Pleadings Hardback Index #3

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al,
Plaintiffs-Appellees, 

v.
WILLIAM G. MILLIKEN, et al,

Defendants-Appellants,and
DETROIT FEDERATION OF TEACHERS,
LOCAL 2 31, AMERICAN FEDERATION OF TEACHERS, AFL-CIQ,

Defendant-Intervenor,and
DENISE MAGDOWSKI, et al,

Defendants-intervenoret al.

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

Southern Division

EMERGENCY APPLICATION FOR STAY

FRANK J. KELLEY 
Attorney General

U.S. Court 
of Appeals 
No.

U.S. District 
Court No. 35257

Business Address 
720 Law Building 
525 West Ottawa Street 
Lansing, Michigan 48913

Robert A. Derengoski 
Solicitor General
Eugene Krasicky 
Gerald F. Young 
Assistant Attorneys General 
Attorneys for Defendants Governor, 
Attorney General, State Bd. of 
Education & Supt. of Public Instruction



AFFIDAVIT IN SUPPORT OF REQUEST FOR 
IMMEDIATE CONSIDERATION OF STATE 
DEFENDANTS' EMERGENCY APPLICATION 
FOR STAY._______ ___________________

NOW comes Eugene Krasicky. Assistant Attorney General 
for the State of Michigan, one of the attorneys for these 
defendants in this cause, and, being duly sworn, deposes and 
says as follows:

1. The orders of the District Court entered herein 
on June 14, 1972, and July 11, 1972, require substantial interim 
pupil and faculty reassignment within a judicially decreed metro 
politan desegregation area including 53 independent school dis­
tricts and 780,000 pupils for the Fall term, 1972, with a full 
and final plan of desegregation to be implemented in the Fall

term, 1973.

2. These orders require these defendants, contrary 
to their lawful authority under Michigan law, to immediately 
expend millions of dollars in state funds not appropriated by 
the legislature for the costs of a judicially created desegre­
gation panel, in-service training for faculty and staff, the 
employment of black counselors and the acquisition of trans­
portation for the Fall term, 1972, interim desegregation plan.

l



3. The July 11, 1972, order requires defendant, 
Detroit Board of Education, to contract for the acquisition
of at least 295 buses by July 13, 1972. Further, the purchase 
price of one bus meeting Michigan standards is approximately 
$10,500, thus involving the expenditure of approximately three 
million dollars in state funds since, pursuant to the order 
of the District Court, payment for the buses is the sole finan­
cial obligation of the state defendants.

4. Absent an immediate stay of such injunctive 
orders pending appellate review by this Court, these defendants 
will be required to expend millions of dollars in state funds 
not appropriated by the legislature that may not be recaptured 
in the event of reversal on appeal, and thousands of students, 
parents, teachers and administrators will suffer the trauma of 
reassignment, only to be reassigned once more in the event of 
reversal on appeal. Thus generating a genuine immediate crisis 
for these defendants and the people of the State of Michigan.

5. In the absence of immediate consideration and 
the granting of a stay pending appeal, the most sweeping 
remedial decree ever handed down in a school desegregation 
case, unsupported by federal appellate precedent, will become 
a fait accompli prior to appellate review by this Court, to 
the irreparable harm of these defendants and the people of the 
State of Michigan.

li



6. These defendants move this Court for immediate

consideration of their Emergency Application for Stay pending 
appeals, including the immediate convening of a panel of this 
Court or, if such procedure is impracticable due to the require­
ments of time, the immediate submission of this Emergency 
Application for Stay to a single judge of this Court, with 
twenty-four hours' notice of this motion, or such other 
shortened period of time as this Court deems reasonable, to 
all other parties for filing their responses. This affidavit 
and the Emergency Application for Stay will be personally 
served by hand delivery upon counsel for all parties with 
the greatest possible dispatch.

Further affiant sayeth not.

Subscribed and sworn to before me
this 12th day of July, 1972

~ SANDRA J. S ZULNotary Public, Ingham County, Michigan
My commission expires May 19, 1975

i n



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al,
Plaintiffs-Appellees, v.

WILLIAM G. MILLIKEN, et al,
Defendants-Appellants,and

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

Defendant-Intervenor,and
DENISE MAGDOWSKI, et al,

Defendants-Intervenor,
et al.

U.S. Court 
of Appeals 
No.
U.S. District 
Court No. 35257

EMERGENCY APPLICATION FOR STAY

Now come defendants, William G. Milliken, Governor 
of the State of Michigan; Frank J. Kelley, Attorney General of 
the State of Michigan; Michigan State Board of Education;
John W. Porter, Superintendent of Public Instruction, and 
Allison Green, Treasurer of the State of Michigan, by their 
attorneys, Frank J. Kelley, Attorney General of the State of 
Michigan, et al, and pursuant to Rules 8 and 27 of the Federal



Rules of Appellate Procedure, move this Court for immediate 
consideration of their Emergency Application for Stay pending 
appeals, including the immediate convening of a panel of this 
Court or, if such procedure is impracticable due to the 
requirements of time, the immediate submission of this 
Emergency Application for Stay to a single Judge of this 
Court, with twenty-four hours' notice of this motion, or 
such other shortened period of time as this Court deems 
reasonable, to all other parties for filing their responses, 
and the entry of an order staying the enforcement of the 
District Court's orders of June 14, 1972 and July 11, 1972, 
pending their appeals from such orders to this Court for the 
reasons hereinafter stated.

I.

STATEMENT OF PRIOR PROCEEDINGS 
On June 14, 1972, the District Court issued its 

Ruling on Desegregation Area and Order for Development of 
Plan of Desegregation, a copy of which is attached hereto 
as Appendix A. This order created a 53 school district 
desegregation area, involving at least 780,000 or 1/3 of the 
state's public school pupils, and established a 9 member panel 
charged with the responsibility of preparing interim (Fall term, 
1972), and final (Fall term, 1973) plans of desegregation with, 
as an irreducible minimum, K-6 pupil reassignment and trans­
portation in as many clusters as practicable by the Fall of 1972

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together with faculty integration in the Fall of 1972 by 
reassigning teachers within the 53 affected school districts. 
This order compels these defendants or some of them to bear 
all reasonable costs incurred by the 9 member judicially 
created desegregation panel, to disapprove all new construc­
tion plans when housing patterns in an area would result in 
a school largely segregated on racial lines, and to take 
immediate action concerning the establishment of faculty 
and staff in-service training and the employment of black 
counselors. Further, such order compels the Superintendent 
of Public Instruction to make recommendations to the Court 
for appropriate interim and final arrangements for the 
financial, administrative and school governance, and 
contractual arrangements for the desegregation area indepen­
dently of the provisions of Michigan law.

On June 19, 1972, these defendants filed a motion 
with the District Court for a stay of its order of June 14, 
1972. The District Court heard oral argument on the motion 
on June 29, 1972, and took the motion under advisement. On 
July 7, 1972, the District Court entered its order denying 
the motion of these defendants for a stay of the District 
Court's order of June 14, 1972, a copy of which is attached 
hereto as Appendix B .

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On July 10, 1972, the District Court, following 
a hearing on the recommendation of the desegregation panel 
to purchase 295 buses with state funds for the purpose of 
implementing an interim desegregation plan in the Fall term,
1972, ruled from the bencn that defendant Detroit Board of 
Education purchase 295 buses, that these defendants provide 
the funds required for such purchases, and directed that 
Allison Green, Treasurer of the State of Michigan, be added 
as a party defendant in this cause. On the same date in 
open court, counsel for these defendants orally moved for 
a stay of such rulings and the District Court denied such 
motion.

The rulings of the District Court set forth in the 
preceding paragraph were reduced to written orders and entered 
on July 11, 1972, copies of which are attached hereto as 
Appendices C, D and E, being respectively, Order Adding 
Defendant Allison Green, Order for Acquisition of Transportation 
and Order Denying Motion for Stay of Order for Acquisition of 
Transportation. The cost of purchasing one school bus meeting 
Michigan standards is approximately $10,500. Thus, the District 
Court's order of July 11, 1972 requires these defendants to 
expend approximately $3,000,000 in state funds for the purpose 
of implementing an interim metropolitan desegregation plan in 
the Fall term, 1972.

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On July 12, 1972, these defendants filed their 
Notices of Appeal to this Court from the District Court's 
order of June 14, 1972 and the District Court's order of 
July 11, 1972, entitled Order for Acquisition of Transportation.

Thus, during the pendency of these defendants' appeals 
from the orders of June 14, 1972 and July 11, 1972, and without 
a stay of such orders from this Court, these defendants must 
disburse vast sums of money and perform other functions, all 
contrary to their powers under Michigan law, while substantial 
metropolitan desegregation is implemented in the Fall of 1972 
prior to any appellate review of the major constitutional law 
questions presented herein. These defendants urge that the 
most sweeping remedial decree ever handed down in a school 
desegregation case must not be implemented without full and 
final appellate review.

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II.

THE GENERAL LEGAL PRINCIPLES THIS 
COURT SHOULD CONSIDER IN DETERMINING 
WHETHER TO GRANT A STAY.____________.

The granting of a stay order rests in the sound 
discretion of this Court. These defendants respectfully 
submit that the grant of a stay order in this case is not 
only imperative but would be in the exercise of sound dis­
cretion by this Court.

In determining whether a stay of the District Court's 
order should be granted several factors should be considered. 
These factors include the probability of reversal on appeal, 
whether the denial of a stay will cause irreparable injury 
to the party seeking same, whether the granting of a stay will 
substantially harm the interests of the other parties, and 
whether a stay is in the public interest. Belcher v Birmingham 
Trust National Bank, 395 F2d 685 (CA 5, 1968); Lon^ v Robinson, 
432 F2d 977 (CA 4, 1970).

This Court may also grant a stay in order to main­
tain the status quo pending appeal. Pettway v American Cast 
iron Pipe Co, 411 F2d 998 (CA 5, 1969), reh den 415 F2d 1376 
(CA 5, 1969). And it may grant a stay until the Supreme Court 
decides a pending case which will settle many of the questions

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in the instant case. Blue Gem Dresses v Fashion Originators 
Guild of America, 116 F2d 142 (CA 2, 1940).

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A. STRONG PROBABILITY OF REVERSAL ON APPEAL
sThese defendants respectfully submit thap there is 

a substantial likelihood that the District Court will be 
reversed on appeal. This strong probability of reversal on 
appeal exists both as to the lower court's finding of de jure 
segregation in the Detroit public schools, as a result of the 
conduct of these defendants, and as to the lower court's 
remedial decrees establishing a metropolitan remedy presently 
consisting of 53 legally separate and independent Michigan 
school districts.

On September 27, 1971, the District Court issued
its Ruling on Issue of Segregation, attached hereto as

'Appendix F, in which the court stated at page 21 that:

"In conclusion, however, we find 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...."

It is submitted that this finding is manifestly 
unsupported by the record. Moreover, such finding is patently 
erroneous as a matter of law.

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In the first place, the suit is not one brought 
against the State of Michigan. Such a suit, to which the 
State of Michigan has never consented, would clearly violate 
the Eleventh Amendment to the United States Constitution and 
the decided cases of the United States Supreme Court. lu te 
State of New York, 256 US 490, 497 (1921).

Obviously, this firmly established principle does 
not prevent suits against named state officials as defendants 
who have allegedly invaded plaintiffs' constitutional rights. 
Griffin v County School Board of Prince Edward County, 377 
US 218, 228 (1964).

However, it is equally clear that a suit against
specific state officials must focus on their conduct. These

■
defendants are not aware of any recognized principle in our 
jurisprudence under which a suit against certain named stace 
officer defendants may be used as a launching pad ior fenc­
ings against the state itself. Thus, the lower court's 
ultimate holding of de jure segregation in Detroit, as a 
result of the conduct of the State of Michigan, is immediately 
suspect as representing an erroneous application of estabxished 
constitutional law principles.

The lower court's ruling of September 27, 1971/ 
relies, in substantial measure, upon findings of racial



discrimination in housing on the basis of evidence intro­
duced over the repeated and continuing objections of these 
defendants. Such evidence in no way related to the actions 
of these defendants or their predecessors in office. This 
course of conduct by the trial judge constitutes a manifest 
disregard for the controlling precedents of this Court that, 
in a school desegregation case, evidence of racial discrimina­
tion in housing is inadmissible. Deal v Cincinnati Board of 
Education, 369 F2d 55, 60-61 (CA 6, 1966), cert den 389 US 
847 (1967); Deal v Cincinnati Board of Education, 419 F2d 
1387, 1392 (CA 6, 1969), cert den 402 US 962 (1971); Davis 
v School District of City of Pontiac, Inc, 443 F2d 573 (CA 6, 
1971), cert den 404 US 913 (1971).

Moreover, this Court's ruling in these three deci­
sions cited above is consistent with the opinion of the United 
States Supreme Court on this question in Swann v Charlotte- 
Meek lenburg Board of Education, 402 US 1, 22-23 (1971). The 
conclusion is compelled that the District Court committed 
reversible error in admitting and relying upon evidence con­
cerning racial discrimination in housing in finding de jure 
segregation in the Detroit public schools.

Further, it is instructive to note that the lower 
court's ruling on segregation, at pp. 8-10, contains no express

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references to any of these defendants in connection with the 
findings of racial discrimination in housing. Rather, at p.
9, the lower court refers to "....what other governmental 
officers or agencies have done...." Moreover, after erro­
neously relying upon evidence of alleged racial discrimina­
tion in housing by governmental agencies other than these 
defendants the lower court concluded, at p. 22, that:

"....The principle causes [of racial 
segregation in the Detroit public schools] 
undeniably have been population movement 
and housing patterns,..."

This conclusion vividly illustrates the foundation of sand 
upon which the District Court found de jure segregation in 
the Detroit public schools as a result of the conduct of the 
defendants herein.

The conclusions of the trial court with respect 
to defendant State Board of Education in the area of site 
location for school construction are both patently inconsis­
tent and erroneous as a matter of law. At p. 25 of the Ruling 
on Issue of Segregation, the lower court correctly concluded 
that, after 1962, defendants State Board of Education and the 
Superintendent of Public Instruction ceased to have any authority 
under state law to approve school sites. Yet, at p. 13, relying 
upon a 1966 Joint Policy Statement and a 1970 School Plant

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Planning Handbook, in which these defendants admonished local 
school boards to consider racial balance as one factor among 
many in school site selections, the court found that the state 
defendants failed to take affirmative action to implement such 
admonition in connection with certain Detroit schools that 
opened for use in 1970-71.

Thus, in essence, the lower court ruled that the 
failure to exercise a power they did not possess under state 
law constituted an act of de jure segregation by the state 
defendants, particularly the State Board of Education and the 
Superintendent of Public Instruction. Surely such a mani­
festly inconsistent and illogical ruling will not withstand 
appellate scrutiny on appeal.

The basic Michigan statute dealing with the con­
struction of school buildings is 1937 PA 306, as amended,
MCLA 388.851 et seq; MSA 15.1961 et seq. In 1962, by virtue 
of 1962 PA 175, the legislature amended section 1 of this 
statute, thereby removing any power to approve school con­
struction sites on the part of either the State Board of 
Education or the Superintendent of Public Instruction. The 
statute, as presently constituted, deals only with approval 
of construction plans in terms of fire, health and safety.

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The Joint Policy Statement and the School Plant 
Planning Handbook represent an admonition to local school 
boards by the State Board of Education, in the exercise of 
its leadership function under Const 1963, Art VIII, §3, to 
consider racial balance as one of the factors in selecting 
new school sites and reorganizing attendance areas. It is 
beyond dispute that some Michigan school boards in large city 
school districts have considered racial balance in selecting 
school sites and reorganizing school attendance areas. See 
Mason v Board of Education of the School District of the 
City of Flint, 6 Mich App 364 (1967), and Jipping v Lansing 
Board of Education, 15 Mich App 441 (1968), leave to appeal 
denied 382 Mich 760 (1969). These cases negative any sug­
gestion that Michigan is a de_ jure state with a dual school 
system.

The Joint Policy Statement and School Plant Planning 
Handbook admonitions on site selection were never reduced to 
legally enforceable rules in the State Administrative Code 
for the reason, as correctly concluded by the trial court, 
that, after 1962, neither the State Board of Education nor 
the Superintendent of Public Instruction possessed any power 
of approval over school site selections made by local boards 
of education. It is manifestly unjust and illogical to base 
a finding of de jure segregation on the failure to exercise

13-



a non-existent power under state law. Further, the finding 
that the state defendants failed to affirmatively effectuate 
their admonition on considering racial balance is contrary 
to the decided cases of both this Court and the United States 
Supreme Court that there is no affirmative constitutional duty 
to achieve racial balance in the public schools. Deal v 
Cincinnati Board of Education, supra; Davis v School District 
of City of Pontiac, Inc, supra, p. 575; Swann v Charlotte- 
Mecklenburg Board of Education, supra, pp. 16-18; Spencer v 
Kugler, 326 F Supp 1235, 1242-1243 (DC NJ, 1971), affirmed 
on appeal 404 US 1027 (1972).

Thus, as a matter of law, the conclusion of de jure 
segregation by these defendants as to site selection for school 
construction is in error and will be reversed on appeal.

