Motion to Dismiss Appeal

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

No.

RONALD BRADLEY, et al.,
Plaintiffs-Appellees, 
Cross-Appellants,

VS.
WILLIAM G. MILLIKEN, et al.,

Defendants-Appellants, 
Cross-Appellees,

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

Defendant-Intervenor- 
Appellee,
and

DENISE MAGDOWSKI, et al.,
Defendants-Intervenor.

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

Southern Division

MOTION TO DISMISS APPEALS

Plaintiffs-appellees, cross-appellants, respectfully 
move the Court, pursuant to Rule 8(a) of the Sixth Circuit 
Rules, to dismiss the appeals in this cause, the appeals



•  •

being not within the jurisdiction of the Court at this 
juncture of this litigation.

As grounds for this motion, plaintiffs would show 
the following:

BACKGROUND
Procedural History of the Litigation

Plaintiffs commenced this litigation on August 18,
1970, against the Board of Education of the City of 
Detroit, its members and superintendent of schools, the 
Governor, Attorney General, State Board of Education and 
State Superintendent of Public Instruction of the State 
of Michigan. Plaintiffs challenged, on constitutional 
grounds, a legislative enactment of the State of Michigan 
which interferred with the implementation of a voluntary 
plan of partial high school pupil desegregation which had 
been adopted by the Detroit Board of Education. Plaintiffs 
further alleged the existence of a racially identifiable 
pattern of faculty and student assignments in the Detroit 
Public Schools which pattern was the result of official 
policies and practices of the defendants and their predecessors 
in office.

At the conclusion of a hearing held upon plaintiffs' 
application for preliminary injunctive relief the district 
court denied all relief on the grounds that the existence 
of racial segregation had not yet been established. The 
court further dismissed the action as to the State defendants. 
On appeal, this Court declared the challenged Michigan statute 
to be unconstitutional and reinstated the State defendants

2



as parties. 433 F.2d 897 (6th Cir. 1970).
Upon remand, plaintiffs moved in the district court 

for an order requiring immediate implementation of the volun­
tary plan of partial desegregation which had been impeded by 
the unconstitutional State statute. After receiving 
additional plans preferred by defendants and conducting 
a hearing thereon, the district court entered an order 
approving an alternate plan which plaintiffs opposed 
as being constitutionally insufficient. Plaintiffs again 
appealed, but this Court Refused to reach the merits 
of the appeal and remanded the case to the district court 
with instructions that the entire case be tried on its 
merits forthwith. 438 F.2d 945 (6th Cir. 1971).

After a lengthy trial the district court, on 
September 27, 1971, entered its "Ruling on Issue of Segre­
gation." (Attached hereto as Appendix A). The court 
concluded that the public schools in Detroit are "segregated 
on a racial basis" (App. A at 15) and that both state and 
local defendants "have committed acts which have been causal 
factors in the segregated condition...." (App. A at 25).i/

The court and the parties then turned to the problem 
of relief. Plaintiffs sought (and seek) conversion of the

— These findings and conclusions pertain to the pattern 
of pupil assignments only, as the court declined to find the pre 
sent pattern of faculty assignments to be unconstitutional 
(as alleged by plaintiffs). (App. A at 18-24).

3



Detroit school system from a racially segregated to a 
racially unitary one. The intervening parent defendants.?/ 
h3.d filed, at the conclusion of the trial, a motion to add 
as parties defendant numerous suburban school districts "on 
the principal premise or ground that effective relief 
cannot be achieved or ordered in their [other districts'] 
absence. -?/ (App. A at 34) . The court, however, deferred 
decision on the content and extent of the remedy until the 
completion of further proceedings. (App. A at 34-35).

On October 4, 19 71>>- the district court conducted in open court 
a"pre-trial conference [the transcript of which is attached 
hereto as Appendix B] on the matter of relief." (App. A at 35). At the 
conclusion of the conference the court directed both the 
Detroit Board defendants and the State defendants to submit 
proposed plans of pupil desegregation on specified dates.
(App. "B at 26-27) . These directions were subsequently 
incorporated into an order filed on November 5, 1971 
(Appendix C, attached hereto). It is from this order that

1/prior to the trial on the merits the district 
court permitted the Detroit Federation of Teachers and a 
group of white parents to intervene as parties defendant.

3/The parent-intervenors had intervened for the 
purpose of defending the "neighborhood school concept," 
but had lost all hope of success by trial's end. (See 
statement of attorney for parent-intervenors, App. B at 15).

4



both the Detroit Board defendants (Annendix D) and the 
State defendants (Appendix E) noticed anneals on December 3, 
1971. Although nlaintiffs have, from the outset, questioned 
the "appealability" of the district court's order, we filed 
a nrotective notice of anneal (Annendix F) on December 11, 
1971, challenging the court's failure to require further 
faculty desegregation.!./

The Substance of the Order Appealed From
At the pre-trial conference of October 4, 1971, the 

district court directed the Detroit Board defendants (1) to 
submit within 30 days a progress report on and an evaluation 
of the Magnet School Plan (under which the Board if presently 
operating), and (2) to submit within 60 days a nlan for the 
desegregation of the Detroit public schools. (App. B at 26-27). 
Further, the court directed the State defendants to submit 
within 120 days a metropolitan plan of desegregation. (App B 
at 2 1)

After these directions were delivered, the following 
occurred:

THE COURT: ....The time table is
understood, is it?

MR. BUSHNELL: Yes, sir.
MR. LUCAS: Yes.
THE COURT: I am not going to— unless you

gentlemen want— to prepare an order, I am not 
going to prepare a formal order.

4/— Should the Court determine, in accordance with this 
motion, that defendants' anneals should be dismissed, then 
nlaintiffs request that their protective cross-appeal also 
be dismissed.

5



MR. BUSHNELL: I don't believe it is
necessary, your Honor. We understand the 
timetable.

THE COURT: Anybody disagree with that?
[No response]

(App. B at 29). The State defendants subsequently insisted 
on a formal order (see Appendix G), however, which was 
entered on November 5, 1971 (Ad d . C).

In accordance with the court's direction the Detroit 
Board defendants filed, on November 3, 1Q71, a report on the
Magnet School Program, and on December 3, 1971, they submitted

♦ # two alternative Droposed plans for desegregation of Detroit
schools—^ and a statement setting forth the Board's preference 
for metrooolitan desegregation.

The plan required to be submitted by the State defen­
dants is due to be filed within two weeks.

REASONS WHY THE APPEALS SHOULD BE DISMISSED 
It was permissible for State defendants to insist 

upon a formal order, desoite their previous waiver, for 
"It!he filing of an opinion by the District Court does 
not constitute the entry of an order, judgment or decree 
from which an anpeal can be taken." Robinson v. Shelby 
County Board of Educ., No. 71-1825 (6th Cir., order of 
Nov. 8, 1971) (attached hereto as Appendix H). But it is
npt .eyepy qpder.that may be appealed, for this Court only

\  \  \  \  \  \  \  \  \  \  \  \  \  \  \  \  \  

r — - r -n  * i' ■».

•^/plaintiffs promptly filed objections to the Detroit 
Board's proposed plans and are presently preparing their 
own alternatives for submission to the district court.

- 6 -



has jurisdiction of appeals from "final decisions" (28 
U.S.C.A. §1291) and certain classes of "interlocutory" 
orders (28 U.S.C.A. §1292(a)).£/

Clearly the order appealed from is not a "final
decision" within the meaning of 28 U.S.C.A. §1291.

It [the order] constituted only a 
determination that plaintiffs were 
entitled to relief, the nature and 
extent of which would be the subject 
of subsequent judicial consideration 
by [the district court]. What remain[s] 
to be done [is] far more than those 
ministerial- duties the pendency of which 
is not fatal to finality and consequent 
appealability....

Taylor v. Board of Educ. of New Rochelle, 288 F.2d 600,
602 (2d Cir. 1961).

The only possible source for this Court's juris­
diction over the instant appeals is 28 U.S.C.A. §1292(a) (1).
TaylCr, supra, 288 F.2d at 603 . And for the reasons set 
forth in Judge Friendly's opinion in Taylor, we submit that 
the Court is without jurisdiction to hear the instant 
appeals.

§1292 (a)(1), in pertinent part, gives this Court 
jurisdiction of appeals from interlocutory orders "granting, 
continuing, modifying, refusing or dissolving injunctions....

—^Certain "certified" orders "not otherwise appealable" 
may, with the permission of the court of appeals, be appealed 
pursuant to the provisions of 28 U.S.C.A. §1292(b). In the 
instant case the necessary certificate has not been entered by 
the district court, nor has such certification been requested.

