Brief of Intervenor School Districts
Public Court Documents
January 1, 1972

173 pages
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Case Files, Milliken Hardbacks. Brief of Intervenor School Districts, 1972. 5b15ce68-53e9-ef11-a730-7c1e5247dfc0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/28f91ead-7cb6-41b8-8d7e-12207e4556ef/brief-of-intervenor-school-districts. Accessed July 06, 2025.
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RONALD C . BRADLEY v . WILLIAM G. MILLIKEN HB N o. 7 No. 72-8002 IN THE United States Court of Appeals for the Sixth Circuit RONALD BRADLEY, et al, Plaintiffs-Appellees, v. WILLIAM G. MILLIKEN, et al, Defendants-Appellants, and DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Defendant-Intervenor, and DENISE MAGDOWSKI, et al, Defendants-Intervenors, et al. On Appeal from the United States District Court for the Eastern District of Michigan Southern Division BRIEF OF INTERVENOR SCHOOL DISTRICTS William M. Saxton John B. Weaver Robert M. Vercruysse X. Orhan Butzel, Long, Gust, Klein & Van Zile 1881 First National Building Detroit, Michigan 48226 Attorneys for Defendants- Intervenors Allen Park Public Schools, et al Douglas H. West Robert B. Webster Hill, Lewis, Adams, Goodrich & Tait 3700 Penobscot Building Detroit, Michigan 48226 Attorneys for Defendant- Intervenor Grosse Pointe Public Schools Richard P. Condit Condit and McGarry, P.C. 860 West Long Lake Road Bloomfield Hills, Michigan 48013 Attorneys for Defendant- Intervenor Southfield Public Schools Kenneth B. McConnell Hartman, Beier, Howlett, McConnell & Googasian 74 West Long Lake Road Bloomfield Hills, Michigan 48013 Attorneys for Defendant- Intervenor School District of the City of Royal Oak T A B L E OF CONTENTS Page Number Table of C i t a t i o n s ................................................................................ Statement of Issues P r e s e n t e d ..................................................... x lx Statement of the C a s e ...................................................................... 1 Statement of Facts Argum ent I. Is A So -C a l led Metropoli tan Plan of School Desegregat ion P erm it ted or Required in the Instant C a s e ? ............................................................ A . The Only Allegations and Findings in This Case Relate Sole ly to the Question of De Jure Segregation Within the Detroit School D is tr ic t . . . B. Brown v Board of Education, and Its Progeny , R e v i s i t e d .............................. C. The D is tr ic t Court E rred in O r d e r ing A So -C a l led Metropoli tan Plan o f D esegregat ion In Order to A c c o m p l is h Desegregat ion of the Public Schools of the City of D e t r o i t ................................................................ II. Desegregat ion of the Detroit School System Can be A cco m p l ish e d by Means of a Rem edy Lim ited to Such School D i s t r i c t ................................. 20 20 21 27 40 54 - i- III. Did The Distr ict Court Err In Concluding That the Detroit School System is De Jure Segregated? ........................................................................ 58 IV. Did The P roceed in g s ' In the Distr ict Court Constitute A Denial Of Due P r o c e s s of Law to Intervenor School D i s t r i c t s ? .................................................... 61 Due P r o c e s s Requires That the Intervenor School Distr icts , As Indispensable P a rt ies , Be Joined In the Lawsuit At Its Inception And Upon Fai lure To Be So Included, the Distr ict Court Is P rec lu d ed F r o m Granting R e l ie f Against Them . . . . 65 V. Did the Distr ict Court 's Fai lure to Convene A Court of Three Judges Pursuant to 28 U . S . C . §2281 Divest the Distr ict Court o f Jurisdict ion to O rder the Restraint Of Enforcement Operation or Execution of Michigan Statutory P rov is ion s ? . . . . 69 VI. What Is the P r e c i s e Legal Status Under State Law of L oca l School Distr icts And Boards of Education V i s - A - V i s the State of Michigan? . . . . 83 VII. A r e the Expenditures Required By the Distr ict Court Authorized By Any Current Acts Of the Leg is la ture of Michigan Now In E f f e c t ? ................................................................................................ 102 VIII. Does Section 308 of the "Education Amendments of 1972" Pub. L. No. 92-318, Apply to Metropolitan Transportat ion O rders Which Have Been Or May Be Entered By the Distr ict Court In This C a s e ? ................................................ 106 IX. If Section 803 of The Education A m e n d ments of 1972 Is Applicab le , As Stated in the Forego ing Question, Is Said P ro v is i o n of Law Constitutional? ....................................................... 131 C o n c l u s i o n ................................................................................................. 146 T A B L E OF AUTHORITIES C ases : Alexander v H olm es County Board o f Education, 396 US 19, 24 L Ed 1969 A m algam ated Meat Cutters & Butcher W ork v Connally U. S. D. C. Dist. C o l . , 337 F Supp 737 (1971) A rm s t r o n g v Manzo, 380 US 545, 552 (1965) Bailey v Patter son, 369 US 31, 82 S Ct 549, 7 L Ed2d 521 (1902) Balt im ore & O R Co v Chicago R iver and I R Co (CA 111 1948)170 F2d 654, cer t den, 69 S Ct 811; 336 US 944; 93 L Ed 1101 Banco Nacional de Cuba v F a r r , 383 F2d 166 (2 Cir 1967) ce r t den, 390 US 956 (1968), rehearing denied, 390 US 1037 ( 1968 ) . Bell v School City of Gary, Indiana, 324 F2d 209 (CA 7, 1963) Board of Managers of Arkansas Training School v G e o r g e , 377 F2d 228 (CA 8, 19677" B or is v M o o r e J D C Wis 1957) 152 F Supp 602, a f f 'd 253, F2d 523 (CA 7 1958) Bowles v W il l ingham, 321 US 503 (1944), 88 L Ed 892, * 64 S Ct 641 Bradley, et al v School Board of the City of Richmond, 338 F Supp 67 (1972), r e v e r s e d _______ F 2 d _________ (June 5, 1972, CA 4) Bradley v Mil liken, 433 F2d 897 (CA 6, 1970), n. 2, p. 900 Cases: Page Bradley v Mil liken, 438 F2d 945 (CA 6, 1971) B r i g g s , et al v Elliott, et al. , 347 US 483 (1954) Brown v Board of Education of Topeka, 347 US 483" (1954) Brown v Board of Education, 349 US 294 (1955) Brown v Board of Education of Topeka, 347 US 483, 74 S Ct 686, 98 L Ed 873 (1954) Brown v B oard of Education of Topeka, 349 US 294, ' 75 S Ct 753, 99 L Ed 1083 (1955) Brown Brothers Equipment Co v State of Michigan, 266 ‘ F Supp 506 (W. D. Mich 1967) Brunson v Board of T ru stees o f School Distr ict No. 1, Clarendon, S. C. , 429 F2d 820 (CA 4, 1970) C ar lson v United States, 364 F2d 914 (10th Cir 1966) Carter v West Fe l ic iana Par ish School Board, 396 US 290, 24 L Ed2d 477 (1970) ; C o m m is s io n e r s of Internal R evenue v Church, 335 US 632, - 687, 688, 93~L Ed 288, 321, 322, 323 (1949) Davis v School Distr ict of the City of P ont ia c , 433 F2d 573 ' (CA 6, 1971) Davis, et al. v County School Board of P r in ce Edward County, V irg inia et al, 347 US 483 (1954) Deal v C incinnati Board of Education, 369 F2d 55 (CA 6, 1966) cer t denied, 389 US 847 (1967) Downs v Board of Education of Kansas City, 336 F2d 988 (CA 10, 1964) Dred Scott v Sanford, 60 US (How) 393 (1856) Duplex Printing v P e e r in g , 254 US 443, 474, 65 L Ed 349 (1921) -iv C ases : Page Edwards v Se lec t ive Service L oca l Board III. 432 F2d 287 (5th Cir 1970) Estep v United States, 377 US 114, 90 L Ed 567 (1946) Ex Parte M c C a r d le , 7 Wall 506, 19 L Ed 264 (1868) Ex Parte Young, 209 US 123, 28 S Ct 441, 52 L Ed 714 (1907) ’ Fa lbo v United States, 320 US 549, 88 L Ed 305 (1944) Fuller v Van W a g o n e r , 49 F Supp 281 (E. D. Mich, 1942) Green v County Schoo l Board of New Kent County, 391 US 430, 20 L Ed 2d 716 (1968) Grif f in v County School Board, 377 US 218, 12 L Ed 2d 256 (1964) ' Grif f in v County School Board of P r in ce Edward County, 377 ' US~218 (1964) v/' Gomil l ion v L ightfoot , 364 US 339 Haney v County Board of Education o f Sevier County, 410 F2d 920 (CA 8, 1969), 429 F2d 364 (CA 8, 1970) Haney v County Board o f Education o f Sevier County, 429 F2d 364 (CA 8, 1970) In re Gault, 387 US 1, 19-21 (1967) In re O l i v e r , 333 US 257, 273 (1948) Jenkins v McKeithen, 395 US 411, 428 (1969) - v - Cases Page Jones v Branigin, 433 F2d 576 (CA 6, 1970) K e l ley v Metropoli tan Board of Education of Nashville , 436 F2d 856 (CA 6, 19 20) Kennedy v Mendoza - Martinez, 372 US 144, ' 154, 83 S Ct 554, 560~ 9 L Ed 644 (1963) K ey es v School D is tr ic t No. 1, Denver, Colo, ’ 445 F2d 990 (CA 10, 1971) cert g ra n ted 404 US 1036 L a b o r Board v F r uit & Vegetable P a ck ers , 377 US 58, 66, 12 L Ed 2d 129, 135, 84 S Ct 1063 Lauf v E. G. Shinner &: Co, 303 US 323, 82 ‘ L Ed 972 (1938) Lee v Macon County Board of Education, 448 F2d 746 (CA 5, 1971) ~ L o c k e r ly v Phil lips, 319 US 182, 87 L Ed * 1339 (1943).63 S Ct 1019 L u m b erm a n 's Mut Cas Co v Elbert , 348 US 48; ‘ 75 S Ct 151; 99 L Ed 59 (1954) M astro P last ics Corp. v National Labor R e la - ' tions Board, 3 50 US 270 (1956) L Ed 309, 76 S Ct 349 N orth cross v Board of Education of M em phis , “ m Tsc No. 1576 (CA 6, July 5, 1972) en banc Phil lips v United States, 312 US 246, 251, 61 S Ct 480, 483, 85 L Ed 800 (1941) P ie s s y v Ferguson, 163 US 537 (1896) Railroad C o m m is s i o n of California v Pac i f i c Gas ' fa E le c t r i c C o , 302 US 388 (1938) - Rai lroad C o m m iss io n of W isconsin v Chicago B ' fa QR Co, 257 US 563 (1922); 66 L Ed 371 ( 1922 ) Raney V Board of Education of the Gould School D is tr ic t , 391 US 443 (1968) Reynolds v S im m s, 377 US 533 (1964) Sa i lors v Kent Board o f Education, 387 US 105, ‘ 87 S Ct 1549, 18 L Ed 2d "650 (1967) Schwegmann B ros v C a lvert D is t i l lers Corp, 341 “ US~384, 95 L Ed 1035, 71 S Ct 745,~ 19 A LR 2d 1119 Sheldon v Sill, 49 US (8 How) 440 (1850) Slaughterhouse ca ses , 77 US (10 Wall) 273 (1869) South Carolina v K atzenbach, 383 US 301, 15 L Ed * 2d "("1966) ..... Spencer v Kugler , 326 F Supp 1235 (NJ, 1971) af f 'd 92 S Ct 707 (1972) Spencer v Kugler, 326 F Supp 1235 (NJ, 1971) ‘ a f f 'd 404~US 1027 (1972) Spielman Motor Sales Co v Dodge, 295 US 89, “ 55 S Cl 678, 79 L Ed 1322 (1934) Swann v C harlotte -M ecklenburg Board of Edu c a t io n , 402 US 1, 28 L Ed 2d 554, 91 S Ct 1267 (1971) Sv/ann v Charlotte -M eck lenburg Board of Education, 402 US 1 (1971) Swift fa Co v Wickham, 382 US 111, 86 S Ct 119 (1965) Vll- T urner v City o f M em phis , 369 US 350, 82 S Ct “ 805, 7 L Ed 2d 762 (1962) United States v Board of Education, Independent School D is tr ic t No. 1, Tulsa, Okla, 4 59 F2d 720 (CA 10, 1972) ....... United States v Klein, 80 US (13 Wall) 128 (1872) United States ex re l M cM ill v Tarumranz, 242 F2d 191 (CA 3, 1957) ......... United States v Texas Educational Agency, et al, 321 F Supp 1043 (ED Tex 1970), __ F2d__ (CA 5, August 2, 1972) United States v United Mine W o r k e r s , 330 US 258, ' 91 L~Ed 884 (1947) . '............ Woodwork Manufacturers A ssn v NLRB, 396 US 612, 639-640, 18 L Ed 357 375 (1967) Yakus v United States, 321 US 414, 88 L Ed 834 (1944), 64 S Ct 660 v ii i - United States Constitution Art III Sec. 1 • Thirteenth Amend. Fourteenth Amend. Fifteenth Amend. United States Code 12 USC §1904 (E c o n o m ic Stabilization Act of 1970) 28 USC §2281 28 USC §266 28 USC §380 28 USC §1292 (b) 29 USC §101, et seq (M o rr is - LaGuardia Act) 42 USC (Civil Rights Act of 1964, Title 1Y) 42 USC §1971, et seq (Voting Rights Act) 56 Stat. 23 (E m ergen cy P r i c e Control Act of 1942) Public Act No. 92-318 (Education Amendments of 1972) Sec. 802 Sec. 803 F ed e ra l Rules F R C P 19 F R C P 54 (b) i : I - X- M ichigan C ases Detroit Board of Education v. Supeintendent of Public Instruction, 319 Mich 436, 29 NW 2d 902 (1947) Ex R e l Workman, 18 Mich 399 (1869) Hiers v. Detroit Superintendent of Schools , 376 Mich 225, 136 NW 2d (1955) Jipping v. Lansing Board of Education, 15 Mich App 441, 166 NW 2d 472 (1968) Jones v. Grand Ledge Public Schools , 349 Mich 1, 84 NW 2d 327 (1957) Jones v. Grand Ledge Public Schools , 349 Moch 1, 82 NW 2d 327 (1957) Mac Queen v. City C o m m iss io n e r of Port Huron, 194 Mich 328, 160 NW 627 (1916) Penn School Distr ict No. 7 v. Lewis Cass Intermediate School Distr ict , 14 Mich App 109, 165 NW 2d 464 (1968) R ichards v. B irmingham School Distr ict , 348 Mich 490, 84 NW 2d 795 (1957) School D is tr ict of the City of Lansing v. State Board of Education, 3 67 Mich 591, 116 NW 2d 866 (1962) Welling v. Livonia Board of Education, 382 Mich 620, 171 NW 2d 545 (1969) Workman v. Board of Education of Detroit , 18 Mich App 364, 149 NW 2d 239 (1967) M ichigan Constitution 1963, Art VIII, Sec. 2 Michigan Public Acts 1867 PA 34, Sec. 28 1970 PA 48 1943 P A 88 (as amended, being Sect ions 24. 71 to 24. 82 of the Com piled Laws of 1948) 1952 PA 197 (as amended, being Sect ions 24. 101 to 24. 110 of the Compiled Laws of 1948) 1967 P A 237 1955 PA 269 1929 PA 319 (Part II, Chapter 2, Sec. 9) -x i i - M ichigan C om piled Laws Annotated § 1 6 . l 01 §16 .400 §16.401 §16 .402 §16 .403 §38.71 §38.91 §338. 681 §340. 1 §340. 26 §340. 77 §340. 113 §340. 165 §340. 181 §340. 182 §340. 192 §340. 251 §340. 25 2 §340., 352 M ichigan C om piled Laws Annotated §340.355 §340. 356 §340. 569 §340. 575 §340. 582 §340. 583 §340. 589 §340. 591 §340. 594 §340. 609 §340. 614 §340. 643 a §340. 711 §340. 882 §388. 1001 §423. 201 §423. 209 -x i CONGRESSIONAL RECORD - SENATE ( S 8282 5 /2 4 /7 2• S 8286 5 /2 4 /7 2 S 8396 * 5 /2 4 /7 2 S 8397 5 /2 4 /7 2 -x v - CONGRESSIONAL RECORD - HOUSE H 1852 H 1853 H 1852 H 1853 H 5404 H 5416 H 5419 H 10407 H 10407 H 10407 H 10408 H 10408 H 10409 H 10416 H 10416 H 10417 H 10417 3 /8 /7 2 3 /8 /7 2 1 1 /4 /7 1 1 1 /4 /7 1 6 /8 /7 2 6 / 8 / 7 2 6 / 8 / 7 2 1 1 /4 /7 1 1 1 /4 /7 1 1 1 /4 /7 1 1 1 /4 /7 1 1 1 /4 /7 1 1 1 /4 /7 1 1 1 /4 /7 1 1 1 /4 /7 1 1 1 /4 /7 ] 1 1 /4 /7 1 -x v i - TREATISES Through the Looking Glass - Lewis C a rro l l The T hree Judge D is t r i c t Court: Scope and P r o c e d u r e under §2281, 77 Harvard Law R ev iew 299, 305 (1963) A m Jur, Schoo ls , §18 50 A m Jur Statutes, §482 82C J. S. Statutes, §422 -xvu- OTHER: Offic ial R e c o r d , Michigan Constitutional Convention - Vol. II - 42. Convention Comment, Art . 8, §2, 1963 Const. U. S. House of Representat ives , 92nd C ongress , 2d Session, R eport No. 92-1085 Education Amendments of 1972, May 23, 1972, P 220 STATEMENT OF ISSUES PRESENTED I. Where a single school d istr ict has been found to have com m itted acts of de jure segregation, m ay a court constitutionally issue a d e s e g regation o rd er extending to som e f i f ty -two (52) other independent schoo l d istr icts and requir ing m a ss iv e bussing of children, absent (i) any c la im or finding that such other independent schoo l distr icts have del iberately operated in furtherance of a po l icy to deny a c c e s s to or separate pupils in schoo ls on the basis of race or (ii) absent any c la im or finding that the boundary lines of such other independent schoo l d istricts w ere c reated or have been maintained with the purpose of creating or fostering a dual s y s te m ? The Distr ict Court answered, " Y e s " . f Intervenor School Distr icts contend the answer is , "N o " . II. Did the Distr ict Court e rr in concluding, under the evidence in this case , that the r e l i e f of the de jure d e s e g r e gation found to exist in the Detroit School System cannot be a ccom p l ish ed within the co rp ora te geographical limits of the c i ty? Intervenor School Distr icts contend the Distr ict Court erred . -x ix - HI. ( Is the Detroit School System de jure segregated? The Distr ict Court answered, " Y e s " . Intervenor School Distr icts contend the Distr ict Court e rred . IV. Did the proceed ings in the Dis tr ict Court constitute a denial o f due p ro ce s s of law to Intervenor School D is tr ic ts? Intervenor School Distr icts answer, " Y e s " . V. Did the Distr ict Courts failure to convene a court of three judges pursuant to 28 U . S . C . §2281 divest the Distr ict Court of jur isd ic t ion to o rd er the restraint of enforcement, operation or execution of Michigan statutory p rov is ions? The Distr ict Court im pliedly answered, "N o" . Intervenor School Distr icts contend the answer is " Y e s " . VI. What is the p re c i s e legal status under State law of lo ca l s ch oo l d istr icts and boards of education v i s - a - v i s the State of Michigan? -x x - The Distr ict Court views schoo l distr icts as " s im p ly matters of poli t ical conven ience" which may be sum m ari ly d isregard ed by the Court. Intervenor School Distr icts a sser t that the establishment o f lo ca l schoo l distr icts by a State falls within those powers r e s e r v e d to the States by the Tenth Amendment and absent a finding that their creat ion or maintenance contravenes the Fourteenth Amendment they are insulated f r o m judic ial rev iews by F ed era l Courts. VII. A r e the expenditures required by the Distr ict Court to be made in this case at State expense authorized by any existing appropriation act? The Dis tr ict Court impliedly answered " Y e s " . Intervenor School Distr icts answer "N o" . VIII. Does Section 803 of the Education Amendments o f 1972, Pub. L . No. 92-31 8 apply to Metropolitan transportation o rd ers which have been or may be entered by the Distr ict Court in this c a s e ? The Dis tr ict Court did not answer the question. Intervenor School Dis tr icts answer " Y e s " . - x x i - IX. If Section 803 does a^ply, is it constitutional? T h e D i s t r i c t C o u r t did not ernawor the qu oot ion . Intervenor School Distr icts answer " Y e s " . - x x u - IN THE UNITED STATES COURT OF A P P E A L S FOR THE SIXTH CIRCUIT RONALD B R A D L E Y , et al, Plaintiffs - A p p e l le e s , v. WILLIAM G. MILLIKEN, et al, Defendants -A ppe l lants , and DETROIT FEDERATION OF TEACHERS, L O C A L #231, AMERICAN FEDERATION OF TEACHERS, A F L -C I O , Defendant-Inter venor, and DENISE MAGDOWSKI, et al, Defendants-Intervenor, ET A L . United States Court of Appeals No. 72-8002 BRIEF OF INTERVENOR SCHOOL DISTRICTS STA TE M E N T OF THE CASE This matter is b e f o r e the Court pursuant to an order of c e r t i f i c a tion issued by D is tr ic t Judge Stephen J. Roth, of the Eastern D istr ict o f Michigan, Southern Division, on July 20, 1972, in a c co rd a n ce with the p ro v is io n s of Rule 54 (b) o f the F e d e ra l Rules o f Civil P ro ce d u r e and 28 USC 1292 (b). Judge Roth determined that there was no just r e a s o n for a delay o f an appeal o f the following o rd e rs : 1. Ruling On Issue Of Segregation, September 27, 1971. (A. I a l9 4 ) . 