At this point, it must be emphasized that the Dis­
trict Court's Ruling on Issue of Segregation contains no 
express references to de jure conduct by either the Governor 
or the Attorney General. It should be stressed that this 
noticeable omission is not surprising in light of the lack 
of authority these two defendants have, under Michigan law, 
over the conduct of the public schools of the state. The 
lower court's ruling refers repeatedly to the conduct of 
the "state," "The State and its agencies," and "the State

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of Michigan" rather than to any conduct by the named defend­
ants Governor or Attorney General. This aspect of the court's 
opinion constitutes an implicit finding or conclusion of 
vicarious liability as to these two defendants heretofore 
unknown in our law. Once plaintiffs have named these two 
state officers as defendants, they are entitled, like any 
other party defendant, to have their conduct adjudicated 
on its own merits.

The findings of the District Court, at p. 14 of 
its Ruling on Issue of Segregation, concerning the "State 
and its agencies" with regard to alleged financial discrimina­
tion between Detroit and neighboring white suburban districts 
in terms of transportation funds, bonding authority and the 
state school aid formula are patently inappropriate in a 
school desegregation case involving only the Detroit public 
schools. These issues were never raised in plaintiffs' com­
plaint or the pretrial statement of issues. Further, these 
purported "findings" by the trial court deal with state 
statutes rather than the conduct of these defendants. Yet, 
the lower court does not even cite the statutes, let alone 
declare whether they are constitutional or not.

The reference to transportation funds is directed 
at section 11 of 1957 PA 312, as amended, MCLA 388.621; MSA

-15-



15.1919(61), pursuant to which, generally speaking, state aid 
allotments for transportation are limited to school districts 
transporting children who live outside city or village limits 
and more than 1 1/2 miles from the school they attend. Thus, 
the basic statutory distinction is between urban and rural 
transportation without regard to race. This very type of urban 
rural statutory distinction for purposes of state school aid 
reimbursement for transportation was held "plainly constitu­
tional" by a three judge federal court in Sparrow v Gill, 304 
F Supp 86, 90-91 (MD NC, 1969).

The so-called limitation on bonding turns out, upon 
a careful examination of Michigan statutes, to be non-existent. 
Since May 13, 1971, Michigan school districts of the fourth, 
third, second and first class, which class includes only 
Detroit, have all been permitted to issue bonds for school 
construction up to 5% of the assessed valuation of the taxable 
property within the district without a majority vote of the 
people. Prior to that time, a first class school district, 
being the largest in the state in terms of both students and 
total assessed valuation of taxable property, was limited to 
3% for bonding purposes without a majority vote of the people. 
See sections 77a, 115, 158, 220a of 1955 PA 269, as amended, 
MCLA 340.1 et seq; MSA 15.3001 et seq. This portion of the

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lower court's opinion is not consistent with the decision 
of the United States Supreme Court in Gordon v Lance, 403 

 ̂ (1971), sustaining a West Virginia limitation on bonded 
indebtedness for all purposes, including school construction, 
that could only be exceeded by a 60% affirmative vote of the 
people.

The lower court's reference to the state aid formula 
is a reference to Michigan's state school aid act, 1957 PA 
312, as amended, MCLA 388.611 et seq; MSA 15.1919(51) et seq, 
which appropriates state school aid funds to school districts 
to be used together with property tax revenues and other sources 
of revenue for school operating purposes. There is no evidence 
in the record relating to any alleged racially discriminatory 
motive or purpose underlying the enactment of this legislation. 
The Governor and the Attorney General of Michigan have filed 
a suit attacking the constitutionality of Michigan's system of 
financing the operation of its public schools, under both the 
Michigan and United States Constitutions, on the ground that 
the present system constitutes an invidious wealth discrimina­
tion against children residing in school districts with a low 
state equalized valuation of taxable property per pupil. This 
cause, Milliken and Kelley et al v Allison Green et al, Supreme 
Court #53,809, has been briefed and argued in the Michigan 
Supreme Court but no decision has been rendered to date.

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However, the Michigan system of wealth classifica­
tion of school districts by their state equalized valuations 
of taxable property per pupil is not racially discriminatory. 
Rather, it is color olind and benefits or burdens both white 
and black children alike according to the school district in 
which they happen to reside. For example, in the 1970-71 
school year the Lincoln Park School District, a 98% white 
school district, operated on substantially reduced schedule 
of student instruction for lack of operating funds. Note 
Smith et al v State Board of Education, Ingham County Circuit 
Court #12167C. During the same year, the Detroit public 
school system was not on a reduced schedule of student instruc 
tion. Moreover, the River Rouge School District, which is 
approximately 40% Black, is the wealthiest Michigan K-12 
school district with a state equalized valuation of taxable 
property per resident pupil of $56,726.00 for the 1969-70 
school year. See Local District Results Michigan Education 
Assessment Program, Michigan Department of Education, December 
1971, at p. 56 and p. 60. Both Lincoln Park and River Rouge 
are included in the District Court's judicially decreed 
desegregation area.

In summary, the finance statutes obliquely referred 
to by the lower court are manifestly racially neutral both 
on their face and as applied. These statutes, none of which

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involve either the Governor or the Attorney General in their 
implementation, have not been declared invalid by the District 
Court. Clearly, these purported findings are in error as a 
matter of law and will not stand up under appellate review.

To summarize, the District Court’s ultimate conclu­
sion on the merits, that the Detroit public schools are de 
jure segregated as a result of the conduct of these defendants 
is, we submit, patently in error. These defendants would 
emphasize that, at a minimum, the foregoing analysis reveals 
a strong probability of reversal on appeal that manifestly 
warrants the granting of a stay on appeal.

Turning to the District Court's remedial opinions 
and orders, that have culminated in the establishment of a 
desegregation area joining together 53 legally independent 
Michigan school districts, we start with the court's Ruling 
on Propriety of Considering a Metropolitan Remedy to Accom­
plish Desegregation of the Public Schools of the City of 
Detroit, issued March 24, 1972, and attached hereto as 
Appendix G. In that opinion, at p. 3, the District Court 
stated:

"The main thrust of the objections to 
the consideration of a metropolitan 
remedy advanced by intervening school 
districts is that, absent a finding of 
acts of segregation on their part,

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individually, they may not be considered 
in fashioning a remedy for relief of the 
plaintiffs. It must be conceded that the 
Supreme Court has not yet ruled directly 
on this issue; accordingly, we can only 
proceed by feeling our way through its 
past decisions with respect to the goal 
to be achieved in school desegregation 
cases...."

Thus, from the beginning, the lower court has pro­
ceeded to fashion the most sweeping remedial decree ever 
handed down in a school desegregation case while recognizing 
the lack of federal appellate precedent for such relief.

The District Court's Findings of Fact and Conclusions 
of Law on Detroit-Only Plans of Desegregation, issued March 
28, 1972, attached hereto as Appendix h , contains considerable 
language concerning a racially identifiable school system and 
predominately black schools. However, this ruling by the court 
makes no findings or conclusions concerning a unitary school 
system for the Detroit public schools. As stated in Swann v 
Charlotte-Mecklenburg Board of Education, supra, pp. 15, 16,
24 and 26, the constitutional objective is not racial balance 
but conversion to a unitary system which permits, in some cir­
cumstances, some one-race schools. Further, in 1970 the black 
student population of the Detroit school system was 63.8%.
Very recently, in Wright v Council of the City of Emporia, 40 
LW 4806, June 20, 1972, and Cotton v Scotland Neck City Board

20-



of Education, 40 LW 4817, June 20, 1972, we find two cases
before the Supreme Court in which remedial decrees have been 
entered and not overturned on appeal in school districts having, 
respectively, 66% and 72% black student populations. Thus, 
it cannot be said that there is any federal appellate prohibi­
tion against converting to a unitary school system within a 
majority black school district.

These defendants respectfully submit that the 
remedial decree entered on June 14, 1972, herein, establish­
ing a 53 school district desegregation area, is not a con­
stitutionally required desegregation decree designed to 
establish a unitary school system. Rather, it is more in 
the nature of an experiment to achieve a judicially 
perceived desirable racial balance in which all schools will 
be majority white. For example, the school districts of 
Hamtramck, River Rouge, Ecorse, Highland Park and Inkster, 
having, respectively, 29.9%, 43.6%, 56.7%, 85.7% and 88.2% 
racial-ethnic minority students, are included in the judi­
cially decreed desegregation order. Local District Results 
Michigan Educational Assessment Program, Michigan Department 
of Education, December, 1971, pp 26, 50, 54, 60. The lower 
court has made no finding that any of these racially hetero** 
geneous school districts is guilty of de jure segregation.

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In fact, of these five school districts only River Rouge is 
a party to this litigation. This sweeping remedial decree, 
unsupported by precedent, must not be implemented prior to 
appellate review.

In Bradley v School Board of City of Richmond,
Virginia, ___ F2d ___ (Case Nos. 72-1058 to 72-1060 and
72-1150, June 5, 1972), the Court of Appeals for the Fourth 
Circuit reversed a decision of the trial court granting a 
remedy substantially similar to that contained in the Dis­
trict Court's order of June 14, 1972. In that case, the 
court directed a metropolitan remedy only after a trial 
involving the adjoining school districts which resulted in 
a finding of de jure segregation as to such school districts. 
That case will, in all probability, be reviewed by the United 
States Supreme Court, thus resolving some of the issues 
involved herein.

Here, as stated by the District Court in its Find­
ings of Fact and Conclusions of Law in Support of Ruling on 
Desegregation Area and Development of Plan, issued June 14, 
1972:

"....It should be noted that the court has 
taken no proofs with respect to the estab­
lishment of the boundaries of the 86 public 
school districts in the counties of Wayne,

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Oakland and Macomb, nor on the issue of 
whether, with the exclusion of the city 
of Detroit school district, such school 
districts have committed acts of de jure 
segregation." p. 1

Thus, this case is directly contrary to the holding 
of a three judge federal panel, affirmed on appeal by the 
United States Supreme Court, in Spencer v Kugler, supra, that 
there is no constitutional duty to alter school district bound­
ary lines and attendance patterns to overcome racial imbalance.

In addition, the District Court, after expressly 
finding no de jure segregation as to faculty and staff in 
the Detroit public schools in its Ruling on Issue of Segrega­
tion, has ordered, in its remedial decree of June 14, 1972, 
that 10% of the faculty and staff in each school be black.
Thus, contrary to the explicit language of Swann v Charlotte- 
Mecklenburg Board of Education, supra, pp. 16 and 24, the lower 
court has, in the absence of any finding of a constitutional 
violation as to faculty and staff, decreed an impermissible 
fixed racial balance quota for each school within the 53 
school districts.

Furthermore, the order of June 14, 1972, includes 
18 school districts within the desegregation area that are 
not parties to this cause. This novel approach to judicial 
power has already resulted in at least two petitions to this

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Court by some of these 18 school districts for a writ of 
prohibition or mandamus directed to the District Court.

In view of the foregoing, it is urged that the lower 
court's remedial order of June 14, 1972, extends beyond any 
existing federal appellate precedent in school desegregation 
cases. The lower court is embarking upon a social experiment 
on a grand scale. These defendants respectfully submit that 
the proper role of federal courts is to secure constitutional 
rights, not to engage in social engineering. Thus, clearly 
there exists a strong likelihood of reversal on appeal 
warranting the granting of the stay sought herein.



B. IRREPARABLE INJURY IN THE ABSENCE 
OF A STAY ________ _____________

Stated in the simpliest terms possible, with the 
stroke of a pen (order of June 14, 1972) the District Court 
wrought asunder 53 legally separate school districts, each, 
previously, governed by a board of education elected by the 
residents thereof, each having contractual rights and obliga­
tion with its teachers, employees, suppliers of goods and 
services, and bondholders, and each having the duty and the 
power under the constitution and laws of the State of Michigan 
to educate the children residing within their respective bound' 
aries.

The District Court's Ruling on Desegregation Area 
and Order for Development of Plan of Desegregation, June 14, 
1972, (hereinafter June 14 order) is not prospective in its 
effect. It is a present order to integrate faculty and staff 
upon the commencement of school in September, 1972. Further, 
the order contemplates the implementation of an interim 
desegregation plan for at least grades K-6 in as many clusters 
as practicable in September of 1972. Since the schools are 
on vacation now, this implementation is immediate, at the 
soonest possible time.

-25-



Neither is the June 14 order prospective insofar 
as requiring the Superintendent of Public Instruction to make 
appropriate interim and final arrangements for the financial, 
administrative and school governance, and contractual arrange­
ments for the operation of the schools within the desegregation 
area. This imposes an immediate duty upon the Superintendent 
of Public Instruction and clearly contemplates implementation 
before the schools open in September, 1972.

In its Findings of Fact and Conclusions of Law on 
Detroit-Only Plans of Desegregation, March 28, 1972, pp. 3-4, 
the court, in rejecting the plaintiffs' desegregation plan, 
found that:

"3. The plan would require the development 
of transportation on a vast scale which, 
according to the evidence, could not be 
furnished, ready for operation, by the open­
ing of the 1972-73 school year. The plan 
contemplates the transportation of 82,000 
pupils and would require the acquisition of 
some 900 vehicles, the hiring and training 
of a great number of drivers, the procure­
ment of space for storage and maintenance, 
the recruitment of maintenance and the not 
negligible task of designing a transporta­
tion system to service the schools.
"4. The plan would entail the recasting 
of the Detroit school system, when there 
is little assurance that it would not have 
to undergo another reorganization if a 
metropolitan plan is adopted.
"5. It would involve the expenditure of 
vast sums of money and effort which would 
be wasted or lost.

-26-



* * *

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

One is compelled to ask, if this is the effect of 
the plaintiffs' plan for the desegregation of the Detroit 
schools alone, what must be the effect of the order of June 
14, 1972, which involves not one school district, but 53; 
not the teachers and administrators in one school district, 
but in 53; not 290,000 children but 780,000; the transporta­
tion of not 82,000 children, but, ultimately, 310,000.

The June 14 order establishes a panel of 9 persons, 
subsequently expanded to 11 persons by the addition of 2 
teacher representatives, charged with the responsibility of 
preparing and submitting an effective desegregation plan in 
accordance with the provisions of the order. The June 14 
order requires the "state defendants" not only to provide 
funds but to pay all reasonable costs incurred by the panel. 
In addition, the order requires not only the parties, their 
agents, employees, successors, but all others having actual 
notice of this order to cooperate fully with the panel in its 
assigned mission, including, but not limited to, the provi­
sion of data and reasonable full and part-time staff assist­
ance. Further, the assistance provided by any school

-27-



district through its employees or agents shall be at the 
cost of the school district.

First, the "state defendants" have neither the 
power to levy taxes nor to appropriate public funds for this 
purpose. Const 1963, Art IX, §17.

Second, the preparation of a desegregation plan 
"in accordance with the provisions of this order" not later 
than 45 days after June 14, 1972, will require, in addition 
to the expenses of the panel itself, the utilization of 
enormous resources normally devoted to other purposes. It 
is not only that these resources will be wasted upon a 
reversal of the decision, it is also that the purposes for 
which these resources were allocated will be cast aside and 
irretrievably lost.

Third, it is a well known fact that school dis­
tricts operate on a limited basis with a limited staff doing, 
principally, housekeeping chores and planning during the 
summer months. Who is going to provide the data and assist­
ance required by the panel and how?

A school district is required by law to bargain 
collectively with its employees with regard to wages, hours, 
and other terms and conditions of employment, and is authorized

-28-



to enter into collective bargaining agreements. 1947 PA 
336, as amended by 1965 PA 379; MCLA 423.201 et seq; MSA 
17.455(1) et seq. There are separate collective bargaining 
agreements in effect, or in the process of negotiation, in 
each of the 53 school districts. The June 14 order requires 
the reassignment of faculty and staff in addition to pupil 
desegregation, and further requires the assignment of no 
less than 10% black faculty and staff at each school (school 
building?) and the making of every effort to assign a bi­
racial administrative team in every building where there 
is more than one building administrator. It requires no 
clairvoyance to see the administrative chaos that will result 
in a school with teachers who are employed under different 
collective bargaining agreements providing for different 
wages, hours, and other terms and conditions of employment 
from the others.

Further, the collective bargaining agreements pro­
vide for grievance procedures. Against whom and with whom 
is the grievance filed— the board of education who employs 
the teacher? The board of education who holds title to the 
school building? The superintendent of schools of the employ­
ing board? The superintendent of schools of the district 
where the building is located? Assuming that the grievant 
proves that he was wronged, where does he obtain redress?

-29-



In Michigan, by statute, there is teacher tenure. 
1937 (Ex Sess) PA 4, as amended, MCLA 38.71 et seq; MSA 
15.1971 et seq. Under the provisions of the act a teacher 
who has served a satisfactory probationary period may not 
be dismissed or demoted except for reasonable and just cause 
and only after the filing of charges, hearing, etc. Which of 
the 53 boards of education determines that probation was 
satisfactory? Who files the charges against a teacher for 
misconduct? With whom are they filed? Who prosecutes the 
charges? Who hears the charges? Against whom is an appeal 
taken?

The tenure act permits a board of education to 
establish retirement policies. Where teachers are employed 
by one board but teaching in a school under the control of 
another board, whose retirement policy applies?

The June 14 order requires that "restructuring of 
school facility utilization necessitated by pupil reassign­
ments should produce schools of substantially like quality, 
facilities, extracurricular activities and staff." Each of 
the boards of education of the 53 school districts is 
empowered by state law to determine the courses of study 
to be pursued within its school district, the textbooks to 
be used, etc. The June 14 order necessarily requires each

-30-



of the 53 districts not only to offer substantially identical 
courses of study and identical textbooks, but also the same 
courses of study and textbooks in the same grades. Therefore, 
the entire curriculum of 53 school districts will have to 
be revamped and new textbooks purchased, and someone will 
have to determine what the curriculum will be and what text­
books will be used. This disruption of the educational system 
for 1/3 of the children of the State of Michigan with no 
assurance that the changes, if made, will be more than tem­
porary, is intolerable and will irreparably harm such children.