7



The issue here is whether or not the district court has 
entered an "order granting an injunction." We believe 
that no such order has been entered in this case.

The order appealed from does but one thing: it
directs defendants to submit a report and plans for deseg­
regation, and it permits other parties to file objections 
and alternate plans. The order does not even require the 
taking of preparatory steps for subsequent implementation
of a plan of desegregation. At the pre-trial conference of 

4
October 4, 1971, Judge Roth made it clear that he "had no
preconceived notion about what the Board of Education should
do in the way of desegregating its schools nor the outlines
of a proposed metropolitan plan. The options are completely
open." (App. B at 27).

To be sure, the... [order] used the word 
"ordered" with respect to the filing of 
a plan, just as courts often "order" or 
"direct" parties to file briefs, findings 
and other papers. Normally this does not 
mean that the court will hold in contempt 
a party that does not do this.... [But] even 
if the order was intended to carry contempt 
sanctions ... a command that relates merely 
to the taking of a step in a judicial pro­
ceeding is not generally regarded as a 
mandatory injunction, even when its effect 
on the outcome is far greater than here.
For ... not every order containing words 
of command is a mandatory injunction within 
[§1292(a) (1)].

Taylor, supra, 288 F.2d at 604. Nor may defendants contend 
that they will suffer irreparable injury by complying with 
the order.

8



[W]hile we understand defendants' dislike 
of presenting a plan of desegregation and 
attending hearings thereon that would be 
unnecessary if the finding of liability 
were ultimately to be annulled, and also 
the possibly unwarranted expectations this 
course may create, this is scarcely injury 
at all in the legal sense and surely not 
an irreparable one.

Id. at 603.
To allow defendants' appeals at this juncture will 

surely result in (1) protracted piecemeal appellate litigation, 
depriving the Court of the opportunity for fully informed 
consideration of the important issues to be presented, and/or 
(2) appellate litigation which may be unnecessary as to all

oor some of the present parties appellant and all or some of
the issues to be presently raised.

[T]o permit a hearing on relief to go 
forward in the District Court at the 
very time we are entertaining an appeal, 
with the likelihood, if not indeed the 
certainty, of a second appeal when a 
final decree is entered by the District 
Court, would not be conducive to the 
informed appellate deliberation and the 
conclusion of this controversy with speed 
consistent with order, which the Supreme 
Court has directed and ought to be the 
objective of all concerned. In contrast, 
prompt dismissal of the appeal as pre­
mature should permit an early conclusion 
of the proceedings in the District Court 
and result in a decree from which defendants 
have a clear right of appeal, and as to 
which they may then seek a stay pending 
appeal if so advised. We —  and the Supreme 
Court, if the case should go there —  can 
then consider the decision of the District 
Court, not in pieces but as a whole, not as 
an abstract declaration inviting the contest 
of one theory against another, but in the 
concrete.

9



Taylor, supra, 288 F.2d at 605. The Taylor court refers,
critically, to an unreported order of this Court denying
a motion to dismiss in an early appeal in Mapp v. Board of
Educ. of Chattanooga. The Court's criticism is based,
in part, on the developments in Mapp after the motion to
dismiss the appeal was denied (288 F.2d at 605):

Moreover, the subsequent proceedings 
in the Mapp case, where the District 
Court has already rejected the plan 
directed to be filed and required the 
submission of a new one, with a second 
appeal taken from that order although 
the first appeal has not yet been heard, 
indicate to us the unwisdom of following 
that decision even if we deemed ourselves 
free to do so.

A situation similar to that in Mapp occurred in 
Robinson v. Shelby County Board of Educ., Nos. 20,123 
20,124 (6th Cir., order of June 25, 1970) (attached hereto 
as Appendix I), where the school board had appealed from 
a decision requiring the submission of new plans. While 
the appeals were pending, however, the new plans were received 
by the district court and a new order was entered from which 
a new appeal had been taken. This Court dismissed the pending 
appeals as being moot. (App. I at 3).

In the instant case the Detroit Board defendants 
have already submitted plans in accordance with the order, 
and the State defendants will submit their plans within two 
weeks. Thus, long before briefs are filed in this appeal,

10



the order from which defendants appeal will have, "by its
9 /terms, expired." Robinson, supra, App. I at 3.—7

WHEREFORE, for the foregoing reasons, plaintiffs 
respectfully pray that, after the time allowed for responses 
to this motion has elapsed, the Court enter an order dismissing
the appeals herein.

OF COUNSEL:
J. HAROLD FLANNERY 
PAUL R. DIMONO 
ROBERT PRESSMAN

Center for Law & Education 
Cambridge, Mass. 02138

Respectfully submitted,
RATNER, SUGARMON & LUCAS

By LOUIS R. LUCAS
WILLIAM E. CALDWELL

525 Commerce Title Building 
Memphis, Tennessee 38103

NATHANIEL R. JONES
General Counsel, N.A.A.C.P.
1790 Broadway
New York, New York 10019

E. WINTHER McCROOM
3245 Woodburn Avenue 
Cincinnati, Ohio 45207

JACK GREENBERG
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-
Appellees, Cross-Appellants

2/The State defendants have attempted to meet this 
problem by stating in their Notice of Appeal (App. E) 
that they appeal "from the order entered herein on November 
5, 1971, which incorporates the findings of fact and con­
clusions of law___" Saying it doesn't make it so, however,
and even if it did the order is clearly not a "final" judg­
ment; State defendants can only challenge what the order 
requires them to do, which will shortly be mooted (putting 
aside the question as to the appealability of the order in 
the first instance).

11



CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing motion
has been served upon counsel of record by United States mail,
postage pre-paid, addressed as follows:

George T. Roumell, Jr., Esq.
Riley and Roumell
7th Floor, Ford Building
Detroit, Michigan 48226
Eugene Krasicky, Esq.
Assistant Attorney General 
Seven Story Office Building 
525 West Ottawa Street 
Lansing, Michigan 48913
Theodore Sachs, Esq.
1000 Farmer
Detroit, Michigan 48226
Alexander B. Ritchie 
2555 Guardian Building 
Detroit, Michigan 48226

This day of January, 1972.

William E. Caldwell



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
PI ai nti ffs

vs.
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, 1970, 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."

*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

CIVIL ACTION NO 
35 257

APPENDIX A



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 Superintendent of Public Instruction of the

State of Michigan, In their complaint, plaintiffs 
attacked a statute of the State of Michigan known 
as Act A8 of the 1970 Legislature on the ground 

that it put the State of Michigan in the position 
of unconstitutionally interfering with the execu- 
tion 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 plaintiffs1 

motion for preliminary injunction to restrain the en­

forcement 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 pre­

liminary 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 the start of the second semester 

(February, 1971) in order to remedy the deprivation 
of constitutional rights wrought by the unconstitu­
tional 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 re­
manded with instructions to proceed immediately to a

-  3  -



trial on the merits of plaintiffs' substantive al­
legations about the Detroit School System.

1+38. F2d 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 intro­
duced substantial evidence in support of their 
contentions, including .expert and factual testimony, 
demonstrative exhibits and school board documents.

‘At the close of plaintiffs1 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 con­
struction in Detroit pending the outcome of the

1i ti gation.
The State defendants urged motions to dismiss 

as to them. These were denied by the Court.

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-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
-  4 -



•  •

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 city - 91% - and 
its population younger than in more recent times.
By tf?e year I960 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 childbearing 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 child­
bearing 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 
whi tes.