2. Ruling On P rop r ie ty Of Considering A Metropolitan R em ed y To A c c o m p l i s h D esegregat ion Of The Public Schools Of The City Of Detroit, M a rch 24, 1972. (A. Ia439). 3. Findings Of F act And Conclusions Of Law On Detro it - Only Plans Of Desegregation, M a rch 28, 1972. (A. Ia456). 4. Ruling On Desegregat ion A r e a And Order F o r D eve lop ment Of Plan Of Desegregation , and Findings Of Fact And Conclusions Of Law In Support Of Ruling On D e s e g regation A re a And Development Of Plans. (A. Ia535 and Ia497). | 5. O rder F or A cquis it ion Of Transportation, July 11, 1972. (A. Ia576). A cco rd in g ly , this appeal has been brought to this Court. STATEMENT OF FACTS Intervenor School Distr icts include fo r ty - th ree (43) schoo l d istr icts located in Wayne, Oakland and M acom b counties in geographica l prox im ity to the City of Detroit. T h ir ty - three (33) o f Intervenor School Distr icts are included within the s o - c a l l e d "d esegrega t ion a rea " invented by plaintiffs ' - 2- witness and adopted by the D is tr ict Court in its Ruling On Desegregat ion A rea and O rder F o r Development Of Plan Of Desegregation issued on June 14, 1972 (A. Ia535).W There are f i f ty -three (5 3 )^ independent sch oo l districts e n c o m p a s se d in the D is tr ic t Court 's s o - c a l l e d desegregat ion area , including the City of Detroit School D is tr ict and eighteen (18) sch oo l d is tr ic ts which have never been parties to this c a s e be fore the D is tr ic t Court in any capacity. E ach of the s ch oo l d istr icts is a munic ipal body corp ora te , being g eog ra ph i cally and po l i t ica l ly independent and organized and exist ing pursuant to the Constitution and laws of the State of Michigan. Each schoo l d is tr ic t is governed by its resp ect ive du ly -e lec ted Board of Education. This action was com m en ced by the filing of a Complaint by the plaintiffs on August 18, 1970. No amended or supplemental complaint has e v e r been f iled herein. The defendants named in the Complaint are the G overn or of the State of Michigan, the Attorney General of the State of Michigan, the Michigan State Board of Education, the Superintendent of Publ ic Instruction for the State of Michigan, the Board of Education of the City of Detroit and its individual m e m b e r s , and the then Superintendent of - 3 - [1] Parenthet ica l re fe ren ces pre faced with the letter " A " re fer to the volume and page of the printed Joint Appendix filed with this Court. [2] The June 14, 1972, Order of the D istr ict Court lists a total of f i f ty - four (54) sch oo l d is tr ic ts . (A. Ia539). The Dearborn School D istr ict includes Fa ir lane which is e r ron eous ly designated as a separate sch oo l d istr ict by the D is tr ic t Court. the Detroit Public Schools (A. ia.7-8 and Ia9-10). No s ch oo l d is tr ic t other than the City of Detroit s ch oo l d istr ict was named as a defendant. • . The gravam en of the Complaint is stated in paragraph I thereof as fo l lows: " . . . this being a suit for d ec laratory judgment dec lar ing certain portions of A c t No. 48 of the Michigan Public A c ts of 1970 (a copy of which is attached hereto as Exhibit A) unconstitutional. This is a lso an act ion for injunctive r e l i e f against the en forcem ent of certain p o r tions of said A c t No. 48 and to require the operation of the Detroit , Michigan public schoo ls on a unitary b a s i s . " (A. Ia8). [Emphasis added.] The Complaint a l leged that in the 1969-70 sch oo l year the overa l l rac ia l student population of the Detroit schools was 61. 9% Negro, 36. 4% white and 1. 7% w ere of other ra c ia l ethnic m inor i t ies (A. Ial2) . It was further a l leged that som e of the schoo ls in the City of Detroit w ere identifiable as "w hite " schoo ls or as " N e g r o " schoo ls (A. Ial2), and that - - "P la int i f fs a llege that they are being denied equal educational opportunities by the defendants because of the segregated pattern of pupil assignments and the rac ia l identifiability of the schoo ls in the Detroit public schoo l s y s t e m . Plaintiffs further a llege that said denials of equal educational opportunities contravene and abridge their rights as se cu red by the Thirteenth and Fourteenth A m e n d ments to the Constitution of the United S ta tes . " (A. Ial7). [Emphasis added.] P la in t i f f a Is o al leged that the Detroit School Board had fo l lowed a ra c ia l ly d is c r im in a to ry pol icy in assigning faculty and staff m em b e rs -4 - em ployed in the Detroit schoo l system on the basis of ra ce and co lo r . (A. Ia 18). > The concluding paragraph of the Complaint also made it c lea r that the m atters complained of re lated so le ly to the City of Detroit School Distr ict : "Pla int i f fs and those s im i lar ly situated and affected on w hose behalf this act ion is brought are suffering i r r e parable injury and wi l l continue to suffer i r repa ra b le injury by re a s o n o f the p rov is ion of the A ct complained of [3] herein and by reason of the failure or re fusa l o f defendants to operate a unitary sch oo l system in the City of D etro it . . . . 11 (A. Ial8). [Emphasis added. ] The r e l i e f requested by plaintiffs was the implementation o f the -Detroit School B oard 's partia l plan of senior high schoo l desegregation adopted on A p r i l 7, 1970, the restraining of those port ions o f Act 48 c o m plained of, restra in ing new schoo l construction, requir ing the assignment o f faculty and staff to each schoo l in Detroit accord ing to the system -w id e ra c ia l m ix and a plan for a unitary, n on -r a c ia l schoo l system. (A. Ia l9 -2 0 ) . In sum m ary , the plaintiffs c la im ed only that the City of Detroit schoo l sy s tem was not operated on a unitary bas is and the only r e l i e f sought was l im ited to the City of Detroit schoo l system. T h ere was no c la im , and there has been no finding, that the Detroit schoo l d is tr ic t i t se l f was established in -5 - A ct 48, Public A cts of Michigan, 1970. furtherance o f any p o l i cy to foster segregation. The Complaint, and finding, is that the Detroit schoo l system has not been operated on a unitary bas is . T h ere has been no complaint, and no finding, that any o f the f if ty-two (52) independent school d istr icts se lec ted by the Distr ict Court for inclusion in its desegregat ion plan w ere established in furtherance of a p o l icy to foster segregation , or that any such school d istr ict has denied a dm iss ion to or separated any chi ldren on the basis of r a ce or that the establishment or op e ra tion o f any of such schoo l d istr icts has been a causal factor in connection with the de jure operation of the Detroit schoo l system found by the Distr ict Court. The D is tr ic t Court, though undaunted by lack of any allegations or findings as to any s ch oo l d istr ict other than Detroit , candidly acknowledged that - - . . the court has taken no p roo fs with re sp e c t to the establishment o f the boundaries of the 86 public schoo l d is tr ic ts in the counties of Wayne, Oakland and M acom b, nor on the issue of whether, with the exc lus ion of the city o f Detroit schoo l d istrict , such schoo l d istr icts have c o m mitted acts of de jure segregation. " (A. Ia498), B e fo re the tr ia l on the m er its ever co m m e n ce d an inter locutory appeal was taken to this Court seeking to obtain implementation of the Detroit School B oard 's A p r i l 7, 1970, plan designed to e f fect a m ore balanced rat io o f Negro and white students at the senior high sch oo l level and to d e te r mine the constitutional validity o f A ct 48 o f the Public A cts of 1970. M - 6 - 4 [4] As the Court observed , A c t 48 was applicable only to the City of Detroit s ch oo l d istr ict . Bradley v M il l iken , 433 F2d 897, 900 (CA 6, 1970). This Court d ec la re d that A c t 48 was unconstitutional, in part, because it thwarted the e f fort of the Detroit School B oard to implement its plan to p rov ide a better balance between Negro and white students in twelve high Fol low ing this Court 's determination as to the unconstitutionality of that part of A c t 48 which prec luded implementation of the Detroit B oa r d 's A p r i l 7, 1970, plan, plaintiffs p revai led upon the D is tr ic t Court to order said plan into e f fect . The D is tr ic t Court declined to so do and another appeal was This Court denied the re l ie f requested and remanded the ca se to the D is tr ict Court with instructions to hold a hearing on the matter forthwith. The trial on the m er i t s l imited to the issue of segregation in the [7]Detro it public s ch oo l system was concluded on July 22, 1971, and on Septem ber 27, 1971, the D is tr ic t Court issued a Ruling On Segregation (A. Ia 194), a lso l imited to the Detroit s ch oo l system , finding " a de jure segregated sch oo l sy s tem in operation in the City of Detroit" (A. Ia215, Emphasis added). [5]sch oo ls in Detroit . - 7 - ^ Ibid. 1 B rad ley v Mil liken, 438 F2d 945 (CA 6, 1971). ^ RulirgOn Issue Of Segregation (A. Ial94). f'fS®* The D is tr ic t Court found that the pr inc ipa l causes for the segregat ion found to ex ist in Detro it w ere population m ovem en t and housing patterns - - " . . . A current condition of segregat ion exists . . . . The pr inc ipa l causes undeniably have been population m o v e ment and housing patterns, but state and lo ca l g o v e rn m e n tal act ions , including s ch oo l board act ions , have played a substantial ro le in promoting segregation . . . . " (A. Ia210). The D is tr ic t Court concluded, how ever , that - - " . . . both the State of Michigan and the Detroit B oard of Education have com m itted acts which have been causal fa c tors in the segregated condit ion of the public s ch oo ls of the City of Detroit . . . . " (A. Ia210). . v , The acts of the defendants expl icated by the D is tr ic t Court can be su m m a r ized as fo l low s : 1. The Detro it B o a r d 's creating and maintaining optional attendance zones in neighborhoods undergoing ra c ia l transit ion in a manner which has had the natural, probably and actual e f fect of continuing b lack and white pupils in ra c ia l ly segregated schoo ls . (A. Ia201-204, Ia211-212). 2. The p ra c t i c e of the Detroit Board of transport ing black students f r o m ov erc row d ed black schoo ls to other identifiably b lack s ch oo ls , while passing c l o s e r identi fiably white schoo ls which could have accepted the b lack pupils. (A. Ia212). .8 . 3. The Detroit B oa rd 's creating and altering attendance zones , maintaining and altering grade structures and creating and altering feed er s ch oo l patterns in a manner which has had the e f fect of continuing black and white pupils in ra c ia l ly s e g r e gated s c h o o l s . ^ (A. Ia202-203, Ia212-213). 4. Constructing new schoo ls within the City of Detroit s ch oo l district in such manner as to contain the b lack population. (A. Ia203-204). 5. Fa i lure of the State to provide funds for the transportation of pupils "within D etro i t " . (A. Ia204). 6. The e f fect of A c t 48, Public A cts of 1970 re the internal reorganizat ion of the Detroit s ch oo l d is tr ic t and thwarting the Detroit B o a r d 's A p r i l 7, 1970, plan to achieve a better rac ia l balance in som e high sch oo ls . (A. Ia204-205). While the D is tr ic t Court held that the above -s tated acts led to pupil s e g r e g a tion in the Detroit s ch oo ls , it concluded that there was no segregat ion of faculty and staff and set forth its basis for such conc lus ion in thirty (30) numbered paragraphs (A. Ia205-209). - 9 - ^ The D is tr ic t Court noted that s im ply by drawing boundary lines in an east - w es t d irec t ion the Detroit Board could achieve "s ign i f icant integration". (A. Ia203). It should be noted that the findings of the D is tr ict Court are couched in genera l and conc lus ion ary terms so as to render it im poss ib le to d e t e r mine the factual predicate for such findings. F o r example , one cannot determ ine f r o m the findings of the D is tr ict Court the identity of the schoo l or schoo ls which are a sser ted ly segregated. L J The findings in terspersed in the D is tr ic t Court 's Ruling On Segregation com plete ly fail to set forth with any d egree of particularity the facts upon which its ultimate conclusions are based. Nowhere in its findings and conc lusions issued as part of its Ruling On Segregation does the D is tr ic t Court a sse r t that any s ch oo l d istr ict , except Detroit , has failed in the constitutional obligation to maintain a unitary s ch oo l sy s tem or that the actions of the State with resp ec t to the creat ion and operation of the s ch oo l d istr icts other than Detroit have any casual connection with the de jure segregation found extant within the boundaries of the Detroit schoo l system . On N ovem ber 5, 1971, the D is tr ic t Court o rd ered the Detroit Board of Education to submit a plan of desegregat ion of the Detroit s choo ls within - 1 0 - _ - LJ C om pare United States of A m e r i c a v Texas Education A gen cy et al, __ F2d____ (CA 5, August 2, 1972), slip opinion, page 75. Plaintiffs in their Complaint c la im ed that som e Detroit schoo ls were separated but did not identify them with particularity. sixty (60) days and ord ered the State defendants to submit a s o - c a l l e d m etropoli tan plan of desegregat ion within one-hundred twenty ( 1 2 0 ) days (A. Ia325 -326). t 10! The D is tr ic t Court 's Order of N ovem ber 5, 1971, adumbrated a dram atic change in the nature of the p roceed ings . Despite having conducted a trial l imited to the issue of unlawful segregat ion within the Detroit s ch oo l sy s tem and having made findings l imited to such issue, the D is tr ic t Court p e r ce iv e d its r e m ed ia l p ow ers to be infinite. A s if by em pyrea l d e c re e , som e e ighty - f ive (85) independent s ch oo l d is tr ic ts in Wayne, Oakland and M a com b counties w ere suddenly confronted with the p rosp ec t of being su b jec ted to jud ic ia l fiat without any c la im , trial or finding that either their establishment or operation was tainted by unconstitutional acts . Pursuant to the aforem entioned O rder of N ovem ber 5, 1972 (A. Ia325), a s o - c a l l e d m etropol i tan plan of desegregat ion was filed with the D is tr ic t Court on or about F eb ru a ry 4, 1972. On F eb ru a ry 9th, 16 and 17th, resp ect ive ly , G r o s s e Pointe Public Schoo ls , A l len Park Public Schools , et al, Southfield Public Schools and School D is tr ic t of the City of Royal Oak f iled motions to intervene for the - U - ̂ ̂ Inasmuch as there was, and is, no c la im, evidence o r finding of m e t r o politan segregation , it is submitted that the D is tr ic t Court e r re d in ordering the subm iss ion of a metropoli tan plan of desegregation . purpose of representing their interests and those of the parents and chi ldren situate in said s ch oo l d is tr ic ts . On M a rch 15, 1972, the D is tr ic t Court issued its o rd er granting said s ch oo l d is t r i c t s ' motions to intervene as a matter of right, and s imultaneously im posed the fol lowing conditions designed to c i r c u m s c r i b e Intervenor Schoo l D is tr i c t s ' partic ipation in the proceed ings . "1 , No intervenor wil l be perm itted to a s s e r t any c la im or defense p rev iou s ly adjudicated by the court. " 2 . No intervenor shall reopen any question or issue which has p rev iou s ly been dec ided by the court. "3 . The partic ipation of the intervenors cons idered this day shall be subordinate to that of the or ig inal parties and prev ious intervenors . " 4 . The new intervenors shall not initiate d is co v e ry p roceed ings except by p e rm is s io n of the court upon a p p l i ca tion in writ ing, accom panied by a showing that no present party plans to or is wil ling to undertake the particular d i s c o v e r y sought and that the particular m atter to be d is co v e re d is relevant to the current stage of the p roceed ings . "5 . No new intervenor shall be permitted to seek a delay of any proceeding in this cause ; and he shall be bound by the b r ie f and hearing schedule established by the Court 's Notice to Counsel , issued M a rch 6, 1972. " 6 . New intervenors wil l not f ile counterc la im s or c r o s s - c om p la in ts ; nor wil l they be permitted to seek the jo inder of additional parties or the d ism issa l of present parties, except upon a showing that such action wil l not result in delay. - 12 - "7 . New intervenors are granted intervention for two pr incipal purposes: -(a) To advise the court, by brief , of the legal propr iety or im propriety of cons ider ing a m e t r o politan plan; (b) To review any plan or plans for the d e s e g regation of the s o - c a l l e d larger Detroit Metropoli tan area, and submitting ob ject ions , modif ications or alternatives to it or them, and in a cco rd a n ce with the requirements of the United States Constitution and the p r ior o rd ers of this