarily distorted local arrange­
ments in a heavyhanded, uninformed way is belied by the more 
than one hundred findings of fact and conclusions of law, 
and the precise order, of June 14. It is significant, we 
believe, and supportive of our view, that the state and 
suburban defendants have not, despite repeated opportunities, 
sought to challenge or amend the particulars of the court s 
framework. If we read their attitude correctly to be: "if
it must be done, that's the way to do it J that is in a

7/ Therefore, and because issues of state power and 
constitutional rights we treated extensively in our Opening 
Brief (pp. 81-107), we defer consideration of those.

-13-



sense to their credit, but it can not be reconciled with 
generalized periodic naysaying.

It is asserted that the district court went beyond 
ordering "just schools" for Detroit's children to require 
racial balance, either for its own sake or in order to 
foreclose future resegregation by "white flight." (Allen 
Park Brief, p. 31; State Brief, p. 80, et seq.) Of course, 
the Court did weigh such familiar concepts as "actual deseg­
regation," but it is far too late in the constitutional 
day to contend that such considerations are impermissible. 
Swann, above, at 26-27. Moreover, the district court's 
obligation is to choose that plan (itself a de jure act) 
which promises unitary schools "now and hereafter". Green, 
above. In that context, the court was able to avoid both 
a resegregation plan and the Detroit Board's very expan­
sive perimeter by the familiar expedient of controlling new 
school construction. (A. Ia 515, 541.) That relief also 
curbs continuation of one of the state's significant prior
violations. (A. Ia 516-517).

In any event, the best evidence that the district court 
did not misuse these concepts is its rejection of plans that 
weighted too heavily "racial ratio" and resegregation fac­
tors. (Metro. Findings of Fact, 10, 14, and 19; A. Ia 501, 
503, 504).

The appropriate area of pupil desegregation was consid­
ered. The court viewed as its objective, not the fullest

-14-



possible use of its powers, but only that necessary to
achieve substantial actual desegregation of the Detroit
public schools. (A. la 499-500.) We shall not summarize
here the lengthy inquiry into practically every nook and

__8/
cranny of the many options presented. Some plans were re­
jected because they did not desegregate pupils (A. la 501), 
and others were premised upon legally problematical cri­
teria (A. Ia 503). The court's findings speak eloquently 
for themselves, but we believe that the court's criteria 
for judgment may fairly be summarized to have been: sub­
stantial desegregation, given such practicalities of the 
situation as existing school district devices and arrange­
ments, maximum sound use of existing facilities, times, dis­
tances, and routes of bus trips, and the like. (A. la 506.) 
Of course, it is difficult to know infallibly where the 
many relevant factors converge ideally, but that is what 
expert desegregation panels and continuing district court 
jurisdiction are for. (A. Ia 517). And, as we have noted

8/ We refer here to the various metropolitan proposals. 
The court had previously heard and ruled inadequate several 
Detroit-only plans. In our view of state responsibility, 
the court would have been authorized to require metropolitan 
relief, without regard to the scope or participants in the 
violation, upon a showing that Detroit alone is demogra- 
phically unable to provide "just schools . The view of the 
court seems to rely primarily upon the perhaps more con­
servative analysis relating to the state1s role in the 
violation and the complete absence of any practical or edu­
cational basis for adopting so flawed a plan. (A. Ia 439-hAZ.) 
It may have been in the alternative. (A. Ia 456-461.) In 
any event, this Court reviews judgments not opinions.

-15-



previously, were the State and the suburban districts 
to say, in effect, "we agree with the objective but we 
have some different thoughts on how to get there (other 
than neo-separation), no one would be more receptive than 
the district court— except possibly plaintiffs.

The question of pupil transportation has arisen in 
various forms in this casec We shall not repeat the dis­
trict court's extensive findings here. (A. Ia 504-505, 
510-512). This case does not involve turning a non­
transportation system into a transportation system. Com­
pare Cisneros, above, slip. op. at 25. Forty-two to 
52 percent of the pupils in the suburban districts receiv­
ing state reimbursement are now transported. That figure 
contrasts with the Desegregation Panel's estimate that 
ultimately about 37 percent of the pupils desegregated 
will require transportation. That is not out of line with 
the requirements of other cases in this and other circuits. 
In the recent words of Judge Gewin in the Cisneros case 
(slip. op. at 30):

I realize that the remedy as ordered 
by the district court presents^serious 
financial and administrative difficul­
ties. It is a very substantial matter to 
direct the bussing of one-third of 
the district's students. But I do 
not find it at all surprising that such 
a remedy might be required in a system 
where over two-thirds of the students 
attend segregated schools.

In any event, the court's transportation findings, like 
so many others, have been challenged in principle but not as 
clearly erroneous.

-16



The defendants have cited possible interference 
with existing mechanisms and arrangements„ We repeat 
that artifacts of convenience may not be bars to consti­
tutional rights, but the court below has manifested no 
disposition to disturb the status quo unnecessarily. If 
such needs will be made known in concrete form, they can 
in all likelihood be accommodated. See, e.g. A. Ia 539, 
541-542.