Under Michigan law each board of education is 
authorized to suspend or expel its pupils and to make rules 
and regulations with regard to their conduct. Under the 
June 14 order there must be uniformity, but how is this 
uniformity provided? All of these rules and regulations 
must be revised to a common norm, but who sets the common 
norm. Which board of education suspends or expels— the district 
where the child is resident or the district where he has been 
assigned for attendance? Again, the administrative problems 
are overwhelming and incredible disruption produced will be 
repeated upon the reversal of the District Court's unprece­
dented order.

By statute each board of education of the 53 
school districts is empowered to levy taxes to obtain the

-31-



revenues to provide education within the district. The 
amount of taxes levied varies widely among the school dis­
tricts, depending upon the value of the taxable property 
within the district and the amount of tax effort that the 
residents of the district are willing to. put forth. (Generally, 
a school tax rate exceeding the average of 8 to 9 mills—
$8.00 or $9.00 per thousand assessed valuation— must be 
approved by the electors of the district because of tax limi­
tations imposed by the Michigan Constitution.) The June 
14 order requires uniformity. Uniformity at what level and 
by what means? The order sets the stage for financial chaos 
and at least the temporary destruction of the financial 
responsibility and the credit of the school districts of 
1/3 of the state (in terms of the number of pupils educated).

The June 14 order requires the "immediate action, 
including, but not limited to the establishment or expansion 
of inservice training of faculty and staff...employment of 
bi-racial counselors." Attached hereto as Appendixxis a 
copy of the affidavit of Richard E. Barnhart, the original 
of which having been filed with the District Court. He 
estimates that the cost of the inservice training program 
in preparation for the 1972-73 school year is in excess of 
$3,300,000 and that the cost of a program for the entire 
school year will exceed $8,800,000. Not only are such sums

32-



of money not available, but to contract for such massive 
expenditures under circumstances such as these, where there 
is no assurance of any permanency and where there can be no 
recovery upon reversal of the District Court's order, is an 
unconscionable waste of public moneys and resources.

As appears from the affidavit of Lloyd Fales, a 
copy of which is attached hereto as Appendix J (the original 
is on file with the District Court), there are numerous school 
construction projects pending among the 53 school districts. 
The June 14 order necessarily halts all such construction of 
these facilities. We say "necessarily halts" because all 
of the proposed construction is within districts that have 
a low ratio of minority students. Under the explicit terms 
of the order (Paragraph I, p. 8) any construction in an 
area with either a high or low ratio of minority students 
is prohibited. This blocking of all school construction will 
necessarily cause a shortage of facilities in the near future 
to the detriment of the children involved.

School systems have but one purpose— the education 
of children. It is the children who will be the ultimate 
innocent victims of this judicially created desegregation 
remedy. It is they who will suffer the emotional trauma of 
an unprecedented change and will resuffer it upon a reversal

-33-



of the June 14 order. It is their education that will be 
interfered with, probably irremediably. It is stressed that 
this impact will fall upon 1/3 of the public school children, 
over 780,000 in the state are involved.

In view of the effect upon the education system 
and, primarily, upon hundreds of thousands of children, is 
it any wonder that this Court has held as a matter of law 
that irreparable harm could result to defendants from a denial 
of a stay order in fact situations far less compelling than 
those in the case at bar? See, order filed June 30, 1970, 
in Davis v School District of the City of Pontiac, Inc, #20,477, 
and stay order entered June 2, 1972, in Northcross v Board of 
Education of City of Memphis, No. Misc. 1576.

The July 11, 1972 order of the lower court, compelling 
these defendants to pay for the purchase of 295 buses, at an 
approximate cost of $3,000,000, for purposes of implementing 
an interim desegregation plan in the Fall term, 1972, constitutes 
a grave crisis for these defendants. These defendants have no 
authority, under Michigan law, to appropriate state funds, and 
by the mandate of Const 1963, Art IX, § 17, no money is to be 
paid out of the state treasury except pursuant to appropriations 
made by law. The Michigan legislature has not appropriated any 
funds to any of these defendants for the purpose of purchasing

-34-



school buses. Thus, absent a stay, these defendants are 
placed in the untenable position of being required to act 
beyond their authority, under state law, prior to appellate 
review herein.

Further, the expenditure of this vast sum of money 
will necessarily involve the reallocation of funds already 
appropriated for other functions of state government to the 
detriment of persons relying upon such appropriations. This 
large outlay of funds for buses will be irretrievably lost 
to the people of the state of Michigan in the event that the 
District Court's metropolitan remedy is reversed upon appeal. 
Thus, this cause presents an even more compelling case for 
the granting of a stay than either Davis v School District of 
the City of Pontiac, Inc., supra, or Northcross v Board of 
Education of City of Memphis, supra, wherein this Court has 
previously granted stays pending appeal in school desegregation
cases.



C. THE PLAINTIFFS WILL SUFFER NO
SUBSTANTIAL OR IRREPARABLE HARM 
IF A STAY IS GRANTED BY THIS COURT.

In addition to the manifest harm which will be 
accomplished on hundreds of thousands of Michigan school 
children, their parents, members of the public and these 
defendants if a stay is not granted, it cannot be reason­
ably said that irreparable harm will result to the plain­
tiffs if the stay is granted. The District Court has 
already recognized that a full integration plan will not 
be fully effectuated this fall. Ruling on Desegregation 
Area and Order for Development of Plan of Desegregation,
(June 14, 1972) p. 4. It is therefore obvious that there 
will be many school cnildren (all 10-12 grade pupils as a 
minimum) who will not be included in the proposed remedy 
until at least the fall of 1973. If the implementation of 
the remedy as to these latter pupils can be postponed until 
1973, it cannot be honestly said that substantial or 
irreparable harm will result to the remainder of the 
cnildren if the remedy is ̂ :ayed as to them as well.

Nor is this a case in which protracted litigation 
may have the cumulative effect of denying to a group of 
children their substantive constitutional rights. This 
action was filed less than two years ago. Though the issues

-36-



have been hard fought and complicated they have been 
handled with expedition by these defendants. A substantial 
portion of the two year period was occupied by plaintiffs' 
attempts to secure preliminary injunctive relief both from 
the District Court and from this Court. These defendants 
have not attempted to protract the proceedings and, in fact, 
have in light of the serious constitutional questions 
presented, made every effort to assure the earliest possible 
review of the important issues framed by the suit. Thus, it 
cannot be said that there has been any undue delay in the 
effectuation of plaintiffs' constitutional rights in this 
cause.

The lower court has also, in this cause, built a
hedge into its order that will assure that even if a stay is
granted now, the plaintiffs' interests are adequately
protected if they prevail upon appeal. The District Court
has indicated that 53 separate school districts are to be
included in the desegregation area:

"Provided, however, that if in the actual 
assignment of pupils it appears necessary 
and feasible to achieve effective and complete 
racial desegregation to reassign pupils of 
another district or other districts, the 
desegregation panel may, upon notice to 
the parties, apply to the Court for an 
appropriate modification of this order."
Ruling on Desegregation Area and Order 
for Development of Plan of Desegregation 
(June 14, 1972), p. 6.

-37-



Such a ruling assures that any stay which may be granted 
in this cause will not adversely affect the racial balance 
which the Court is seeking to establish, since it assures 
that regardless of demographical changes in the Detroit 
metropolitan area, the necessary alterations in district 
boundaries will be made to maintain the proper racial 
balance.

The practical considerations noted above, as well 
as the legal precedents which are presented later in this 
brief, all indicate that the plaintiffs will not be harmed 
by issuance of a stay and that its granting at this time 
would be proper.

-38-



D. THE PUBLIC INTEREST

The concept of irreparable injury from the 
failure to grant a stay is inextricably interwoven in this 
case with the concept that a stay will be granted when the 
public interest so requires. The irreparable injury here is 
to the public interest, the continued functioning of what is 
probably the most important activity carried on by the govern­
ment of the State of Michigan. There is no interest that will 
be served in jeopardizing the educational well-being of 1/3 
of the public school children in the State of Michigan during 
the time required for appellate review of the District Court's 
unprecedented and sweeping remedy. The public interest, the 
well-being of over 780,000 school age children, their parents 
and teachers, and the continued functioning of the school 
system established by law for their education, compels the 
maintenance of the status quo during appellate review.

In its findings of fact and conclusions of law on 
Detroit-Only Plans for Desegregation, March 28, 1972, the 
District Court specifically found that the plaintiffs' 
Detroit-Only Plan for Desegregation should not be approved by 
the Court because, inter alia, "[i]t would subject the students 
and parents, faculty and administration, to the trauma of

-39-



reassigmuents with little likelihood that such reassignments 
would continue for an appreciable time." (Emphasis supplied.) 
(Appendix H) The trauma that would have been experienced by 
students and parents, faculty and administration, by the imple­
mentation of a Detroit-Only Plan pales when compared with the 
trauma to be experienced in the 53 school districts involving 
4 times the number of children, teachers and parents. All this, 
where there is little likelihood, if any, that the reassign­
ments will continue for any appreciable time. In light of 
the strong probability for the reversal of the unprecedented 
order of June 14, 1972, the teachers, the parents and especially 
the children should not be subjected to such trauma.

It is an historical fact that the officers of the 
State of Michigan, its agencies and instrumentalities have 
traditionally obeyed the constitutional laws of the United 
States and the orders of its courts. Doctrines of nullifica­
tion and interposition are as foreign to the traditions of 
this state as the doctrine of separate but equal. As to the 
latter, see The People ex rel Workman v Board of Education of 
Detroit, 18 Mich 400 (1869).

The June 14 order imposes the affirmative, immediate 
duty on state officers to pay the cost of the desegregation 
panel appointed by the court, to take immediate action to

-40-



establish in-service training of faculty and staff of the 53 
school districts and to employ black counselors, all at the 
cost of these defendants. Further, the June 14 order requires 
the defendants State Board of Education and Superintendent 
of Public Instruction to disapprove school construction or 
expansion based upon the location of such construction 
contrary to state law.

None of these defendants has the power under state 
law to appropriate funds or to expend funds except as appro­
priated and directed by the legislature. None of these defen­
dants has power under state law to establish in-service training 
of faculty and staff or to employ black counselors. None of 
the state officer defendants under state law has the power 
to approve or disapprove building construction sites.

The constitutional dilemma is inescapable if the 
June 14 order is not stayed. If the traditions of obedience to the 
orders of the federal judiciary are to be maintained,these 
defendants must usurp the powers that they do not have in 
derogation of the constitution and laws of the State of 
Michigan, against which no constitutional attack has been made 
or determined. Thus, a constitutional crisis of immense 
proportion will result during the pendency of and until 
a final appellate review. A stay of the June 14 order

-41



is the only way to escape such a constitutional crisis pend 
ing final appropriate judicial review of the decisions and 
orders of the District Court.

-42-



III.

STRONG PRECEDENT EXISTS IN LIGHT OF THE 
MAGNITUDE OF THIS CASE FOR THE GRANTING 
OF A STAY ORDER. __________________

These defendants request a stay order that has been 
heretofore granted by this Court in cases of substantially 
less moment than this case. In Davis v School District of 
the City of Pontiac, Inc, 309 F Supp 734 (ED Mich, 1970), aff'd 
443 F2d 573 (CA 6, 1971), and Northcross v Board of Education 
of City of Memphis, 312 F Supp 1150 (WD Tenn, 1970), the Court 
of Appeals for the Sixth Circuit stayed District Court orders 
pending appeal. These orders are numbered and dated 20,477, 
June 3, 1970, and Misc. 1576, June 2, 1972, respectively.
As expressly noted in Davis, supra, the stay was granted 
because of the probability of irreparable harm occurring 
to the defendants-appellants, the lack of such injury to 
the plaintiffs-appellees if such stay were granted, and because 
such stay was in the public interest.

Neither of these cases involved anywhere near the 
vast number of affected students, parents and teachers as this 
case. In neither of these cases were the legitimately and 
constitutionally established units of local government 
threatened or razed by the order of a district court without 
notice, hearing or finding of de jure segregation as to those

-43-



local government units. Nor did the possibility of reversal 
on appeal, either because of the lack of federal appellate 
precedent for the order, or the admission of improper evidence 
of housing discrimination, appear as strong as it does here.
Yet in both of these cases stay orders were granted. Surely, 
if there was any justification for staying these cases, that 
justification many times over exists here.

Defendants are here ordered to spend funds not 
authorized by the legislature for the costs of the panel, 
hiring black counsellors and to provide inservice training 
for some 33,000 teachers and administrators and assume various 
other costs in support of the District Court's order of June 
14, 1972. This orders these defendants to perform actions not 
authorized by Michigan law and to expend state funds contrary 
to state laws not found unconstitutional by the District 
Court.

Under Michigan law the power of the purse is reposed 
in the legislature. Const 1963, Art IV, §30:

"The assent of two—thirds of the members 
elected to and serving in each house of the 
legislature shall be required for the appro­
priation of public money or property for 
local or private purposes."

Const 1963, Art IX, §17:

-44-



"No money shall be paid out of the state 
treasury except in pursuance of appro­
priations made by law."

In remedying state imposed segregation in the public 
schools, the federal courts may only order state officials 
to exercise such powers as they possess under state law. This 
rule was succinctly stated in Bradley, et al v School Board 
of the City of Richmond, Virginia, et al, 51 FRD 139 (1970),
as follows:

"To be sure, state officials may only be 
directed, in fulfillment of this duty, to 
use those powers granted to them by state 
law. For this reason the relief which 
may be demanded of state, as opposed to 
local, officials is restricted. Smith v. 
North Carolina State Board of Education, 
Misc. No. 674 (4th Cir., July 31, 1970).
By the same token there will be certain 
relief which local officials are incapable 
of affording. Cf. Thaxton v. Vaughan,
321 F.2d 474 (4th Cir. 1963). In each 
case, however, the obligation is commen­
surate with the scope of the power con­
ferred by state law."

The same principle was applied in United States v 
School District 151 of Cook County, Illinois, 301 F Supp 201 
(ND 111, 1969), where the District Court for the Northern 
District of Illinois declared that a person's constitutional 
rights could not be denied merely because the implementation 
of those rights would require the expenditure of funds though

-45-



the court did not reject the concept that financial resources 
were relevant to the type of plan enacted. It did say that 
funds must be raised by the schools to the extent that they 
were authorized.

"...Ultimately, however, public officials 
must '***exercise the power that is theirs 
***to raise funds adequate to***maintain 
without racial discrimination a public 
school system.***' Griffin v. County 
School Board, 377 U.S. 216 , 233, 34 S. Ct. 
1226, 1234, 12 L.Ed. 2d 256 (1964)." p.
232

The Griffin case cited in the prior quotation 
clearly stands for the proposition that a local taxing 
authority will be required to levy taxes only if it has 
the statutory power to do so, but not otherwise.

Not only does the District Court order impose an 
extreme fiscal burden upon these defendants but it offers 
no way to recoup these funds assuming the order is reversed 
upon appeal. This order will disrupt the educational programs 
finances, contractual relationships and provisions for govern­
ance of 53 school districts at tremendous cost to these defend 
ants, without regard to the impossibility of recouping these 
funds if this case is reversed on appeal or the defendants' 
pending petition for a writ of certiorari is granted.

-46-



In Bradley v School Board of the City of Richmond,
Virginia, F2d ___ (Case Nos. 72-1058 to 72-1060 and
72-1150) (CA 4, June 5, 1972), the Court of Appeals for 
the Fourth Circuit reversed the metropolitan remedy ordered 
by the District Court. A stay had been there issued, pending 
appeal, so that the three separate school districts involved 
would not be forced to raze their boundaries and many children 
subjected to the trauma of such an order when the possibility 
of reversal on appeal, subjecting these children to the trauma 
a second time, appeared so strong. If a stay order of the 
remedy in Bradley v Richmond, supra, was appropriate, cer­
tainly the remedy in this case deserves to be stayed pending 
review by an appellate court. Not only are the numbers of 
children, parents and teachers and cost to the defendants 
far greater in this case, but contrary to Bradley v Richmond, 
supra, there was no finding of de jure segregation against 
any of the suburban school districts and in fact, many of 
those districts did not even participate as parties in this 
litigation in any way.

In Corpus Christi Independent School District v 
Cisneros, 92 S Ct 9 (1971), Mr. Justice Black sitting as 
Circuit Justice reinstated the stay order of the district 
court which had been vacated by the Court of Appeals. He 
specifically held that where a case was in an undesirable

-47-



state of confusion, presenting questions not heretofore passed 
on by the full court, but which should be passed upon, and 
where the case presented a very anomalous, new and confusing 
situation, it was proper that a stay order be issued pending 
decision on the merits by the full Court of Appeals. Those 
questions Justice Black referred to were spelled out in 
Cisneros v Corpus Christi Independent School District, 448 
F2d 1392 (CA 5, 1971). The dissenting opinion there phrased 
the questions as: one, "[W]hat is to be the test in deter­
mining the question of discrimination vel non in a non-dual 
school system, i.e., one which has never been segregated by 
law?" and two, "Should the remedy be commensurate with the 
particular determination found to the end of eliminating that 
discrimination, or should the entire school system be recon­
stituted notwithstanding the degree of discrimination?" 
(Emphasis added.) These are the very questions defendants 
wish to argue on appeal.