-  5 -



m  population of the City (^Detroit reached 

its 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 popu­

lation of the standard metropolitan area and in 1970 
it was but 36% of the metropolitan 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

o

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 I960, the nonwhite 
population, ages 0 years to 19 years, was as follows:

-  6 -



0 - 4 years 42%
5*- 9 years 36%
10 - 14 year s 28%
15 - 19 year s 18%

1 n 1970 the nonwhi te popula tion, ages 0
was as follows:

0 - 4 years 48%
5 - 9 years 50%
10 - 14 year s 50%
15 - 19 year:s 40%

The black population <3 S a percentage of
tion in the City of Detroit was:

(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) I960 28 .9%
(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 59.4%

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(h) 1969 61.5%
(1) 1970 63.8%

For the years indicated the housing characteristics 

in the City of Detroit were as follows:
(a) I960 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 I960; 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 

I960; 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 1960-1970

(28.9% in I960; 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, and 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

-  8 -



student population of any major northern school dis­

trict, The percentage increase in Detroit was k , 7 %  

as contrasted with —

New York 2.0%
Los Angeles 1.5%
Chi cago 1.9%
Phi 1adelphi a 1.7%
Cleveland 1.7%
Mi 1waukee 2.6%

St. Louis 2.6%

Columbus 1 A %

Indianapoli s 2.6%

Denver 1.1%
Boston 3.2%
San Francisco 1.5%

Seattle 2 . k %

In I960, 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

-  9 -



(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, pervasive and of long standing. 
Black citizens are located in separate and distinct 
areas within the city and are not generally to be

o

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 re­
sult of past and present practices and customs of 
racial discrimination, 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 insti­

tutions and real estate associations and brokerage 
firms, to establish and to maintain the pattern of 
residential segregation throughout the Detroit metro­

-  10 -



politan 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 19^8 racial restrictions on the ownership of 
real property have been removed. The policies pur­

sued by both government and private persons and agencies 
have a continuing and present effect upon the com­
plexion 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_.e., 
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. 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 for 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

-  11



by the racr composition of the schoo •

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 neighborhoods undergoing racial transition and 
between high school attendance areas of opposite pre­
dominant 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 I960 between two junior high schools of 

opposite predominant racial components. All of the 
high school optional areas, except two, were in neigh­
borhoods undergoing racial transition (from white to 

black) during the 1950’s. The two exceptions were:
(1) the option between Southwestern (61.6% black in 
I960) and Western (15.3% black); (2) the option be­

tween Denby (0% black) and Southeastern (30.9% black). 
With the exception of the Denby-Southeastern option 
(just noted) all of the options were between high 

schools of opposite predominant racial compositions.



The Southwestern-Western and Denby-Southeastern op­

tional areas are all white on the 1950, I960 and 
1970 census maps. Both Southwestern and South­
eastern, however, had substantial white pupil popu­

lations, and the option allowed whites to escape 
integration. 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 I960 
due to the fact that most of the areas had become 

predominantly black, one optional area (Southwestern- 
Western affecting Wilson Junior High graduates) con­
tinued until the present school year (and will con­

tinue to effect 11th and 12th grade white youngsters 
who elected to escape from predominantly black South­
western to predominantly white Western high schools).

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

-  13 -



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 7^.3% black in 1970.

The Board, in the operation of its transpor­
tation to relieve overcorwding policy, has admittedly 
bused black pupils past or away from closer white 

schools with available space to black schools. This4 ' .*»

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 latered 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 in­
stance 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 «
been4a feeder pattern or zoning change which placed 
a predominantly white residential area into a pre­

dominantly black school zone or feeder pattern.
Every school which was 90% or more black in I960, 
and which is still in use today, remains 90% or more 

black. Whereas 65.8% of Detroit's black students 
attended 90% or more black schools in I960, 7^.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 Statement on Equality of Educational Opportunity,

requiring that

-  15 -



"Local school boards must consider the 
factor of racial balance along with other 
educational considerations in making de­
cisions 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 Hand­
book" requires that

"Care in site location must be taken if a 
serious transportation problem exists or 
if housing patterns in an area would re­
sult in a school largely segregated on 
racial, ethnic, or socioeconomic 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 
construction costing $9,222,000 is opening at North­

western 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. The construction 

at Brooks Junior High plays a dual segregatory role; 
not only is the construction segregated, it will re­
sult in a feeder pattern change which will remove the 

last majority white school from the already almost all 
black MacKenzie High School attendance area.

-  16 -



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 this session of 
the legislature, to provide authorization or funds

o

for the transportation of pupils within Detroit, 
regardless of their poverty or distance from the 
school to which they were assigned, while providing 

in manyneighboring, 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 in­

equal ities.
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

-  17 -



any desire of the school district, Its board, or 

the Inhabitants thereof,*1 acted to reorganize 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 pre­
scribe for each school in the eight districts criterion 

of "free choice1* (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 dis­
criminatory 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

-  18 -



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 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 I960 and 1970, the Detroit Board 

of Education has increased black representation among 

its teachers from 23.3% to 42.1%, and among its

-  19 -



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 dis­
tricts in the percentage of blacks among the teaching 
faculty and in 1970 surpassed Cleveland by several

percentage points.
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 
Detroi t.

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 I960 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

-  20 -



of schools m  ing one or more black tea^^rs 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 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 5fl06 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— de­
creased 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.

- 21-
l



N er of schools with more t 0% but
10% black teachers-decreased from 41 to

1 ess
8.

than

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.
19. If account is taken of other elements neces­

sary to assure quality integrated education, including quali­

fications 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 sub-_

ject 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 qualifications for sub­

ject and grade level, then by race, experience and sex, is

educationally desireable and important.
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 systenr>-wide ratio"and with­

out more is educationally undesirable and arbitrary.
23. A severe teacher shortage in the 1950's and 

1960's impeded integration-of-faculty opportunities.

-  22 -



24. Disadvantageous teaching conditions in

Detroit in the 1960's —  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 teachers who would take offered 
assignments.

26. Teacher seniority in the Detroit system, 
although measured by system-wide service, has been

o

applied consistently to protect againstinvo]untary 

transfers and "bumping" in given schools.
27. Involuntary transfers of teachers have 

occurred only because of unsatisfactory ratings or be­

cause 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

-  23 -



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. Per­
haps 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 for discriminatory apprentice training

o

programs; it has opposed state legislation which 
would have the effect of segregating the district; it 
has worked to place black students in craft positions

in industry and the building trades; it has brought 
aboClt a substantial increase in the percentage of black 
students in manufacturing and construction trade 

apprenticeship classes; it became the first public 
agency in Michigan to adopt and implement a policy re­
quiring 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 multiethnic instructional material, and in so 

doing has had an impact on publishers specializing in

-  2k -



producing school texts and instructional materials; and 
it has taken other noteworthy pioneering steps to ad­
vance relations between the white and black races.

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 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
s

question.
3. A current condition of segregation exists.

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 un­

deniably have been population 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 segrega­

tion in our public schools is an evil, then it should

-  25 -



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 com­

munity 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 establish- 
ment and maintenance of segregated residential patterns

which lead to school segregation - to observe that
o

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 
shar̂ e.

-  26 -



CONCLUSIONS OF L A W ®

1. This Court has jurisdiction of the par- 
ties and the subject matter of this action under 28 
U.S.C. 1331(a), 1343(3) and (4), 2201 and 2202; 43 

U.S.C. 1983, 1988, and 2000d.

2. In considering the evidence and in apply­
ing legal standards it is not necessary that the Court 
find that the policies and practices, which it has found 
to be discriminatory, 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 dis­
crimination. Sims v. Georgia. 389 U.S. 404,407-8.

3. School districts are accountable for the 
natural probable and foreseeable consequences of their 
policies and practices, and where racially identifiable 
schools are the result of such policies, the school auth­
orities bear the burden of showing that such policies are 
based on educationally required, non-racial considerations. 
Keyes u 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 vio­
lation has occurred, proof that a pattern of racially se-

- 27-



gregated schools has existed for a considerable period of 
time amounts to a showing of racia] 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 atten­
dance zones on north—south rather than an east—west ori­
entation, with the result that zone boundaries conformed
to racial residential dividing lines, violated the Four-* ■*
teenth Amendment. Northcross v. Bd. of Ed. Memphis, 333 

F. 2d 661.

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 and 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 atten-

-28-



dance zones, to the extent that it facilitated the sepa­
ration 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, k O S 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 identi- 
fiably white schools, which could have accepted these pu­
pils, amounted to an act of segregation by the school auth­
orities. 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 se­
gregation 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.

Citv of Norfolk. 397 F. 2d 37.

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.

- 29-



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. A4th Gen»1 
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. Bd. of Ed. of the City of Detroit, 3 N.°W. 2d 

71.

12. That a state’s form of government may dele­
gate the power of daily administration of public schools to 
officials with less than state-wide jurisdiction does not dis 
pel 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, 1A-3.

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

- 30 -



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; accredi­
tation of schools, approval of loans based on state aid 
funds; review of suspensions and explusions of indivi­
dual students for misconduct [Op. Atty. Gen., July 7,
1970* No. 4705]; authority over transportation routes 
and disbursement of transportation funds; teacher cert­
ification and the like M.S.A. 15. 1023(1). State law
provides review procedures from actions of local or in-

/
termediate districts (See M.S.A. 15.3442), with auth­
ority 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;

* L15*3402; Bridqehampton School District No. 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 in­
structions 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 reor­
ganization of school districts.