Lastly, with respect to metropolitan faculty desegre­
gation, we noted in our Opening Brief (p.41, n.39) that the 
parties appeared to be in agreement here as to its appro- 
pj^Lateness. That conclusion was based, on the ract that 
the intervening teachers had not appealed and that neither 
the State nor suburban Petitions for Permission to Appeal 
had cited that as an issue. However, the Michigan Educa­
tion Association, a non-party which has already been granted 
amicus status in the court below (A. Ia 562), seeks here a 
writ of prohibition or in the alternative to intervene.

We view it as settled that courts may grant that 
ancillary relief which is reasonably necessary and related 
to effectuation of the principal decree. Questions of 
related relief necessary to vindicate constitutional rights 
are not new in school cases. See, for example, .Brewery. 
Norfolk School Bo rd, 456 F.2d 943 (4th Cir. 1972); cert 
denied and stay vacated, U.S. , 40 U.S.L.W. 3544,
May 15, 1972. And we believe it is established that con­

-17



tract and tenure rights must yield to the Constitution.
United States v. Greenwood Mun, Sep, School Digt. , 406 
F.2d 1086 (5th Cir. 1969).

In any event, whether the interests of this organize— 
tion and its members, and their contentions, are not ade­
quately represented by the intervening school districts 
and the state, or by the organization as amicus curiae, 
should be considered initially below.

We have previously said virtually all that we can about 
the power of federal courts to order what is necessary to 
remedy constitutional violations: not merely to prohibit 
an impermissible practice but affirmatively to bring about 
a condition of constitutionality. Compare Ford Motor Com­
pany v. United. States. U.S. , 40 U.S.L.W. 4352, 4356, 
note 8 (No. 70-113, March 29, 1972). The position of the 
state appears to remain, not that it lacks the power or 
wherewithal in any ultimate sense, but that it may only be 
required to act within the framework of its existing arrange­
ments. (State Brief, p. 102 et. seq.) Not that the state 
lacks the wit or authority to devise feasible constitu­
tional arrangements, but that its choice to do otherwise may 
not be disturbed. The notion that the Constitution’s supre­
macy may be limited by state policy, where the effects are 
so harmful and the policy so unsupported, has been uniformly 
rejected in areas ranging from access to the courts (Boddie v. 
Connecticut, 91 S. Ct. 780 (1971)), to voting and welfare

-18-



rights (Dunn v» Blumstein, 31 L 0 Edc 2d 274(1972),
Shapiro v, Thompson, 397 U.S. 254 (1970)), and to school 
desegregation (Haney v, County Board, 429 F.2d 364, 368 
(8th Cir. 1970)).

It has been suggested that the issues here are of 
such novelty and magnitude as to be without precedent.
We do not seek to minimize them unrealistically, but in 
that regard we invite the attention of the Court and the 
parties to two Third Circuit cases decided more than a 
decade ago: Evans v. Ennis, 281 F.2d 385 (3rd Cir. 1960);
Evans v. Buchanan, 256 F.2d 688 (3rd Cir. 1958). Those 
cases involved statewide and local school desegregation 
orders directed to the State Board of Education as well as 
local districts, and what powers were lodged where was in 
issue. The court made the following observations which
we find instructive here.

The appellants, who are members of 
the State Board of Education_and the 
State Superintendent of Public Instruc­
tion, filed joint answers. . .asserting 
that the power to effect desegregation 
lies not in them but in the local school boards. The members of the boards 
of education of the school districts0... 
assert that the local boards do not possess 
the power or jurisdiction under the 
school laws of Delaware. . • .(Buchanan, 
at 690.)

The State Superintendent of Public 
Instruction and the members of the 
State Board of Education assert, 
that the powers necessary to effect  ̂
these results are vested by the perti­
nent Delaware statutes solely in the 
local district school boards. (Buchanan, 
at 692.)

i -19-



Among the statutory duties entrusted 
to the State Board of Education. . . is 
that of maintaining a "uniform, equal 
and effective system of public schools 
throughout the State. . ." . . ./T/he
statutory mandate to the State Board of 
Education continues to exist and require 
that body to maintain a uniform, equal 
and effective public system in the State 
of Delaware. To hold otherwise would 
be nullification.

The contention of the members of the 
State Board of Education that the man­
dates of that body have no force upon 
the local school boards and the persons 
who comprise them is erroneous. The 
time when the Delaware educational_ system 
was encompassed by a loose federation 
of "425 educational republics" has long 
since passed. (Buchanan, at 693.)

The Court then goes on to detail Delaware5s educational 
statutes, strikingly similar to those of Michigan, to illu­
strate the state*s role; and to hold that, if local school 
boards flout state directives, then appropriate orders may 

issue.
Towards its conclusion the cor t states (in 1958):

The members of the State Board of 
Education and the State Superintendent 
of Public Instruction may not delay 
further in the formulation and sub­
mission of such a plan. They must 
prepare and submit it promptly. The 
time for hesitation is past and the 
time for definitive action has 
arrived. The law as enunciated by 
the Supreme Court of the United States 
must be obeyed, by all of us. (Buchanan, 
at 695.)