Given the nature of the proceedings below, defend­
ants feel that it is virtually impossible to sustain the 
implementation of a remedy as vast as this on the basis of 
the record below. To allow the implementation of such a 
plan in the light of a strong possibility of reversal, neces­
sitating a second trauma of going back to the present 53 
school systems, is to subject literally hundreds of thousands

-48



of students, their parents and teachers to irreparable injury 
and to impose an almost intolerable burden upon these defend­
ants and all the people of Michigan.

Defendants respectfully assert that the requirements 
to grant a stay have been met. The scope of this remedy 
coupled with its probability of reversal constitutes irre­
parable injury to the defendants. The lower court itself has 
recognized that a full desegregation plan this fall is not 
necessary and cannot therefore assert that the granting of 
a stay will work irreparable harm on the plaintiffs. This 
is expressly what Davis, supra, recognized. And finally, 
given the sincere concern of the public, the interest of the 
state defendants in not being forced into a constitutional 
crisis by being compelled to spend funds under threat of con­
tempt while under a constitutional duty to spend only appro­
priated funds as provided by law, and the tremendous cost, 
that could be forever lost, staying the order of the District 
Court is manifestly in the public interest.

Moreover, the granting of such a stay to preserve 
the status quo on appeal, Pettway v American Cast Iron Pipe 
Co, 411 F2d 998 (CA 5, 1969), reh den 415 F2d 1376 (CA 5, 
1969), or until the Supreme Court can decide a pending case 
which will settle many of the questions in the instant case,

-49-



Blue Gem Dresses v Fashion Originators Guild of America, 116 
F2d 142 (CA 2, 1940), is the only way these defendants and 
thousands of school children, their parents and teachers can 
be insured the protection of their rights pending full and 
final appellate review. Presently pending before the United 
States Supreme Court is Keyes v School District No. 1, Denver, 
Colorado, 445 F2d 990 (CA 10, 1971), cert granted 404 US 
1036 (Jan. 17, 1972), a case which these defendants feel will 
resolve many of the issues in the instant case.

-50-



IV.

ALTERNATIVELY, THIS COURT MUST GRANT 
THE MOTION FOR STAY PURSUANT TO RECENT 
LEGISLATION ENACTED BY THE CONGRESS.

On May 24, 1972, the United States Senate, by vote 
of 63-15, agreed to the conference report on S.659. Cong. 
Rec. Vol. 118,No. 84, S8403. On June 8, 1972, the United 
States House of Representatives, by vote of 218-180, agreed 
to the conference report on S.659. Cong. Rec. Vol. 118,
No. 93, H5446-5447. This legislation, S.659, has been signed 
into law by the President and has become PL 92-318.

In S.659, Title VIII, Section 803 thereof provides 
as follows:

"Notwithstanding any other law or provision 
of law, in the case of any order on the part 
of any United States district court which 
requires the transfer or transportation of 
any student or students from any school 
attendance area prescribed by competent 
State or local authority for the purposes 
of achieving a balance among students with 
respect to race, sex, religion, or socio­
economic status, the effectiveness of such 
order shall be postponed until all appeals 
in connection with such order have been 
exhausted or, in the event no appeals are 
taken, until the time for such appeals has 
expired. This section shall expire at 
midnight on January 1, 1974." Cong. Rec. 
Vol. 118, No. 93, H5406-5407

-51-



These defendants submit that the above quoted section 
compels the granting of a stay of the District Court's order 
of June 14, 1972.

Page 4 of such order clearly requires the development 
and implementation of a transportation plan involving grades 
K-6, as an irreducible minimum, by the Fall, 1972 term. Thus, 
Title VIII, Section 803 of S.659 is clearly applicable to the 
order of June 14, 1972.

Any potential doubts on this point are quickly resolved 
by reference to the legislative history of this statutory sec­
tion as follows:

"Mr. O'HARA. Mr. Speaker, I am particularly 
interested in the provisions of section 803 
of the conference report.
"First, I would like to ask Mr. Broomfield 
about his meaning when his amendment spoke of 
an order of a district court requiring the 
transfer or transportation of students 'for 
the purpose of achieving a balance among 
students with respect to race, sex, religion, 
or socioeconomic status.' In all of the 
court orders with which I am familiar, the 
court has stated that its purpose is to pre­
vent unconstitutional segregation of students. 
May I inquire of the gentleman from Michigan 
if it was his intention that section 80 3 
apply to orders that have the practical effect 
of achieving some sort of racial balance, 
although the court may have stated that its 
order was entered for the purpose of correct­
ing unconstitutional segregation?

-52-



"Mr. BROOMFIELD. Yes; it was my intention 
to cover such cases and specifically, it was 
my intention to cover cases like those now 
being litigated in Richmond and Detroit.
"Mr. O'HARA. May I ask the chairman of the 
conference committee, the gentleman from 
Kentucky, if his understanding is the same 
as that of the gentleman from Michigan (Mr. 
Broomfield)?
"Mr. PERKINS. Yes, it is. It is my under­
standing that section 803 covers district 
court orders which require the transfer or 
transportation of students for racial pur­
poses whether the court order is framed in 
terms of correcting unconstitutional segre­
gation or whether it is framed in terms of 
'achieving a balance among students with 
respect to race.'
"Mr. O'HARA. If I could continue to have the 
attention of the gentleman from Kentucky, the 
effective date of section 803 is July 1 of 
this year.
"The joint explanatory statement of the com­
mittee of conference says:
"This section does not authorize the reopening 
of final orders, however, appealable orders 
are considered to be within the scope of this 
amendment.
"Does this mean that if an order requiring 
the transfer or transportation of students 
has been entered prior to July 1, 1972, the 
effectiveness of such order shall be post­
poned until all appeals in connection with 
such order have been exhausted or, in the 
event that no appeals are taken, until the 
time for such appeal has expired?
"Mr. PERKINS. The gentleman from Michigan 
is correct. Section 803 will apply to such 
orders whether entered before or after July 
1, 1972, as long as appeals of such orders

-53-



have not been exhausted or, in the event no 
appeal of such was taken, until the 
time for such appeal has expired.
"Mr. O'HARA. I thank the gentleman from 
Michigan and the gentleman from Kentucky 
for their explanations and I urge adoption 
of the conference report with the very 
important provisions contained in section 
803." Cong. Rec. Vol. 118, No. 93, H5416

This legislative debate compels the conclusion that 
section 803 applies to the order of June 14, 1972, which at 
p. 6, provides as follows:

"Within the limitations of reasonable travel 
time and distance factors, pupil reassign­
ments shall be effective within the clusters 
described in Exhibit P.M. 12 so as to achieve 
the greatest degree of actual desegregation 
to the end that, upon implementation, no 
school, grade or classroom be substantially 
disproportionate to the overall pupil racial 
composition...." (Emphasis supplied.)

The practical effect of such order is manifestly 
to achieve some sort of racial balance, thus invoking the 
mandatory stay provisions pending appeal of Title VIII, Sec­
tion 803 of S.659.

-54-



Moreover, the District Court's order of 
July 11, 1972 requires the acquisition of at least 295 
buses for use in the interim desegregation plan during the 
1972-73 school year. Thus, it is manifest that such order, 
entered after July 1, 1972, involves the acquisition of buses 
for the purpose of transferring and transporting children 
from the school attendance area otherwise prescribed by 
local boards of education. Consequently, it is beyond 
dispute that Sec. 803 is equally applicable to the District 
Court s order of July 11, 1972. To hold otherwise would be 
to disregard the clear intent of a coordinate branch of 
government, the Congress of the United States.

In summary, the lower court's order of June 14,
1972 compels pupil reassignment to achieve racial balance 
within the desegregation area. The order of July 11, 1972 
compels the acquisition of buses for the purpose of trans­
porting pupils from their school attendance areas for the 
purpose of achieving such judicially required racial balance. 
Thus, the conclusion is compelled that Sec. 803 mandates 
a stay of lower court's orders of June 14, 1972 and July 11, 
1972.

-54a-



CONCLUSION

To conclude, the District Court, relying initially 
upon the opinion of Judge Merhige, which was subsequently 
reversed by the Court of Appeals for the Fourth Circuit in 
Bradley v School Board of City of Richmond, Virginia, supra, 
and without notice, hearing, proofs or findings as to either 
tiie establishment of the boundaries of the 53 affected school 
districts comprising the lower court's desegregation area or 
any de jure conduct by the 52 suburban school districts, 18 of 
which are not even parties to this cause,has decreed implementa­
tion of interim, Fall term, 1972 and Final, Fall term, 1973, 
plans of pupil and faculty desegregation. The lower court's 
orders of June 14, 1972 and July 11, 1972 compel these defendants 
to disburse vast sums of money contrary to state law and prior 
to appellate review, thus generating a serious crisis. Further, 
such orders disrupt the educational processes of 53 school 
districts affecting the administrators, teachers, pupils and 
parents of each school district, all in the absence of appellate 
review of such orders. In the event these unprecedented school 
desegregation decrees are not stayed, but are ultimately reversed 
on appeal, considerable funds will be irretrievably lost and 
the affected children, parents, teachers and administrators 
will undergo the trauma of further reassignments.

-55-



In connection with the District Court's denial of a 
stay pending appeal, it must be emphasized that in the lower 
court's Findings of Fact and conclusions of Law on Detroit- 
Only Plans of Desegregation, issued March 28, 1972, and 
attached hereto as Appendix H, the Court found, inter alia, , 
that a Detroit-Only remedy could not be implemented by the 
opening of the 1972-73 school year, that such a remedy would 
involve wasting vast sums of money and effort in the event a 
metropolitan remedy was ultimately to be implemented and that 
such a remedy would subject students, parents, faculty and 
administrators to the trauma of reassignments with little 
likelihood that such reassignment would continue for any 
appreciable time. These defendants submit that such findings 
are compelling reasons for the granting of a stay by this Court, 
pending appellate review of the momentous constitutional law 
questions involved herein, prior to the implementation of 
interim and final metropolitan remedies in this cause.

RELIEF

WHEREFORE, these defendants respectfully request tha^ 
a panel or single judge of this Court immediately consider this 
Emergency Application for Stay and enter an order staying the 
enforcement of the District Court's orders of June 14, 1972 ana

-56-



July 11, 1972, pending the appeals of these defendants to 
this Court from such orders.

Business Address:
720 Law Building
525 West Ottawa Street
Lansing, Michigan 48913

Respectfully submitted,
FRANK J. KELLEY 
Attorney General
Robert A. Derengoski 
Solicitor General

Eugene Krasicky 
Gerald F. Young 
Assistant Attorneys General 
Attorneys for Defendants 
Governor, Attorney General 
State Board of Education and 
Supt. of Public Instruction

-57-



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al
<

., :

V.
Plaintiffs !

WILLIAM G. MILLIKEN,
<

et al., !

and
i

Defendants ■
«

DETROIT FEDERATION OF TEACHERS,
LOCAL 231, AMERICAN FEDERATION !
OF TEACHERS, AFL-CIO, !. ■ 1

and
Defendant- ] 
Intervenor ]

<
DENISE MAGpOWSKI, et al., ;

et al.

i
Defendants- ] 
Intervenor ]' , • i

A T R U E  C O P Y
FREDERICK W. JOHNSON, Clerk 

DtPUTY CLERK"'"

CIVIL ACTION NOs 
35257

RULING ON DESEGREGATION AREA 
AND

ORDER FOR DEVELOPMENT OF PLAN OF DESEGREGATION

On September 27, 1971 the court made its Ruling on 
Issue of Segregation, holding that illegal segregation exists 
in the public schools of the City of Detroit as a result of a 
course of conduct on the part of the State of Michigan and the 
Detroit Board of Education. Having found a constitutional - 
violation as established, on October 4, 1971 the court 
directed the school board defendants, City and State, to

’ ♦ L

develop and submit plans of desegregation, designed to 
achieve the greatest possible degree of actual desegregation, 
taking into account the practicalities of the situation. The 
directive called for the submission of both a "Detroit-only" 
and a "Metropolitan" plan.

appendix a



Plans for the desegregation of the Detroit schools 
were submitted by the Detroit Board of Education and by the 
plaintiffs. Following five days of hearings the court found

4’
that while plaintiffs' plan would accomplish more desegregation 
than now obtains in the system, or which would be achieved under
either Plan A or C of the Detroit Board of Education submissions,

. .  *

none of the plans would result in the desegregation of the
public schools of the Detroit school district. The court,

• .

in its findings of fact and conclusions of law, concluded that 
"relief of segregation in the Detroit, public schools cannot 
be accomplished within the corporate geographical limits of 
the city," and that it had the authority and the duty to 
look beyond such limits for a solution to the illegal segre­
gation in the Detroit public schools. Accordingly, the court 
ruled,it had to consider a metropolitan remedy for segregation.

The parties submitted a number of plans for metropolitan 
desegregation. The State Board of Education submitted six - 
without recommendation, and without indicating any preference.
With the exception of one of these, none could be considered as 
designed to accomplish desegregation. On the other hand 
the proposals of intervening defendant Magdowski, et al., . 
the Detroit Board of Education and the plaintiffs were all 
good faith efforts to accomplish desegregation in the Detroit 
metropolitan area. The three plans submitted by these parties 
have many similarities, and all of them propose to incorporate, 
geographically, Lmost--and in one instance, all— of the three- 
county area of Wayne, Oakland and Macomb.

The hearing on the proposals have set the framework, 
and have articulated the criteria and considerations, for 
developing and evaluating an effective plan of metropolitan 
desegregation. None of the submissions represent a complete



plan for the effective and equitable desegregation of the 
metropolitan area, capable of implementation in its present 
form. The court will therefore draw upon the resources of 
the parties to devise, pursuant to its direction, a 
constitutional plan of desegregation of the Detroit public

schools.
Based on the entire record herein, the previous oral 

and written rulings and orders of this court, and the 
Findings of Fact and Conclusions of Law filed herewith,

IT IS ORDERED:

. I.
A. As a panel charged with the responsibility of 

preparing and submitting an effective desegregation plan m  

accordance with the provisions of this order, the court 

appoints the following:

1

1. A designee of the State Superintendent of 
Public Instruction;

2. Harold Wagner, Supervisor of the Transportation 
Unit in the Safety and Traffic Education 
Program of the State Department of Education;

3. Merle Henrickson, Detroit Board of Education;
4. Aubrey McCutcheon, Detroit Board of Education;
5. Freeman Flynn, Detroit Board of Education;
6. Gordon Foster, expert for plaintiffs;

7.

8.

Richard Morshead, representing defendant 
Magdowski, et al.;

,  *A designee of the newly intervening defendants.
9. Rita Scott, of the Michigan Civil Rights 

Commission.

The designees of the State Superintendent of Public 
Instruction and newly intervening defendants shall be communicate 
to the court within seven days of the entry of this order. In 
the event the newly intervening defendants cannot agree upon a 
designee, they may each submit a nominee within seven days from 
the entry of this order, and the court shall select one of the 
nominees as representative of said defendants.



Should any designated member of this panel be unable

to serve, the other members of the panel shall elect any 
• .

necessary replacements, upon notice to the court and the 
parties. In the absence of objections within five days of 
the notice, and pending a final ruling, such designated, 
replacement shall act as a member of the panel.

B. As soon as possible, but in no event later than 
45 days after the issuance of this order, the panel is to 
develop a plan for the assignment of pupils as set forth below 
in order to provide the maximum actual desegregation, and 
shall develop as well a plan for the transportation of pupils, 
for Implementation for all grades, schools and clusters in 
the desegregation area. Insofar as required by the 
circumstances, which are to be detailed in particular, the 
panel may recommend immediate implementation of an interim 
desegregation plan for grades K-6, K-8 or K-9 in all or in 
as many clusters as practicable, with complete and final 
desegregation to proceed in no event later than the fall 
1973 term. In its transportation plan the panel shall, 
to meet the needs of the proposed pupil assignment plan, 
make recommendations, including the shortest possible time­
table, for acquiring sufficient additional transportation 
facilities for any interim or final plan of desegregation. 
Such recommendations shall be filed forthwith and in no 
event l^ter th^n 45 days after the entry of this order.
Should it develop that some additional transportation 
equipment is needed for an interim plan, the panel shall 
make recommendations for such acquisition within 20 days 

of this order.

- 4 -



C. The parties, their agents, employees, successors, 
and all others having actual notice of this order shall 
cooperate *fully with the panel in their assigned mission,

v*

including, but not limited to, the provision of data and 
reasonable full and part-time staff assistance as requested 
by the panel. The State defendants shall provide support, 
accreditation, funds, and otherwise take all actions necessary 
to insure that local officials and employees cooperate fully 
with the panel. All reasonable costs incurred by the panel 
shall be borne by the State defendants; provided, however, 
that staff assistance or other services provided by any 
school district, its employees or agents, shall be without 
charge, and the cost thereof shall be borne by such school 
district.