- 31-



\ k .  State officials, including all of the de­
fendants, 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 consti­
tution 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 im­
plement this section by appropriate legisla­
tion,"

15. The State Department of Education has recently 
established an Equal Educational Opportunities section hav­
ing responsibility to identify racially imbalanced school

v
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 admin­
istered on a per school basis under direct review of the 
State Board. All other state aid is subject to fiscal re­
view arid accounting by the state. M.S.A. 15»1919^ See 
also M.S.A. 1919(68b), providing for special supplements
to merged districts " for the purpose of bringing about

- 32-



uniformity of educational opportunity for all pupils of 
the district." The general consolidation law for M.S.A. 
15-3401 authorizes annexation for even noncontigous 
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 beifig 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), 
rev1d 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.), 
aff1d sub nom., Wallace v. U.S., 389 U.S. 215; Franklin v. 
Quitman County Board of Education, 288 F. Supp. 509;

- 33 -



Smith v. North Carolina State Board of Education, No.l5>

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 defendants' mo­
tion 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 that effective relief cannot be achieved or ordered 
in their absence. Plaintiffs have opposed the motion to 
join the additional school districts, arguing that the pre­
sence 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 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 wish to amend its proposal and 
resubmit it as a comprehensive plan of desegregation.

In order that the further proceedings in this 
cause may be conducted on a reasonable time schedule, and 
because the views of counsel respecting further proceed-

o

ings 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 Court­
room in the City of Detroit at ten o'clock in the morning, 

October A, 1971*

DATED: September 27, 1971.

Stephen J. Roth 
United States District Judge

- 35-



UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

)RONALD BRADLEY and RICHARD BRADLEY 
et al.# )

Plaintiffs, )

v ) No. 35257
WILLIAM G. MILLIKEN, Governor of )
the Stats of Michigan, et al.,

Defendants,
>DETROIT FEDERATION OF TEACHERS,

LOCAL 231, AMERICAN FEDERATION )
OF TEACHERS, AFL-CIO, et al.,

)
Intervening Defendants.

>

Proceedings had in the above-cmtitled matter 
before Honorable Stephen J. Roth, United States District Judge, 
at Detroit, Michigan on Monday, October 4, 1971.

APPEARANCES s
LOUIS R. LUCAS, Esq.
WILLIAM E. CALDWELL, Esq.
(Ra tiier, Sugar son & Lucas,
525 Commerce Title Building,
Memphis, Tennessee)

2. WINTHER KcCROOM, Esq.
PAUL R. DIHOND, Esq.,

Appearing on behalf of Plaintiffs.
FRANK J . KELLEY, Attorney General,
EUGENE KRASICKY, Asst. Attorney General,
(525 W. Ottawa Street, Lein sing, Michigan)

Appearing on behalf of Defendant Hilliken
APPENDIX P



APPEARANCES a (Continued)

HILLER, CANFIELD, PADDOCK £ STONE,
GEORGE B. BUSHNELL, JR. , Esq.
CARL H. von EHDE, Esq.
GREGORY L. CURTRER, Esq.,
BHKETT E. EAGAN, JR., Esq.

(2500 Detroit Bank & Trust Building, 
Detroit, Michigan)
Appearing on behalf of Detroit Board of 

Education.

ROTE'S, MARS TOM, KAZEY, SAC US k O'CONNELL,
«UNN & FREID, P.C.,
THEODORE SACHS, Esq.,
(10DC Farmer Street, Detroit, Michigan)

Appearing on behalf of Intervenors Detroit 
Federal of Teachers.

FENTON, KEBEHIANDER, TRACY, DODGE g HARRIS, 
ALEXANDER B. RITCHIE, Esq.
{2555 Guardian Building, Detroit, Michigan)

Appearing on behalf of Interveners 
D. Magdovski, et al.,

Donald E. Miller
Cout Reporter
265 Federal Building
Detroit, Michigan, 43226



3

Detroit, Michigan 
Monday, Ocfcober 4, 1971
10:00 o»clock, A. H*

Killiken.

this morning?

THE CLERK: Case No. 35257. Bradley versus

THE COURT: Are all the parties represented

HR. LUCAS: Yes.
THE COURT: I take it they are.

o

As I indicated at the close of my opinion 
recently rendered, I thought it would be advisable for me to 
get together with counsel on this occasion so that we might 
chart our course from here on in these proceedings.

The Court has made its determination of things 
as they are, or as it found things in the public school system 
of the City of Detroit. Our concern now— -to take a thought 
from Aristotle— is of things as they might be, or ought to be.

Before ordering the local and state school 
authorities to present desegregation plans, the Court thought 
it best to call this conference so that it might have the bene­
fit of your views with respect to a timetable for further 
proceedings, and so that you sight have the benefit of some of 
the thoughts of the Court.

As the Court indicated during the course of



the taking of proofs, it entertains serious reservations about 
a plan of integration, which encompasses no more than the 
public schools of the City of Detroit. It appears to us that 
perhaps only a plan which embraces all or some of the greater 
Detroit metropolitan area can hope to succeed in giving our 
children the kind of education they are entitled to constitu­
tionally* And wo note here that the metropolitan area is like 
a giant jig-saw puzzle, with the school districts cut into 
irregular pieces, but with the picture quite plainly that of 
racial segregation.

We need not recite the many serious problems 
such a plan entails; suffice it to say that a plan of such 
dimensions can hardly be conceived in a day, to say nothing 
of the time it will require for implementaiton• A large 
metropolitan area such as we have in our case can not be made 
the subject of instant integration. We must bear in mind that 
the task we are called upon to perform is a social one, which 
society has been unable to accomplish* In reality, our courts 
are called upon, in these school cases, to attain a social goal 
through the educational system, by using law as a lever.

If a metropolitan plan is our best answer to 
the problem, its formulation and implementation with require 
both time and patience* As Senior Circuit Judge 0 * Sullivan 
said in the Knoxville, Tennessee school case:



5

•Thehope, or dream, that one day we 
will have become a people without motivations 
born of our differing racial beginnings will 
have a better chance of fulfillment if patience 
accompanies our endeavors. *

I would sum up our endeavors in developing 
a metropolitan plan as an embarkation on an uncharted course
in strange waters in an effort to rescue disadvantaged children*

•*»

It behooves us to take proper soundings and proceed with care* 
To use the vernacular "Plight on!* but steady as we go.

My comments respecting a metropolitan plan 

should not be understood to mean that there should be any 
pause in Detroit Board * s efforts to affirmatively desegregate 
its schools. The Court envisions no real conflict between 
early desegregation or integration of its schools and the 
possible adoption later of a metropolitan plan.

Earlier in this case the Court acceded to 
the wish of the Board to adopt the so-called Magnet Plan. We 
do not presently have before us enough information or evidence 
on the question of its worth car value in terms of experience.
In this respect the Court wishes to be better informed.

If that plan is not delivering on its promise 
to provide an improved integrated quality education it should 
be abandoned, and the Board should consider putting before



6

the Court an tiD-dated April 7 Plan, or such other plan as, in 
its judgment, will most effectively accomplish desegregation 
in its schools. If the Magnet Plan is proving itself then the 
Board might well consider whether features of the April 7 Plan, 
for example, the change to an east-west, rather than north-south 
orientation of attendance zones, can be incorporated in it in 
the interest of advancing integration.

Hhat we have said are all generalities. They
have to do with possible courses of action. My remarks, 
however, are not intended as a limitation on the Board or on 
the state authorities in discharging their duties to move a3 
rapidly as possible toward the goal of desegregation.

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

School Commissioners:
*-- school authorities should sake

every effort to achieve the greatest possible 
degree of actual desegregation, taking into 
account the practicalities of the situation.3*

Because these cases arise under different 

local conditions and involve a variety of local problems their



7

remedies likewise will require attention to the specific case.
It is for that reason that the Court has repeatedly said, 
the Supreme Court, that each case mu3t be judged by itself in 

its own jvaculiar facts.
As early as Brown II the court had this to say?

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

principles.
*In fashioning and effectuating 

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

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

I would like to hear from counsel with respect



to a timetable for the formulation and presentation of a plan
of desegregationt first by the Board of the City of Detroit 

and then by the state officials.
Hr. Bushnc11.
MR. BUSEiSELL* If the Court please, the 

Court * s comments this morning, of course, have come without 
forewarning, though perhaps there has been foreshadowing• 
hs a4 consequence I find it somewhat difficult on behalf of 
defendant Board to respond specifically to the Court*s inquiry.
I would suggest, however, as your Honor has already suggested, 
the problems inherent in implementing the Court’s findings are 
extraordinarily complex in a district with the racial makeup 
of the Detroit district and of the educational inequities that 
are present in such horrendous quantity in the Detroit district.