Two years later the same court had occasion to consider 
Delaware* s grade—a—year plan, which the district couxc had 

approved, because
. . . integration at a more rapid rate 
would overcrowd the schoolrooms, over-

-20-



tax the teachers, and have a roost 
undesirable emotional impact on 
some of the socially segregated 
communities of Delaware.

* * *

We cannot agree. (Ennis, at 387"388®)
The court went on to make the following pertinent observa­

tions.
Doubtless integration will cost the 

citizens of Delaware money which other™ 
wise might not have to be spent. The 
education of the young always requires, 
indeed demands, sacrifice by the older 
and more mature and resolute members of 
the community. Education is a prime 
necessity of our modern world and of 
the State of Delaware. We cannot 
believe that the citizens of Delaware 
will prove unworthy of this sacred 
trust. (Ennis, at 389.)

Plus ca change® . . .
We conclude this portion by reiterating that judicial 

remedial power has been exercised by the district court 
here commensurate with the constitutional violation. jk̂ ann, 
402 U.S. at 15® Also, the remedy is practicable, sound, 
and still open to the receipt of timely, effective alterna­

tives from Michiga authorities.

-21



II.
MISCELLANY

With the few exceptions hereinafter noted, defen- 
dants-appe11ants do not attack the lower court's factual 
findings underlying its conclusion that school segregation 
in Detroit results from unlawful state action. Rather, 
defendants proffer selective, isolated readings from the 
district court's initial ruling of September 27, 1971, 
together with several untenable legal theories in support 
of a general contention that the district court erred as a 
matter of law. Defendants' various lines of attack are 
these: (1) the district court failed to find that any of 
defendants' actions were for the purpose or intent of segre­
gation (Detroit Board's Brief at 22-32; State's Brief at 
38-89); (2) the court failed to find that defendants' actions 
were the proximate cause of school segregation (Detroit 
Board's Brief at 33-40; Xntervenor School Districts Brief 
at 42); (3) the court failed to identify individual schools 
whose racial compositions specifically result from particu­
lar discriminatory acts, which identification would assertedly 
limit both the finding of violation and the remedy (State's 
Brief at 97-101; Interverior School Districts' Brief at 40-42).

-22'



Additionally, certain of the defendants argue that 
the district court (1) erred in admitting into evidence 
proof of racial discrimination in housing (State's Brief 
at 40-46), (2) erred in implicating State defendants in 
the segregatory pattern of school site selection and con­
struction (State's Brief at 47-50), (3) erred in denying State 
defendants' Rule 41(b) motions to dismiss and in making 
findings against State defendants based on evidence received 
after the motions to dismiss were filed (State's Brief at 
51-68), (4) erred in finding State discrimination against 
Detroit vis-a-vis suburban school districts in the areas 
of transportation funding, bonding limitations and the 
school aid formula (State's Brief at 68-87), (5) denied sub­
urban defendants due process of law in the proceedings b'low 
and by involving some of them in the remedy without having 
joined them as parties at the inception of this litigation 
(Intervenor School Districts' Brief at 42-47), and (6) erred 
in failing to convene a three-judge court to enter the June 
14 rulings (Intervenor School Districts' Brief at 47-55).

Some of these purported issues and related matters we 
will treat with greater dignity than the quality of their 
presentation deserves; others we will deal with in the margin.

A. The Violation Challenges
Both the assertion that the district court failed to 

find purpose or intent on the part of defendants to segre­
gate and the contention that such finding is a requisite part

-23-



of a Fourteenth Amendment violation are without merit, 
factual or legal. As to the lack of factual merit, we 
respectfully invite the Court to read the lower court’s 
opinion of September 27, 1971 in its entirety. Such a 
reading, we submit, patently refutes defendants’ conten­
tions (based upon chronologically misplaced excerpts) that 
the district court did not find intentional segregation.

But defendants urge that the failure of the court to 
find their actions "to be taken with any evil purpose
strains the rationale of the concept of de jure segregation..."

9/
(Detroit Board’s Brief at 30). The Fourteenth Amendment,
however, has never known a requirement that subjective
motive must be proved to show a violation. Were that the
test, "the constitutional provision— adopted with special
reference to Negro citizen's protection— ■would be but a
vain and illusory requirement." Norris v0 Alabama, 294 U.S.
587, 598 (1935)o Thus, even if a showing of intent is
necessary to establish a constitutional violation (as the

10/district court held), proof of subjective malevolence is

9/ To this contention, the Detroit Board provides its 
own best answer (at p. 39): "The requirement of a finding
of intent or purpose... is not grounded in a concept of mens 
rea..0."

10/ But cf. Cisneros v. Corpus Christi Independent School 
Dist o7 No7~71-2397 (5th Ci'r. Au£7 2, 1972) ( en banc fTsilp op. 
at~16-17); Wright v» Cox- cil of the City of oona, 40 U.S.L.W. 
4806 (June 11, VZTF), '

-24-



not required* "In judging human conduct, intent, motive 
and purpose are illusive, subjective concepts, and their 
existence usually can be inferred only from proven facts. 
Hawkins v. Town of Shaw, F.2d , (5th Cir.
1972) (en banc), affM 437 F.2d 1286 (5th Cir. 1971).