Court. " 8 . New intervenors shall present evidence, if any they have, through witnesses to a number to be set, and l imited, if n ecessa ry , by the court, fo llowing con ference . " 9 . With regard to the examination of witnesses , all new intervenors shall among themselves se le c t one attorney per witness to act for them, unless one or m o r e of the new intervenors show cause o t h e r w is e . " (A. Ia409-410). Intervenor School D is tr ic ts f iled written ob ject ions (A. Ia411-424) with the D is tr ic t Court against the im posit ion of such conditions . To date, the D is tr ic t Court has made no response to said ob ject ions. Upon being granted right to intervene on M arch 15, 1972, the D istr ict Court advised Intervenor School Distr icts that the Court had p rev ious ly set M a rch 22, 1972, as the date for filing of b r ie fs on the legal propr iety of a m etropoli tan plan of desegregat ion and that said Intervenor School Distr icts thus had one (1) week to present their lega l arguments on such issue. On M arch 24, 1972, two (2) days after the due date for the filing of b r ie fs , the D is tr ic t Court issued a "Ruling On P rop r ie ty Of Considering A Metropoli tan R em ed y T o A c c o m p l i s h D esegregat ion Of The Public Schools Of The City Of Detro it" (A. Ia439). - 13 - The D is tr ic t Court c o m m e n c e d taking test imony on a m etropoli tan plan of desegregat ion at 10:10 a. m. on M a rch 28, 1972. About two (2) hours a fter Intervenor School D is tr ic ts ' counse l had f i r s t appeared in the D is tr ic t Court and b e fo re com plet ion of test imony o f a single witness , the D is tr ic t Judge announced that all counse l could stop by his o f f ice and pick up his Findings Of Fact and Conclusions Of Law On Detro it -Only Plans Of [H]Desegregat ion (A. Ia456). Rely ing upon inapposite ca ses w here a sta te wide s ch oo l sy s tem was fos tered and operated pui'suant to state pol icy , the D is tr ic t Court announced its intention to seek a ra c ia l m ix by means of a m etropol i tan plan of desegregation . On June 14, 1972, the D is tr ic t Court issued Findings Of Fact And Conclusions Of Law In Support Of Ruling On D esegregat ion A r e a And Developm ent a Plans (A. Ia497) and Ruling On Desegregat ion A r e a And Order F o r Development Of Plan Of D esegregat ion (A. Ia535). In the opening paragraph of the Findings Of Fact And Conclusions Of Law, the Court stated - - " It should be noted that the court has taken no proofs with resp ec t to the establishment of the boundaries of the 86 public schoo l d istr icts in the counties of Wayne, Oakland and M acom b, nor on the issue of whether, with the exc lus ion of the city of Detroit s ch oo l d is tr ic t , such sch oo l d istr icts have com m itted acts of de jure s e g r e g a t io n . " (A. Ia497-498). -1 4 - ^ ^ B rad ley v Richmond, 338 F Supp 67 (1972) upon which the D is tr ict Court placed strong re l iance for its metropoli tan rem ed y was r e v e r s e d by the Court of Appeals for the Fourth Circuit on June 5, 1972, Bradley v R ich m on d, F2d (1972). Il lustrative of the Distr ict Court 's p red i lec t ion for distort ing both law and fact to co inc ide with its individual viewpoint is the in c o r r e c t state ment that the intervenors are seeking a retur.n to the " sep arate but equal po l icy adopted in P le s s y v Ferguson , 163US 537 (1896) (A. Ia499, Ia502- 503. Such rh e to r i ca l com m ent is utterly without foundation and w r o n g fully im pl ies that Intervenor School D is tr ic ts ' opposition to a s o - c a l l e d m etropol i tan rem ed y is founded upon ra c ia l cons iderat ions . Unfortunately, the D istr ict Court has continually assum ed the erron eous postulate that sch oo l authorit ies and private c it izens who oppose the Distr ict C ourt 's p rop os ed fo r c e d reass ignm ent of nearly 400, 000 chi ldren are ra c ia l ly , motivated. (A. Ia505, para. 21). Counsel fee l constrained to note the d i s p leasure of counsel, Intervenor School Distr icts and private cit izens with r e s p e c t to such unwarranted and unjudicious com m ents . Intervenor School Distr icts submit that the following spec i f i c Supplementary Findings of Fact made in support of the Distr ict Court 's -1 5 - [12] The rationale of the Distr ict Court in decree ing that the m ake-up of Negro schoo l chi ldren must be confined to a minority of approx im ately 25% in ev ery grade, schoo l and c la s s r o o m might be appropriate ly d esc r ib ed as an unconscious return to the spirit of Dred Scott v Sanford , 60 US (How) 393 (1856). See opinion of Judge Sobeloff in Brunson v Board of "trustees o f School Dis tr ict No. 1, Clarendon, S. C. , 429 F2d 820 (CA 4, 1970). o rd e r fo r a s o - c a l l e d metropoli tan plan of desegregat ion and included in the D is tr ic t Court 's June 14, 1972, Order are in e r r o r :.[13] 1 . that the State defendants represent the " s c h o o l authorit ies" (A. Ia500, para. 6). 2. that the State defendants ignored the c lear order of the Court and abdicated their responsib i l i ty for superv is ion of public education and equal protect ion of all c it izens (A. Ia502, para. 9 and 1 1 ). 3 . that the intervening defendant s ch oo l d istr icts sug g es ted that [14] separate sch oo ls w e r e p re fe ra b le (A. Ia502, para. 13). 4 . that the t r i - county area constitutes the relevant benchmark in beginning the evaluation of how to e f fect ive ly eliminate the ra c ia l segregat ion in the Detroit s choo ls (A. Ia503, para. 17). - 16 - [13] 1 Intervenor School Dis tr ic ts contend that a s o - c a l l e d m etropoli tan plan of desegregat ion is totally legally im p e r m iss ib le . Apart f r o m such contention, how ever , many findings of the D i s t r i c t Court are patently e rroneous or not supported by the evidence and Intervenor School Distr icts do not wish to have it a ssu m ed that they are in a c c o r d with the findings constructed by the D is tr ict Court as a foundation for its s o - c a l l e d m etropol i tan plan of desegregation . The ob ject ions above -noted are il lustrative and not intended to be exc lus ive . L The D is tr ic t Court in the paragraph re fe r r e d to apparently excor ia tes forty (40) of the Intervenor School Distr icts f o r choosing to be represented by a single counsel . This is indeed ironic in view of the restraints placed on the Intervenor School Distr icts by the D is tr ic t Court at the time of their in ter vention (A. Ia409-410). I 5 . that f o r sch oo l authorities or private cit izens to now object to transportation pract ices in the context of a s o - c a l l e d metropoli tan plan of desegregat ion ra ises the in ference not o f hostili ty to pupil transportation but rather rac ia l ly m o t i vated hostility to the desegregated schoo l at the end of the ride. (A. Ia505, para. 21). 6. that the appropriate desegregat ion area is d escr ib ed by plaintiffs m odif ications of the three p r im ary p roposa ls and other findings assoc ia ted therewith (A. Ia507-508, para. 32 and A Ia509, para. 38). 7 . that the s o - c a l l e d metropoli tan plan of desegregat ion wil l not result in a significant increase in the number of pupils requ ired to be transported in the tr i - county area (A. Ia510- 511, para. 44). 8 . that desegregat ion within the f i f ty -three (53) schoo l d istr ict area designated by the D is tr ic t Court is physical ly eas ier , and m o re p ra c t i ca l and feas ib le , than desegregat ion ef forts limited to the co rp ora te geographic limits of the City of Detroit . (A. Ia512, para. 51). - 17- 9. that the black population was la rge ly contained in the City of Detroit by f o r c e of rac ia l d iscr im inat ion (A. Ia515-5l6 , para. 65). * The D is tr ic t Court 's Order F o r Development Of Plan Of Desegregation is p re m ise d on the a sser t ion that " r e l i e f of segregation in the Detroit public s choo ls cannot be a ccom p l ish ed within the corp orate geographica l limits of the c i ty" (A. Ia536). ^ No explanation as to why such a ssert ion is so is o f fered by the D is tr ic t Court. The June 14, 1972, Order of the D is tr ic t Court created a panel of nine (9)^ ̂ persons to prepare and submit a s o - c a l l e d m etropoli tan plan of desegregat ion . ^ Despite the fact that the f i f ty -tw o (52) sch oo l d is tr ic ts , outside Detroit , who are included in the s o - c a l l e d desegregat ion area have approx im ate ly 503,000 students com p ared to Detro it 's approx im ate ly 276,000 students, the D is tr ic t Court d irected they should have a single representative on the panel while the Detroit Board of Education was granted three (3) panel m e m b e r s (A. Ia537). -18 - As w il l be m o r e fully dealt with in the argument, such contention exhibits a m isapp l icat ion of the constitutional com m and to desegregate segregated schoo ls The D is tr ic t Court e r ron eou s ly views rac ia l balancing and desegregat ion as synon ym ous . [l6l Subsequently increased by the D istr ict Court to eleven (11) people to p e r mit representat ion on the panel by two (2) teacher organizations. The recom m endations of the panel have been submitted to the Dis tr ict Court and counse l but counsel for Intervenor School Distr icts and their clients have not had adequate opportunity to rev iew the same. The D is tr ic t Court 's com m and is not to s im ply desegregate the Detroit public s choo ls but to reass ign pupils in o rder to a rr iv e at a rac ia l balance among the Detroit public schoo ls and the schoo ls within the f i f ty -two (52) independent s ch oo l d is tr icts se lec ted by the D is tr ic t Court. While ass iduously avoiding the use of the w ords " r a c i a l balance" the overr id ing ob ject ive of the D is tr ic t Court to achieve a rac ia l balance is patently ex p r e sse d in the fo l lowing statement: " . . . pupil reass ignments shall be ef fected within the c lusters d escr ib ed in Exhibit P. M. 12 so as to achieve the greatest degree of actual desegregat ion to the end that, upon implementation, no school , grade or c la s s r o o m by "be' substantially d isproportionate to the overa l l rac ia l com p os ition. (A. Ia539-540) . [Emphasis added.] Despite having prev ious ly found that there was no unlawful segregation of faculty and staff in the Detroit schoo l d is tr ic t (A. Ia205-209) and having opined that the matter of faculty reass ignm ent was "a l r e a d y litigated" (A. V a l55 ) , " f o r e c l o s e d " (A. V a l57 -1 5 8 ) and, that the court was "prec lu d ed f r o m consider ing the matter of faculty" (A. V a l5 5 ) , the Court 's Order of June 14, 1972, mandates the reassignment of faculty and staffs (A. Ia540-541, para. F) . On July 11, 1972, the D is tr ic t Court o rd ered the Detroit B oard of Education to purchase at least 295 busses (est imated cost approx im ately $ 3 , 0 0 0 , 000 ) for the purpose of transporting pupils under a desegregat ion - 1 9 - ■ V 'r - plan not then in e sse and sua sponte added the State T r e a s u re r as a party defendant to d isburse the n e c e s s a r y monies (A. Ia576-579). On July 20, 1972, the D is tr ic t Court entered an Order dec lar ing its p r io r rulings and o rd e rs , concerning its finding of de jure segregation in Detro it and its rulings on a D etro i t -on ly and a s o - c a l l e d metropoli tan plan of desegregat ion , to be deemed final o rd ers under Rule 54 (b) of the Fed era l Rules of Civi l P ro ce d u r e and cert ifying the issues presented therein under the prov is ion s of 28 USC 1292 (b) (A. Ia590). This case is now be fo re this Court on appeal f r o m said o rd ers r e fe r r e d to in the D is tr ic t Court 's Order of July 20, 1972 (A. Ia590). ARGUMENT L | IS A S O -C A L L E D M E T R O P O L IT A N PLAN OF SCHOOL DESEGREGATION PE RM ITTE D OR REQUIRED IN THE INSTANT CASE?_______ The full im port of the question em b ra ced within the above caption is m o r e expl ic i t ly stated as fo l low s : Where acts of de jure segregat ion have been determined to have been com m itted with re fe ren ce to the matter of pupil a s s ig n ments within a single sch oo l d is tr ic t , m ay a D is tr ic t Court issue a desegregat ion order extending to f ifty-tv /o (52) other geographica l ly . 2 0- and po l i t ica l ly independent s ch oo l d istr icts and requir ing m a ss iv e f o r c e d reass ignm ent of chi ldren in all f i f ty -three (53) s ch oo ls , absent (i) any c la im or finding that such other f i f ty -two (52) inde pendent sch oo l d is tr ic ts have been maintained or operated in furtherance of a p o l icy to deny a c c e s s to or separate pupils on the basis of race , or (ii) absent any c la im or finding that the boundary lines of any s ch oo l d is tr ic ts w ere established with the purpose of creat ing or fos ter ing ra c ia l segregat ion in the sch oo ls? E stabl ished jud ic ia l precedent c le a r ly answers the above -s tated questions in the negative and mandates a r e v e r s a l of the D is tr ic t Court 's Ruling On D e s e g regation A r e a and Order F o r Development Of Plan Of Desegregat ion (A. Ia 535-543) , and its Ruling On P rop r ie ty Of Considering A Metropolitan R em ed y T o A c c o m p l i s h D esegregat ion Of The Public Schools Of The City Of Detroit (A. Ia439-443). A . The Only Allegations And Findings In This Case Relate Solely to the Question of De Jure Segregation Within the Detroit School Distr ict .__________ As p rev ious ly noted in the Statement of the Case, the Complaint filed in this act ion was unique to the City of Detro it School Distr ict . The plaintiffs c la im ed that there w ere som e rac ia l ly identifiable schoo ls in the Detroit s ch oo l sy s tem resulting f r o m the failure of the Detroit Board of Education -2 1- Plaintiffs have not c la im edto operate the s ch oo l sy s tem on a unitary basis , that the City of Detroit School D is tr ic t was established in furtherance of a p o l i cy of rac ia l separation of sch oo l chi ldren. The D is tr ic t Court took no p roo fs re lative to the establishment of the Detroit School D is tr ic t and made no finding that it was established in furtherance of a p o l i cy o± ra c ia l s e g r e gation (A. Ia497-498). In short, the allegations and findings of segregat ion within the Detro it s ch oo l sy s tem relate so le ly to the operation of that p ar t i cular s ch oo l system . " T h e public s ch oo ls operated by Defendant B oard are thus segregated on a rac ia l bas is . This rac ia l segregat ion is in part the result of the d is c r im in a to ry acts and o m iss ion s of defendant B o a r d . " Ruling On Issue Of Segregation. (A. Ia203). [Emphasis added.] "Having found a de jure segregated public schoo l s y s te m in operation in the wity of Detroit . . • . Ruling On Issue Of Segregation (A. Ia215). [Emphasis added.] The D is tr ic t Court has never identified the schoo ls in the Detroit s ch oo l sy s tem which it b e l ieves to be unlawfully segregated . As noted p rev iou s ly , plaintiffs have never c la im ed that the Detroit Board of Education totally defaulted in its obligation to operate a unitary s ch oo l system , and the ra c ia l m ake-up of certa in sch oo l constel lat ion areas within the Detroit sy s tem indicate that som e schoo ls re f lect , within to lerable l imits , the pupil ra c ia l constituency of the s ch oo l d is tr ic t as a whole (approximately 65% -2 2- black, 3 5% white), or do not contain a significant predominance of b lack or white students. F o r example, the white to b lack ratio for the b e low -nam ed sch oo l constel lat ions is shown in plaintiffs Exhibit P .M . 12 (A. IXa580-584) which is the basis fo r the rac ia l balancing schem e adopted by the D is tr ict Court (A. Ia539): D etro it Persh ing Detro it Finney D etro it Chadsey Detro it W estern Detro it Southwestern 64. 2% black 55. 3% black 44. 7% black 45. 6% black 44. 54% black A ls o , it is noteworthy that the ra c ia l m ake-up of the Detroit Osborn and Detro it F o rd s ch oo l constel lat ions is virtually the same as the ratio a imed fo r in the D is tr ic t Court 's desegregat ion plan, i. e. , 75% white and 25% black. A part f r o m the alleged failure to operate the sy s tem on a unitary bas is , the other basis for c laiming that the Detroit s ch oo l system in unlawfully s e g regated der ives f r o m the enactment of A c t No. 48 of the Public A cts of 1970. This A c t is a lso unique to the City of Detroit School Dis tr ict , Bradley v M il l iken , 433 F2d 897, 900 (CA 6, 1970), and has no application whatsoever to any other sch oo l d is tr ic t . This Court dec la red one sect ion of A ct 48 uncon stitutional because it thwarted the ef forts of the Detroit School Board to e f fect a m o r e balanced ratio of Negro and white students in certain high schools in Detroit . Bradley v Mill iken, 433 F2d 897 (CA 6, 1970). Plaintiffs have never c la im ed that any one of the f i f ty -two (52) s ch oo l d is tr ic ts se lec ted fo r the purpose of rac ia l balancing were established in furtherance of a po l icy of rac ia l segregation. The D is tr ic t Court took no p roo fs and made no findings that said sch oo l d is tr ic ts w ere so established (A. la497-498). Plaintif fs have never c la im ed that any one of the f i f ty -two (52) s ch oo l d is tr ic ts included in the D is tr ic t Court 's rac ia l balancing schem e have fa i led to operate a unitary schoo l system or that the operation of said s ch oo l d is tr ic ts had any causal connection with the al leged failure of the Detroit B oard of Education and the State defendants to operate a unitary s ch oo l sy s tem in Detroit . The D i s t r i c t Court has made certain statements relative to sch oo l d is tr ic ts other than the City of Detroit , as if they w ere findings, which should be noted. These statements should be noted because they are apparently used in support of the D is tr ic t Court 's order for a s o - c a l l e d metropoli tan plan of desegregat ion despite the fact they are without evidentiary support and are e rron eous . Alluding- to the e ighty -s ix (86 ) sch oo l d istr icts in the counties of Wayne, Oakland and M acom b, the D is tr ic t Court states that - - -2 4 - "The boundaries of these school d istr icts in general bear no re lationship to other municipal, county, or spec ia l d is tr ic t governments, needs or s e rv i c e s . " Findings Of F a c t And Conclusions Of Law In Support Of Ruling On D es eg regat ion A r e a And Development Of Plans (A. Ia517, para. 74). Such statement is utterly astonishing in light of the Distr ict Court 's frank a d m iss ion in the same findings that - - . . the court has taken no proo fs with re sp e c t to the establishment o f the boundaries o f the 86 public school d is tr ic ts in the counties o f Wayne, Oakland and M acom b . . . (A. Ia497-498). [Emphasis added , ] It might a lso be noted that the City of Detroit School Distr ict boundaries have been co - t e rm in u s with the boundaries of the City of Detroit by leg is lat ive enactments going back o ne ” hundred thirty (130) years to 1842. Contrary to its own finding and without evidentiary foundation, the D is tr ic t Court a s s e r t s that the State defendants and schoo l authorities throughout the "m etropol i tan a rea " have pursued actions calculated to create and maintain ra c ia l segregation in the public schools . "10. Where the actions of state defendants and local s ch oo l authorities throughout the metropoli tan area have had the natural, fo rseea b le , and actual e f fect o f building upon, -2 5 - t 18] See: Ex R e l W ork m a n , 18 Mich 399, 408 ( 1 8 6 9 ) and MSA 15. 