II.
A. Pupil reassignment to accomplish desegregation 

of the Detroit public schools is required within the geographical 
area which may be described as encompassing the following 
school districts (see Exhibit P.M. 12), and hereinafter
referred to as the

Lakeshore 
Lakeview 
Roseville 
South Lake 
East Detroit 
Grosse Pointe 
Centerline 
.Fitzgerald 
Van Dyke 
Fraser i 
Harper Woods 
Warren
Warren Woods 
Clawson 
Hamtramck 
Lamphere 
Madison Heights' 
Troy

desegregation area":
Birmingham 
Hazel Park 
Highland Park 
Royal Oak 
Berkley 
Ferndale 
Southfield 
Bloomfield Hills 
Oak Park 
Redford Union 
West Bloomfield 
Clarenceville 
Farmington 
Livonia 
South Redford 
Crestwood 
Dearborn 
Dearborn Heights

Fairlane .
Garden City
North Dearborn Heights
Cherry Hill
Inkster
Wayne
Westwood '
Ecorse
Romulus
Taylor
River Rouge
Riverview
Wyandotte
Allen Park
Lincoln Park
Melvindale
Southgate
Detroit

- 5-



Provided, however, that if in the actual assignment of 
pupils it appears necessary and feasible to achieve effective 
and complete racial desegregation to reassign pupils of 
another district or other districts, the desegregation panel 
may, upon notice to the parties, apply to the Court for 
an appropriate modification of this order.

B. Within the limitations of reasonable travel 
time and distance factors, pupil reassignments shall be 
effected within the clusters described in Exhibit P.M. 12 
so as to achieve the greatest degree of actual desegregation to 
the end that, upon implementation, no school, grade or class­
room be substantially disproportionate to the overall pupil 
racial composition. The panel may, upon notice to the 
parties, recommend reorganization of clusters within the 
desegregation area in order to minimize administrative 
inconvenience, or time and/or numbers of pupils requiring 
transportation.

Cd Appropriate and safe transportation arrangements 
shall be made available without cost to all pupils assigned to 
schools deemed by the panel to be other than "walk-in" 
schools. ■ .

D. Consistent with the requirements of maximum
actual desegregation, every effort should be made to minimize
the numbers of pupils to be reassigned and requiring trans­

* i
portation, the time pupils spend in transit, and the number 
and cost of new transportation facilities to be acquired by 
utilizing such techniques as clustering, the "skip" technique, 
island zoning, reasonable staggering of school hours, and 
maximization of use of existing transportation facilities,



including buses owned or leased by school districts and 
buses operated by public transit authorities and private 
charter companies. The panel shall develop appropriate 
recommendations for limiting transfers which affect the 
desegregation.of particular schools.

E. Transportation and pupil assignment shall,
to the extent consistent with maximum feasible desegregation, 
be a two-way process with both black and white pupils sharing 
the responsibility for transportation requirements at all 
grade levels. In the determination of the utilization of 
existing, and the construction of new, facilities, care 
shall be taken to randomize the location of particular 
grade levels.

F. Faculty and staff shall be reassigned, in 
keeping with pupil desegregation, so as to prevent the 
creation or continuation of the identification of schools by 
reference to past racial composition, or the continuation of 
substantially disproportionate racial composition of the 
faculty and staffs, of the schools in the desegregation area. 
The faculty and staffs assigned to the schools within the 
desegregation area shall be substantially desegregated, 
bearing in mind, however, that the desideratum is the balance 
of faculty and staff by qualifications for subject and grade 
level, and then by race, experience and sex. In the context 
of the evidence in this case, it is appropriate to require 
assignment of no less than 10% black faculty and staff at 
each school, and where there is more than one building 
administrator, every effort should be made to assign a 
bi-racial administrative team.

-7-



G. In the hiring, assignment, promotion, demotion, 
and dismissal of faculty and staff, racially non-discriminatory 
criteria must be developed and used; provided, however,
there shall be no reduction in efforts to increase minority 
group representation among faculty and staff in the 
desegregation area. Affirmative action shall be taken to 
increase minority employment in all levels of teaching and 
administration.

H. The restructuring of school facility utilization 
necessitated by pupil reassignments should produce schools
of substantially like quality, facilities, extra-curricular 
activities and staffs; and the utilization of existing 
school capacity through the desegregation area shall be 
made on the basis of uniform criteria.

I. The State Board of Education and the State 
Superintendent of Education shall with respect to all school 
construction and expansion, "consider the factor of racial 
balance along with other educational considerations in 
making decisions about new school sites, expansion of
present facilities * ** and shall, within the desegregation
area disapprove all proposals for new construction or expansion 
of existing facilities when "housing patterns in an area would 
result in a school largely segregated on racial * * * lines,"
all in accordance with the 1966 directive issued by the State . 
Board of Education to local school boards and the State 
Board's "School Plant Planning Handbook" (see Ruling on Issue . 
of segregation, p. 13.).

J. Pending further orders of the court, existing 
school district and regional boundaries and school governance

-8-



arrangements will be maintained and continued, except to 
the extent necessary to effect pupil and faculty desegregation 
as set forth herein; provided, however, that existing administra­
tive, financial, contractual, property and governance arrange­
ments shall be examined, and recommendations for their 
temporary and permanent retention or modification shall be 
made, in light of the need to operate an effectively desegregated 
system of schools.

K. At each school within the desegregated area 
provision shall be made to insure that the curriculum, 
activities, and conduct standards respect the diversity of 
students from differing ethnic backgrounds and the dignity and 
safety of each individual, students, faculty, staff and parents.

L. The defendants shall, to insure the effective
desegregation of the schools in the desegregation area, take 
immediate action including, but not limited to, the •
establishment or expansion of in-service training of faculty 
and staff, create bi—racial committees, employ black counselors, 
and require bi-racial and non-discriminatory extra-curricular 
activities.

III.
The State Superintendent of Public Instruction, with 

the assistance of the other state defendants, shall examine, 
and make recommendations, consistent with the principles* t
established above, for appropriate interim and final arrange­
ments for the (1). financial, (2) administrative and school 
governance, and (3) contractual arrangements for the operation 
of the schools within the desegregation area, including steps 
for unifying, or otherwise making uniform the personnel

-9-



policies, procedures, contracts, and property arrangements 

of the various school districts.
Within 15 days of the entry of this order, the 

Superintendent shall advise the court and the parties of his 
progress in preparing such recommendations by filing a 
written report with the court and serving it on the parties.
In not later than 45 days after the entry of this order,
the Superintendent shall file with the court his recommendations
for appropriate interim and final relief in these respects.

In his examination and recommendations, the 
Superintendent, consistent with the rulings and orders of this 
court, may be guided, but not limited, by existing state law; 
where state law provides a convenient and adequate framework 
for interim or ultimate relief, it should be followed, where 
state law either is silent or conflicts with what is necessary 
to achieve the objectives of this order, the Superintendent 
shall independently recommend what he deems necessary. In 
particular, the Superintendent shall examine and choose one 
appropriate interim arrangement to oversee the immediate 
implementation of a plan of desegregation. •

IV.
Each party may file appropriate plans or proposals

for inclusion in any final order which may issue in this
cause. The intent of this order is to permit all the parties
to proceed apace with the task before us: fashioning an 

* «
effective plan for the desegregation of the Detroit public 
schools.

Fifteen days after the filing of the reports 
required herein, hearings will begin on any proposal to modify 
any interim plan prepared by the panel and all other matters

- i n -



which may be incident to the adoption and implementation of 
any interim plan of desegregation submitted. The parties 
are placed on notice that they are to be prepared at that 
time to present their objections, alternatives and modifications. 
At such hearing the court will not consider objections to 
desegregation or proposals offered "instead" of desegregation.

Hearings on a final plan of desegregation will be 
set as circumstances require.

DATE: JUNE _14 , 1972.

-11



• • UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

• )
RONALD BRADLEY, et al., )

)
Plaintiffs )

v. )
)

WILLIAM G„ MILLIKEN, et al., )
)

Defendants )
and )

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

)
Defendant- )
Intervenor )

and )
)

DENISE MAGDOWSKI, et al., )
)

Defendants- )
et al. Intervenor )

)

CIVIL ACTION NO: 
35257 '

v

ORDER DENYING MOTION FOR STAY OF PROCEEDINGS
At a session of said Court held in 
the Federal Building, City of Flint,
County of Genesee, on this 7th day 

• of JULY, A„D„ 1972.
P*RESENT: HONORABLE STEPHEN J. ROTH

United States District Judge
The State defendants, William G. Milliken, Governor, 

Frank 0‘. Kelley, Attorney General, State Board of Education, and 
John W. Porter, Superintendent of Public Instruction, have, 
moved for emergency consideration of their motion to stay or 
suspend the proceedings ordered by the court in its "Order 
for Development of Plan of Desegregation" entered in this 
cause on June 14, 1972; and

The court having noticed the 'matter for hearing on 
June 29, 1972; counsel having argued their respective positions 
with respect to the motion to stay proceedings; and the court 
having taken the matter under advisement and considered the same



IT IS ORDERED that the motion to stay proceedings be, 
and the same is hereby, DENIED.

DATE: JULY 7, 1972.

t

I



UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al,
Plaintiffs,v.

WILLIAM G. MILLIKEN, et al, 
Defendants,and

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

and Defendant-Intervenor,

DENISE MAGDOWSKI, et al,
Defendants-Intervenor,et al.

Civil Action 
No. 35257

ORDER
ADDING DEFENDANT ALLISON GREEN
At a session of the United States 
District Court, Federal Building,
Detroit, Michigan, on the 
daY of _____ /JWC^)________, 1972

The Court having determined that transportation capacity 
must be ordered by the Defendant Detroit Board of Education and
paid for by the State Defendants, and it being brought to the 
Court's attention that the State Treasurer, upon warrants of the 
State Superintendent of Education, is responsible for issuing his 
warrant for payment of obligations of Defendant, the adding of 
Allison Green, Treasurer of the State of Michigan, is necessary 
in order to grant full relief to the parties.

WHEREFORE, the Court, on its own motion, pursuant to 
Rules 19 and 21 of the Federal Rules of Civil Procedure, hereby 
ORDERS that Allison Green, Treasurer of the State of Michigan,

APPENDIX C

/



be made a party Defendant in this action. Copies of this Order 
will be served forthwith on the Defendant Green by the Unitedft
States Marshall.

United States District Judge

- 2-



UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al,
Plaintiffs, v.

WILLIAM G. MILLIKEN, et al,
Defendants,and

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

Defendant-Intervenor,
and
DENISE MAGDOWSKI, et al,

Defendants-Intervenor,et al.

)
)
)
)
)
)
)
)
)
)
)
)
)

1/ ■■

Civil Action 
No. 35257

ORDER
FOR ACQUISITION OF TRANSPORTATION
At a session of the United States 
District Court, Federal Building, 
Detroit, Michigan, on the 
day of 'Lg , 1972.

The Court has received a recommendation from the Panel 
appointed under its previous orders that 295 buses,which it had 
determined are available, should be acquired for the purpose of 
providing transportation under an interim plan. The Court also 
had before it the still pending motion of Plaintiffs for the 
purchase of 350 buses. Having heard the arguments of counsel, 
IT IS HEREBY ORDERED:

1. The Defendant Detroit Board of Education shall 
acquire by purchase, lease or other contractual arrangement at 
least 295 buses for use in the -interim desegregation plan during 
the 1972-73 school year. All financial obligations incurred as

/

APPENDIX D



the result of this Order shall be the sole financial obligation 
of the State Defendants, including the added State Defendant 
State Treasurer Allison Green, as set forth below in Paragraph 2. 
Said order, lease, or other contract shall be entered into by 
negotiation and without the necessity for bids forthwith and in 
no event later than Thursday, July 13, 1972.

2. The State Defendants shall bear the cost of this 
acquisition and State Defendants, including the added State 
Defendant Green, shall take all necessary steps utilizing existinc 
funds and sources of revenue, to be acquired State funds, legis­
latively authorized and funds directed by the State Constitution 
to the State School Aid Funds and by re-allocation of existing or 
new funds to pay for said transportation acquisition either 
directly or through the Defendant Detroit Board.

United States District Judge

Approved as to form only:

George T. Roumell, Jr. .
Attorney for Defendant Detroit 

Board of Education, and other Defendants



UNITED STATES DISTRICT COURT
■EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al, 
Plaintiffs,

v .
WILLIAM G. MILLIKEN, et al, 

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

De fendant-Intervenor,and
DENISE MAGDOWSKI, et al,

Defendants-Intervenor,
et al.

/

■f"'

■ / , / X  7

Civil Action 
No. 35257

ORDER DENYING MOTION FOR STAY OF 
ORDER FOR ACQUISITION OF TRANSPORTATION

At a session of said Court held in the 
Federal Building, City of Flint, County of 
Genesee, on this ____ day of July, 19 72.
PRESENT: HONORABLE STEPHEN J, ROTH

United States District Judge

The State defendants, William G. Milliken, Governor, 
Frank J. Kelley, Attorney General, State Board of Education, and 
John W. Porter, Superintendent of Public Instruction, have, on 
July 10, 1972, in open court, orally moved for a stay of this 
Court's ruling, reduced to written order on July 11, 1972, to 
require defendant, Detroit Board of Education, to purchase 295 
buses for use in an interim plan of desegregation for the Fall 
term, 1972, and to require the State defendants to pay for such

APPENDIX E



295 buses, and the Court having denied such motion for stay 
from the bench on July 10, 1972, and the Court being fully 
advised in the premises;

IT IS ORDERED that the State defendants' motion to 
stay this Court's order of July 11, 1972 be, and the same is 
hereby, DENIED.

UNITED STATES DISTRICT JUDGE

DATE; July 11, 1972

- 2-



UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs

v.
WILLIAM G. MILLIKEN, et al.,

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

Defendant- 
Intervenor

and
DENISE MAGDOWSKI, et al.,

Defendants- 
Intervenor

RULING ON ISSUE OF SEGREGATION 
This action was commenced August 18, 197 0, by­

plaintiffs, the Detroit Branch of the National Association for 
the Advancement of Colored People and individual parents and 
students, on behalf of a class later defined by order of the 
Court dated February 16, 1971, to include "all school children 
of the City of Detroit and all Detroit resident parents who 
have children of school age." Defendants are the Board of 
Education of the City of Detroit, its members and its former 
superintendent of schools, Dr. Norman A. Drachler, the Governor, 
Attorney General, State Board of Education and State Superin­
tendent of Public Instruction of the State of Michigan. In 
their complaint, plaintiffs attacked a statute of the State 
of Michigan known as Act 48 of the 1970 Legislature on the

The standing of the NAACP as a proper party plaintiff was 
not contested by the original defendants and the Court expresses 
no opinion on the matter.

APPENDIX F



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

Additional parties have intervened in the litigation 
since it was commenced. The Detroit Federation of Teachers 
(DFT) which represents a majority of Detroit Public school 
teachers in collective bargaining negotiations with the defendant 
Board of Education, has intervened as a defendant, and a group 
of parents has intervened as defendants.

Initially the matter was tried on plaintiffs' motion 
for preliminary injunction to restrain the enforcement of 
Act 48 so as to permit the April 7 Plan to be implemented. On 
that issue, this Court ruled that plaintiffs were not entitled 
to a preliminary injunction since there had been no proof that 
Detroit has a segregated school system. The Court of Appeals 
found that the "implementation of the April 7 Plan was thwarted 
by State action in the form of the Act of the Legislature of 
Michigan," (433 F.2d 897, 902), and that such action could not 
be interposed to delay, obstruct, or nullify steps lawfully 
taken for the purpose of protecting rights guaranteed by the 
Fourteenth Amendment.

The plaintiffs then sought to have this Court direct 
the defendant Detroit Board to implement the April 7 Plan by

2-



the start of the second semester (February, 1971) in order to 
remedy the deprivation of constitutional rights wrought by the 
unconstitutional statute. In response to an order of the Court, 
defendant Board suggested two other plans, along with the 
April 7 Plan, and noted priorities, with top priority assigned 
to the so-called "Magnet Plan." The Court acceded to the 
wishes of the Board and approved the Magnet Plan. Again, 
plaintiffs appealed but the appellate court refused to pass 
on the merits of the plan. Instead, the case was remanded 
with instructions to proceed immediately to a trial on the 
merits of plaintiffs' substantive allegations about the Detroit 
School System. 438 F .2d 945 (6th Cir. 1971).

Trial, limited to the issue of segregation, began 
April 6, 1971 and concluded on July 22, 1971, consuming 41 
trial days, interspersed by several brief recesses necessitated 
by other demands upon the time of Court and counsel. Plaintiffs 
introduced substantial evidence in support of their contentions, 
including expert and factual testimony, demonstrative exhibits 
and school board documents. At the close of plaintiffs' case, 
in chief, the Court ruled that they had presented a prima facie 
case of state imposed segregation in the Detroit Public Schools; 
accordingly, the Court enjoined (with certain exceptions) all 
further school construction in Detroit pending the outcome 
of the litigation.

The State defendants urged motions to dismiss as to
them. These were denied by the Court.1 .

At the close of proofs intervening parent defendants
(Denise Magdowski, et al.) filed a motion to join, as parties 85

«contiguous "suburban" school districts - all within the so-

-3-



called Larger Detroit Metropolitan area. This motion was 
taken under advisement pending the determination of the issue 
of segregation.

It should be noted that, in accordance with earlier 
rulings of the Court, proofs submitted at previous hearings 
in the cause, were to be and are considered as part of the 
proofs of the hearing on the merits.