11/ As to the proven facts, nowhere in their briefs do 
defendants claim that optional zones, discriminatory busing, 
gerrymandering of attendance zones and feeder patterns, 
segregatory site selection and school construction, Act 48, 
etc., did hot occur, or came about unexpectedly as if by 
Act of God. Nor do defendants deny the massive racial_im­
pact of these actions. CjE. Ely, Legis 1 ati.vu__gnd _ _ i s -  
trative Motivation in Constitutional Law, 79 YALE L.J.
T Z G 5 7 T 2 3 5  ' ( W f ) .  """" ‘ _Defendants’ half-hearted attempts to counteract a few 
of the district court’s specific findings (see Detroit_
Board’s Brief at 25 n.l; State’s Brief at 88-94) are with­
out record support, as demonstrated in plaintiffs Opening 
Brief (pp* 8**40). We do, however, note mi statements of ̂ 
the record in two such instances. (1) The Detroit Board 
argues (at p. 25 n.l of its Brief) that the north-south 
orientation of attendance zones had been established and 
maintained "because of the arterial system of streets... 
and the bus transportation routes in existence... Whether 
or not the transcript page (2931) cited in support or this 
assertion amounts to "credible record evidence, it is 
contradicted by clear and convincing evidence from the same 
witness (A. IVa201; IXa393) as well as the Superintendent 
(Xa 43-55; 11/4/70 Tr. 38) and others (A. Ilia 51-56; P.X.
105 at p. 450). (2) The State defendants state that the
busing of black students from the Carver School District 
to black Northern High School within the Detroit District 
occurred "during the years 1949-52." (State s Brief at 
88-91). Whatever the archives of the State Attorney General s 
office may reveal, the records of the Detroit Board or Educa­
tion reflect the existence of this overt segregation practice 
as late as the 1959-60 school year (A. Ila 193; P.X.^78a at 
pp. 23-24 of the Center District guidebook). There is no 
contrary evidence in the record. Fur;hermore, the elemen­
tary schools in the o3.d Carver District remain segregated 
(see Plaintiffs' Brief at 53 n.48).

-25-



Accord, Davis v> School Dist. of Pontiac, 443 F.2d 573
(6th Cir.), cert, denied, 402 U.S. 913 (1971). In short,
this Court*s decisions in Deal and Davis, contrary to the
Detroit Board*s contention (Detroit Board’s Brief at 39),

12/
require affirmance.

12/ In a last-ditch effort to avoid the district 
court"*!; finding of purposeful segregation, the State defen­
dants argue that it defies "human experience" for the 
district court to find intentional segregation of pupils 
in the face of its commendation of the Detroit Board with 
respect to faculty integration. (State*s Brief at 37-38).
The fact is, however, that this purported inconsistency 
strengthens, rather than weakens, the violation findings 
pertaining to pupil segregation, for it demonstrates the 
strict standard of proof applied below (see Plaintiffs|
Opening Brief at 40-48 and note 39). Furthermore, it is 
to be remembered that much segregatory conduct is an effort 
to accommodate community sentiment (cfi. Clemons v. Bd0 of 
Educ. of Hillsboro, 228 Fc2d 853, 85T“(6th Cir. 1956)
X^tewart', X., concurring)). Thus while white Detroit was 
openly hostile to black faculty members prior to 1960 
(A. Ilia 180-181, Ilia 137; 1 Tr. 45-49), the intensity^ 
of the hostility to black teachers appears to have subsided 
somewhat, so that, coupled with strong integration-oriented 
leadership in the personnel division, some progress in the 
area of faculty integration has been made since the later 
1960's. (See Plaintiffs* Brief at 40-48). As the record 
and Act 48 demonstrate, however, no such change in the 
attitude of white Detroit has ever occurred with regard 
to pupil integration; and the school authorities persisted 
in accommodating public sentiment at least until adoption 
of the April 7, 1970 plan of partial high school desegrega­
tion. # #Similarly without merit is the State’s implied contention 
that no State purpose or intent can be found because racial 
discrimination contravenes the law of Michigan, Act 48 not­
withstanding. But this argument only serves to magnify the 
invidiousness of the discriminatory actions found by the dis­
trict court. Clemons, supra. And, although some components 
of Michigan’s educatiohaT system outside of the Detroit 
metropolitan area may have complied with the Fourteenth Amend­
ment, others have not. See, Davis v. School Dist0 of Pontiac,______ ___  , ’F.2d (6th Cir."

v. Beni:oh "Harbor School"Uist., C.A. No. 9 (W.D.
Kalamazoo Bd. o£ Educ

26-



Passing over the Detroit Board’s contention that
the district court failed to find a causal connection between
school authorities' discriminatory acts and existing segre- 

13/gation, we come to the contention of the Intervenor
14/School Districts and the State defendants that the lower

13/ This allegation (Detroit Board's Brief at 33-40) falls 
on its face, for the lower court found "that both the State 
of Michigan and the Detroit Board of Education have committed 
acts which have been causal factors in the segregated condi­
tion of the public schools of the City of Detroit." (Mem.
0po, la 210) (emphasis added).Equally frivolous is the Detroit Board's proposition 
(at pp0 37-38) that a lack of "causal nexus" is evidenced 
by the district court's finding that the current condition 
of segregation is so pervasive that it can no longer be com- 
pletly remedied within the confines of the city proper0 It 
would be an anomaly, indeed, if the law immunized those who 
violated it best.