31 81 and 15. 3182. taking advantage of, and -encouraging ra c ia l ly segregated d em ograph ic patterns del iberately f ixed by governmental act ion at all leve ls with the e f fect o f creating and maintain ing r a c ia l segregation in the public s choo ls , there is a present obligation to eliminate the continuing e f fects of such v io lation. . . . " (A. Ia525-526). [Emphasis a dded . ] T here is no evidentiary basis upon which the forego ing , se l f - indulging co n c lus ion can be substantiated and said conc lus ion cannot be r e co n c i le d with the D is tr ic t C ourt ’ s con fess ion that it took "no p r o o f s " with, r e s p e c t to the establishment o f the boundaries o f the e ighty -s ix (86) public schoo l d istr icts in Wayne, Oakland and M acom b counties nor on the issue o f whether such sch oo l d is tr ic ts have committed acts of de jure segregation (A. Ia497-498). M o r e o v e r , the D istr ict Court never sought to have any sch oo l d istrict , other than Detroit , brought into these p roceed ings as either a n e c e s s a r y or indispensable party. ' f The Complaint here in was limited to the issue as to the fa ilure of the City o f Detroit schoo l d istr ict to maintain a unitary sch oo l system (A. Ia8 ; Ia l9 4 -1 9 5 ) . The T r ia l on the m er its was also so l imited and the findings and conc lus ions result ing f r o m the tr ia l w ere s im i la r ly l imited in scope (A. Ia l9 5 -1 9 6 ; Ia203; Ia210; Ia2l5) , The fed era l ly -p ro te c te d right found to have been vio lated is the right of b lack chi ldren not to be e f fect ive ly excluded f r o m any schoo l because o f ra ce or co lo r . A lexander v H o lm e s , 396 US 19, 20 (1969). There is no evidence that black chi ldren have been -2 6 - denied the right to attend any schoo l in any sch oo l d istr ict , other than Detroit , on the same basis as white children. The condition which the D is tr ic t Court found to offend the Constitution is the manner in which the Detroit s ch oo l sy s tem has been operated and such condition does not requ ire or permit the ordering of a s o - c a l l e d metropoli tan plan of d e s e g regation. It is submitted that in ordering a s o - c a l l e d metropoli tan plan of desegregat ion the D is tr ic t Court has ignored the principles established by the United States Supreme Court, and the statement of this Court, that - - " The issue in this case is not what might be a d e s i r a ble Detroit sch oo l plan, but whether or not there are co n s t i tutional violations in the schoo l system as presently operated, and, if so, what re l ie f is n e ce s sa ry to avoid further im p a ir ment of constitutional r ig hts . " B radley v Mill iken, 438 F2d at 946. [Emphasis added.] [19] •3 Brown v Board of Education, _______ And Its Progeny, Revisited. " 'When I use a word, 1 Humpty Dumpty said, in a rather scornfu l tone, ' it means just what I choose it to mean, neither m o re nor le ss . ' " 'The question i s , ' said A l i c e , 'whether you can make words mean so many dif ferent things. 1 - 2 7 - [19] Brown v B oard of Education of Topeka , 347 US 483 (1954). " 'The question is, ' said Humpty Dumpty, 'which is to be the m a ster - - that's all. ' " Lewis Carro l l , Through the Looking; G la s s . This ca se concerns the legal meaning of the term s " se g r e g a t io n " , "d e s e g r e g a t io n " and "unitary sch oo l system " in rdation to the protection of constitutional rights guaranteed by the Equal p r o te c t i o n Clause of the Fourteenth Amendm ent to the United States Constitution. While the a f o r e mentioned w ords m ay be used rhetor ica l ly to mean many dif ferent things their jud ic ia l ly p r e s c r ib e d meaning does not perm it their use by a D is tr ict Court to mean what it chooses them to mean. It is submitted that the D is tr ic t Court in this case has m is re a d and m isapp l ied the com m ands of the Supreme Court in the area of sch oo l desegregat ion in fashioning the rem edy of a s o - c a l l e d m etropol i tan plan of desegregation . A p ro p e r a s s e s s m e n t of the princip le enunciated in Brown I, sug r a , ca l ls for an understanding of the im port of the e a r l ie r d ec is ion of the Supreme Court in Dred Scott v Sanford, 60 US (19 How) 393 (1856). In Dred Scott , Chief Just ice Taney stated that the Constitution of the United States did not a f ford to b lack cit izens the same rights as a f forded to white c i t izens because black cit izens were in fer ior accord ing to law. Subsequently, the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution re cog n ized that there was no justi f ication whatever fo r attaching a badge of legal in fer ior ity to b lack c it izens and d ec la red that the sanction of law could not be used to deny to black cit izens the same rights a f forded to whites . However , in P le s s y v Ferguson , 163 US 537 (1896), a Supreme Court m a jor i ty gave approval to the " sep a r a te but equal doctr ine" in holding -2 8 - that a state statute requir ing ra c ia l segregation in rai lway se rv i c e did not amount to a denial o f equal protect ion of the laws. The separate but equal doctr ine was then used by som e states as justi f ication for legally enforced segregation of pupils in the public s choo ls on the basis o f ra ce and co lo i . In 1954 along came Brown I, supra. This case , and its c o m panion ca ses f r o m South Carolina, V irg inia and Delaware, presented a situation where black children had been denied adm iss ion to schools attended by white chi ldren under state laws requir ing or permitt ing segregation a cco rd in g to race . The Court concluded that where the State has undertaken to prov ide free public education, it must be made "available to all on equal t e r m s " , Brown I, supra , at page 493. The rationale o f the Court was that a state sanctioned p o l icy of r a c ia l segregation in fact em bodies a lega l philosophy p r e m is e d on inequality between blacks and whites. In this regard , the Court ex p r e sse d its a g r e e ment with the Kansas Distr ict Court that — . Segregation with the sanction of la w , t h e r e fo re , has a tendence to [retard] the educational and mental development o f negro chi ldren and to deprive them of some o f the benefits they would r e ce iv e in a rac ia l [ ly ] integrated s ch oo l system. " Brown I, supra , at page 494. [Emphasis added. ] Thus, Brown I, supra , stands for the pr inc ip le that a state and its agenc ies may not, in effect , hang signs on the schoo l house door that say -2 9 - " f o r whites only" or " f o r blacks only". As stated in Swann v Charlotte - Mecklenburg Board of Education , 402 US 1, 6 (1971) - - "That was what Brown v Board of Education was a l l about. " T here is nothing in Brown I, supra , which says that a preponderance of b lack students in a particular sch oo l or a particular sch oo l d is tr ic t can be used as a basis for finding a constitutional violation. What is condemned in Brown I is not the p resence of too many or too few black students in a sch oo l but use of the f o r c e of law to deny black chi ldren entrance to a s ch oo l or c l a s s r o o m so le ly because of race or co lo r . [20] , In Brown v B oard of Education, 349 US 294 (1955), the Supreme Court a dd ressed itsel f to the matter of re l ie f to be a c co rd ed where it is found that the state or its agencies have denied b lack chi ldren a c c e s s to schoo ls on the bas is of ra ce . The Court did not set down with particularity the incidents of the rem ed ia l act ion to be taken but stated as fo l lows: "In fashioning and effectuating the d e c r e e s , the courts wil l be guided by equitable pr inc ip les . Trad it ion ally, equity has been ch a ra c ter ized by a pract ica l f l e x i bility in shaping its rem ed ies and by a faci l i ty for ad jus ting and reconc i l ing public and private needs. These ca ses ca l l for the e x e r c i s e of these traditional attributes of equity power. " Brown II, supra , at page 300. [Emphasis added.] -3 0 - [20] Hereinafter ca l led Brown II A s is c le a r f r o m the above-quoted statement, the guidelines for rem ed ia l act ion therein enunciated must be applied in the context of the situation presented by the ca ses to which the Court re fe r r e d , i. e. , a dual sch oo l sy s tem which separated chi ldren in the public schoo ls on the basis of race by sanct ion of law. The Court 's statement does not l i cense D is tr ic t Courts to use their imagination without regard to the context in which rem edia l authority is to be e x e r c i s e d . Nor was the Court authorizing ra c ia l balancing as a rem ed y . The ob ject ive of the e x e r c i s e of the courts ' equity powers was c l e a r ly stated as fo l low s : . . At stake is the personal interest of the plaintiffs in a dm iss ion to public schoo ls as soon as p ra ct ica b le on a n o n -d is c r im in a to ry b a s i s . " Brown ' II, supra , at page 300. [Emphasis added.] In Griffin v County School B oard of P r in ce Edward County, 377 US 218 (1964) the Supreme Court dealt with the attempt of a county to c lo s e its public s ch oo l system , under authority of state law, in an attempt to evade the mandate of Brown I, sup ra , forbidding the maintenance of a dual s ch oo l sy s tem where white and black students w ere prohibited f r o m attending the sam e schoo l . The Court e x p r e ss ly noted that the Equal P ro tec t ion Clause re lates to equal protect ion of the laws "between persons as such rather than between a r e a s " , G r i f f in , sup ra , at 230, and that the State could p roper ly treat one county s ch oo l d is tr ic t d i f ferent than another so long as such t re a t -3 1 - ment was not founded upon the purposeful object ive of denying fed era l ly - protected rights. E xp ress ing its d issat is fact ion with the ef forts of the P r in ce Edward County schoo l authorities to c ir cum vent the interdiction of Brown I, sup ra , the Court d ec lared that the time fo r convert ing to a unitary sy s tem with " m e r e del iberate speed" had run out and that such phrase, used in Brown I, supra , could no longer be used as a basis fo r fa i lure to convert to a unitary sch oo l system. In Green v County School B oard of New Kent County, 391 US 430 (1968), the Court determined that a s o - c a l l e d " f r e e d o m of ch o i ce " plan did not m eet the requirement to convert a dual schoo l sy s tem to a unitary sch oo l sy s tem when, in fact, schoo ls that w ere f o r m e r ly all b lack by sanct ion of law remained all black. The New Kent County sch oo l sy s tem was initially established and maintained under the com puls ion of the V irginia constitution and statutoi y p rov is ion s mandating rac ia l segregat ion in public education. In 1965 the s ch oo l board adopted a " f r e e d o m of ch o i ce " plan whereby each pupil, except those entering the f i rs t and eighth grades , could e lect to attend either of the two schoo ls in the sch oo l system , one of which had f o r m e r ly been a l l white and the other all black. Three years after the plan went into operation, not a single white child had chosen to attend the all b lack school. The Court held that when a state has, in e f fect , e re c ted signs on schoo l - 3 ? . - house doors saying " f o r whites only" and " f o r blacks only" , it does not convert to a unitary sy s tem by m e r e ly taking down the signs. •The Court reiterated that its holdings under Brown I and Brown II, su p ra , w ere d irected at the extinguishment of "white only" and "b la c k only" schoo ls deriv ing f r o m the com puls ion of state laws. "T h e pattern of separate 'white 1 and 'N egro ' schools in the New Kent County sch oo l sy s tem established under c o m puls ion of state laws is p r e c i s e ly the pattern of segregation to which Brown I and Brown II were part icu lar ly addressed , and which Brown I d ec lared unconstitutionally denied Negro s ch oo l chi ldren equal protect ion of the l a w s . " Green v County School Board of New Kent County, supra , at page 435. [Emphasis added.] The language of the Court makes it c ry s ta l c lea r that the holdings in Brown I and Brown II, supra , do not extend to schools m e r e ly because they have a p redom in an ce of b lack or white students, but only to schoo ls having patterns of segregat ion deriving f r o m the e f fect of state laws which prohibited black and white chi ldren f r o m attending the same schoo l . The com m and "to c o n vert prom ptly to a sy s tem without a 'white' s ch oo l and a 'N egro ' school , but just s c h o o l s " , G reen , supra at page 442, does not mean that there must be som e s p e c i f i c rac ia l balance, but that there shall be no schoo ls which maintain "white students" only or "b la c k students" only cha ra cter i s t i c as a vestige of l e g a l ly - im p o s e d rac ia l segregation. T o this end, the Court stated -3 3 - . School Boards such as the respondent then operating s tate -com pel led dual system s w ere nevertheless c lear ly charged with the a ff irmative duty to take whatever steps might be n e c e s s a r y to convert to a unitary sy s tem in which r a c ia l d iscr im inat ion would be eliminated root and branch. G reen , supra at pages 437-438. [Emphasis added.] In light of the fact that the New Kent County s ch oo l sy s tem had taken no act ion w hatsoever toward converting to a unitary sch oo l system , the Court stated that the context in which the cr i te r ia of "de l iberate speed" had been applied had been significantly a ltered and that - - . The burden on a sch oo l board today is to com e fo rw a rd with a plan that p rom ises rea l is t i ca l ly to work, and p ro m ise s rea l is t i ca l ly to w ork now . " G r e en, sup ra , at page 439. The Court did not state that the e f fect iveness of a desegregat ion plan was to be m ea su red in terms of rac ia l balance but in term s of its prospects for dismantl ing a sy s tem of separate schoo ls for blacks and whites. . Where the court finds the board to be acting in good faith and the proposed plan to have rea l prospects^ f o r dismantling the s ta te - im p osed dual s y s t e m 'at the e a r l i est pract icab le date ' , then the plan may be said to provide e f fect ive r e l i e f . " G r e e n , supra at page 439. [Emphasis added.] Fol lowing its d ec is ion in Green, supra, the Supreme Court in A lexan der v Holmes County Board of Education , 396 US 19 (1969), m con s idering the desegregat ion o f f o r m e r ly segregated sch oo ls in M iss iss ipp i , said: -3 4 - . . continued operation of segregated schools under a standard of allowing 'all deliberate speed 1 for desegregat ion is no longer constitutionally p erm iss ib le . , Under expl ic it holdings of this Court the obligation of ev e ry schoo l d istr ict is to terminate dual system s at once and to operate now and hereafter unitary schoo ls . " A lexander v H o lm e s , supra at page 20. [Emphasis added. ] The Court defined a unitary system as one - - " , . . within which no p erson is to be e f fect ive ly excluded f r o m any schoo l because of ra ce or co lo r . " A lexander v H olm es , supra , at page 20. In Swann v Char lotte -Mecklenburg Board o f Education, supi a , the Court noted the reasons for its grant o f c e r t i o r a r i as fo l lows: "We granted c e r t io r a r i in this case to rev iew important issues as to the duties of schoo l authorities and the scope of p ow ers of federa l courts under this C ourt 's mandates to eliminate rac ia l ly separate public s choo ls established and maintained by state action. Brown v Board of Education, 347 U. S. 483 (1954) (Brown I). I "T h is case and those argued with it a ro s e in states having a long h is tory of maintaining two sets of schoo ls in a single schoo l system deliberately operated to c a r r y out a governmental p o l i cy to separate pupils in schoo ls sole ly on the bas is o f ra ce . That was what Brown