In considering the present racial complexion of the 
City of Detroit and its public school system we must first look 
to the past and view in perspective what has happened in the 
last half century. in 1920 Detroit was a predominantly white 

~ 91% - and its population younger than in more recent 
times. By the year 1960 the largest segment of the city's 
white population was in the age range of 35 to 50 years, while 
its black population was younger and of childboaring age. The 
population of 0-15 years of age constituted 30% of the total
population of which 60% were white and 40% were black. In 
1970 the white population was principally aging— 45 years-- 
while the black population was younger and of childbearing age. 
Childbearing blacks equaled or exceeded the total white 
population. As older white families without children of 
school age leave the city they are replaced by younger black 
families with school age children, resulting in a doubling 
of enrollment in the local neighborhood school and a complete 
change in student population from white to black. As black 
inner city residents move out of the core city they "leap-frog" 
the residential areas nearest their former homes and move to
areas recently occupied by whites.

The population of the City of Detroit reached its

-4-



highest point in 1950 and has been declining by approximately 
169,500 per decade since then. In 1950, the city population 
constituted 61% of the total population of the standard 
metropolitan area and in 1970 it was but 36% of the metro­
politan area population. The suburban population has 
increased by 1,978,000 since 1940. There has been a steady 
out-migration of the Detroit population since 1940. Detroit 
today is principally a conglomerate of poor black and white 
plus the aged. Of the aged, 80% are white.

If the population trends evidenced in the federal 
decennial census for the years 1940 through 1970 continue, 
the total black population in the City of Detroit in 1980 
will be approximately 840,000, or 53.6% of the total. The 
total population of the city in 1970 is 1,511,000 and, if 
past trends continue, will be 1,338,000 in 1980. In school 
year 1960-61, there were 285,512 students in the Detroit 
Public Schools of which 130,765 were black. In school year 
1966-67, there were 297,035 students, of which 168,299 were 
black. In school year 1970-71 there were 289,743 students of 
which 184,194 were black. The percentage of black students 
in the Detroit Public Schools in 1975-76 will be 72.0%, 
in 1980-81 will be 80.7% and in 1992 it will be virtually 
100% if the present trends continue. In 1960, the non-white 
population, ages 0 years to 19 years, was as follows:

0 - 4 years 4 2%

5 - 9 years 36%

10 - 14 years 28%

15 - 19 years 18%

-5



In 1970 the non-white population, ages 0 years to 19 years, 
was as follows:

0 - 4 years 48%
5 - 9 years 50%

10 - 14 years 50%
15 - 19 years 40%

The black population as a percentage of the total population 
in the City of Detroit was:

1c(a) 1900 1.4%
(b) 1910 1.2%
(c) 1920 4.1%
(d) 1930 7.7%
(e) 1940 * 9.2%

(f) 1950 16.2%

(g) 1960 \0•

00C
N

(h) 1970 43.9%

The black population as a percentage of total student 
population of the Detroit Public Schools was as follows:

(a) 1961 45.8%
(b) 1963 51.3%
(c) 1964 53.0%
(d) 1965 54.8%
(e) 1966 56.7%

(f) 1967 58.2%

(g) 1968 5 9.4%
(h) 1969 61.5%

(i) 1970 63.8%

-6-



For the years indicated the housing characteristics in the

City of Detroit were as follows:

(a) 1960 total supply of housing
units was 553,000

(b) 1970 total supply of housing
units was 530,770

The percentage decline in the white students in the 
Detroit Public Schools during the period 1961-1970 (53.6% 
in 1960; 34.8% in 1970) has been greater than the percentage 
decline in the white population in the City of Detroit during 
the same period (70.8% in 1960; 55.21% in 1970), and 
correlatively, the percentage increase in black students in 
the Detroit Public Schools during the nine-year period 1961­
1970 (45.8% in 1961; 63.8% in 1970) has been greater than the 
percentage increase in the black population of the City of 
Detroit during the ten-year period 1960-1370 (28.3% in
1960; 43.9% in 1970). In 1961 there were eight schools in 
the system without white pupils and 73 schools with no 
Negro pupils. In 1970 there were 30 schools with no 
white pupils and 11 schools with no Negro pupils, an 
increase in the number of schools without white pupils of 
22 and a decrease in the number of schools without 
Negro pupils of 62 in this ten-year period. Between 
1968 and 1970 Detroit experienced the largest increase in 
percentage of black students in the student population of any 
major northern school district. The percentage increase in 
Detroit was 4.7% as contrasted with —

New York 2.0%
Los Angeles 1.5%
Chicago 1.9%

-7-



Philadelphia 1.7%
Cleveland 1.7%
Milwaukee 2.6%
St. Louis 2.6%
Columbus 1.4%
Indianapolis 2.6%
Denver 1.1%
Boston 3.2%
San Francisco 1.5%
Seattle 2.4%

In 1960, there were 266 schools in the Detroit 
School System. In 1970, there were 319 schools in the 
Detroit School System.

In the Western, Northwestern, Northern, Murray, 
Northeastern, Kettering, King and Southeastern high school 
service areas, the following conditions exist at a level 
significantly higher than the city average:

(a) Poverty in children
(b) Family income below poverty level
(c) Rate of homicides per population
(d) Number of households headed by females
(e) Infant mortality rate
(f) Surviving infants with neurological 

defects
(g) Tuberculosis cases per 1,000 population
(h) High pupil turnover in schools

The City of Detroit is a community generally divided 
by racial lines. Residential segregation within the city and 
throughout the larger metropolitan area is substantial, per­
vasive and of long standing. Black citizens are located in

-8-



separate and distinct areas within the city and are not 
generally to be found in the suburbs. While the racially 
unrestricted choice of black persons and economic factors 
may have played some part in the development of this pattern 
of residential segregation, it is, in the main, the result 
of past and present practices and customs of racial discrimina­
tion, both public and private, which have and do restrict the 
housing opportunities of black people. On the record there 
can be no other finding.

Governmental actions and inaction at all levels, 
federal, state and local, have combined, with those of 
private organizations, such as loaning institutions and real 
estate associations and brokerage firms, to establish and 
to maintain the pattern of residential segregation throughout 
the Detroit metropolitan area. It is no answer to say that 
restricted practices grew gradually (as the black population 
in the area increased between 1920 and 1970), or that since 
1948 racial restrictions on the ownership of real property 
have been removed. The policies pursued by both government 
and private persons and agencies have a continuing and present 
effect upon the complexion of the community - as we know, 
the choice of a residence is a relatively infrequent affair.
For many years FHA and VA openly advised and advocated the 
maintenance of "harmonious" neighborhoods, i_.£., racially 
and economically harmonious. The conditions created 
continue. While it would be unfair to charge the present 
defendants with what other governmental officers or agencies 
have done, it can be said that the actions or the failure to 
act by the responsible school authorities, both city and 
state, were linked to that of these other governmental units.

-9-



When we speak of governmental action we should not view the 
different agencies as a collection of unrelated units.
Perhaps the most that can be said is that all of them, 
including the school authorities, are, in part, responsible 

the segregated condition which exists. And we note that 
just as there is an interaction between residential patterns 
and the racial composition of the schools, so there is a 
corresponding effect on the residential pattern by the racial 
composition of the schools.

Turning now to the specific and pertinent (for our 
purposes) history of the Detroit school system so far as it 
involves both the local school authorities and the state 
school authorities, we find the following:

During the decade beginning in 1950 the Board 
created and maintained optional attendance zones in neighbor­
hoods undergoing racial transition and between high school 
attendance areas of opposite predominant racial compositions. 
In 1959 there were eight basic optional attendance areas 
affecting 21 schools. Optional attendance areas provided 
pupils living within certain elementary areas a choice of 
attendance at one of two high schools. In addition there 
was at least one optional area either created or existing in 
1960 between two junior high schools of opposite predominant 
racial components. All of the high school optional areas, 
except two, were in neighborhoods undergoing racial 
transition (from white to black) during the 1950s. The two 
exceptions were: (1) the option between Southwestern
(61.6% black in 1960) and Western (15.3% black); (2) the 
option between Denby (0% black) and Southeastern (30.9% black). 
WTith the exception of the Denby-Southeastern option (just

-10-



noted) all of the options were between high schools of 
opposite predominant racial compositions. The Southwestern- 
Western and Denby-Southeastern optional areas are all white 
on the 1950, 1960 and 1970 census maps. Both Southwestern 
and Southeastern, however, had substantial white pupil 
populations, and the option allowed whites to escape integra­
tion. The natural, probable, forseeable and actual effect of 
these optional zones was to allow white youngsters to escape 
identifiably "black" schools. There had also been an optional 
zone (eliminated between 1956 and 1959) created in "an 
attempt . . . to separate Jews and Gentiles within the 
system," the effect of which was that Jewish youngsters 
went to Mumford High School and Gentile youngsters went to 
Cooley. Although many of these optional areas had served 
their purpose by 1960 due to the fact that most of the areas 
had become predominantly black, one optional area (Southwestern- 
Western affecting Wilson Junior High graduates) continued until 
the present school year (and will continue to effect 11th and 
12th grade white youngsters who elected to escape from 
predominantly black Southwestern to predominantly white Western 
High School). Mr. Henrickson, the Board's general fact witness, 
who was employed in 1959 to, inter alia, eliminate optional 
areas, noted in 1967 that: "In operation Western appears to
be still the school to which white students escape from 
predominantly Negro surrounding schools." The effect of 
eliminating this optional area (which affected only 10th 
graders for the 1970-71 school year) was to decrease 
Southwestern from 86.7% black in 1969 to 74.3% black in 1970.

The Board, in the operation of its transportation 
to relieve overcrowding policy, has admittedly bused black

-11-



pupils past or away from closer white schools with available 
space to black schools. This practice has continued in 
several instances in recent years despite the Board's avowed 
policy, adopted in 1967, to utilize transportation to 

increase integration.

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

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

-12-



black. Whereas 65.8% of Detroit's black students attended 
90% or more black schools in 1960, 74.9% of the black students 
attended 90% or more black schools during the 1970-71 school 
year.

The public schools operated by defendant Board are 
thus segregated on a racial basis. This racial segregation 
is in part the result of the discriminatory acts and omissions 
of defendant Board.

In 1966 the defendant State Board of Education and 
Michigan Civil Rights Commission issued a Joint Policy State­
ment on Equality of Educational Opportunity, requiring that

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

Defendant State Board's "School Plant Planning Handbook" requires 
that

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

The defendant City Board has paid little heed to these statements 
and guidelines. The State defendants have similarly failed to 
take any action to effectuate these policies. Exhibit NN 
reflects construction (new or additional) at 14 schools which 
opened for use in 1970-71; of these 14 schools, 11 opened over 
90% black and one opened less than 10% black. School con­
struction costing $9,222,000 is opening at Northwestern High 
School which is 99.9% black, and new construction opens at 
Brooks Junior High, which is 1.5% black, at a cost of $2,500,000.

-13



The construction at Brooks Junior High plays a dual segrogatory 
role: not only is the construction segregated, it will result 

in a feeder pattern change which will remove the last majority 
white school from the already almost all-black Mackenzie High 
School attendance area.

Since 1959 the Board has constructed at least 13 
small primary schools with capacities of from 300 to 400 pupils. 
This practice negates opportunities to integrate, "contains" 
the black population and perpetuates and compounds school 
segregation.

The State and its agencies, in addition to their 
general responsibility for and supervision of public education, 
have acted directly to control and maintain the pattern of 
segregation in the Detroit schools. The State refused, until 
■*->>ic cession cf tlic logislcituirG, to pirovido E*uttoi7i!z?.tion or* 
funds for the transportation of pupils within Detroit regardless 
of their poverty or distance from the school to which they 
were assigned, while providing in many neighboring, mostly 
white, suburban districts the full range of state supported 
transportation. This and other financial limitations, such 
as those on bonding and the working of the state aid formula 
whereby suburban districts were able to make far larger per 
pupil expenditures despite less tax effort, have created and 
perpetuated systematic educational inequalities.

The State, exercising what Michigan courts have held
to be is "plenary power" which includes power "to use a
statutory scheme, to create, alter, reorganize or even dissolve
a school district, despite any desire of the school district,

«its board, or the inhabitants thereof," acted to reorganize

-14-



the school district of the City of Detroit.

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

In view of our findings of fact already noted we 
think it unnecessary to parse in detail the activities of the 
local board and the state authorities in the area of school 
construction and the furnishing of school facilities. It is 
our conclusion that these activities were in keeping, generally, 
with the discriminatory practices which advanced or perpetuated 

racial segregation in these schools.

It would be unfair for us not to recognize the 
many fine steps the Board has taken to advance the cause of 
quality education for all in terms of racial integration and 
human relations. The most obvious of these is in the field 
of faculty integration.

Plaintiffs urge the Court to consider allegedly 
discriminatory practices of the Board with respect to the 
hiring, assignment and transfer of teachers and school 
administrators during a period reaching back more than 15 
years. The short answer to that must be that black teachers 
and school administrative personnel were not readily available 
in that period. The Board and the intervening defendant union

-15-



have followed a most advanced and exemplary course in adopting 
and carrying out what is called the "balanced staff concept" - 
which seeks to balance faculties in each school with respect 
to race, sex and experience, with primary emphasis on race. 
More particularly, we find:

1. With the exception of affirmative policies 
designed to achieve racial balance in instructional staff, no 
teacher in the Detroit Public Schools is hired, promoted or 
assigned to any school by reason of his race.

2. In 1956, the Detroit Board of Education adopted 
the rules and regulations of the Fair Employment Practices 
Act as its hiring and promotion policy and has adhered to 
this policy to date.

3. The Board has actively and affirmatively sought 
out and hired minority employees, particularly teachers and 
administrators, during the past decade.

4. Between 1960 and 1970, the Detroit Board of 
Education has increased black representation among its 
teachers from 23.3% to 42.1%, and among its administrators 
from 4.5% to 37.8%.

5. Detroit has a higher proportion of black 
administrators than any other city in the country.

6. Detroit ranked second to Cleveland in 1968 
among the 20 largest northern city school districts in the 
percentage of blacks among the teaching faculty and in 1970 
surpassed Cleveland by several percentage points.

-16-



7. The Detroit Board of Education currently 
employs black teachers in a greater percentage than the 
percentage of adult black persons in the City of Detroit.

8. Since 1967, more blacks than whites have been 
placed in high administrative posts with the Detroit Board 
of Education.

9. The allegation that the Board assigns black 
teachers to black schools is not supported by the record.

10. Teacher transfers are not granted in the Detroit 
Public Schools unless they conform with the balanced staff 
concept.

11. Between 1960 and 1970, the Detroit Board of 
Education reduced the percentage of schools without black 
faculty from 36.3% to 1.2%, and of the four schools currently 
without black faculty, three are specialized trade schools 
where minority faculty cannot easily be secured.

12. In 1968, of the 20 largest northern city 
school districts, Detroit ranked fourth in the percentage 
of schools having one or more black teachers and third in
the percentage of schools having three or more black teachers.

13. In 1970, the Board held open 240 positions in 
schools with less than 25% black, rejecting white applicants 
for these positions until qualified black applicants could 
be found and assigned.

14. In recent years, the Board has come under pressure 
from large segments of the black community to assign male 
black administrators to predominantly black schools to serve

-17-



as male role models for students, but such assignments have 
been made only where consistent with the balanced staff 
concept.

15. The numbers and percentages of black teachers 
in Detroit increased from 2,275 and 21.6%, respectively,
in February, 1961, to 5,106 and 41.6%, respectively, in 
October, 1970.

16. The number of schools by percent black of 
staffs changed from October, 1963 to October, 1970 as 
follows:

Number of schools without black teachers—  
decreased from 41, to 4.
Number of schools with more than 0%, but less 
than 10% black teachers— decreased from 58, to 8.
Total number of schools with less than 10% black 
teachers— decreased from 99, to 12.
Number of schools with 50% or more black teachers-- 
increased from 72, to 124.

17. The number of schools by percent black of staffs 
changed from October, 1969 to October, 1970, as follows:

Number of schools without black teachers— decreased 
from 6, to 4.

Number of schools with more than 0%, but less than 
10% black teachers— decreased from 41, to 8.
Total number of schools with less than 10% black 
teachers— decreased from 47, to 12.
Number of schools with 50% or more black teachers—  
increased from 120, to 124.

18. The total number of transfers necessary to 
achieve a faculty racial quota in each school corresponding to 
the system-wide ratio, and ignoring all other elements is, 
as of 1970, 1,826.

-18-



19. If account is taken of other elements necessary 
to assure quality integrated education, including qualifica­
tions to teach the subject area and grade level, balance of 
experience, and balance of sex, and further account is taken 
of the uneven distribution of black teachers by subject 
taught and sex, the total number of transfers which would be 
necessary to achieve a faculty racial quota in each school 
corresponding to the system-wide ratio, if attainable at all, 
would be infinitely greater.

20. Balancing of staff by qualifica 
and grade level, then by race, experience and 
desirable and important.

ions for subject 
sex, is educationally

21. It is important for students to have a success­
ful role model, especially black students in certain schools, 
and at certain grade levels.

22. A quota of racial balance for faculty in each 
school which is equivalent to the system-wide ratio and 
without more is educationally undesirable and arbitrarv.

23. A severe teacher shortage in the 1950s and 
1960s impeded integration-of-facuity opportunities.

24. Disadvantageous teaching conditions in Detroit 
in the 1960s— salaries, pupil mobility and transiency, class 
size, building conditions, distance from teacher residence, 
shortage of teacher substitutes, etc.— made teacher recruitment 
and placement difficult.

25. The Board did not segregate faculty by race, but 
rather attempted to fill vacancies with certified and qualified

-19-



teachers who would tak'e offered assignments.