14/The position of intervenor-appellants as to the dis­
trict court's violation findings typifies the quality of their 
contribution both below and here. They begin their attack 
on the opinion of September 27, 1971 by confessing that 
"counsel.../Have not/ had an opportunity to review the 
record..." "("intervenor School Districts' Brief at 40). Un­
daunted by their own ignorance, however, they proceed to 
find error, knowing not whether their suggested school-by-< 
school inquiry was in fact made. Significantly, the Detroit 
Board defendants, who have presumably read the record, do not 
make this argument.But even more questionable is intervenors' belated excuse 
for their ignorance, i.e., the alleged "unavailability of 
/the/ record prior to the preparation of the appendix in 
connection with the instant appeal and the time constraints  ̂
imposed by the time schedule in connection with said appeal... 
(p. 40 n.26). First, aside from the fact that counsel for 
the State, Detroit Board and plaintiffs have each had com­
plete copies of the transcript of the trial on the merits 
since the day it ended and although, to our knowledge, inter­
venor s have never requested a review of same of any of these 
parties, the entire record of this case has always been 
available in the district court, including since the February, 
1972 motions to intervene. Second, we respectfully suggest 
that interveners' determination to challenge the September 27, 
1971 ruling came at the last minute. Intervenors' Petition

(cont'd on next page)
-27-



court erred in not providing a list of schools which 
are segregated as a result of specific discriminatory 
acts directed against them individually. Such a listing, 
it is argued, limits not only the violation finding, but 
the remedy as well. This argument turns the Fourteenth 
Amendment on its head; it is both practically and legally 
absurd; it ignores the record; and it improperly shifts 
the remedial burdens from defendants to either the dis­
trict court or the victims of pervasive discrimination.

First, defendants efforts to transfer their own 
failures into reversible error must be forthrightly re­
jected. After intensive factual inquiry, the district 
court found system-wide school segregation. If those 
findings are supported by substantial evidence, the remedy 
must speak to the system, for even if defendants are correct 
that the law requires a school-by-school approach (a proposi­
tion which we dispute below), the district court has made a 
painstaking and thorough inquiry into practically every 
facet of the Detroit system and found the entire system 
suffering by segregation from the effects of defendants' 
racially discriminatory actions.

14/ (cont'd)
for Permission to Appeal, previously filed with 

this Court on or about July 28, 1972, sets forth (at pp» 5-6) 
four general issues which intervenors proposed to present 
for review on this appeal. None of these issues is even 
remotely related to the lower court's violation findings.
It thus appears that intervenors' lack of knowledge is more 
properly attributable to their own strategy and decision­
making tardiness.

15/ We doubt that there is any school in the City of 
Detroit which the extensive and detailed record does not reveal to

(cont'd on next page)
28-



Moreover, if there are specific' schools which defendants
claim are immune from remedy, the record does not reveal
them because no such claim has ever been presented to the district 

16/court. Surely, if defendants are right in their legal

15/ (cont’d)be affected by the unlawful state action of school 
authorities,, For example, the Detroit Board argues, in 
support of its contention that no proximate cause was 
shown, that the six (in fact, there were 8 in 1959) optional 
zones represented "but a small fraction of the total 
twenty-one high school constellations..." (Detroit Board’s 
Brief at 36). Putting aside such practices as discrimina­
tory busing, zone and feeder pattern gerrymandering, and 
the massive site selection and construction violation, the 
Detroit Board ignores the true impact of its dual zoning 
practices. A "high school constellation" in Detroit refers 
to one of the 21 attendance-area high schools together with 
its elementary and junior high feeder schools. Accepting, 
arguendo, the number as six optional zones, it must be  ̂
remembered that each optional zone was created between white 
and black high school constellations. Thus, six optional 
zones directly affected twelve high school constellations 
containing over one-half of Detroit’s schools. More im­
portantly, dual zoning was utilized to seal off virtually 
all of the black schools in Detroit from all of the white 
schools. (See Plaintiffs’ Opening Brief at 16-19, 68-71). 
Clearly, "Had the school authorities not specifically segre­
gated the minority students in certain schools- other schools 
may have developed as desegregated facilities. 1 United States 
v. Texas Education Agency (Austin), No. 71-2508, slip op. at 
5(5 (5th Cir. Aug. 2,19727. “

16/ Only intervenors, who have never readthe record,^ 
have Tdentified a school (here, not below) which they claim 
is exempt from the remedial process because the school (Mum- 
ford.), now black, was once white. (Intervenor Districts' 
Brief at 41). These and otner defendants rely upon United 
States v. Board of Educn of Tulsa, 459 F.2d 720 (10th Cir.
T972T7cert..IJehdTng; /uisHrTT'supra (concurring opinion on
remedy); and Keyes v 0 School Dlst0 No0 1, 445 F.2d 990 (10th 
Cir. 1971), cert, granted, "504 U.S. 1036 (1972), for the 
proposition that some schools/ racial compositions in a 
system which has practiced racial discrimination may be found 
to be not the result of discriminatory actions. Whatever 
the legal merit of these decisions may be, it is to be 
emphasized that each of these decisions involved factual

(cont’d on next page)
29-



proposition, it is their responsibility, indeed, their 
burden, to convince the district court in the first 
instance, as this Court does not try cases de nnvo0 The 
district court could hardly have committed reversible 
error by failing to decide an alleged factual defense 
never presented to it.