At one and the same time, as I understand the 
Court’s last comments there is direction to the Detroit Board 
to consider not only continued integration of its own system 
but also to consider some program or suggested pi*** to the 
Court whereby the district is either enlarged or parts or all 
of other districts are included in the implementation of the 

plan.
I respectfully suggest that it would be naive

to e ̂ >ect that wo can have any such plan in either respect for 
implementation before the end of this current school year.



9

I assure the Court on behalf of the Detroit Board of Education 
we shall continue our program of active integration of the
school district of Detroit. Some parts of that program may
perhaps be enhanced between now and the end of the current 

semester for implementation February 1.
I, frankly, do not know and I will have to 

consult with the Board and with staff, I think we should be 
expected to report back to your Honor within a reasonable time 
as to what may or may not be accomplished February 1, intra- 
district. I think further that we should be reasonably 
expected to report back to your Honor on an arbitrary date X 
pick and I ask not to be hold to this, by either the Court or 
the public here represented through the media, shortly after 
the first of the year as to plans for implementation for the
school year beginning September, 1972.

As the Court knows after almost four months 

of trial the lag time in between staffing, planning and imple­
mentation is not insignificant and the store complex the problem 
or the execution of the problem becomes the more necessity there 
be that it be well thought out, well executed and above all 
that the community be informed at every step of the way.

I guess where I shake out, if the Court please, 

is that we should report back here— again a tentative schedule—  

we should report back here within thirty days as to the Magnet



1 0

Plan and what other efforts can be made within the district to 
continue our program of integrating the district that we then 
should report back shortly after the first of the year, together 
with the State defendants as to what plan, if any, we would 
submit for the Court’s consideration involving others in helping 

us to solve these rather insoluble problems that now belong

exclusively to the school district of Detroit.
Finally, if the Court please, I would suggest

Plan ti\at testimony bo taken that when we report on the Magnet rxan w a w
and a record be made. As counsel knows and as the-Court
knows I have been reporting to the Court as reports are made
to the Detroit Board of Education. Understandably the court
has questions about some of the detail of those interim re,

I believe we should bring the director of that

division in, interested Board members and other staff members
to make a record as to just how .Magnet is progressing.

That is all I would suggest to the Court at

this time and again I note the caveat that X am responding to 
the Court’s comments this looming without real opportunity to 
seriously think through a feasible and indeed an accurate time

schedule *
THS COORTs Mr# Krasicky?



1 1

KR, KRASICKY: As the Court is aware the

Department of education is one of the twenty departments of 
the Executive Branch. It is headed by the State Board of 
Education, one of the defendants here, and its chief executive 
officer is the Superintendent of Public Instructions, one
of fcho Dofondants here.

In consulting with the Department, recognising 
there would be a meeting today and certain inquiry would bo 
made as to what the time might be for drawing up a plan, I 
was informed that in Los Angeles, and I was informed by a 
representative of the Department, when a desegregation plan 
was promulgated for that city school district that a contract 
was made with the Land Corporation, a program was written and 
all information was fed into the computers and came out with 
a program six months later* Based upon this experience, and 
this is the best the department could do, they estimate that 
it will take six months to draw up a plan*

I point out to the Court on Friday of last 
week, October 1, under Michigan law, school districts were 
required to count their pupils. This is for the purpose of 
state aid and also for other reporting purposes. So it will 

be necessary to feed all of this information back in and that 
is going to take some time.

The Department of Education also estimates



1 2

that it will cost a quarter of a million dollars to promulgate 
such a plan and this is a vary rough estimate. I asked them
if they had the money for it and they s< id, no, hut tuey v<ere 
hopeful of getting a grant to pay for it. They didn't tell ne
where the grant was coming from, what their prospects were,
hut they said they had hopes of obtaining such a grant.

Obviously these defendants that I have describes.

and ngt the other State defendants have the expertise and 
ability to prepare plans. It will taka time. I am sura the 
plaintiffs will say six months is too long but we are respond­
ing to the Court in candor. It is going to take that long. It 
may even take longer. Some hope was expressed that the Court 
might give indications in this so-called metropolitan plan as
to what the boundaries of the metropolitan plan would be.
I informed then that I would bring it to the Court’s attention.

Summing up, it will take at least six months

to draw up a rational, understandable plan, based upon experi­
ence of other areas in the country. I so inform the Court.

TUB COURT# Let me stop you. As I understand

it you and the board would like to know what I consider th« 
proper dimensions of the so-called metropolitan plan?

MR. KHASICKYs This is what I was asked to

make inquiry of.
HR. BUSHbELX*: Yes.



1 3

THE COURT: I would defer to the Board on
that*

HI':. 2CKASICKY: I shall so inform thesu
THE COURT: That is their problem and I am

looking to them for advice on that very thing. Now the thought
I had about this matter was this, whether it would be proper 
and feasible to say to the State Board, ’’Present to the Court
a skeletal plan so that we can recognize the dimensions of ourft ^

problem*5* It seems to me that is the first order of business 
in trying to fashion a metropolitan plan* You have to define 
the boundaries and the borders.

Now it may be--I{m not an educator--I never 
aspired to become one, maybe I am being forced into it but it 
may be that that can’t be done, I don’t know* Kayhe until you 
come up with an overall plan you really can’t tell um what the 
boundaries of it should be or what its dimensions should be, I 
don’t know.

In my simplistic approach I thought that that 
would be the starting point. If you could on the basis of 
much less than complete knowledge, which a computer can devour, 
settle on a fairly comprehensive outline of the territory to 
be covered. Has that matter been discussed by the Board?
Have they made any indications of their thoughts on it?

UR* XRftSICKY: Ue have not discussed that. I



1 4

think the Court*e suggestion might be too simplistic. It seems 
to roe— and I'm not an educator either-“it seams to me before 
you can sit down and think out a rational plan you have got to 
know where the children aro and how many there are and what 
their race is. That information has just been collected as of 
last Friday, It will take time to accumulate and understand,
1 shall certainly be happy to pass onto the board what the 
Court said and I will be glad to report tack if the Court 
wishes,

I can only give you my own reaction at the 
moment and I think at seme point In light of what the Court 
suggested that some borders will have to be recommended or 
set and work will have to b© done within that line but until 
we know where the children aro and until wo know their numbers 
and the race and we have got to keep the cost factor in mind, 
the Court I am sure will respond and I am not asking for any 
response but I put it on the record for what it*s worth, that 
In the State of Michigan we have limited resources as the 
Court is aware and if there is extensive bussing involving 
three counties it will cost money, Where will the money come 
from? I think this will have to be considered in formulating 
a plan for the Court,

I point this out, if the children can walk 
across boundaries that would bo preferable to bussing them and



1 5

wo have to know where they are and in what number and what 
their race is* That Information is not available and for the—  

not available for the current school year. So, off the top of 
my head I responded the best way I can and 1 am going to order 
a copy of the transcript of this morning's hearing and I will 

make proper inquiry of my clients.
THE COURT! Thank you.
Mr. Ritchie.
MR. RITCHIEs Needless to say I find much of

e

the Court's statement personally gratifying. The Board of the 
organization that I represent has been informed of the elements 
in this case and during the course of the ease ware advised 
of the probability of either winning or losing. We told 
them that we did not think that this case would be won, although 

we would support the Board throughout its course*
Early in the trial, your Honor, I introduced 

I believe the idea tha t the only salutary solution to the 
academic and educational problems of Detroit would be a metro-" 
poll tan plan and with the approval of my clients I came here 
today with a rudimentary metropolitan plan# Of course, it was 
not prepared by my clients. One of the advantages of being 

a regional board member myself is that I am privy to seme of 
the work which is done by the Detroit Board.

This is characterised a# a metropolitan plan.



It comprehends five regions with sixty-one school districts 
and while I only got it over this weekend it would appear to
this witness to be an accurate basis for establishing a metro­

politan school district.
I have shown this plan to a distinguished

member of my local board, hr. Id chard Morsehead, who is a 
professor in the College of Education and he has studied it 
and he says, of course, it is only a rudimentary plan but with

C 9»

his support he tolls me that such a plan can be implemented
well in time for the September *72 school year, fils credentials 
in the matter I really believe are certainly impeccable and as 
good as those of other members who have testified, other
members of this profession who have testified before the Court. 
He suggested to me first that the plan should bo submitted 
to the Detroit Board of Education immediately for their support 
and I have reason to believe that the so-called conservative 
members of the School Board will join some of the conservative 
members of the city and support this plan.