26. Teacher seniority in the Detroit system, 
although measured by system-wide service, has been applied 
consistently to protect against involuntary transfers and 
"bumping" in given schools. 1

27. Involuntary transfers of teachers have occurred 
only because of unsatisfactory ratings or because of decrease 
of teacher services in a school, and then only in accordance 
with balanced staff concept.

28. There is no evidence in the record that Detroit 
teacher seniority rights had other than equitable purpose
or effect.

29. Substantial racial integration of staff can be 
achieved, without disruption of seniority and stable teaching 
relationships, by application of the balanced staff concept 
to naturally occurring vacancies and increases and reductions 
of teacher services.

30. The Detroit Board of Education has entered into 
successive collective bargaining contracts with the Detroit 
Federation of Teachers, which contracts have included provisions 
promoting integration of staff and students.

The Detroit School Board has, in many other instances
and in many other respects, undertaken to lessen the impact
of the forces of segregation and attempted to advance the
cause of integration. Perhaps the most obvious one was the
adoption of the April 7 Plan. Among other things, it has

«

denied the use of its facilities to groups which practice racial 
discrimination; it does not permit the use of its facilities

- 2 0 -



for discriminatory apprentice training programs; it has opposed 
state legislation which would have the effect of segregating 
the district; it has worked to placed black students in craft 
positions in industry and the building trades; it has brought 
about a substantial increase in the percentage of black 
students in manufacturing and construction trade apprentice­
ship classes; it became the first public agency in Michigan 
to adopt and implement a policy requiring affirmative act of 
contractors with which it deals to insure equal employment 
opportunities in their work forces; it has been a leader in 
pioneering the use of multi-ethnic instructional material, 
and in so doing has had an impact on publishers specializing 
in producing school texts and instructional materials; and 
it has taken other noteworthy pioneering steps to advance 
relations between the white and black races.

In conclusion, however, we find that both the State 
of Michigan and the Detroit Board of Education havg committed 
acts which have been causal factors in the segregated condition 
of the public schools of the City of Detroit. As we assay 
the principles essential to a finding of de jure segregation, 
as outlined in rulings of the United States Supreme Court, 
they are:

1. The State, through its officers and agencies, 
and usually, the school administration, must have taken some 
action or actions with a purpose of segregation.

2. This action or these actions must have created 
or aggravated segregation in the schools in question.

3. A current condition of segregation exists.

- 2 1 -



We find these tests to have been met in this case. We 
recognize that causation in the case before us is both 
several and comparative. The principal causes undeniably 
have been popoulation movement and housing patterns, but 
state and local governmental actions, including school board 
actions, have played a substantial role in promoting 
segregation. It is, the Court believes, unfortunate that we 
cannot deal with public school segregation on a no-fault 
basis, for if racial segregation in our public schools is an 
evil, then it should make no difference whether we classify 
it de jure or de facto. Our objective, logically, it seems 
to us, should be to remedy a condition which we believe needs 
correction. In the most realistic sense, if fault or blame 
must be found it is that of the community as a whole, 
including, of course, the black components. We need not 
minimize the effect of the actions of federal, state and local 
governmental officers and agencies, and the actions of loaning 
institutions and real estate firms, in the establishment and 
maintenance of segregated residential patterns - which lead to 
school segregation - to observe that blacks, like ethnic groups 
in the past, have tended to separate from the larger group and 
associate together. The ghetto is at once both a place of 
confinement and a refuge. There is enough blame for everyone 
to share.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of the parties and 
the subject matter of this action under 28 U.S.C. 1331(a), 
1343(3) and (4), 2201 and 2202; 42 U.S.C. 1983, 1988, and
2000 d .



2. In considering the evidence and in applying

legal standards it is not necessary that the Court find that 
the policies and practices, which it has found to be dis­
criminatory, have as their motivating forces any evil intent 
or motive. Keyes v. Sch. Dist. #1, Denver, 383 F. Supp. 279. 
Motive, ill will and bad faith have long ago been rejected 
as a requirement to invoke the protection of the Fourteenth 
Amendment against racial discrimination. Sims v. Georgia,
389 U.S. 404, 407-8.

3. School districts are accountable for the natural, 
probable and forseeable consequences of their policies and 
practices, and where racially identifiable schools are the 
result of such policies, the school authorities bear the 
burden of showing that such policies are based on educationally 
required, non-racial considerations. Keyes v. Sch. Dist., 
supra, and Davis v. Sch. Dist. of Pontiac, 309 F. Supp. 734, 
and 443 F .2d 573.

4. In determining whether a constitutional violation 
has occurred, proof that a pattern of racially segregated 
schools has existed for a considerable period of time amounts . 
to a showing of racial classification by the state and its 
agencies, which must be justified by clear and convincing 
evidence. State of Alabama v. U.S., 304 F .2d 583.

5. The Board's practice of shaping school attendance 
zones on a north-south rather than an east-west orientation, 
with the result that zone boundaries conformed to racial 
residential dividing lines, violated the Fourteenth Amendment. 
Northcross v. Bd. of Ed,, Memphis, 333 F .2d 661.

-23-



6. Pupil racial segregation in the Detroit Public 
School System and the residential racial segregation result­
ing primarily from public and private racial discrimination

. are interdependent phenomena. The affirmative obligation of
the defendant Board has been and is to adopt and implement 

• pupil assignment practices and policies that compensate
for and avoid incorporation into the school system the 
effects of residential racial segregation. The Board’s 
building upon housing segregation violates the Fourteenth 
Amendment. See, Davis v. Sch. Dist. of Pontiac, supra, and 

- authorities there noted.

~ 7. The Board's policy of selective optional 
attendance zones, to the extent that it facilitated the 
separation of pupils on the basis of race, was in violation 
of the Fourteenth Amendment. Hobson v. Hansen, 269 F. Supp. 
401, aff1d sub nom., Smuck v. Hobson, 408 F .2d 175.

8. The practice of the Board of transporting black 
students from overcrowded black schools to other identifiably 
black schools, while passing closer identifiably white schools, 
which could have accepted these pupils, amounted to an act
of segregation by the school authorities. Spangler v. Pasadena 
City Bd. of Ed., 311 F. Supp. 501.

9. The manner in which the Board formulated and 
modified attendance zones for elementary schools had the 
natural and predictable effect of perpetuating racial 
segregation of students. Such conduct is an act of de jure 
discrimination in violation of the Fourteenth Amendment.
U.S. v. School District 151, 286 F. Supp. 786; Brewer v. City 
of Norfolk, 397 F .2d 37.

-24-



10. A school board may not, consistent with the
Fourteenth Amendment, maintain segregated elementary schools
or permit educational choices to be influenced by community
sentiment or the wishes of a majority of voters. Cooper v .
Aaron, 358 U.S. 1, 12-13, 15-16.

"A citizen's constitutional rights can hardly be 
infringed simply because a majority of the people 
choose that it be." Lucas v. 44th Gen'l Assembly 
of Colorado, 377 U.S. 713, 736-737.

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

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

13. Leadership and general supervision over all 
public education is vested in the State Board of Education.
Art. VIII, § 3, Mich. Constitution of 1963. The duties of the 
State Board and superintendent include, but are not limited to, 
specifying the number of hours necessary to constitute a school 
day; approval until 1962 of school sites; approval of school 
construction plans; accreditation of schools; approval of loans

-25



based on state aid funds; review of suspensions and expulsions 
of individual students for misconduct [Cp. Atty. Gen.,
July 7, 1970, No. 4705]; authority over transportation routes 
and disbursement of transportation funds; teacher certification 
and the like. M.S.A. 15.1023 (1). State law provides review 
procedures from actions of local or intermediate districts 
(See M.S.A. 15.3442), with authority in the State Board to 
ratify, reject, amend or modify the actions of these inferior 
state agencies. See M.S.A. 15.3467; 15.1919(61); 15.1919(68b); 
15.2299(1); 15.1961; 15.3402; Bridgehampton School District 
No. 2 Fractional of Carsonville, Mich, v. Supt. of Public 
Instruction, 323 Mich. 615. In general, the state 
superintendent is given the duty "[t]o do all things necessary 
to promote the welfare of the public schools and public 
educational instructions and provide proper educational 
facilities for the youth of the state." M.S.A. 15.3252.
See also M.S.A. 15.2299(57), providing in certain instances 
for reorganization of school districts.

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

"No person shall be denied the equal protection 
of the laws; nor shall any person be denied the 
enjoyment of his civil or political rights or be 
discriminated against in the exercise thereof 
because of religion, race, color or national 
origin. The legislature shall implement this 
section by appropriate legislation."

15. The State Department of Education has recently 
established an Equal Educational*Opportunities section having

-26-



responsibility to identify racially imbalanced school districts 
and develop desegregation plans. M.S.A. 15.3355 provides 
that no school or department shall be kept for any person or 
persons on account of race or color.

16. The state further provides special funds to 
local districts for compensatory education which are administered 
on a per school basis under direct review of the State Board.
All other state aid is subject to fiscal review and accounting
by the state. M.S.A. 15.1919. See also M.S.A. 15.1919 (68b) , 
providing for special supplements to merged districts "for the 
purpose of bringing about uniformity of educational opportunity 
for £»li pupils of the district." The general consolidation lav/
M.S.A. 15.3401 authorizes annexation for even noncontiguous 
school districts upon approval of the superintendent of public 
instruction and electors, as provided by law. Op. Atty. Gen., 
Feb. 5, 1964, No. 4193. Consolidation with respect to so- 
called "first class" districts, i_.e. , Detroit, is generally 
treated as an annexation with the first class district being 
the surviving entity. The law provides procedures covering 
all necessary considerations. M.S.A. 15.3184, 15.3186.

17. Where a pattern of violation of constitutional 
rights is established the affirmative obligation under the 
Fourteenth Amendment is imposed on not only individual school 
districts, but upon the State defendants in this case.
Cooper v. Aaron, 358, U.S. 1; Griffin v. County School Board
of Prince Edward County, 337 U.S. 218; U.S. v. State of Georgia, 
Civ. No. 12972 (N.D. Ga., December 17, 1970), rev'd on other
grounds, 428 F.2d 377; Godwin v. Johnston County Board of 
Education, 301 F. Supp. 1337; Lee v, Macon. County Board of 
Education, 267 F. Supp. 458 (M.D. Ala.), a f f' d sub nom. ,

-27-



Wallace v. U.S., 389 U.S. 215; Franklin v. Quitman County-

Board of Education, 288 F. Supp. 509; Smith v. North Carolina 
State Board of Education, No. 15,072 (4th Cir., June 14, 1971).

The foregoing constitutes our findings of fact and 
conclusions of law on the issue of segregation in the public 
schools of the City of Detroit.

Having found a de jure segregated public school 
system in operation in the City of Detroit, our first step, 
in considering what judicial remedial steps must be taken, 
is the consideration of intervening parent defendants1 
motion to add as parties defendant a great number of Michigan 
school districts located out county in Wayne County, and in 
Macomb and Oakland Counties, on the principal premise or 
ground chat effective relief cannot be achieved or ordered in 
their absence. plaintiffs have opposed the motion to join 
the additional school districts, arguing that the presence 
of the State defendants is sufficient and all that is required, 
even if, in shaping a remedy, the affairs of these other 
districts will be affected.

In considering the motion to add the listed school 
districts we pause to note that the proposed action has to 
do with relief. Having determined that the circumstances of 
the case require judicial intervention and equitable relief, 
it would be improper for us to act on this motion until the 
other parties to the action have had an opportunity to submit 
their proposals for desegregation. Accordingly, we shall not 
rule on the motion to add parties at this time. Considered 
as a plan for desegregation the motion is lacking in specifity



and is framed in the broadest general terms. The moving party

may wxsh to amend its proposal and resubmit it as a com­
prehensive plan of desegregation.

may be conducted on a reasonable time schedule, and because 
the views of counsel respecting further proceedings cannot but 
be of assistance to them and to the Court, this cause will be 
set down for pre-trial conference on the matter of relief.
The conference will be held in our Courtroom in the City of 
Detroit at ten o'clock in the morning, October 4, 1971.

DATED: September 27 f 1971.

In order that the further proceedings in this cause

United States District Judge



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

3 '7 v- 
0

w

RONALD BRADLEY, et al.,
Plaintiffs

v.

WILLIAM G. MILLIKEN, et al.,

• Defendants

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

Defendant- 
Intervenor

and . .

DENISE MAGDOWSKI, et al.,
Defendants-
Intervcnor

et al.

)
i ) 
i )
)

! )
)

! ! .
I )
j )

)
1 )i ) CIVIL ACTION NOj ) 35257
: ) '

)
)
)
)
) ;
)
)
)
)

___)

RULING
TOON_ PRO PRIETY OF CONS 1) UTRT NG A M i: T ROBOT, IT AN REME D Y ....ACCOMPLISH DESKOREG/iTION OF THE PUBLIC SCHOOLS 

OF THE CITY OF DETBOIT

In its prior ruling, "Ruling on Issue of Segregation" 
(September 27, 1971), the court has found that segregation 
exists in the public schools of the City of Detroit because 
of, among other causes, the acts of the State of Michigan 
and the Detroit Board of Education. In the language of

1 , .  ̂ 21111> "a tight and a violation have been sliown. " Given
the constitutional violation, judicial authority, when 
properly .invoked, must be exercised to right the wrong. In 
addressing itself to this task the Supreme Court lias said 
that the "scope of a district court's equitable-powers to 
i.emody pest wrongs is broad, for breadth and flexibility are 

inncj.onl ' a equitable remed! es." And, it pointed out.,

A t ;u u ; copy
f T n p  m. w. vitE , rv,

EXHIBIT G



"a school desegregation ease does not differ fundamentally 

from other cases involving the framing of equitable remedies to 
repair the denial of a constitutional right." 4 The task '

is to correct the condition which offends the Constitution. 
Illustrative of what was meant by the Supreme Court, see 
the legislative and congressional reapportionment cases.5

Under the circumstances of this case,6 the question 
presented is whether the court may consider relief in the 
foim of a metropolitan plan, encompassing not only the City 
of Detroit, but the larger Detroit metropolitan area which, 
for the present purposes, we may define as comprising the 
three counties of Wayne, Oakland and Macomb. it should be 
noted that the court has just concluded its hearing on plans 
submitted by the plaintiffs and the Detroit Board of Education 
for the intra-city desegregation of the Detroit public schools. 
A ruling has not yet been made on these plans, but in 

accordance-with the mandate of the Court of Appeals that a 
hearing on the merits be concluded at the earliest possible 
time, we consider it necessary to proceed apace with a 
resolution of the issue before us, i. e. , the propriety of
weighing the legal availability of a metropolitan remedy for 
segregation.

The State defendants in this case take the position, 
as we understand it, that no "state action" has had a part

This assertion disregards 
>nitt, and the dccision of

d duties with

a y  iif T  b e  <1 i s l u ; b o d

in the ssegregation found to exist.
the findings already made by this c;
the Coin;t of Appeals as w 7oil. Add
view the dolega Lion of the State;'s
respect to education to bcoal govor
the .1 a 1 i*'»■' v'i Hi st »ve.w Jen rv>wcr>-, vh



by either the State or the court. This we cannot accept. 
Political subdivisions of the states have never been 
considered sovereign entities, rather "they have been 

traditionally regarded as subordinate governmental instru­
mentalities created by the state to assist it in carrying 
out of state governmental functions." Reynolds v.~ Sims,
377 U.S. 533, 575. Perhaps the clearest refutation of the 
State's asserted lack of power to act in the field of education 
is Act 48 of 1970. The State cannot evade its constitutional 
responsibility by a delegation of powers to local units of 

government. The State defendants' position is in error in two 
other respects: 1. The local school districts are not
fully autonomous bodies, for to the extent it has seen fit the 
State retains control and supervision; and 2. Xt assumes that 
any metropolitan plan, if one is adopted, would, of necessity, 
require the dismantling of school districts included in the 
plan.

The main thrust of the objections to the consideration 
of a metropolitan remedy advanced by intervening school 
districts is that, absent a finding of acts of segregation on 
their part, individually, they may not be considered in 
fashioning a remedy for relief of the plaintiffs. It must 
be conceded that the Supreme Court has not yet ruled directly 
on this issue; accordingly, we can only proceed by feeling 
our way through its past decisions with respect to the goal 
to be achieved in school desegregation cases. Green v. County 

Board, 391 U.S. 430, teaches us that it is our 
obligation to assess the effectiveness of proposed plans of 
desegregation in the light of circumstances present and the 
available alternatives; and to choose the alternative or



alternatives which promise realistically to work now and 
hereafter to produce the maximum actual desegregation. As 
Chief Justice Burger said in Swann, "in seeking to define 
the scope of remedial power of courts in an area as
sensitive as we deal with here, words are poor instruments!
to convey the sense of basic fairness inherent in equity "
Substance, not semantics, must govern.

0
It seems to us that Brown is dispositive of the

issue:

"In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. 
Traditionally, equity has been characterized by a 
practical flexibility in shaping its remedies and by 
a facility for adjusting and reconciling public and 
private needs. These cases call for the exercise of 
these traditional attributes of equity power. At 
stake is the personal interest of the plaintiffs in 
admission to public schools as soon as practicable on 
a nondiscriminatory basis. To effectuate this interest 
may call for elimination of a variety of obstacles in 
making the transition to school systems operated in 
accordance with the constitutional principles set forth 
in our May 17, 1954, decision. Courts of equity may 
properly take into account the public interest in the 
^li^iri^bion of such obstacles in a systematic and 
effective manner. But it should go without saying that 
the vitality of these constitutional principles cannot
be allowed to yield simply because of disagreement with them."