Second, we submit that, as a matter of law, when 
"/t/here is established... an overwhelming pattern of un­
lawful segregation that has infected the entire school 
system, J T J °  select other than a system-wide remedy would 
be to ignore system-wide discrimination and make conver­
sion to a unitary system impossible0" Cisneros, supra, 

17/slip op. at 20. Whatever the abstract validity of a 
contrary view, there can be no other conclusion in this

16/ (cont'd)determinations by the trial court that some or all 
schools were not segregated by unlawful state action. Had 
intervenors read the record they ŵ ould know that the proof 
of discrimination in Detroit is not^susceptible to com- 
partmentalization or sectioning as in Keyes and Tulsa; and 
they would know that even if such a school-by-schooldeter­
mination is most important "in some populous school districts 
embracing large geographical areas" (Austin, supra, slip op. 
at 76) it is, at best, impossible to H m d  any "innocent" 
schools in Detroit because of the system-wide pervasiveness 
of the pattern of discrimination. See Boykins v0 Fairfield 
Bd0 of Educ., F.2d (5th Clr. Feb. 23, 1972); KeTTy
v. MetropoTitan Comity Board, Nos. 71-1778-79, slip op. at 
7 T T ^ t F c I F r ^ y 3 ( J 7 ^ b 7 7 y 7 1 N o .  71-2715, (5th 
Cir., July 14, 1972).

17/ The import for the Fifth Circuit of Judge Bell's 
concurring opinion in Austin, supra, upon which defendants 
rely heavily in support oTTheTrcontent ion that a school- 
by-school approach to the remedial process is required, is 
cast into considerable doubt by the court's en banc decision

(cont'd on next page)
-30-



case0 Here we deal with systematic discrimination of 
longstanding in the Detroit public schools. In such cir­
cumstances, courts, having found a pervasive system-wide 
violation, are ill-equipped to then make the sort of 
complex socio-historical determination as to the reason 
for each school's racial composition which defendants* 
approach would require. For the very reason that "all 
things are not equal in a system that has been deliberately 
constructed and maintained to enforce racial segregation" 
(Swann, supra, 402 U.S. at ), the school-by-school 
remedial inquiry, in a case such as this, is incapable of 
resolution; it assumes a fact that never was— i.e., that 
although black people as a racial class have been the 
objects of systematic discrimination, some black people 
may have escaped the effects thereof.

The remaining assignments of error to the district 
court's violation findings— proof of housing discrimination,

17/ (cont'd)
of the same day in Cisneros, which also received 

the support of a majority of 'the court (Judge Thornberry, 
who did not participate in Austin, and Judge Ingraham, who 
voted with Judge Bell in Austin, "make a majority_for Judge 
Dyer's Cisneros opinion). In any event, we submit that the 
individual-school approach must be rejected for the reasons 
set forth in Cisneros and Judge Wisdom's opinion for the 
court in AustinT’"

18/ (State's Brief at 31-37). We have dealt with this 
issue~Tn our Opening Brief, but reiterate briefly here that 
the district court's ruling was based on evidence of sub­
stantial discrimination by defendant school authorities.
And we have demonstrated active partnership onthe part of 
the school authorities with the agents of housing discrimina­
tion. It does not appear from the reported decisions in Deal

(cont'd on next page)
-31-



the State defendants’ duties and responsibilities regarding
19J

site selection and construction, and State discrimination
in the areas of transportation funding, bonding authority,

. 2 0J
and school aid formula — are disposed of in the margin and 
must be rejected for the reasons there stated. In sum,

18/ (cont’d)
that the rejected housing proof in that case was 

offered to show related and interrelated discriminatory 
actions by the school authorities. Such a relationship was 
established and found below; we submit that its proof was 
clearly admissible and judicially cognizable under the 
Fourteenth Admendment.

19J  (State’s Brief at 38-40). Reality and the Consti­
tution are simply defied by State defendants’ assertion that 
they have no responsibility under the Equal Protection 
Clause for the manner in which State money is expended for 
the location and construction of State-supported public 
schools. The Fourteenth Amendment obligation was not, and 
could not have been, withdrawn in 1962 when the legislature 
removed the requirement that the State Board approve and 
authorize site selection and construction.

20/ (State's Brief at 54-70). As to bonding limitations 
and transportation funding, see Plaintiffs' Opening Brief 
at 34-39. As to the school aid formula issue, we make two 
points. First, and more importantly, the issue is irre­
levant to the violation finding and none of the district 
court's orders have been based thereon; rather, all orders 
and subsequent rulings have been based on the finding of 
unlawful segregation. The remedial action decreed, how­
ever "should produce schools of like quality, facilities, 
and staffs." Swann, supra, 402 U.S. at . Second, the 
lower court's finding in this regard is certainly supported 
by the record; if the district court was in any way misled 
it is not for State defendants to complain, for they (as 
will be next discussed in the text) had chosen to absent 
themselves from part of the trial at which the Detroit Board 
presented further evidence in support of this finding.