I think at the very beginning you will have 
an agreement between both the white and the black citizens of 
the city and I think to this Court that that is very important. 
MorDehead suggests that in the implementation of the plan that 
the Court convene a committee ,that all of the interested 
parties to the case produce an expert who would be a member of



that committee. He suggests that we bring in the assistance 
of Wayne County, Oakland County and Macomb County Intermediate 
School Districts, possibly the throe intermediate districts 
could act under the direct supervision of Dr, Shunx, aided by 
tlie personnel and expertise of the Detroit Board and Dr. Morse-* 
head who I would offer as a representative of my client, the 
Citizens Committee for Batter Education, and I an sure the 
exports Mr, Lucas would produce and possibly hr, Sachs, wo 
could have a plan.

It is my personal reaction that the Court 
should continue with the Magnet Plan. If it is not impressive 
in terms of numbers, on the basis of my observation with the 
middle school in Region 7, there may be some historic break­
throughs in primary education not only with regard to education, 
integration, but with regard to the basic education that the 
kids are getting and the whole approach to teaching.

In Region 7 our middle school they tell aaa will 
bo a phenomenal success but I leave that up to the Court * s 
further consideration.

Sometime ago I told this Court that the 
citizens who X represented were well Informed of the signifi­
cance of this case and I told tills Court that if the Court 
ruled on a metropolitan plan it would be accepted by my client.
I point out to the Court that a few days ago there was a boycott



in the suburbs in response to a rumor about the significance 
of this Court's decision. There was no boycott in the white 

schools in Detroit.
I would ask the ether attorneys to this case 

to consider thi3 plan, certainly present it to thoir principals 
come back as soon as possible to see if v?e can have agreement 
on it and not to spend a lot of time as to what kind of plan 
we are going to have. Once we have a plan the experts in the 
academic world can fulfill it and they can do that quickly.

I have reason to believe that there will be 
many facilities available to this group to assist them on 
their deliberations. The Court has indicated that the imple­
mentation of a metropolitan plan possibly should be done on a 
gradual basis. From my own experience representing white 
property owners in Detroit I would suggest that the first plan 
be a comprehensive plan and be an effective plan, that in the 
communities involved the leadership be instructed to act 
responsibly and I think if you do that you will get an inte­
gration plan which will work.

Thank you, your Honor* Any questions*
THE COURT: Ho.
Mr. Sachs.
KR. SACHS: Nothing at this time, your Honor.

THE COURT: Plaintiffs.



19

HR. LUCAS; Hay it please the Court, in general
we agree with Hr. Ritchie. We think Mr. Ritchie's apx>roach is 
illustrative of the problem that tills Court, X think every

with, that is the problem of how long is it going to take and

before they come up with a recommendation.
I think Hr. Ilitchie, I have not seen his plan

and know nothing of it but the fact that someone is able to 
sit down and cone up with a kind of skeleton framework which 
the Court suggested to the State and come in and say, “Look, 
this can be done'1, we can make seme preliminary determinations, 
we don’t have to know where every pupil is to know generally 
how many pupils are in a particular area or particular suburban 
district. That information is pretty well at hand. So you 
can cone up with a basic outline of approximately how far out 
one needs to go or what is the best direction to go.

resources and certainly the State Board has superior resources 
to those available to Hr. Ritchie through the staff of the 
regional board of which he is a member and his own clients. I 
think they could have been in here today and I think they should 
have been in hears today with at least some more affirmative 
recommendations.

you have some people at have to keep studying it forever

The Detroit Board obviously has superior



20

I think the Court’s comments today were no 
surprise to any lawyer who has been in this case for I think a 
weak of the trial, much less people who have been here through­
out the trial* The opinion makes it clear, the options and 
possibilities available and certainly the interim between the 
Court’s decision and coming here today should have been taken 
up with some consideration of a recommendation to be made to 
the Court otherwise this case can take forever to get to any 
meaningful implementation of plaintiffs* rights*

We would suggest and direct the Court’s atten­
tion to the proposed interim opinion which we filed with the 
Court and we set forth in there a proposed decree and we would 
suggest that the Court should enter such a decree, not exactly 
as set forth there, that contemplated an earlier date than we 
are presently faced with but it generally called for the Detroit 
Board to say what can be done between now and the close of the 
school year in Detroit and to come forward with that quite 

quickly*
It may be what can be done at the present time 

is relatively limited but there are some tilings I am sure in a 
good faith effort that could be done* We also suggested that 
the Detroit Board and the State Board either jointly or separately 
come forward with their proposals for an outline of how far out 
we should go - a general proposal* I am not talking about



21

assigning every child to every school for the forthcoming 
school year but some skeleton outline as the Court has suggested. 
In doing that I think we are all bound to use the Swann remedies. 
As the court indicated there they are determining there was a 
right and we must consider, and I think the parties, all of us 
should be directed to consider all of the techniques that 
Swann suggests and any other technique which would provide a 
similar result.

v>-

It may have taken six months in Los Angeles, 
your Honor, to assign every pupil to a school but certainly it 
shouldn * t take more than a couple weeks to come in here with 
a reasonably informed judgment as to the perimeters of the 
relief. I think the Court should set down a fairly rigid

v
schedule and fairly quick one to come in to get the issue 
properly before the Court.

With respect to Mr. Ritchie * s suggestion we 
would be delighted to meet with him, look at any proposal he 
and his people have coma up with and this holds true with any 
other party in this litigation or any interested party.
Plaintiffs stand ready to do this because we think it is an 
important issue that needs this kind of assistance. At the 
same time we can study the problem to death.

I think bringing in the intermediate districts 
and their staffs with their familiarity with the overall



22

population makeup within their districts is an excellent idea.
I think this is one of their functions even under State law to 
consider this type of consolidation issue. I think the Court 
should resolve the issue of whether or not w© need to name 
these parties as individual parties in the action* It is our 
position and has been our position that the State in its role 
and its responsibility for public education is adequate to 
represent the individual parties.

X am sura same of them might wish to be heard 
and again we suggest to the Court th^t an amicus presentation 
by brief might be sufficient to enable thoir views to be 
presented to the Court but I think we have to decide those two 
issues, how far out we are going and whether or not we need to 
name additional parties as defendants in the cause.

Again I say I do not think that that is 
necessary. I think it would unduly burden the Court. Their 
existence is only as a creature of the State of Michigan and 
subject to the supervision of the State Board of Education.

He would be interested in presenting our 
views* I aa not sure our resources are adequate for full plan 
but if expertise is required we would ask the Court consider 
the payment of the fees of any experts that are required by 
plaintiffs. The burden of this litigation has been excessive 
in terms of the resources available and soma of the experts who



23

have testified here possibly would be available and already 
have a degree of knowledge of the system but we think at this 
stage of the litigation that the expense of such experts should 
properly be borne possibly by the State Board of Education. I 
don't think those expenses would be at all excessive. Certainly 
in terras of resources of the parties their resources axe dis­

proportionately greater than ours.
Does the Court have any questions.
THE COURT: No.

o

mi. KRASICKY; 1 would like to make a couple

points if I may.

THE COURT? Yes.
MR. KRASICKYi I shall bo very brief.
Responding to Mr. Lucas, when he brought his 

law suit a year ago he named the Detroit Board as the defendant 
and they have had their actual day in this court* How the Court 
has in mind possibly affecting many other school districts and 
Mr. Lucas again for the reason of necessity he says and he 
doesn't want to burden the Court, wouldn't give them their day 
in court. Z think that If this Court is to contemplate a

yah.metropolitan plan and will do things to affect other school 
districts they should have their right to be heard in this
case.

It's easy to wave a hand and say, "The State



2 4

is here.1* It's interesting when they started the law suit they 
didn't just sue us, they brought in Detroit and gave them their 
full day in court as properly they should have.

I am somewhat disappointed that Mr. Lucas, 
after being in this law suit for over a year can’t even come 
up with a skeleton plan as to what should be the proper 
boundaries for a metropolitan area remedy.

So he is somewhat in agreement with Mr. Ritchie 
but not entirely and I would submit if this Court is contem­
plating any action that affects other school districts besides 
Detroit that they should have their day in Court. Their 
citizens have a right to be heard too. Civil rights don't stop 
with the plaintiffs.

Thank you.
HR. RITCHIE i Your Honor, may I address the

Court further?
THE COURT; Yes.
HR, RITCHIE; I wasn't in great detail as to 

this plan as to how comprehensive it is. It has five regions 
and basically it can be described as a circle around the City 
of Detroit extending out from the center of the city twelve 
miles. In the north it takes all of Warren, goes through 
Lathrup Village and Southfield on the west, Redford, Dearborn 
Heights, Dearborn, Allen Park, Melvin&ale, Lincoln Park,



25

Southgate, Wyandotte and River Rouge. That is the perimeter of 
the plan. As I say it in sixty-one school districts.