v Board of Education was all about. " Swann, supra , at page 6 . [Emphasis added. ] The Court in Swann, supra , e x p ress ly noted the fact, as prev ious ly herein set forth and ignored or over looked by the Distr ict Court, that - - -3 5 - "W e are concerned in these ca ses with the e l im ina tion of the d iscr im inat ion inherent in the dual schoo l system s, not with the m yriad factors of human existence which can cause d iscr im inat ion in a multitude of ways on racia l , r e l i gious or ethnic grounds. • The target of the cases f r o m Brown ' I to the present was the dual schoo l sy s tem " Swann, supra , at page 22. [Emphasis added.] Segregation in the public schoo ls in the context of the ca ses f r o m Brown I, supra , to the present means the del iberate separation of white and b lack chi ldren in the schoo ls so le ly on the basis of race , by virtue of governm ental action. That is the evil struck down by Brown I and its p r o geny and that is the violation sought to be c o r r e c t e d by the rem ed ia l m ea su res of Brown II. (Swann, supra , at page 15.) As stated in Swann, sup ra : "O ur ob ject ive in dealing with the issues presented by these ca ses is to see that schoo l authorit ies exclude no pupil of a rac ia l m inor ity f r o m any schoo l , d irec t ly or indirectly , on account of race ; it does not and cannot e m b ra ce all the p rob lem s of rac ia l pre judice , even when those prob lem s c o n tribute to d isproportionate ra c ia l concentration in som e s c h o o l s . " Swann, supra , at page 23. [Emphasis added.] With the ob ject ive of eliminating the separation of pupils in the schoo ls so le ly on the basis of ra ce in mind, the Court ex p r e sse d the limitations on the scope of p ow ers of the federa l courts as fo l low s : " . . . . The task is to c o r r e c t , by a balancing of the individual and co l le c t ive interests , the condition that offends the Constitution. I I "In seeking to define even in broad and general terms how far this rem ed ia l power extends it is iniportant_to_i_e- m e m b e r that judicial powers may be e x e r c i s ed only on the basis of a constitutional violation. R em ed ia l jud ic ia l author 1 - ty does not put judges automatical ly in the shoes of the schoo l authorities whose powers are plenary. Judicial authoi ity enters only when lo ca l authority defaults. " S ch o o l authorities are traditionally charged with broad power to formulate and implement educational pol icy and might w e l l conclude, fo r example, that in o rd er to p r e pare students to live in a pluralist ic soc ie ty each schoo l should have a p r e s c r i b e d ratio of Negro to white students reflect ing the proport ion fo r the d is tr ic t as a whole . To do this as an educational po l icy is within the broad d is cre t ion a ry powers of s ch oo l authorit ies; absent a finding of a constitutional violation, how ever , that would not be within the authority of a federa l court. As with any equity case , the nature _ o f J h e jn £ la ^ determ ines the s cope of the r e m e d y . In default by the sch oo l authorities of their obligation to pro f fe r acceptable rem ed ies , a d is t r i c t court has broad power to fashion a rem edy that w i l l_ a ssu r e a unitary sch oo l s y s t e m . " Swann, supra at page 16. [Emphasis added.] While the ca ses presented to the Supreme Court f r o m B ro w n J , s upra, to Swann, sup ra , dealt with situations where there had been a long h is tory of legally structured separate schoo ls for whites and b lacks , _Spencer v JKugler, 326 F S u p p 1235 (NJ, 1971), aff 'd . 404 US 1027 (1972), involved a state where , like Michigan, there is no h is tory of s tate-wide im posed segregation in the public sch oo ls . The dec is ion of the three judge court in Spencer v K u g le r , sup ra , a f f i rm ed by the Supreme Court, noted as fo l lows: . Brown never required anything m o r e than a unitary s ch oo l system . . . . " Spencer v Kugler_, supra at page 1241. * * * -37- "T h e Court in Swann draws a c r i t i ca l distinct ion b e tween those states which have a h is tory of dual sch oo l s y s tems and a separation of the ra ces . . . and those wherein s o - c a l l e d ’ dc f a c t o 1 segregation results f r o m housing pat terns and conventional drawing of s ch oo l district, z o n e s . " * * * " T h e creat ion of these s ch oo l d istr icts by approval of the leg is lature on September 18, 1953, p receded the h i s to r ic dec is ion of Brown I, decided on May 17, 1954. ̂ The obvious intent of the legis lature was to maintain a uniform sch oo l sy s tem as Brown I later required. While the result of such legis lation som e 18 years later may be rac ia l im b a lance within certain sch oo l d is tr ic ts , it does not amount to segregation. " A continuing trend toward rac ia l imbalance caused by housing patterns within the various sch oo l d is tr ic ts is not suscept ib le to federa l jud ic ia l intervention. . . . " Spenc er v K u g le r , supra , at pages 1242-1243. Wright v Counci l of the City of E m p o r i a , , ____US------ (June 22, 1972), 40 Law Week 4806, the Supreme Court add ressed itself to the " n a rro w q u e s tion" of whether a new sch oo l d is tr ic t could be carved out of an exist ing s ch oo l d is tr ic t which was in the p r o c e s s of dismantling a dual sch oo l system pursuant to court order . The Court held that a new sch oo l d is tr ic t may not be created where its e f fect would be to impede the p r o c e s s of dismantling a dual system . W right , supra , at 40 Law Week 4812. The Court a lso stated that even in dismantling a dual sy s tem " r a c i a l balance is not required. " W right , sup ra , 40 Law Week at 4810. -3 8 - F r o m Brown I to Wright v Counci l of the City of E m p o r ia , supra , it is c l e a r that - - . • 1. Unlawful segregation in the public s ch oo ls , in the const i tu tional sense, means the separation of chi ldren in schoo ls so le ly on the basis of race by governm ental sanction. 2. D esegregat ion means the assignment of chi ldren to public schoo ls and within such schoo ls without reg a rd to their ra ce or co lo r . 3. A unitary sch oo l sy s tem is a sy s tem in which no person is e f fect ive ly excluded f r o m any sch oo l because of race . 4. R ac ia l balancing is not required in rem edying even a dual sch oo l system . Applying the teachings of the United States Supreme Court f r o m Brown I to date, the D is tr ic t Court exceeded its power and authority in order ing a s o - c a l l e d m etropoli tan plan of desegregat ion to a c co m p l ish desegregat ion of the public s choo ls of the City of Detroit . 1 -3 9 - C. The D is tr ic t Court E r r e d In Ordering A S o -C a l led Metropoli tan Plan Of Desegregat ion In Order To A c c o m p l is h D esegregat ion Of The Public Schools Of The City Of Detroit.________ _ > itBased upon findings of fact and conclusions of law that the Detrm s ch oo l system was de jure operated with resp ec t to the matter of pupil ass ignm ents , the D is tr ic t Court c o r r e c t ly stated its task as "how to d e s e g regate the Detro it public s ch o o ls " (A. Ia499, para. 3). However, instead of pursuing such task within the f ra m ew ork of established judic ia l precedent, the D is tr ic t Court fo l lowed its s e l f -d e te rm in ed guideline adumbrated m its Ruling On Issue Of Segregation (A. Ia 194) on September 27, 1971, as fo llows ii. . . . Our ob ject ive , log ica l ly , it seem s to us, should be to rem edy a condition which we bel ieve needs c o r r e c t i o n . " (A. Ia210, para. 3). The D is tr ic t Court p erce iv e d the condition which needed c o r r e c t i o n to be the imbalance of b lack students within the Detroit public s ch oo l sy s tem v i s - a - v i s other s ch oo l system s in geographica l p rox im ity to Detroit and d irected its e f forts to effecting a plan fo r rac ia l balancing rather than desegregat ion of the Detro it public s choo ls . At the outset it must be noted that this case does not present the same situation as involved in B row n J . There has been no c la im that the State of Michigan has ever fos tered a po l icy of rac ia l segregation m the -4 0 - public s ch oo ls either in connection with the creat ion or operation of the m o r e than 600 independent schoo l d is tr ic ts in the State o f Michigan. Over 100 years ago the Michigan leg is lature in Public A c t No. 34, S e c tion 28, 1867, prov ided that - - "A l l res idents of any d istr ict shall have an equal right to attend any schoo l therein. " The Michigan Supreme Court construed this statute to mean that under Michigan law black chi ldren w ere p laced on the same footing with white chi ldren and a dm iss ib le on the same t e r m s to the public s choo ls . Ex R e l Workman, supra . . In 1927 the Michigan leg is lature enacted A c t No. 319, Part II, Chapter 2, Sect ion 9 of which prov ided as fo l lows: " A l l p e rso n s res idents o f any schoo l d is tr ic t and f ive years of age, shall have an equal right to attend any sch oo l therein ; and no separate schoo l or department shall be kept for any person or p erson s on account of r a ce or co lo r . " The Michigan School Code o f 1955 prov ides that - - "No separate schoo l or department shall be kept for any p erson or p ersons on account of ra ce or co lo r . " MSA 15. 3355. The long-estab l ished State po l icy against ra c ia l separation in the public s choo ls was rea f f i rm ed in the Michigan Constitution of 1963: -41- . Every school d istr ict shall provide for the education o f its pupils without d iscr im inat ion as to re l ig ion , c reed , ra ce , co lor or national o r i g i n . " Mich Const 1963, art VIII, sec 2. [21] . A ssum ing , arguendo, that the Distr ict Court 's finding o f cle jure_ segregation with resp ec t to pupil assignments within the Detroit school d is tr ic t is sound, the only appropriate r e l i e f is an end to such p ra ct ice and the rem edyin g of the ef fects thereof . This Court e x p ress ly so noted m Bradley v Mil liken, 438 F2d 945, 946 (CA 6, 1971) when it said: "The issue in this case is not what might be a d e s i i a - b le Detroit schoo l plan, but whether or not there are uncon stitutional vio lations in the schoo l system as present ly operated, and, if so, what r e l i e f is n e c e s s a r y to avoid further im p a ir ment of constitutional rights. " And, in Deal v Cincinnati Board of Education, 369 F2d 55 (CA 6, 1966), c e r t denied 389 US 847 (1967), this Court stated: " . . . . If the schoo l o f f ic ia ls , through overt p r a c t ice of by subterfuge, have treated students dif ferently so le ly because of ra ce , then they must not only must cease doing so, but a lso must take aff irmative action to m n e d y the condit ion which they have caused. " Deal, supra at page 63 -4 2 - [21] " The ant i -d iscr im inat ion clause is placed in this sect ion as a declaration which leaves no doubt as to v/here Michigan stands on this question. State of Michigan Constitutional Convention, 1961, Off ic ial R ecord , Volume II, page 3395. B ased upon the evidence and finding s in this ca se , the only schoo l d is tr ic t in the State of Michigan which has failed to maintain a unitary s ch oo l system is the City of Detroit schoo l d is tr ic t and, accord ing ly , con v ers ion of the Detroit s ch oo l d is tr ic t to a unitary sy s tem in which rac ia l d iscr im inat ion is e liminated root and branch is the only remedy constitutionally required or permitted . The acts which serve as the basis for the findings of unlawful s e g r e gation in this case are unique to the City of Detroit schoo l sy s tem and neither the creat ion or operation of any other sch oo l d is tr ic t bears any causal connection with the unlawful segregation found to exist in connection with the operation of the Detroit schoo l system. It has been judic ia l ly determined that Sect ion 12 of A c t 48 of the Public A cts of 1970 unconstitutionally thwarted the efforts of the Detroit B oard of Education to e f fect a m o r e balanced ratio of white to Negro students in certain high schoo ls in the City of Detroit . Had A ct 48 never been enacted, and had the Detroit B oard implemented its plan, it would not have resulted in any pupil resident in Detroit being t rans ferred to another sch oo l d is tr ic t or v i c e - v e r s a . Remedying the e f fects of A c t 48 c l e a r ly does not perm it or require a s o - c a l l e d m etropoli tan plan of desegregation . A s prev ious ly noted, the D is tr ict Court took no proo fs with resp ec t to the establishment of the Detroit schoo l d istr ict , or any other sch oo l d istr ict . There is, accord ing ly , no finding that the boundaries of any -4 3- sch oo l d is tr ic t w ere drawn in furtherance of a po l icy of ra c ia l segregation . The D is tr ic t Court, how ever , found that within the Detro it sch oo l d is tr ic t the Detroit Board of Education g er ry m a n d er ed attendance zones and pursued a sch oo l construct ion p o l i cy calculated to fos ter ra c ia l segregat ion in the Detroit s ch oo ls . Had the Detroit Board not engaged in any of the acts determined by the D is tr ic t Court to be in furtherance of a p o l i cy of ra c ia l segregation, no pupil res ident in the City of Detroit would have been ass igned to any other sch oo l d is tr ic t or v i c e - v e r s a . A ccord in g ly , appropriate r e l ie f f r o m the ef fects of such act ions may warrant a reass ignm ent of pupils within the Detroit s ch oo l d is tr ic t , but not a reass ignm ent of approx im ate ly 400, 000 students in f i f ty -three (53) s ch oo l d is tr ic ts . The D is tr ic t Court 's conc lus ion that " r e l i e f of segregat ion in the Detroit public schoo ls cannot be a ccom p l ish ed within the co rp ora te g e o graphical limits of the city" (A. Ia536) is patently e rron eous . R e l ie f of segregat ion can be a ccom p l ish ed by converting Detro it to a unitary schoo l sy s tem within which no person is to be e f fect ive ly excluded f r o m any sch oo l because of race or co lo r . A lexander v H o lm e s , supra . The D is tr ict Court gives no reason or explanation in support of its conclusion . -4 4 - The D is tr ic t Court 's s o - c a l l e d metropol i tan plan of desegregat ion has as its ob ject ive ra c ia l balancing, pure and sim ple . The end to be achieved by reassigning pupils among the f i f ty -three (53) sch oo l d istr icts e m b ra ce d within said plan is stated by the D is tr ic t Court as fo l lows: " B . Within the limitations of reasonable travel t ime and distance fa c to rs , pupil reass ignments shall be e f fected within the c lusters d e sc r ib e d in Exhibit P . M . 12 so as to ach ieve the greatest degree of desegregat ion to_ the end that, upon implementation, no school , grade or_ c l a s s r o o m by [be] substantially d isproportionate to the to the o v era l l ra c ia l c o m p o s i t io n . " (A. Ia 539-540). [Emphasis added.] R ac ia l balancing is not constitutionally requ ired to prov ide re l ie f f r o m s ta te - im p osed segregat ion even within a single s ch oo l d is tr ic t , much le ss within f i f ty -three (53) schoo ls in order to a c com p l ish desegregat ion of one s ch oo l d istr ict . " . , . If we w ere to read the holding of the D is tr ic t Court to requ ire , as a matter of substantive constitutional right, any particular degree of rac ia l balance or mixing, that approach would be d isapproved and we would be obliged to r e v e r s e . The constitutional com m and to desegregate schoo ls does not mean that ev ery sch oo l in ev ery co m m u n i ty must always re f le c t the ra c ia l com pos it ion of the schoo l sy s tem as a whole . " Swann, supra at page 24. "T h e fact that a sch oo l b oa rd 's desegregat ion plan leaves som e disparity in rac ia l balance among various sch oo ls in the sy s tem does not alone make that plan unac ceptable . . . . Just as rac ia l balance is not required in remedying a dual system , neither are rac ia l ratios the so le cons iderat ion to be taken into account in devising a workable rem edy. " Wright v Counsel of the Cit jA^^Empo r i a, su p ra , 40 Law Week 4806, 4810. -4 5 - Judge Ceci l , concurr ing in Davis v School Dis tr ict of the City of P on t ia c , 443 F2d 573, 577 (CA 6, 1971) s im i lar ly stated as fo l lows: "T h e r e is no legal requirement that there be a r a c ia l balance in every schoo l nor is it requ ired that students be bused back and forth f r o m one part of a s ch oo l system to another to achieve such a balance, citing Swann, supra . In Kelley v Metropoli tan Board of Education of Nashville, 436 F2d 856 (CA 6, 1970), this Court quoted with approval, and emphasis , the following statement f r o m the Tennessee Distr ict Court: " 1 It should be made c lear at this point that the c o m p u lsory bussing of pupils to achieve any sort of m athem atically ideal rac ia l balance is not required by dec is ions of the Supreme Court. See N orthcross v. Memphis City School Board of Education, supra [397 US 232] at 237 [90 S. Ct. 891 25 L. Ed 2d 246] (C. J. B u r g e r ’ s concurren ce ) . . . . A l l that is required o f defendant in the area o f zoning is that it take a ff irmative act ion to m a x im iz e integration in all feasib le ways so as to p r o mote the immediate establishment of a unitary schoo l s y s t e m . Kelley , supra at page 861. With r e sp e c t to the above statement of the Dis tr ict Court, this Court com m ented - - . We read Judge M i l l e r ' s last quoted sentence as the unanimous and m inimum view of all m e m b e r s of the United States Supreme Court and indisputably the law o f this land. " Kelley, supra at page 86 1. -4 6 - It appears that the D is tr ic t Court labors under the erroneous be