-32



the lower court's violation findings must be affirmed in 
their entirety.

B. The Rule 41(b) Issue
With regard to this issue, the State's position turns 

Rule 41(b), F.R.C.P., inside out and places the fact­
finding powers of the federal courts at the mercy of liti­
gants who choose to pack up and leave in mid-trial.

Rule 41(b) permits granting of a motion to dismiss 
at the close of plaintiffs' case-in-chief only if "upon 
the facts and the law the plaintiff has shown no right to 
relief." The facts presented during plaintiffs case-in­
chief (or at earlier preliminary hearings), and which are 
set forth in our Opening Brief (pp. 33-40; 76-80), demon­
strate that no error was committed by the district court 
in denying the State's motions. Given, that, the argument 
(State's Brief at 52-54) that the court was nonetheless 
barred from making findings against the State defendants
based on evidence received after the motions were lodged

21/
must be rejected.

21/ When counsel for State defendants requested "per 
mission to leave" at mid-trial, he was informed by the 
Court: "That is a matter entirely within your judgment."
(A. Ilia 191)o Defendants exercised their judgment, but 
surely they did not expect to bring proceedings, or fact­
finding, to a halt thereby.

-33-



The suburban, interveners argue, for the first time, that 
the district court's June 14 rulings and order could only 
be properly issued by a three-judge court convened pur­
suant to 28 U.S.C. §2281; the failure to convene such court, 
they contend, requires reversal of those rulings and order.

While we agree wholeheartedly that intervenor "school 
boards are 'state officers'" (Intervenor Districts' Brief 
at 52), the case is otherwise entirely unrelated to the 
provisions of §2281. Nothing in the June 14 order even 
resembles "/a7n interlocutory or permanent injunction restrain­
ing the... action of any officer of /.the/ State" from 
doing anything. That order is not even directed at any of 
the suburban intervenors, and as to the State officers to 
whom it is directed, it only requires study, planning and 
reporting. Furthermore, the order does not enjoin, does 
not even spealc to, the "operation or execution of any State 
statute...," much less "demolish...the Michigan educational 
system...." (Intervenor Districts' Brief at 54).

Finally, even to the extent that the June 14 order re­
quires planning and reporting it is not based "upon the 
ground of the unconstitutionality of /any StateJ  statute..."
On its face, we submit, the three-judge court argument, never 
presented to the district court, is without merit.

C. The Three-Judge Court Issue

-34-



D. The Due Process Issues
Suburban intervenors seek reversal on the grounds that 

they were denied due process in and by the proceedings below, 
and also by the failure to join them as parties at the 
inception of this litigation. (Intervenor Districts’ Brief 
at 42-47). Although we are not informed of the "life, 
liberty or property" (Due Process Clause) which intervenors 
claim to have been deprived of by the various asserted pro­
cedural errors, apparently it is their assumed right to re­
main white components of the State public education system 
in the Detroit metropolitan community which they feel has 
been prejudiced below0

Turning to the substance of the assigned errors, sub­
urban intervenors claim that the^were denied due process in 
this non-jury, non-criminal case by the following: (1)
the failure of the district court to conduct oral argument
after receiving written briefs on the legal propriety of con-

23/
sidering a metropolitan plan of desegregation ; (2) the

22J V7e agree with the Detroit Board that "Suburban 
defendants..„seem obsessed with the concept of guilt, operating 
on the principle that the provision to small children of their 
Constitutional rights is, of all things, a punishment to be 
visited upon the sinful and withheld from the righteous..." 
(Detroit Board’s Brief at 38).

23/ Intervenors seem particularly aggrieved by this 
point~'because the court's ruling on the issue "reject^ed/ 
the contentions of Intervenor School Districts." (Brief 
at 43).

-35



district court's ruling that Detroit-only desegregation
plans were constitutionally inadequate without intervenors

24/
having participated in the hearing on such plans ; (3) the
lack of notice to intervenors of the "charges against them" and

_ 25/the lack of opportunity "to be heard in /their/" defense" ; 
(4) the refusal of the lower court to receive "testimony 
regarding safety in schools" as well as the deposition of

24/ At this point, intervenors argue, they "had been 
effectively foreclosed from protecting their interests." 
(Brief at 43). Again, we do not know to what "interests" 
they refer, but they were permitted to intervene "for two 
principal purposes: (a) To advise the court, by brief,
of the legal propriety or impropriety of considering a 
metropolitan plan; (b) To review any plan or plans for the 
desegregation of the so-called larger Detroit Metropolitan 
area, and submitting objections, modifications or alterna­
tives to it or them...." (A. la 409 ). Intervenors
responded to the first condition and claim only that this 
interest was not adequately protected because they were 
not allowed to persuade by oratory as well as written legal 
argument. The second condition they chose, by and large, 
not to respond to, and it is this problem, in part, to 
which the district court spoke when it referred to the 
"awkward position" of the Allen Park intervenors (40 dis^ tricts) in having single representation (A. Ia 502-03)~i.e., 
counsel was in the impossible position of having to urge 
that some of his clients (all of whom opposed any form 
of metropolitan remedy) could not, within the practicali­
ties of the situation, be included in a desegregation plan, 
while others could; or, as was the case, making no contri­
bution at all.