With regard to my notion, I will tahe to Mr. 
Lucas about the motion and it is conceivable that as the Court 
hasn't ruled on it I may withdraw it, I believe the districts 
are represented at this tine by the State and that the urgency 
before the Court to get this plan going is present.

I will say regarding the preface of this plan 
which was prepared by the experts at the Detroit Board, they 
say this plan woulds

1* Significantly increase the number of 
students who would experience an integrated education.

2. Consolidate the fragmented districts in 
the metropolitan area.

3* Anticipate the population movements over 
the next twenty years.

4. Encourage the stabilization of population 
in the tri-county area, particular in Detroit.

5* Provide opportunity for greater alternatives 
in the school programming.

6. Provide common goals around which to 
utilize resources of all of the school systems as well as the 
county boards.

7. Provide the initial thrust and influence

o



26

for resolution of other race-related problems as housing, 
employment, et cetera,

8, Hake possible the tapping of Federal funds
available to support desegregation efforts, and

9. Provide opportunity for desegregation and
in tec .on :r a planned rather than under crisis conditions.

1 will see that the plan is duplicated and
provided to the attorneys for the State and Board and Kr. Lucas.

THE COURT; Procedurally let ma understand 
your position, Have you filed any document with the Court?

MR. RITCHIE; On tills plan, no. I just got it. 
THE COURT; I just wanted to know where we

stood on that because I indicated in my ruling I thought you 
might want to submit a more specific plan of what you expect
the Court to adopt. I just wanted to understand that.

MR. RITCHIE; Right.
THE COURT; Mr. Bushnell, do you have any

comments to make?
MR. BUSXiHELL: I have nothing further.
TEE COURTS Within thirty days the Detroit 

Board of Education should submit to the Court a concise report 
of progress on the Magnet Plan, and along with it an evaluation
of its worth in helping to bring about a better and higher 
quality of education. Copies of both the report and also the



27

v

evaluation shall be made available to the other parties litigant
at the same time.

Such other parties raay have ten additional 
days in which to submit their views and evaluations of the 
progress under the liagnet IsIan.

It is further ordered that the Detroit Board 
of Education submit its plan for desegregation of its schools 
within sixty days.

It is ordered that the State defendants 
submit a metropolitan plan of desegregation, perhaps in more 
or less skeletal form, within one hundred twenty (120) days.

Objections to each plan, city and metropolitan, 
may be filed by the other parties litigant not later than 
thirty days after the expiration of the time set. Such 
objections may be accompanied by alternate plans.

I want to underline something I already said 
and add to it a general observation to sura up. host there be 
some misunderstanding, because of the observations X made, let 
it be understood I had no preconceived notion about what the 
Board of Education should do in the way of desegregating its 
schools nor the outlines of a proposed metropolitan plan. The 
options are completely open.

f£ith respect to matters of speed In having a 
plan or having plans and proceeding on them, I think you should



2a

know something about my manner of working. In a case, particu­
larly like this, I feel my way to a decision and I certainly 
dozift propose to jump to judgment.

I would remind counsel as I keep reminding 
myself in this case that our objective is quality education 
for all of our children. I an not too concerned about the 
parties litigant here. Depending on what we do, the winners 
or losers in this case will be the school children now living, 
as well as those yet to be born. I am reminded of that by 
Hr. Ritchie’s observation that he considers his plan one that 
will reach into the future.

With respect to remarks you gentlemen have 
made about other school districts, I am not going to make any 
definitive ruling at this time. We haven’t come to that pass 
yet. I don’t see much disagreement, Mr. Krasicky, between you 
and Hr. Lucas on that point* I don’t think Mr. Lucas said 
that they should not bo heard. He is addressing himself to 
the matter of mechanics, how you do it, and, of course, as 
you well know it is overwhelming to consider joining 50, 60, 
or 80 other parties to this law suit, each of which is composed 
of superintendents and boards.

On the other hand I do not propose to stop 
the voice of anybody who is apt to be affected by the plan.
So this is a matter of mechanics. When the time comes that



action ha3 to bo taken in that regard we will give it further 
thought and make a decision that we believe will be a fair one 
and yet will permit us to proceed with some dispatch in achiev­
ing some remedial effects and perhaps putting into effect some 
plans for desegregation*

The time table is understood, is it?
HR* BUSHKELL: Yes, sir,
MR, LUCAS: Yes,

THE COURT* I am not going to--unless you 
gentlemen want— to prepare an order, I am not going to prepare 
a formal order,

MR, BUSHNELL: X don*t believe it is necessary,
your Honor, We understand the timetable*

mr-k* '

v TUB COURT: Anybody disagree with that?
Anything further at this time, gentlemen, with 

respect to the matter before us?

MR* KRASICKY * X take it if there will be 
further hearings we will be notified in due time?

THE COURT: Yes* X have not come back to the
.Drought out by Mr* Bushnell* X don’t know what the report 

and the evaluation by the Board and the criticisms that might 
be offered by other parties litigant will amount to. Should it 
develop that X wish to have testimony on disputed points we may 
schedule them. That will just have to wait until I have received



30

the report and evaluations.

Gentlemen, thank you for your attendance and
your assistance.

We will ba in recess.

4



30~a
#

STATE OF MICHIGAN)
COUNTY OF WAYNE )

I, Donald E. Miller, hereby certify I reported 
in shorthand the proceedings had in the within-entitled cause 
before Honorable Stephen J* Roth, United. States District Judge, 
at Detroit, Michigan on Monday, October 4, 1971, and that the 
foregoing is a full, true and correct excerpt of ny shorthand
notes taken at said tine and place

Donald E. Miller 
Official Court Reporter 
265 Federal Building 
Detroit, Michigan 
(313) 226-6019

Datedi October 4, 1971



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 J

A 
' \
r\

rftC

\ r
■J

CIVIL ACTION NO: 
35257

ORDER
At a session of said Court held in 
the Federal Building, City of 
Detroit, on this 4th day of 
OCTOBER, A.D. 1971.

PRESENT: HONORABLE STEPHEN J. ROTH 
United States District Judge

The Court having entered its findings of fact and 

conclusions of law on the issue of segregation on 

September 27, 1971?

IT IS ORDERED that the Detroit Board of Education 

submit a report on and an evaluation of the so-called 
Magnet Plan within 30 days; and that other parties litigant 

may within 10 days thereafter file responses to such 

report and evaluation. APPENDIX C



IT IS FURTHER ORDERED that the Detroit Board
of Education submit a plan for the desegregation of its 
schools within 60 days.

IT IS FURTHER ORDERED that the State defendants 
submit a metropolitan plan of desegregation within 120 days.

IT IS FURTHER ORDERED that as to both the Detroit 
and the ‘state plans, other parties litigant shall have an 

additional 30 days in which to submit objections and/or 
alternate plans.

, 1971.DATE 
SIGNED:

November 5





UNITED STATES' DISTRICT COURT 
EASTERN DISTRICT OR 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

)
)
)
)
)
)
)
)
)
%

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

U. S.aiSFa^r fSDrVi 
IAS tr- ulSI. yTj.

Dec 3 3 n n l 7!
F R E D E R I C K  W. J O H N S O N  CLERK

CIVIL ACTION 
NO. 35257

NOTICE OF APPEAL

Notice is hereby given that William G. Milliken, Governor 
of the State of Michigan; Frank J. Kelley, Attorney General of the 
State of Michigan; Michigan State Board of Education and John V/. 
Porter, Superintendent of Public Instruction for the State of 
Michigan, some of the defendants in this cause, hereby appeal to 
the United States Court of Appeals for the Sixth Circuit from the 
order entered herein on November 5, 1971, which incorporates the 
findings of fact and conclusions of law that the State of Michigan 
has committed acts which have been causal factors in the de_ jure 
segregated condition of the public schools of the City of Detroit 
contained in the district court's Ruling on Issue of Segregation,

APPENDIX E



and which directs these defendants to submit a metropolitan plan 
of desegregation within 120 days from October 4, 19 71.