l ie f that since the ra c ia l com posit ion of the total Detro it public sch oo l sy s tem is predominantly b lack and would remain so even if no child was excluded f r o m any schoo l on account of race , desegregat ion requires reducing the b lack student population to a m inor ity by means of a m etropoli tan plan of desegregat ion . A s noted above, such rac ia l balancing is not requ ired in the name of desegregat ion . It might a lso be noted that the court approved desegregat ion plans in Wright v Counci l of the City of E m p o r ia , supra , ard Raney v Board of Education of the Gould School D is t r i c t , 391 US 443 (1968) involved a ra c ia l com posit ion of 66% black students and 34% white students. Apart f r o m the fact that the D is tr ic t Court 's plan to desegregate the Detro it public s ch oo l sy s tem by means of a m etropol i tan rac ia l balancing s ch em e is im proper per se there is no legal basis upon which the f i f ty -two (52) independent sch oo l d is tr ic ts can be made a part of a plan to desegregate the Detroit public schoo l system . To begin with, there has been no trial on the m er its as to any a l leged constitutional violations involving the creat ion or operation of any of such sch oo l d is tr ic ts . This Court p rev iou s ly noted in this case that - - . There must be a trial on the m er i t s as to the al leged constitutional violation as a predicate to r e l ie f in the federa l c o u r t s . " B radley v M il l iken , 438 F2d 945, 946. Initially the D is tr ic t Court p laced strong re l iance on the d is tr ic t cour t 's d ec is ion in Bradley v School B oard of the City of Richmond, 338 F2d 67 (1972), in support of its use of other sch oo l d is tr ic ts to e f fect [22] a m o r e des irab le ra c ia l balance in the Detroit public sch oo l system. J In light of the r e v e r s a l of the d istr ic t court in Bradley v Richmond, sup ra , by the Fourth C ir cu i t^ ^ such re l iance was abandoned by the D is tr ic t Court. The D is tr ic t Court 's re l iance upon Lee, v Macon County B c a rd_of, Education, 448 F2d 746 (CA 5, 1971) and Haney v County, B o a r d of Sevi e r, 410 F2d 920 (CA 8, 1969), 429 F2d 364 (CA 8, 1970) in support of a so - ca l led m etropoli tan plan of desegregat ion is m isp laced . In each of such c a se s the court determined as a matter of law that the s ch oo l d istr icts involved w e r e initially created in furtherance of a state-wide p o l i c y of ra c ia l segregation. In Lee v Macon County Board of Education, supra, at 752, the court said: "E v en h is tor ica l ly separate sch oo l d is tr ic ts , where shown to be created as part of a state-wide dual schoo l s y s tem or to have cooperated together in the maintenance of such a s y s tem, have been treated as one for purposes of desegregation . " [Emphasis added.] Here there is no evidence or finding that any of the sch oo l d is tr ic ts in the State of Michigan w e r e created as part of a state-wide dual system or that - 4 8 - [22] Findings Of Fact And Conclusions Of Law On Detro it -Only Plans Of Desegregat ion (A. Ia459-460). [23] B radley v School Board of the City of R ichm ond , ____ June 5, 1972). F2d (CA 4, any of the f i f ty -tw o (52) sch oo l d is tr ic ts , excluding Detroit , herein involved cooperated in the acts of de jure segregation found in connect ion with the pupil assignments in the Deti’ oit schoo l d istr ict . In this connection it must be stated that the conc lus ion of the D is tr ic t Court that " l o c a l sch oo l authorities throughout the metropoli tan area" have engaged in actions which have had the e f fect of creating and maintaining rac ia l segregation inthe public schoo ls of the City of Detroit (A. Ia525) is barren of any evidentiary support and contrary to the D is tr ic t Court 's statement that it took no proofs on the issue of whether any schoo l d is t r i c t s , other than Detroit , have com m itted acts of de jure segregation (A. Ia498). The D is tr ic t Court 's assumption of authority to overr id e lo ca l schoo l d is tr ic t authority and dismantle their boundaries under Reynolds v S im m s , 377 US 533 (1964) and Gom il l ion v Lightfoot 3 64 US 339 (I960) indicates a m i s reading of the principle enunciated in such c a s e s . The Supreme Court stated in Reynolds v S im m s , supra , that the nature and duration of the powers entrusted to poli t ical agencies of the State and the t e rr i to ry over which they r24] shall be e x e r c i s e d rests in "the absolute d iscret ion of the State."1' J When a State e x e r c i s e s power within the domain of legit imate State interest and such power is not used as an instrument fo r c ircumventing a federa l ly -4 9 - Reynolds v S im m s , sup ra , at page 575. * . . . . . [ 25]protec ted right, it is insulated f r o m federa l jud ic ia l intervention. H ere there is no evidence or finding that any of the f i f ty -two (52) schoo l d is tr ic ts outside the City of Detroit have been established or operated so as to impair any fed era l ly protected right and a ccord in g ly the D is tr ic t Court is without power and authority to a ssum e the absolute d iscret ion vested in the State with re s p e c t to the p ow ers and existence of such sch oo l d is tr ic ts . B ra d ley v R ichm ond , supra , ____F2d____(June 5, 1972, slip opinion, pages 26 -29 ) . W here , as here, there is no finding that schoo l d is tr ic t boundary lines have been drawn in furtherance of a po l icy to fo s ter ra c ia l segregat ion in the s ch oo ls , the existence of a rac ia l imbalance in the City of Detroit schoo l d is t r i c t does not provide a bas is for using s ch oo l d istr icts other than Detroit to desegregate the Detroit system. " . . . . Nowhere in the drawing of s ch oo l d is tr ic t lines are cons iderat ions of race , c reed , co lo r or national orig in made. The setting of municipalit ies as lo ca l schoo l d istr icts is a reasonable standard e sp ec ia l ly in light of the munic ipal taxing authority. The sy s tem as provided by the various leg is lat ive enactments is unitary in nature and in tent and any purported ra c ia l imbalance within a lo ca l s ch oo l d is tr ic t results f r o m an imbalance in the population of that m u n ic ip a l i ty -s ch oo l d istrict . R ac ia l ly balanced m u n ic i pal it ies are beyond the pale of either judic ia l or leg is lat ive in tervent ion ." Spencer v K u g le r , supra at 1240. * * * -5 0 - [2 5] Ho id at page 566. . We agree with the argument of the defendants stated as ' there is no a f f irmative U. S. Constitutional duty to change innocently arr ived at sch oo l attendance d istr icts by the m e r e fact that shifts in population either increase or d e c re a se the percentage of either Negro or white p u p i l s ' . " Be l l v School. City of Gary, Indiana, 324 FZd 209, 213 (CA 7, 1963); Downs v Board of Education of Kansas City, 336 F2d 988, 998 (CA 10, 1964). In United States v Board of Education, Independent. School Distr ict No. 1, Tulsa, Okla. , 459 F2d 720 (CA 10, 1972) the court stated that absent a showing that the rac ia l com posit ion of even a particular schoo l was attributable to d i s c r im in a tory state action, a fed era l court could not order a d esegregat ion plan for such school . " . . . . Without a showing of a constitutional vipla- tion on the part of schoo l authorit ies, equity does not require a fed era l court to e f fect changes in the rac ia l c o m posit ion of public s choo ls . Swann v Charlotte -M ecklenburg B oard of Education, 402 U. S. 1. . . ; Keyes v School D is tr i c t No. 1, Denver , C o l o . , 10 Circ . 445 F2d 990, cer t granted 404 U. S. 1036. . . . Having found an absence of d is c r im in a tory state act ion with regard to the rac ia l c o m p o sition of the five schoo ls in question, the d istr ic t court c o r r e c t l y recognized that to o rd er a desegregat ion plan for those schoo ls would be beyond the equity powers of the federa l c o u r t s . " 459 F2d at 724. The admitted absence of any showing that the f i f ty -two (52) sch oo l d istr icts outside Detroit have been created or operated so as to impair constitutional rights, c lea r ly prec ludes their use by the D is tr ict Court to e f fect a m o r e d es irab le rac ia l balance in the Detroit schoo ls . -5 1 - The D is tr ic t Court found a violation o f a federa l ly protected right in connection with the ass ignm ent of pupils within the Detroit s ch oo l d istr ict . It is admittedly the duty of the D is tr ict Court to e f fect a rem edy which wil l prevent the further im pairment of the constitutional rights of chi ldren within the Detroit s ch oo l d is tr ic t and which w i l l eradicate the ef fects of the denial of constitutional rights. As stated in Swann, supra , at page 16: . The task is to c o r r e c t , by a balancing of the individual and co l lec t ive interests , the condition that offends the Constitution. " The condition that offends the Constitution in the instant case is not ra c ia l imbalance in the Detro it public sch oo l system , or the establishment . or operation of any one of the f ifty-two (52) s ch oo l d is tr ic ts em b ra ced within the D is tr ic t C ourt ’ s desegregat ion plan. The condition that offends the Constitution is the manner in which the Detroit s ch oo l sy s tem has been operated and such condition does not require or perm it a s o - c a l l e d m e t r o politan plan of desegregation . The Supreme Court in Swann, sup ra , made it c l e a r that the rem ed ia l powers of a d is t r i c t court are c i r c u m s c r i b e d by the d imensions of the constitutional violation found by the court. 11. . . it is important to r e m e m b e r that judic ia l p ow ers m ay be e x e r c i s e d only on the basis of a consti tu tional violation. R em edia l judic ia l authority does not put judges automatical ly in the shoes of sch oo l authori ties whose powers are plenary. Judicial authority enters -5 2 - only when lo ca l authority defaults. . . . As with any equity ca se , the nature of the violation determines the nature of the r e m e d y . " Swann, supra at page 16. [Emphasis added.] The rem ed ia l order of th'e D is tr ic t Court extends far beyond the d imensions of the constitutional violation found and seeks to achieve a salt and pepper d isp ers ion of students between the Detroit s ch oo l d is tr ic t and f i f ty -tw o (52) other s ch oo l d is tr ic ts which are as independent f r o m one another, and f r o m the Detroit schoo l d istr ict , as one State is f r o m another. The D is tr ic t C ou rt " apparently e rron eou s ly assum es that lo ca l schoo l authorities have an a f f irm ative obligation to com bat ra c ia l imbalance caused by housing patterns and other f o r c e s beyond their contro l . This Court • e x p r e s s ly r e je c ted such notion in Deal v Cincinnati B oard o f Education, sup ra , and is Davis v School D is tr ic t of the City of P ont ia c , sup ra . "Appellants c o r r e c t l y contend that under Deal v Cincinnati Board of Education, 3 69 F2d 55 (6th Cir. , 1966) cert , denied, 389 U. S. 847 (1967). . , a sch oo l d is tr ic t has no a f f irm ative obligation to achieve a balance of the races in the schoo ls when the exist ing imbalance is not attributable to s ch oo l po l ic ies or pract ices and is the result of housing patterns and other f o r c e s over which the s ch oo l administration had no control . " Davis v School D is tr ic t of the City of P ont ia c , supra at page 575. The goal to be a c com p l ish ed in the instant case is con v ers ion of the Detroit s ch oo ls to a unitary s ch oo l system . A s stated by the court in United -5 3 - States v B oard of Education, Independent School Dist. No. 1, Tulsa, Okla, sup ra , at 724: . . .D eseg reg a t ion plans must be formulated on a c a s e - b y - c a s e bas is , and pre ferab ly formulated and agreed to by the parties involved. The ir validity should not depend on the whim or p re fe ren ces of m e m b e rs of the judiciary. They must be judged by constitutional standards. If they a c co m p l ish the d es ired goal of creating a unified [unitary] s ch oo l system , and do so in n o n -d is c r im in a tory manner, we are constrained to approve th e m ." The effectuation of a m o r e des irab le ra c ia l balance in the schoo ls in the Detroit metropoli tan area by means of the D is tr ic t Court 's Order in the guise of m e r e ly desegregating the Detroit s ch oo ls , however w el l meaning, is a purpose beyond the scope of this litigation. As phrased in Swann, sup ra , at page 22: "One vehic le can c a r r y only a l imited amount of b a g g a g e . " I I . DESEGREGATION OF THE DETROIT SCHOOL SYSTEM CAN BE ACCOMPLISHED BY MEANS OF A REM EDY LIMITED TO SUCH SCHOOL DISTRICT. Plaintiffs in this case produced as a witness Dr. Gordon F o s t e r , a widely recog n ized expert in the area of s ch oo l desegregation . Dr. F os te r d e s c r ib e d a rac ia l ly identifiable schoo l as one that " i s d isproportionate in ra c ia l m ake-up to the other schoo ls in that sy stem " (A. V a l82 ) . He e x p ressed -5 4 - the opinion that a Detroit s ch oo l having a student population of 65% black and 35% white would not be a ra c ia l ly identifiably schoo l " in t e jm s of Detroit as a desegregated sy s tem where the rac ia l mix is 65-35" (A. Val83) because such ra c ia l com posit ion re f lects the total pupil population ratio in the system (A. V a l84 ) . Dr. F o s te r stated that a black child in the Detroit sch oo l system would not p erce iv e of his schoo l situation being rac ia l ly isolated or s e g r e gated if the pupil com posit ion re f lec ted the ra c ia l population in the Detroit s ch oo l sy s tem because the child would know he had the same situation as all other chi ldren in the Detroit sch oo l sy s tem (A. V a l8 4 -1 8 5 ) . E x p re ss e d another way, he stated that so long as a chi ld in the Detroit schoo l system is o f fered the same opportunities o f fered to all other chi ldren in the Detroit s ch oo l system , the child would not fee l ra c ia l ly isolated or contained in a segregated situation(A. V a l86 ) . Dr. F o s t e r submitted a plan for the desegregat ion of the Detroit s ch oo l sy s tem which he stated would work "now " (A. V a l7 5 -1 7 6 ) , meets the requirements of a unitary system (A. Va201), meets the constitutional requirem ents of the Fourteenth Amendment (A. Va201), would eliminate d is c r im in a tory ra c ia l ly identifiable schoo ls (A. Va203-204) and would im prove educational opportunities of Detroit s ch oo l chi ldren (A. Va204). -5 5 - Dr. F o s t e r ' s p roposed plan and testimony is consonant with the c o n stitutional mandate to convert the Detroit sch oo l system to a unitary system in which no child would be e f fect ive ly excluded f r o m any schoo l because of ra ce and all chi ldren in the schoo l system would be af forded the same o p p o r tunities. A lexander v H o lm e s , supra , at page 20; Swann, supra, at pages 17, 22-23 , 28. The Findings Of Fact And Conclusions Of Law On D etro it -Only Plans Of D esegregat ion issued by the D is tr ic t Court (A. Ia456-46l) re f le c t a p red ispos i t ion to pursue a m etropol i tan area rac ia l balancing sch em e to reduce the proportion of b lack students in the Detroit schoo l d i s t i i c t and a d is reg a rd fo r the limitations on the e x e r c i s e of judic ial authority as e x p r e sse d in Swann, supra . The fact that the Detroit s ch oo l system has a ra c ia l com posit ion approx im ate ly 65% black and 3 5% white does not mean it is im poss ib le to desegregate the s ch oo l system in the constitutional sense by means of a D etro i t -on ly rem edy. As noted here inbe fore , the Supreme Court approved desegregat ion plans in Wright v Counci l of the City of E m p o r ia , suj^ra, and Raney v Board of Education of the Gould School D is tr i c t , supra , respect ive ly , which resulted in a ra c ia l ratio of 66% black and 34% white. - 5 6 - In short, the Distr ict Court 's sum m ary re je c t ion of a Detroit - only plan of desegregat ion exhibits either a misunderstanding of the constitutional mandate that the rem ed y for a segregated schoo l system is con v ers ion to a unitary system , or a re je c t ion o f such mandate in favor of an individually conce ived duty to effect a m o re desirable rac ia l balance between the Detroit schoo l system as a whole and other independent schoo l d is tr icts in the metropoli tan Detroit area. The following pronouncement in Swann, supra , makes it c lear that desegregat ion of the Detroit schoo l system in a c c o r d with const i tutional mandate not only perm its but req u ires the adoption of a Detroit - only plan which has as its central purpose the assignment and adm iss ion o f chi ldren to Detroit schoo ls without reg a rd to race . "Our ob ject ive in dealing with the issues presented by these ca ses is to see that schoo l authorit ies exclude no pupil of a ra c ia l minority f r o m any school , d irect ly or indi rect ly , on account of ra c e ; it does not and cannot em b ra ce all the p ro b le m s of ra c ia l p re jud ice , even when those p r o b lem s contribute to d isproportionate ra c ia l concentrations in som e schoo ls . " Swann, supra, at page 23. -57 - I I I . DID THE DISTRICT COURT ERR IN CONCLUDING THAT THE DE TR O IT ' SCHOOL SYSTEM IS DE JURE , ______________ SEGREGATED?