25/ in support of this contention intervenors cite 
In re Oliver, 333 U.S. 257 (1948), a criminal case. Again, 
plaintiffs and the other proponents of complete school 
desegregation are not seeking criminal sanctions. The 
Fourteenth Amendment does not require the parties here to 
proceed by indictment or information.

-36-



Dr. David Armor in opposition to desegregation ; (5) the
court's intervention order limitation on examination of

27/
witnesses to one suburban counsel per witness. The 
short answer to most of these points is that throughout 
the two-year history of this litigation any claimed "interest" 
of these intervenor "officers of the State" have been ade­
quately and vigorously represented by their parent State 
defendants, who have staunchly and consistently opposed 
even the discussion of a remedy which would extend beyond 
the boundaries of the City of Detroit. The lower court was 
certainly within its authority in placing conditions and

26/

26/ The Well's subpoena sought to introduce "records 
as to the instance of attacks, violence and things of 
that type that have occurred in various schools in the 
Detroit School District" (A. Villa 88), and the Armour 
deposition was offered to demonstrate the alleged "effects 
of busing based upon studies of areas where they have had 
what Dr. Armour classified as induced or forced integration." 
(A. Villa 117). Clearly, neither offer had any relevance 
to the issue before the court: school desegregation. Any­
way, intervenors do not show, or even allege, how the 
district court's ultimate rulings would have or should 
have been affected had these offers of proof been received 
into evidence.

27/ Intervenors again fail to allege or show how 
they were prejudiced by the intervention order. Two rea­
sons are obvious: (1) the order expressly provided that
more than one attorney for intervenors could examine a 
witness upon a showing of cause; (2) throughout the metro­
politan hearing every intervenor who so chose was permitted 
to examine any witness.

-37-



limitations on the interventions permitted, and, as 
we have shown above in the margin, no prejudicial, let 
alone reversible, error was committedG

For the same reason, i.e., the presence of inter­
veners' parent State authorities, the claim that the 
suburban districts should have been joined as parties 
at the inception of the lawsuit is without merit. The 
suburban intervenors simply are not indispensable parties 
within the meaning of Rule 19, F.R.C.P.— their absence 
would not prevent "complete relief.0.among those already 
parties" (Rule 19 (a)(1)), nor do they have a claimed 
"interest relating to the subject of the action and f a x e f  

so situated that the disposition of the action in /theirJ  

absence may (i) as a practical matter impair or impede 
/their/ ability to protect that interest or (ii) leave 
any of the persons already parties subject to a substantial 
risk of incurring double, multiple, or otherwise inconsis­
tent obligations...." (Rule 19 (a)(2)). The due process 
arguments are without merit.

28/ The interests of these intervenors were adequately 
represented by the State defendants. See generally 3B Moore's 
Federal Practice. PP 24.09-1/57, 24.08/77; Hatton v„ County 
Bd.'.' of Ed'u'c . , 472 F02d 457 (6th Cir0 1970);""Spangler v. 
Pasadena City Bd. of Educ., 427 F.2d 1352 (9 th Cir. T970).
The trial court is authorized to limit intervention to cer­
tain issues and place conditions on it. 3B Moore's, supra, 
P24.10/57. Thus, an intervenor may not be permitted to 
assert any claim or defense previously decided by the court. 
Moore v. Tangipahoa Parish School Bd., 298 F.Supp. 288 (E.D. 
La. 1069)'; 3b Moore's, 124.16/57; cT. Hatton v. County Board, 
supra. Intervenors' thus take the case as they £ind it, Common­
wealth v. Sincavage, 439 F.2d 1133 (3d Cir. 1971), and are 
in all respects subordinate to the main, original parties. 
Moore's, supra, P 24.16/57.

-38



CONCLUSION

Plaintiffs-appellees urge that the stay previously 
entered be vacated, that the orders on appeal be affirmed, 
and that the case be remanded to the district court for 
further consistent proceedings.

Respectfully submitted,

Louis r . lucas ‘
WILLIAM E. CALDWELL 
Ratner, Sugarmon & Lucas 
525 Commerce Title Bldgc 
Memphis, Tennessee
NATHANIEL JONES 
General Counsel 
N.A.A.C.P.
17S0 Broadway 
New York, New York

/  /f t f .'is 'L *  i & / £ /  

ROLD FLANNERY 
R. DIMOND 

)BERT PRESSMAN 
Center for Law & Education
Harvard University 
Cambridge, Massachusetts
E. WINTER McCROOM 
3245 Woodburn Avenue 
Cincinnati, Ohio 
Attorney for Plaintiffs

JACK GREENBURG 
NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York

Attorneys for Plaintiffs-Appellees

Certificate of Service
I hereby certify that two copies of the foregoing Reply 

Brief have been served upon all counsel of record, either by 
hand delivery or U.S. Mail, postage prepaid, this 21st day 
of August, 1972.