* * *

" *.*.* the CQUrts maV consider problems related to 
administration, arising from the physical condition of 

. the school plant, the school transportation systems,
' personnel, revision of school districts and attendance 
areas into compact units to achieve a system of 
determining admission to the public schools on a 
nonracial basis, and revision of local laws and 
regulations which may be necessary in solving the 
foregoing problems." '

We conclude that it is proper for the court to
consider metropolitan plans directed toward the 
of the Detroit public schools as an alternative 
Present intra-city desegregation plans before it 
event that the court finds such intra-city plans

desegregation 
to the 
and, in the 
inadequate



to desegregate such schools, the court is of the opinion that 
it is required to consider a metropolitan remedy for

desegregation. .
The schedule previously established for the hearing 

on metropolitan plans will go forward as noticed, beginning

March

DATE:

Swann v. Charlotte^-Mecklenburg Bd. of Ed., 402 U.S. 1.

2Ibid., p. 15.
3Ibid., p . 15.
4Ibid., pp. 15, 16.
5
Reynolds v. Sims, 377 U.S. 533.

6 ' . . . •See» "Ruling on Issue of Segregation," supra, indicating a
black student projection for the school year 1980-81 of 80.7%.

7 '
See "Ruling on Issue of Segregation," supra; Bradley v. 

Milliken, 433 F.2d 897.
8
Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, at 300 and 301.



UINXir^U £>i«i . r .£> m s X K l C T  C U U K T  

EASTERN DISTRICT OF MICHIGAN 
SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs

v.
WILLIAM G. MILLIKEN, et al..

Defendants

DETROIT FEDERATION OF TE? CIIERS, 
LOCAL #231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,'

A T R U E  C O P Y
FREDERICK W. JOHNSON, Clerk

DEPUTY CLERK

CIVIL ACTION NO: 
35257

,$ 'Dafendant- Intervenor
and
DENISE MAGDOWSKI, et al.,

et al.

Defendants-
Intervenor

FINDINGS OF FACT AND CONCLUSIONS OF LAW .
ON

DETROIT-ONLY PI AMS OF DESEGREGATION
\ In accordance with orders of the court defendant 

Detroit Board of Education submitted two plans, limited 
to the corporate limits of the city, for desegregation 
of the public schools of the City of Detroit, which we will 
refer to as Plan A and plan C; plaintiffs submitted a 
similarly limited plan, which will be referred to as the 
Foster Plan. Hearings were had on said plans on March 14, 
15, 16, 17 and 21, 1972. In considering these plans the 
court does not limit itself to the proofs offered at the 
hearing just concluded; it considers as part of the evidence 

bearing on the issue (i_.e_., City-Only Plans) all proofs 
submitted in the case to this point, and it specifically
incorporates herein by reference the Findings and
Conclusions contained in its "Ruling on Issue of Segregation, 
filed September 27, 1971. -

EXHIBIT H

H



The court makes the following factual findings:

PLAN A .
1. The court finds that this plan is an elabora­

tion and extension of the so-called Magnet Plan, previously 
authorized for implementation as c.n interim plan pending 
hearing and determination on the issue of segregation.

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

*

achieve any appreciable success.

3. We find, at the Middle School level, that the 
expanded model would affect, directly, about 24,000 pupils 
of a total or i^u, uuu in liic grades covcicu; an--* j->-o <-±. 
would be to set up a school system within the school system, 
and would intensify the segregation in schools not included 

in the Middle School program. In this sense, it would 
increase segregation.

4. As conceded by its author, Plan A is neither a 

desegregation nor an integration plan.

PLAN C .
1. The court finds that Plan C is a token or part 

time desegregation effort.

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



PLAINTIFFS' iPLAN.
1. The court finds that Plaintiffs' Plan would 

accomplish more desegregation than now obtains in the system,
- Vor would be achieved under Plan A or Plan C.

• •

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

3. The plan would require the development of trans­
portation on a vast scale which, according to the evidence, 
could not be furnished, ready for operation, by: the opening
of the 1972-73 school year. The plan contemplates the 
transportation of 82,000 pupils and would require the 
acquisition of some 900 vehicles, the hiring and training 
or a great numner or drivers, tne procurement or space 
for storage and maintenance, the recruitment of maintenance 
and the not negligible task of designing a transportation 
system to service the schools.

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

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

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

7. The plan would make the Detroit school system 
more identifiably Black, and leave many of its schools 75 to

- 3 -



90 per cent Black.

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

i

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

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

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

1971. •

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

402 U.S. 1.



3. Detroit Board of Education Plans A and C

are legally insufficient because they do not promise to 
effect significant desegregation. Green v. County School 
Board, supra, at 439-440.

4. Plaintiffs' Plan, while it would provide a 
racial mix more in keeping with the Black-White proportions 
of the student population than under either of the Board's 
plans or as the system now stands, would accentuate the 
racial identifiability of the district as a Black school 
system, and would not accomplish desegregation.

5. The conclusion, under the evidence in this
case, is inescapable that relief of segregation in the

' . *
public schools of the City of Detroit cannot be accomplished 
within the corporate geographical limits of the city. The 
State, however, cannot escape its constitutional duty to 
desegregate the public schools of the City of Detroit by 
pleading local authority. As Judge Merhige pointed out 
in Bradley v. Richmond, (slip opinion p. 64):

"The power conferred by state law on central and 
local officials to determine the shape of school 
attendance units cannot be employed, as it has been 
here, for the purpose and with the effect of sealing 
off white conclaves of a racial composition more 
appealing to the local electorate and obstructing the 
desegregation of schools. The equal protection 
clause has required far greater inroads on local • 
government structure than the relief sought here, 
which is attainable without deviating from state 
statutory forms. Compare Reynolds v. Sims, 377 U.S.
533; Gomillion v. Lightfoot, 364 U.S. 339; Serrano v. 
Priest, 40 U.S.L.W. 2128 (Calif. Sup. Ct. Aug. 30, 1971)
"In any case, if political boundaries amount to 
insuperable obstacles to desegregation because of 
structural reason, such obstacles are self-imposed. 
Political subdivision lines are creations of the state 
itself, after all."



School district lines are simply matters of 
political convenience and may not be used to deny 
constitutional rights. If the boundary lines of the 
school districts of the City of Detroit and the surround­
ing suburbs were drawn today few would doubt that they 
could not withstand constitutional challenge. In seeking

i

for solutions to the problem of school segregation, other
federal courts have not "treated as immune from intervention
the administrative structure of a state's educational
system, to the extent that it affects the capacity to
desegregate. Geographically or administratively independent
units have been compelled to merge or to inititate or
continue cooperative operation as a single system for school

1desegregation purposes."

That the court must look beyond the limits of the

Detroit scnool district for a solution to tne promem of
segregation in the Detroit public schools is obvious;
that it has the authority, nay more, the duty to (under
the circumstances of this case) do so appears plainly

2 .anticipated by Brown II, seventeen years ago. While other
school cases have not had to deal with our exact 

3situation, the logic of their application of the command 
of Brown II supports our view of our duty.

. q V T '
Date: MARCH 0 , 1972.



FOOTNOTES

Bradley v. Richmond, supra (slip opinion p. 68).

Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, pp- 300-301.

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



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al,
Plaintiffs,

vs.
WILLIAM G. MILLIKEN, et al,

Defendants,
and

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

Defendant- 
Intervenor,and

DENISE MAGDOWSKI, et al,
Defendants- 
Intervenor

et al.
__________________________________ J
STATE OF MICHIGAN) ss.
COUNTY OF INGHAN )AFFIDAVIT IN SUPPORT OF DEFENDANTS'

MOTION FOR STAY OR SUSPENSION OF 
THIS COURT'S ORDER OF JUNE 14, 1972.

RICHARD E. BARNHART, being duly sworn, deposes and says 
that he makes this affidavit on behalf of the state defendants' 
motion for a stay or suspension of this Court's order of June 14, 
1972; that the facts set forth herein are within affiant's personal 
knowledge except those facts set forth on information and belief 
as to which affiant believes them to be true; that affiant is not 
disqualified from being a witness and if sworn as a witness he can 
testify competently to the facts hereinafter set forth as follows:

1. That he is the Director of General Education Services 
for the Department of Education for the State of Michigan.

Civil Action 
No. 35257

APPENDIX I



2. That he holds a Master's Degree in Education and
a Doctor's Degree in Education from Indiana University; that he 
has experience as a public school teacher and administrator, 
previously holding the post of Assistant Superintendent of Schools 
and Superintendent of Schools.

3. At the request of the Superintendent of Public 
Instruction, John W. Porter, he conducted a study of the establish­
ment of in-service training of faculty and staff as set forth in 
paragraph II, subparagraph L of the Ruling on Desegregation Area 
and Order for Development of Plan of Desegregation entered by this 
Court on June 14, 1972. This study included meeting with a 
committee comprised of university education professors, school 
administrators, teachers and teacher in-service training specialists. 
Based upon this study, he has made the following oral recommendations 
to the Superintendent of Public Instruction.

4. He recommends that an in-service training program be 
established for 33,000 professional staff in the 53 school district 
area to be provided before the commencement of the school year 
1972-73 as an interim program, even though the Court may only 
approve implementation of a K-6 desegregation program in the Fall 
of 1972.

5. In order to implement the program on an interim basis, 
it would be necessary to establish a 3-man team for each of the
1,034 school buildings within the 53 school district area, the team 
to be composed of the Principal of the building and a designated 
bi-racial team to assist him. In order to implement an interim 
program before the commencement of the 1972-73 school year, it 
would be necessary to retain 37 in-service specialists to 
provide the training for each team to serve each school building 
within the 53 school district area. In order for the specialists

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to provide a uniform in-service training program to the school 
building teams, it is recommended that the 37 specialists spend 
2 days with members of the Department of Education.

6. The training specialists would require 2 days in 
order to train the team members, it being contemplated that one 
training specialist would train a number of teams.

7. Upon receipt of such training from the training 
specialist the team would offer an in-service training program 
for the professional staff within the school, which would consist 
of 5 days. It is recommended that the professional staff of each 
school be paid during the in-service training program.

8. The approximate cost of the interim program is 
computed as follows:

a. 37 trainers x $150.00 x 4 days = $22,200
b. 3 team members

1.034 x 3 = 3,102 x $25.00 x 7 days = $542,850
c. 33,000 teachers x $15.00 x 5 days = $2,475,000
d. Materials & Supplies

1.034 x $300.00 = $310,200
The total maximum approximate cost of the interim program of in-service 
training prior to the opening of school for the 1972-73 school year 
is $3,350,250.

9. As part of a long range program of in-service training, 
each training specialist would meet monthly with the school building 
teams he has previously trained.

V

10. The total maximum approximate cost of the long range 
program of in-service training during the 1972-73 school year, based
(



upon the specialist trainers visiting each school one day a 
month and the releasing of the bi-racial teams from teaching 
assignments (2 members devoting half time at an average salary 
of $8,500.00 for one full time equated position) is an additional 
$8,844,500.00.

11. In the event the Court requires such in-service
training program to be offered to the professional staff in less 
than the 1,034 buildings prior to and during the 1972-73 school 
year, the projected approximate costs of both the interim and long 
range in-service training programs will be proportionately reduced.

Notary Public, Ingham County, Mich. 
My commission expires: ^  "7̂ /

Marjorie M. Schaar 
Notary Public, Clinton County, Mich.

Acting in Ingham County 
My commission expires Feb. 15,197.4

Further affiant sayeth not

Richard E. Barnhart

Subscribed and sworn to before
• f' /■/me this &S6- day of June, 1972

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al,
Plaintiffs,

vs.
WILLIAM G. MILLIKEN, et al,

Defendants,
and

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

Defendant- 
In tervenor,

and
DENISE MAGDOWSKIy. et al,

Defendants- 
Intervenor

et al
_________________________________________ /

Civil Action 
No. 35257

STATE OF MICHIGAN )
) ss.

COUNTY OF INGHAM )

AFFIDAVIT OF LLOYD FALES IN 
SUPPORT OF DEFENDANTS' MOTION 
FOR STAY OR SUSPENSION OF THIS 
COURT'S ORDER OF JUNE 14, 1972

LLOYD FALES, being duly sworn, says that he makes this 
affidavit on behalf of the state defendants' motion for stay or 
suspension of this Court's Order of June 14, 1972; that the facts 
set forth herein are within affiant's personal knowledge except 
those facts set forth on information and belief as to which 
affiant believes them to be true; that affiant is not disqualified 
from being a witness and if sworn as a witness he can testify 
competently to the facts hereinafter set forth as follows:

APPENDIX j



1* He is the Supervisor of School Plant Planning of 
the Department of Education for the State of Michigan, and that 
he has served in such capacity, although under different titles, 
for the period of the past seventeen years.

2. As such Supervisor, he is responsible for the 
approval of plans and specifications for the erecting, remodeling 
or reconstructing of school buildings, or additions thereto, under 
the provisions of MCLA 388.851; MSA 15.1961. Further, he reviews 
and approves applications for qualification of school bonds 
pursuant to MCLA 388.951 et seq; MSA 3.424(111) et seq, insofar 
as such applications deal with new school construction and 
remodeling.

3. Within the 53 school districts defined as the 
"desegregation area" in the Court's Order of June 14, 1972, the 
following school districts have submitted plans and specifications 
for new construction for approval, and such plans and specifications 
have been approved, subject only to final approval by the Fire 
Marshal and the County Health Department.

a. BLOOMFIELD HILLS SCHOOL DISTRICT
(1) The addition of a library facility to the 

Booth Elementary School located at 7273 Winged Lake 
Rd, in the northeast quandrant of the school district.
The addition will not increase the classroom capacity 
of the school.

(2) The addition of a library facility to the East 
Hills Junior High located at 2800 Kensington, in the 
northeast quandrant of the school district. The 
addition will not increase the classroom capacity
of the school.

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(3) The addition of a library facility to the ' 
Hickory Grove Elementary School located at 2800 
Lahser, in the northeast quandrant of the school 
district. The addition will not increase the 
classroom capacity of the school.

The Department of Education's Racial Ethnic Census 
for the year 1971-72 for the school district shows the 
following: American Indian 4; Black 53; Oriental 53;
Latin American 43; White 9,212.

b. SOUTH REDFORD SCHOOL DISTRICT
An Automotive shop Addition to the Thurston High

School located at 26255 Schoolcraft, in the northwest
quandrant of the school district. The addition will
provide additional classroom capacity for 25 students 
per hour.

The Department of Education's Racial Ethnic Census
for the year 1971-72 for the district shows the following:
American Indian 4; Black 0; Oriental 9; Latin American 27; 
White 7,571.

C. RIVERVIEW SCHOOL DISTRICT
The construction of a new elementary school to be 

Known as Forest Elementary at the corner of Tall Oak 
and Heritage in the southwest quandrant of the school 
district. This construction will provide classroom 
capacity for 650 students.

The Department of Education's Racial Ethnic Census 
for 1971-72 shows the following: American Indian 5;
Black 3, Oriental 10; Latin American 2  8; White 3,872.

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d. TAYLOR SCHOOL DISTRICT
(1) The construction of a swimming pool addition 

at the Taylor Center Highschool at 24715 Wick, in the 
northwest quandrant of the school district. The 
addition will provide a capacity for 50 students per hour.

(2) The construction of a swimming pool 
addition at the Kennedy High School at 13505 Pine 
in the southeast quadrant of the school district.
This addition will provide capacity for 50 students
per hour. *

The Department of Education's Racial Ethnic 
Census for 1971-72 for the district shows:
American Indian 60; Black 290; Oriental 50; Latin 
American 280; White 21,556.

e. TROY SCHOOL DISTRICT
(1) The construction of a new school for 

grades 6-8 at the Boulan site at 1970 Boulan in the 
northeast quadrant of the school district. This 
construction will provide classroom facilities for 
880 pupils.

(2) Construction of a new school for grades 
6-8 at the Long Lake site at 2222 E. Long Lake Road, 
in the northwest quadrant of the school district.
This construction will provide facilities for 880 
pupils.

The Department of Education's Racial Ethnic 
Census for 1971-72 for the district shows:
American Indian 7; Black 7, Oriental 47; Latin
American 15; White 6,940.

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f. WAYNE SCHOOL DISTRICT
Remodeling of and the construction of an

addition to the Memorial High School at 3001 
Fourth, in the southeast quadrant of the district.
This construction will provide classroom capacity 
for 645 pupils.

The Department of Education's Racial Ethnic 
Census for 1971-72 for the district shows:
American Indian 41; Black 43; Oriental 69; Latin 
American 116; White 23,707.

g. WYANDOTTE SCHOOL DISTRICT
Remodeling of and the construction of an 

addition to the Roosevelt High School at 540 Eureka, 
in the southeast quadrant of the school district.
This construction will provide capacity for 375 pupils.

4. In addition to the approvals of plans and specifications 
pending as stated in paragraph 3 above, the Troy School District 
has submitted preliminary plans for the construction of two elementary 
schools and an administration center. Final plans and specifications 
for this construction have not bee ' *•1 ’ " '

The Department of Education's Racial Ethnic
Census for 1971-72 for the district shows:
American Indian 12; Black 1; Oriental 9, Latin 
American 45; White, 8,171.

Subscribed and sworn to before

Notary Public, Ingham County, Mich. 
My commission expires May 19, 1975