_________ __ ‘ Intervener School D is tr ic ts cl id not partic ipate in the trial on the issue of unlawful segregat ion in the Detroit s ch oo l sy s tem nor have counsel [2 6] r v f o r said School Distr icts had an opportunity to review the r e c o r d of such p roceed in g s . However, based on the findings and conc lusions which underlie the holding of de jure segregat ion it is submitted such holding is in e r r o r . In the Ruling On Issue Of Segregation (A. la 194-216) the D is tr ict Court rev iews the shift in rac ia l com posit ion of the City of Detroit schoo l d is tr ic t and the effects thereof but does not identify the acts supposedly constituting de jure segregation in a ssoc ia t ion with particular schoo ls which are a l legedly segregated . In United States of A m e r i c a v Texas Educational A g e n c y , supra , decided on August 2, 1972, a m a jor i ty of the en banc court stated as fo l low s : . The power of the d istr ic t court wil l depend f i r s t upon a finding of the p ro sc r ib e d d iscr im inat ion in the s ch oo l system . Swann 402 U. S. at 16. In determining . the fact of d iscr im inat ion , vel non, the d istr ic t court must identify the schoo l or schoo ls which are segregated as a result of such d iscr im ination . This identification must -5 8 - ^ ^ The unavailability of said r e co r d pr ior to the preparation of the appendix in connection with the instant appeal and the time constraints imposed by the time schedule in connection with said appeal s imply did not permit counsel an opportunity to review the record . i be supported by findings-of fact. The im portance of such a determination wil l be seen in som e populous s ch oo l d istr icts em brac ing large geographica l a reas . There may be s e g r e gated schoo ls which are the result of unconstitutional sta tutes or of o f f i c ia l action. There may be other one race schoo ls which are the product of neutral, n o n -d is c r im in a tory p r a c t i c e s . " (slip opinion, pages 75-76). The m ajor i ty of the court further noted that "the identification a pp ioa ch is an obvious necess i ty , given the Swann limitation on federa l judic ia l power. " The rac ia l com posit ion , fo r 1970-1971, of the Detroit M um ford High School constel lat ion is 94.2% black. Dr. F re e m a n Flynn, in tes t i fying on the propr iety of a m etropol i tan rem edy, stated that said schoo l attendance area was predom inat ly white until the 1960's . He attributed the con tem p ora ry predominance of b lack cit izens to an influx of black p erson s who had im proved their s o c i o - e c o n o m i c status by moving into that area f r o m other areas (A. VIIal44). This example il lustrates the i m p o r tance of the identification requirement ex p r e sse d above. A predominance of black persons in a given sch oo l or sch oo l sy s tem is, standing alone, insuffic ient to support a conc lus ion of de jure segregation esp ec ia l ly in a situation such as here presented where there is no h istory of a state- im posed dual s ch oo l system. " . . . . The m e re existence of o n e - r a c e schoo ls whether black or white, does not establish a const i tu tional violation. " United States v Board of Fducation , Independent School Dist. No. 1, Tulsa, Okla , 459 F2d 720 (CA 10, 1972). -5 9 - Iii its Findings Of Fact And Conclusions Of Law On Detro it -Only Plans Of D esegregat ion (A. Ia456-56l) the D is tr ic t Court stated that the desegregat ion plan o f fered by plaintiffs "would change a schoo l sy s tem which is now Black and White to one that would be perce ived as B lack" (A. Ia458, para. 8). If the Detroit sch oo l system is now " B la c k and White" it is submitted that c lea r identification of the spec i f ic schoo ls c la imed to be segregated and findings of fact in connection therewith are essential to support a finding of de jure segregation. In its Ruling On Issue Of Segregation the D is tr ic t Court states that the predominance of b lack students in the Detroit public schoo l system is a result of population changes and residential segregation (A. Ial96-199, 200-201, 210). Li Davis v School D is tr ict of the City of Pon t ia c , 433 F2d 573, 575(CA 6, 1971) this Court stated: "Appellants c o r r e c t l y contend that under Deal v Cincinnati Bd, of Educ. , 369 F2d 55 (6th Cir. 1966), cer t denied, 389 U. S. 487. . . . (1967), a sch oo l d istr ict has no a f f irmative obligation to achieve a balance of the races in schoo ls when the exist ing imbalance is not attributable to schoo l po l ic ies or pract ices and is the result of housing patterns and other f o r c e s over which the schoo l a dm in i stration had no control . " The findings of the D is tr ic t Court do not reveal casual connection between the a sse r te d acts of de jure segregation and sp ec i f i c s choo ls in the Detroit public sch oo l system and it is submitted that the finding of de jure segregat ion in the Detroit sch oo l system is patently erroneous . - 60 - , IV. DID THE PROCEEDINGS IN THE DISTRICT COURT CONSTITUTE A DENIAL OF DUE PROCESS OF LAW TO INTERVENOR SCHOOL DISTRICTS?________ This Court prev ious ly ruled in this case , "T h e re must be a trial on the m er its as to the alleged constitutional violations as a predicate to r e l i e f in the fed era l courts . . . . 11 Bradley v Mill ike n , 438 F. 2d 945, 946 (CA6 1971) That this Court 's o rd e r contemplated a trial in a c c o r dance with traditional notions o f fa ir play and fundamental due p r o c e s s goes without saying. That the proceed ings a f forded by the trial court violate such notions of fa ir play and due p r o c e s s is easi ly seen f r o m a c u r s o r y examination of the proceed ings below. Seven days after allowing appellants to intervene, as a matter of right but subject to op press ive condit ions, /] the trial court required the filing of written br ie fs on the legal propr iety of a m etropol i tan plan o f desegregat ion . [A. Ia397] The court did not require nor perm it ora argument. L ess than 36 hours later the court issued its "Ruling on Pro pr iety of Considering a Metropoli tan Rem edy to A c c o m p l is h D e s e g r e g a tion of the Public Schools of the City of Detro it " [A. Ia439] re ject ing the contentions of Intervcnor School D is tr ic ts . Test im ony regarding Metropolitan plans com m en ced four days later (a weekend and Motion W \ . . Ia407, Intervenor School Distr icts submit that the conditions im posed by the trial court on their partic ipation, Ia409-410, in them se lves constitute a denial of due p ro ce s s requiring reversa l . See "Object ions to Conditions Placed on Intervenors" , Ia412, Ia421 and Ia423. -6 1- day falling between) at 10:10 A. M. p r io r to the noon r e c e s s , just two hours a fter Intervenor School Distr icts counsel had f irst appeared in the Distr ict Court and be fore com pletion o f test imony of a single witness, the D is tr ict Judge announced that counsel could stop by his o f f i ce and pick up his "Findings of Fact and Conclusions of Law on D etro i t -on ly Plans of D e s e gregation: [A. Ia456] wherein the court announced its intention to seek a m o r e des irab le rac ia l m ix by means of a Metropoli tan Plan. Thus, without any opportunity f o r ora l argument, without opportu nity to examine o r c r o s s - e x a m in e one witness, without opportunity to p r e sent one shred of ev idence, and indeed, without opportunity to obtain copies o f previous pleadings and testimony (let alone read same), the Intervenor School Dis tr ic ts had been e f fect ive ly f o r e c lo s e d f r o m protecting their in . . [28]te res ts . • "A fundamental requirement of due p ro ce s s is 'the opportunity to be heard. 1 * * * It is an opportunity which must be granted at a meaningful time and in a meaningful manner. " A rm stro n g v M anzo , 380 US 545, 552 (1965). "A p e rs o n 's right to reasonable notice of a charge against h i m , 1' and an opportunity to be heard in his d e fe n se ^ ^ - - a right to his day in [28] See page 65 , infra, for Intervenor School Distr icts B r ie f in regard to the question as to whether they were indispensable parties to the orig inal proceedings regarding alleged de jure segregat ion in the Detroit School system. Intervenor .School Distr icts assert that their p resence was indispensable, the proceed ings were not a d v e r sary , and they were therefore denied due p ro ce ss . (See following page for footnotes 29 through 34 . ) - 6 2 - ‘ " court [31] __ are bas ic in our sy s tem of jur isprudence ; and these rights include, as a minimum, a right to examine the w itnesses against him, to o f f e r testimony, ^3] and to be represented by counsel , " In re [3 2] O liv e r 333 US 257, 273 (1948) [29] ̂ • No c la im s or allegations were made against Intervenor School d is t r i c t s in p la int i f fs1 complaint. Ia7 [30] As prev ious ly pointed out, Intervenor School D is tr ic ts were not permitted ora l argument on the propr iety of a Metropoli tan R e m edy and the T r ia l Court 's rulings e f fect ive ly f o r e c lo s e d their d e fense p r io r to the com plet ion o f testimony of a single witness, [31] At best, Intervenor School Dis tr ic ts had but 1 /2 day on March 28, 1972, p r io r to the D is tr ict Court 's d ec is iv e ruling at the noon r e c e s s . [32] See condition 9 placed on Intervenor School D is tr ic ts , Ia410. [33] See T r ia l Court 's ruling quashing the subpoena to Wells , VIIIa99; Refusal to r e ce ive the deposition of Dr. David A r m o r , VUIal 1 6- 118. Indicative of the trial cour t 's d if fering treatment of Intervenor .School D is tr ic ts as opposed to other parties in rece iv ing evidence is the cou r t ' s ruling on Exhibit 16. A fter counsel for Intervenor School D i s tr icts established that the witness had no knowledge as to Exhibit 16 the court decided to " fo l low Justice of the Peace Cane's rule; 'We wil l let it in f o r what it 's worth. ' " Yet Mr. W ells ' testimony regarding safety in schoo ls was excluded as not relevant despite the previous t e s t imony o f F reem a n Flynn [A. VIIa9l] on the same subject. [34] See Condition 9 on Intervenor School Dis tr ic ts , Ia410. An u n fo r tunate and unexplained contradict ion in the cou r t 's "one coun se l" approach is seen when Condition 9 relative to representat ion is com pared with Paragraph 13 o f the court 's Findings of Fact and Conclusions of Daw of June 14, 1972 (Appendix, Ia492). In the latter document the court r e grettably r e fe r r e d to the "awkward posit ion" chosen by schoo l d istr icts having "s ingle representat ion" . The very purpose of such rep resen ta tion was an accom m odat ion to the court and the judic ia l p ro ce s s in g e neral so as not to deluge the litigation with o v e r eighty additional a t to r neys. -6 3 - "The right to a fa ir and open hearing is one of the rudiments of fa ir play assured to every litigant by the Federa l Constitution as a minimal requirem ent . " Rai lroad C o m m is s io n of Cal ifornia v P a c i f i c Gas & E l e c t r i c Co, 302 US 388, 393 (1938 ) "W e have frequently em phasized that the right to confront and c r o s s examine w itnesses is a fundamental aspect of p roced ura l due p r o c e s s . " Jenkins v McKeithen, 395 US 411, 428 (1969) It is im poss ib le to equate the proceed ings below with these r e q u i r e ments set forth by the Supreme Court as m inim al to due p r o c e s s of law. Certainly those requirem ents do not contemplate a court rendering a d e c i s ion p r io r to allowing partic ipation by counsel. A llowing counsel to examine or c r o s s - e x a m in e w itnesses a fter the w i tn e s se s 'v ie w s have been adopted by the court can hardly be cons idered due p r o c e s s o r even worthwhile . The consequences o f the Tr ia l Court 's act ions w ere c le a r ly foreto ld by Mr. Justice Fortas in Re Gault, 387 US 1, 19-21 (1967): "F a i lu re to ob serv e the fundamental requirements of due p r o c e s s has resulted in instances, which might have been avoided, of unfairness to indivi duals and inadequate or inaccurate findings o f fact and unfortunate p rescr ip t ions of remedy. Due p r o c e s s of law is the p r im ary and indispensable -6 4 - foundation of individual freedom . * * * As Mr. Justice Frankfurter has said: 'The history of A m e r ic a n f r e e d o m is, in no small m easure , the h istory of p rocedure . 1 But in addition, the p r o cedural rules which have been fashioned f r o m the generality of due p ro ce s s are our best instru ments fo r the distillation and evaluation of e s sential facts f r o m the conflict ing welter of data that life and our adversary methods present . It is these instruments of due p r o c e s s which en hance the possib i l i ty that truth wil l em erg e f r o m the confrontation of opposing v ers ion s and c o n f lict ing data. 'P ro c e d u r e is to law what " s c i e n tif ic method" is to sc ience . ' " Unquestionably, due p r o c e s s has not been a c co rd ed to Intervenor Schoo l Dis tr ic ts and this Court must r ev erse . DUE PROCESS REQUIRES THAT THE INTERVENOR SCHOOL DISTRICTS, AS INDISPENSABLE PARTIES, BE JOINED IN THE LAWSUIT AT ITS INCEPTION AND UPON FAILURE TO BE SO INCLUDED, THE DIS - TRICT COURT IS PRECLUDED FROM GRANTING RE - LIEF AGAINST THEM It is Intervenor School D is tr ic ts posit ion that the D istr ict Court was without authority to o rd er a metropoli tan plan of desegregat ion in cluding suburban schoo l d istr icts since Intervenor School Distr icts are indispensable parties and w ere not proper ly jo ined at the c o m m e n c e ment of litigation. Rule 19, FR Civ P, as amended, prov ides fo r the jo inder of - 6 5 - D istr ic ts on their own motion (over the ob ject ion of plaintiffs) were p e r mitted "cond it iona l" participation in the proceed ings . # . An a lm ost identical procedura l situation confronted the Distr ict Judge in Bradley v School Board of the City of R ichm ond , 338 F Supp 67 (1972), F 2d (CA4, June 5, 1972) wherein suit was brought' against the School Board of the City of Richmond which in turn sought to jo in third parties including two adjoining county schoo l boards . That court noted that to wait until all evidence was introduced be fore d e t e r mining the need fo r jo inder of additional parties would be a waste of the e f forts of all involved and would create a risk o f unjustifiable delay in the resolut ion of the con trov ersy . Remarking that "absent parties should be jo ined if it is probable that the re l ie f sought cannot be achieved only partially o r conditionally without them" the court granted the jo inder motion. This jo in der was a ccom pl ished by an O rd er Direct ing Joinder of Part ies Needed F or A Just Adjudication And Providing F o r Further Pleadings. There in plaintiffs were required to file "an amended c o m - pla int where in they set forth such facts as they contend give rise to an obligation on the part of those jo ined by this O rd er to take steps to achieve a unitary schoo l sy s tem for the c lass represented by them and -6 6 - persons needed f o r a just: adjudication. An indispensable party is defined as one whose interest in the subject matter of the suit and in the re l ie f sought is so bound up with that of the other parties that his legal p resence as a party to the p roceed ing is an absolute n ecess i ty without which the court cannot proceed . Balt im ore k O R C o . v Chicago R iver and I R Co (CA 111 1948) 170 F 2d 654, cert den, 69 S Ct 811; 336 US 944; 93 L Ed 1101. Indispensable parties have a lso been defined as persons who not only have an interest in the co n trov ers y but an interest of such a nature that a final d e c r e e cannot be made without either affect ing that interest o r leaving the co n tro v e rs y in such condition that its final determination w il l be wholly inconsistent with equity and good consc ience . See, L u m b erm a n 's Mut Cas Co v Elbert, 348 US 48; 75 S Ct 151; 99 L Ed 59 (1954) While it is c lea r that the failure to jo in an indispensable party does not deprive the court of ju r isd ic t ion to determine the pending act ion b e fo re it, it does prohibit the court f r o m granting any re l ie f which would in any way affect an absent indispensable party. B or is v M oore (DC Wis 1957) 152 F Supp 602, aff 'd 253 F2d 523 (CA 7 1958). F r o m the f o r e going authorit ies it is c lear that independent suburban schoo l d istr icts such as Intervenor School Distr icts were not included as parties to this act ion at the com m en cem en t of proceed ings . Nor were Intervenor School -67 - also the particular re l ie f that they seek f r o m the added part ies " . (Emphasis supplied) What was o rd e re d by the Federa l Court in Richmond, Virginia , should l ikewise have been p roper ly o rd ered by the Federa l Court in Detroit , Michigan. Intervenor School Dis tr ic ts w ere not parties to the litigation at the t ime that the D is tr ict Court made its finding o f de jure segregation, which finding represents the very foundation fo r the low er cou r t ' s just i f ication o f its m etropol i tan rem edy. As intervenors , Intervenor School Distr icts found them selves bound by determinations f r o m proceed ings in which they did not take part and w ere precluded f r o m modifying. Such a result is ■violative of Intervenor School D is tr ic ts ' rights of due p r o c e s s as ind is pensable parties to the proceed ings . [35] No allegations have ev er been made against, nor any re l ie f sought f r o m Intervenor School D is tr ic ts . Interestingly, the D is tr ic t Court here admits that no proo fs were taken regarding wrongful conduct by Intervenor School Dis tr ic ts . [A. Ia498] -68 - -V. DID THE DISTRICT COURT'S FAILURE TO CONVENE A COURT OF THREE JUDGES PURSUANT TO 28 USC § 2281 DIVEST THE DISTRICT COURT OF JURISDICTION TO ORDER THE RESTRAINT OF ENFORCEMENT, OPERATION OR EXECUTION OF MICHIGAN STATUTORY PROVISIONS? R educed to its e s se n ce , 28 USC § 2281 prohibits a one judge d istr ic t court f r o m enjoining the enforcem ent , operation or execution by state o f f i c ia ls o f state statutes of general application upon the ground that such statutes vio late the Constitution of the United States. The p ur p ose o f 28 USC § 2281 is "to prevent a single fed era l judge f r o m being •able to para lyze totally the operation o f an entire regulatory schem e by issuance of a broad injunctive o rd er , " Kennedy v M en d oza -M a r tine z , 372 US 144, 154, 83 S Ct 554, 560, 9 L Ed2d 644 (1963), and to provide " p r o ce d u ra l protect ion against an improvident state-wide doom by a federa l court of a state 's leg is lat ive po l icy , " Phil lips v United States, 312 US 246, 251, 6 l S Ct 480, 483, 85 L Ed 800 (1941). In determining whether or not the prov is ions of 28 USC § 2281 are applicable to the instant case , a b r ie f rev iew of the h is tor ica l antecedents to the d irect ive present ly embodied in the statute would be helpful. 