4

Dated: December 3> 1971

PRANK J. KELLEY 
Attorney General
Robert A. Derengoski 
Solicitor General
b

h  A -C r- Vu ^  i. ^
/

Eugene Krasicky 
Assistant Attorney Genera

i

Gerald F. Young 
Assistant Attorney General
George L. McCargar 
Assistant Attorney General
Business Address:
7 Story Office Building 
525 West Ottawa 
Lansing, Michigan -48913



11m iriL UlnIxilD
FOR THE EASTERN DISTRICT OF 

SOUTHERN DIVISION
MICHIGAN
#

RONALD BRADLEY, et al. , )
Plaintiffs, )

vs. )

WILLIAM J. MILLIKEN, et al., )
Defendants, )

and )
DETROIT FEDERATION OF TEACHERS,) 
LOCAL No. 231, AMERICAN FED­
ERATION OF TEACHERS, AFL-CIO, )

CIVIL ACTION 
No. 35257

Defendant-Intervenor, )
and ‘ * )
DENISE MAGDOWSKI, et al., )

Defendants-Intervenor. )

NOTICE OF APPEAL

Notice is hereby given that plaintiffs in the above-styled 
case appeal to the United States Court of Appeals for the Sixth Cir­
cuit from the order entered in this action on November 5, 1971, 
insofar as said order refuses to require the defendants to further 
desegregate the faculties in each school so that the ratio of black 
to white teachers in each school will be substantially the same as 
the system-wide ratio of black to white teachers.

Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

NATHANIEL R. JONES
General Counsel, N.A.A.C.P.
1790 Broadway
New York, New York 10019APPENDIX F



OF COUNSEL:
J. HAROLD FLANNERY 
PAUL R. DIMOND 
ROBERT PRESSMAN

Center for Law & Education
Harvard University
Cambridge, Massachusetts 02138

E. WINTHER MCCROOM 
3245 Woodburn 
Cincinnati, Ohio

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York

45207

10019

Attorneys for Plaintiffs



Chamber# of 
tepljcn 3- Jlotlf
jDi.trirt 3ubg»

U n i t e d  S t a t e s  D i s t r i c t C o u r t
For  t h e  E a b t e r n  D i s t r i c t  or  M i c h ig a n  

F l i n t  4 8 5 0 2

November 5, 1971

TO: 

RE:

All counsel of record.
Civil Action 35257, Bradley v. Milliken.

Gentlemen:
K ♦
Recently two matters have been submitted to me­

in the above entitled case: (1) an order prepared
by the Attorney General, incorporating the verbal 
order issued from the Bench and on the record, with 
all parties represented, on October 4, 1971;
(2) a motion for discovery respecting the Magnet Plan. 
As to the first, I enclose a formal order, prepared 
by me. As to the second, I believe that the plaintiffs 
can, if they so desire, ask for an extension of time 
for the filing of a response and undertake normal 
discovery. I must add, however, that under the 
circumstances it appears to me to be unnecessary. The 
Magnet Plan was ordered as an interim measure, and 
the Court has ordered the submission of a plan of 
desegregation of the Detroit public schools not 
later than December 4th. What that plan will be 
I do not, of course, know. Our concern will be that 
plan and not the interim plan. Accordingly, I am 
withholding action on the motion for discovery.

Verj£ truly yours,

Stegfnen J./Roth
United States District Judge

SJR:bjg 
Enc. (1)

APPENDIX G



No. 71-1825
7

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT F I L E D

NOV 81971
I JAKES A. HIGGINS, Cl . J

CLAUDE BERNARD ROBINSON, et ai,
Plaintiffs-Appellants

vs • O R D E R
SHELBY COUNTY BOARD OF 
EDUCATION, et al, :

Defendants-Appellees :

Before WEICK, McCREE and MILLER, Circuit Judges.

This appeal came on to be heard on October 20, 1971, on
its merits, and also on appellant's motion for summary judgment, 
pursuant to a former order entered by this panel advancing the 
appeal for hearing. We also ordered the filing of the reporter's
transcript of evidence and briefs.

The appeal was taken from a decision of the District
Court embodied in a memorandum opinion filed with the Clerk on

*August 11, 1971, which opinion contemplated the entry of judgment 
at a later time. The notice of appeal was filed on August 31, 1971, 
before any final judgment had been entered.

During the oral argument we were advised for the first 
time that the judgment was not entered by the District Court until 
October 12, 1971.

The filing of an opinion by the District Court does not

APPENDIX H

<o



71-1825 2

constitute the entry of an order, judgment or decree from which 
an appeal can be taken* A judgment must be entered* Holdsworth 
v. United States, 179 F.2d 933 , 934 (1st Cir. 1950); S t.Louis

*»

Amusement Co* v. Paramount Film Distrib*Corp . , 156 F.2d 400 (8th
*

Cir. 1946); Wright v. Gibson, 128 F.2d 865 (9th Cir. 1942).
This Court is therefore without jurisdiction to entertain 

the appeal.
It is therefore ORDERED, sua sponte, that the order

>»•

assigning the appeal for hearing be vacated and the appeal be 
dismissed as prematurely filed, and for lack of jurisdiction.

In the event that an appeal is taken from the final 
judgment entered on October 12, 1971, it is ORDERED that the 
Clerk's transcript, the reporter's transcript, and the briefs and 

* appendices may be refiled in the new appeal, with the right of 
the parties to file supplemental briefs. This Court will also 
entertain a motion to advance the new appeal for hearing.

ENTERED BY ORDER OF THE COURT.

-----------

/



Nos. 20,123, -124

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

iI . :
CLAUDE BERNARD ROBINSON and : ‘ ..
JULIA D.’ ROBINSON, Infants,
By MELVIN ROBINSON, their
father and next friend, et al, : ' ■I . 9

Pla intiffs-Appe11ees
vs O R D E R

SHELBY COUNTY BOARD OF :
EDUCATION, et al,

De fendants-Appe Hants
UNITED STATES OF AMERICA, by
Ramsey Clark, Acting Attorney General,

oPla intiff-Appe11ee-Intervenor :

Before PHILLIPS, Chief Judge, WEICK and BROOKS, 
Circuit Judges.

Plaintiffs have appealed from an order of the District 
Court denying their motion to require, the defendant, Shelby 
County Board of Education, to adopt immediately a unitary public 
school system in conformity with the Supreme Court's decision in 
Alexander v. Holmes County Bd. of Educ., 398 U.S. 19 (1969).

The Board of Education has appealed from an order of 
the District Court which approved the Board's desegregation plan 
but only for the school years 1969-1970. The reason the Court 
approved the Board's plan for one year only was because -

APPENDIX I
1



Nos. 20,123, -124 2

"This Court has concluded that the defendant Board’s 
plan will not, as a long term plan, meet the require­
ments of Green, Raney and Monroe, 391 U.S. 430, 443 and 430." ------

In a subsequent addendum to the Court's order, the
Court pointed out the defects in the Board's plan and ordered
that the Board file a new plan for desegregation of the schools
to be effective for the school years 1970 and 1971.

The basis of the Board's appeal is that the Court 
in effectshould have continued^its plan of desegregation instead of 

limiting it to one year only.
We are advised by counsel that subsequent to the ap­

peals in the present case, the Board under protest did file in 
the District Court another plan for desegregation, and the HEW
Title IV Educational Opportunities Planning Center of the** ¥
University of Tennessee filed its plan as requested by the 
District Court. Hearings were conducted on both plans in the 
District Court, with the result that the District Court did 
adopt a new plan for desegregation of the public schools. The 
new plan is not before us but we are advised that an appeal is 
being taken to this Court from an order of the District Court 
approving it.

The individual plaintiffs have moved this Court to

I



Nos. 20,123, -124 3

dismiss both appeals (Nos. 20,123 and 20,124) on the ground that 
the issues have become moot. The Govcrnraent (which had been allowed 
to intervene in the District Court) and the Board urge us to de­
cide the issues in the Board's appeal. The Government asks that 
we affirm the order of the District Court. The Board urges 
that we reverse the District Court's order and continue in
effect its rejected plan.• *

In our opinion, the District Court had continuing juris­
diction over the case before it. The order from which the appeal 
was taken by the Board has, by its terms, expired. The order was 
applicable only to the school years 1969 and 1970, and those 
years have ended. The order has been supplanted by an entirely 
new order of desegregation, which is not before us. No useful 
purpose would be served for us to pass upon the validity of the 
old order.

Since the old order has expired, we ought not to con­
tinue it into effect before considering the new plan adopted by 
the District Court, particularly since the District Court has 
expressly found that the Board's plan did not conform to the de­
cisions of the Supreme Court in Green, Raney and Monroe.

In our opinion, the issues in both appeals have become 
moot. Cf[. , Robinson v. Willisville School Pis t. , 379 F.2d 289,
291 (8th Cir. 1967).

I



Nos. 20,123, -124 4

The motion to dismiss is granted and each appeal is 
hereby dismissed. Costs in each case will be taxed against 
the appellant or appellants.

ENTERED BY ORDER OF THE COURT

*