28 USC § 2281 prov ides as fo l lows: -6 9 - "An in ter locutory or permanent injunction restra in ing the enforcem ent , operation or execution of any State statute by restraining the act ion o f any o f f i ce r o f such State in the enforcem ent or execution o f such statute or o f an o rd er made by an a d m in is tra tive board or c o m m is s io n acting under State statutes, shall not be granted by any d istr ict court or judge thereo f upon the ground of the unconstitutionality of such statute unless the application there for is heard and determined by a d istr ic t court of three judges under sect ion 2284 of this t i t l e . " 28 United States Code § 2281. The p r io r statutory p rov is ion s , being 28 USC § 266, as amended by 28 USC § 380, contained s im ilar language to the present 28 USC § 2281, and the b a s ic structure of the statute as adopted in 1910 rem ains intact Swift & Co v Wickham, 382 US 111, 86 S Ct 1 19 (1965). 28 USC § 2281, and its p r e c u r s o r s , a ro se as Congress iona l resp on se to Ex Parte Y oung , 209 US 123, 28 S Ct 441, 52 L Ed 714 (1907) w here in the Supreme Court approved the enjoining of en forcem ent of a state statute by a single federa l d is tr ic t judge. The opposition engendered by Young, supra , and the increas ing incidents o f act ion under state statutes being federa l ly enjoined, part icu lar ly in areas of utilities r e g ulation, was substantial. The Supreme Court in Swift v Wickham, supra, d es c r ib ed in its opinion the furor which act ions of the federa l jud ic iary had ignited and in its opinion the Court included some of the com m ents o f Senator Overman, a sponsor of the three judge p roce d u re , as fo l lows: -70- " 'Whenever one judge stands up in a Slate and enjoins the governor and the attorney -genera l , the people resent it, and public sentiment is st irred , as it was in my State, when there was a lm ost a r e b e l lion, whereas if three judges d ec lare that a state statute is unconstitutional the people would rest easy under it. 45 Cong R e c 7256. ' " Swift, supra at 118. Justice Harlan, writ ing for the m ajor ity , further noted: "Sect ion 2281 was designed to prov ide a m o r e resp on s ib le fo rum for the litigation o f suits which, if su c cess fu l , would render void state statutes embodying important state p o l i c ies . The statute prov ides for noti f i cation to the State of a pending suit, 28 USC § 2284(2) (1964 ed), thus preventing ex parte injunctions com m on prev ious ly . It p rov ides for three judges, one of whom must be a c ir cu it judge, 28 USC § 2284 (1) (1964 ed), to allow a m o r e authoritative determination and less o p p o r tunity for individual p re dilect ion in sensit ive and po l it ica l ly emotional areas . It authorizes d irect rev iew by this Court, 28 USC § 1253, as a means of a cce lera t ing a final determination on the m er i t s ; . . . " Swift, supra at 119 (emphasis added). The three judge court p rov is ions required by 28 USC § 2281 have been l imited to injunctions ar is ing out of the questioned constitutionality o f state statutes and administrative board o rd e rs in the regulatory field v i s - a - v i s the United States Constitution. As might well be expected, the three judge court has been invoked extensively in the c iv i l rights and desegregat ion ca ses . Indeed, Brown v Board of Education, 347 US 483, 74 S Ct 686, 98 L Ed 873 (1954), and its federa l companion ca se s , Briggs v Elliott and Davis v County School Board, all involved three judge courts . -71- Spencer v K u g l c r , 326 F Supp 1235 (N. J. , 1971) a f f irm ed 92 S Ct 707 (1972) is one of the latest in the progeny of Brown I which have invoked the three judge court in pursuance o f 28 USC § 2281; and with good reason . Litigation such as the instant case gives r is e to an emotional fever . The three judge court would provide , in the language of Swift, supra , a m o r e "authoritative determination" and " l e s s opportunity for individual p red i lec t ion in sensit ive and po l i t ica l ly emotional areas . " Given this h is to r i ca l precedent for 28 USC § 2281 and r e c o g n i tion o f its applicabil ity in desegregat ion ca ses , the question b e c o m e s one o f the sp ec i f i c applicability of, and requirem ent for , a three judge court in the case at bar. The complaint in this cause, as fi led on August 18, 1970 and unamended to date, sought, inter a l ia , to enjoin the operation of A c t 48 of the Public A c ts of Michigan of 1970. It was established that the case was not then a three - judge court case . Bradley v Mill iken, 433 F2d 897 (CA 6, 1970), n. 2, p. 900. A determination of the constitu tionality o f A c t 48, PA 1970 was made proper ly by a one- judge district court because the statute was " l o c a l in application. " Pla intif fs ' c o m plaint also al leged that the State Defendants and School Distr ict o f the City of Detroit defendants, acting under c o lo r o f the law, were operating -72- a segregated public schoo l system in the Detroit sch oo l d istr ict . In its Ruling on Issue o f Segregation o f September 27, 1971, the Court found that the Detroit School Distr ict was a de jure segregated schoo l system . The constitutional ity of no state statute o f general app l ica tion being cal led into question, however , the case was still not one requir ing a three judge panel. (A. Ial94). The jur isd ic t iona l posture of the case was significantly changed, how ever , by entry by the Court thereafter of a su c ce ss io n of Rulings and O r d e rs culminating in the issuance of its June 14 Ruling and O rder . (A. Ia535). P r io r to the entry of these Rulings and O rd ers , the entire case was confined to the question of schoo l segregation in the schoo l d is tr ic t o f the City of Detroit. Upon entry of the June 14 Ruling and O rder , how ever , the case totally involved som e 53 schoo l d istr icts and a p r o p osed plan of desegregat ion that, to be im plemented, would requ ire the w holesa le abandonment of a number of state statutes of general app l ica tion. Thus, it is submitted the imposit ion of such a p rop osed "m etropol i tan r e m e d y " and, spec i f i ca l ly , the June 14 Ruling and O rder , are jur isd ict iona l ly defective because of the failure to convene a three - judge d istr ict court pursuant to Title 28 USC § 2281. The June 14 Ruling and Order (A. Ia535) interdicts the State Defendants, the schoo l d istr ict defendants and even non -part ies named - 73 - therein , in the en forcem ent , operation or execution of powers c o n f e r r e d and duties im posed upon them by the 1963 Constitution and statutes o f the State o f Michigan. The language of the Ruling and Order openly invites recom m end a t ion s for its implementation that would be contrary to state law and which constitutes a flagrant abuse of the power o f the federa l jud ic iary . Only i l lustrative o f the injunctive ef fect o f that June 14 Ruling and O rder are the restra ints im posed upon schoo l d is tr ic ts in the following r e sp e c t s : (a) A f fo rd in g educational opportunities to resident pupils within each schoo l d istr ict , and contro l of attendance of non -res ident students (Art. VIII, Sec. 2, Const. 1963; M C L A 340. 356, 340.589, 340. 582) (b) The employment and a l locat ion o f teaching and administrative staff to educate res ident pupils upon te r m s sat is factory to each schoo l d istrict . (MCLA 340.569, 423 .209 , 38.91) And in connection t h e r e with the Michigan T e a ch e r s Tenure A ct (MCLA 38.71) and the Public E m p loy ees ' Co l lect ive Bargain ing A ct (MCLA 423. 201) -7 4 - (c) The construction, expansion and use o f school fac i l i t ies . (MCLA 340. 77) (d) The curr icu lum , act iv it ies and standards of con duct and the dignity and safety o f students, faculty, staff and parents within each schoo l d istr ict . (MCLA 340.575, 340.583, 340.614, 340.882) It is c lear that the June 14 Ruling and Order interdicts statutes o f statewide application rather than statutes which are " l o c a l in app l ica tion. " Sailors v Kent Board of Education, 3 87 US 105, 87 S Ct 1549, - 18 L Ed 2d 650 (1967). It is equally c lear that 28 USC § 2281 may only be invoked in those ca ses where the operation or en forcem ent o f a state statute of general application is enjoined on the grounds of the uncon stitutionality thereof . The courts have a lso uniformly held that the constitutional ity of a statute which invokes c lea r governmental d i s c r i m ination need not be determined by a three judge court, Bailey v Patterson, 369 US 31, 82 S Ct 549, 7 L Ed2d 521 (1962), and segregation by law of public institutions or faci l i t ies is no longer regarded as a substantial constitutional question. Turner v City of Memphis , 369 US 350, 82 S Ct 805, 7 L Ed2d 762 (1962); Board of Managers of Arkansas Training School v G eorge , 377 F2d 228 (CA 8, 1967). The case b e fore this court, -75- how ever , does not fall within the forego ing rule. On the contrary , the statutes in the State of Michigan do not invoke " c l e a r governmental d is cr im in at ion " and the restraint upon state o f f i c e r s in the e n fo r c e ment and execution o f such statutes im posed by the June 14 Ruling and O rder does present a "substantial constitutional quest ion" which may only be determined by a three - ju dge court. That the restra ints upon the enforcem ent and execution of such statutes im posed upon the schoo l boards of the schoo l d istr icts named in the June 14 Ruling and Order are against "state o f f i c e r s " is a lso c lear . These schoo l boards are "state o f f i c e r s " within the meaning of 28 USC § 2281 because they are charged v/ith the duty of enforc ing p o l ic ies o f statewide con cern as set forth in the 1963 Michigan Constitution, the Michigan School Code of 1955 (MCLA 340. 1 et s e q . ), T e a ch e r s ' l en u re A c t (MCLA 38. 71 et s e q . ) and Public Employment Relations A ct (MCLA 423.201 et s e q . ) within the geographica l limits of each schoo l d istrict . That the schoo l boards subjected to the June 14 Ruling and Order are "state o f f i c e r s " enforc ing statutes of statewide application was settled by the Supreme Court of the United States in Spielman Motor Sales Co V Dodge, 295 US 89, 55 S Ct 678, 79 L Ed 1322 (1934), where the Court said: "W here a statute em bodies a po l icy of state wide concern , an o f f i c e r , although chosen in a poli t ical subdiv is ion and acting within that limited teri ' i tory , - 76 - may be charged with the* duty of enforc ing the statute in the interest o f the State and not s imply in the interest o f the local ity where he se rv es . " 295 US at 94. • The Eleventh Amendment to the Constitution of the United States b a rs the jur isd ic t ion of the federa l courts to hear a suit brought against the State of Michigan acting through its o f f i c e r s , such as those named in pla intif fs ' complaint, or bodies such as lo ca l schoo l d istr icts , acting pursuant to valid state statutes, where the suit is brought by res idents o f the State of Michigan. Ex Parte Y oung , 209 US 123, 28 S Ct 441, 52 L Ed 714 (1907); Ful ler v Van Wagoner, 49 F Supp 281 (E. D. Mich, 1942); Brown Brothers Equipment Co v State of Michigan, 266 F Supp 506 (W. D. Mich, 1967). The federa l courts have jur isd ic t ion of such an act ion only in those ca ses where state o f f i c e r s have attempted to en force an unconstitutional law or administer a valid law wrongfully . Ex Parte Young, su p ra ; Ful ler v Van W a g on er , supra. Since plaintif fs ' complaint (unamended to date) a lleged the unconstitutionality of A c t 48, PA 1970 and the wrongful administration of the lav/ in the schoo l d istr ict of the City o f Detroit , the Court 's jur isd ic t ion was not initially barred by the Eleventh Amendment. Consistent with the lack o f any allegation or finding o f de jure segregat ion on the part of the Intervenor School Distr icts named in the June 14 Ruling and O rder , there is s im i lar ly no allegation or finding - 77 - that otherwise valid state laws have been unconstitutionally admin is tered by such schoo l d istr icts . There rem ains but one basis , then, upon which the June 14 Ruling and Order may be upheld and restraints im posed upon such schoo l d istr ict o f f i c ia ls in the enforcem ent of laws o f statewide application within their resp ect ive schoo l d istr icts . That bas is is the unconstitutionality of the state 's leg is lat ive p o l i c ie s with re s p e c t to education. The propos it ion was w el l stated in United States ex re l . M cN eil l v Tarum ianz, 242 F2d 191 (CA 3, 1957). The question b e fore the Court in Tarumianz was a determination whether the defendant, the ' Delaware State P sych iatr is t , was engaged in conduct allowed by statutory authorization or whether his conduct was outside the scope o f the statute. The Court of Appeals noted that a public o f f ic ia l is p resu m ed to act in a cco rd a n ce with his authority, and such presum ption can be o v e r c o m e only by a sp ec i f i c allegation showing c lear ly a threatened abuse o f law ful authority. The plaintiff a lso alleged as a cause of act ion that the statute under which defendant assum ed to act was unconstitutional and the en forcem ent thereo f was a denial of pla intif f 's constitutional rights. The Court of Appeals noted that where the constitutionality of a state statute is challenged, a one- judge d istr ic t court has no j u i i s - diction to hear the case . The court said at p. 195. -78- "On the other hand, if appellant concedes the constitutional ity of the statute, and indeed nothing is a l leged in the complaint to o v e r c o m e the presum ption of constit\itionality, her action falls squarely within the prohibit ion of the Eleventh Amendm ent of the F ed era l Constitution as a suit by an individual against a state. There are various situations in which an action in f o r m against an individual is in substance an act ion against the state, [citing ca se s ] It has been decided by this court that an act ion against a state o f f i cer seeking to enjoin him f r o m conduct authorized by a state statute is in ef fect an act ion against the state, [citing ca s e s ] An opposite holding, which would nullify the effect of a cons t i tutional statute while not passing upon its constitu tionality, would be a contradict ion of reason , a usurpation of power . " (Emphasis added) The court concluded that i f the plaintiff based her complaint for in junc tion upon the statute's unconstitutionality, the argument in the court be low was b e fo re the wrong forum. - - it should have been be fore a three - judge court. If, on the other hand, the action which plaintiff sought to enjoin was being taken pursuant to a constitutional state statute, the Eleventh Amendment b a rred the case. S im ilarly , in Board of Managers of A rkansas Training School v George , 377 F2d 228 (CA 8, 1967), the court v iewed pla intif f 's complaint as n e c e s s a r i ly incorporat ing state statutes. It noted that it would be a contradict ion to reason to attempt to enjoin the state f r o m the en forcem ent o f a statute and at the same time not pass upon the constitutional ity of the statute. Clearly , it is a "contrad ict ion o f r ea son " to res tra in the - 79 - schoo l d is tr ic ts named in the June 14 Ruling and O rder f r o m the enforcem ent , operation and execution of the p ow ers granted to them under the 1963 Constitution and n on -segregat ive statutes of the State o f Michigan, thereby nullifying the Michigan educational system as defined by leg is lat ive enactments and not pass upon the constitutionality o f such leg is lat ive enactments. Under the mandate of 28 USC § 2281, only a three - ju dge d istr ict court may determine the constitutionality o f such educational laws, enforcem ent of which is interdicted in the one- judge June 14 Ruling and O rder . No l icense is con fer red by Brown I (34^ US 483, 14 S Ct 686, 98 L Ed 873 [1954] or Brown II (349 US 294, 75 S Ct 753, 99 L Ed 1083 [1955] upon the Distr ict Courts to ignore 28 USC § 2281 or the "due p r o c e s s " c lause of the Fifth and Fourteenth Amendments to the Constitution of the United States. Unlike the case at bar , the defendants in each o f those ca ses w ere be fore the court and w e r e found to have c o m mitted acts o f dn jure segregation. S imilarly , in c a se s such as Haney I (410 F2d 920 [CA 8 , 1969]), Haney II (429 F2d 364 [CA 8 , 1970]), and United States v Texas (321 F Supp 1043 [E. D. Tex. , 1970], 447 F 2d 441 [CA 5, 1971]), the courts entered o r d e r s enjoining the maintenance o f all white and all b lack schoo l d istr icts created under state laws which requ ired the operation of a dual schoo l system. 1 he entry o, injunctive -8 0 - ordei-s interdicting the enforcem ent of state laws on the ground of unconstitutionality in those case-s by one- judge d istr ict courts is ent irely rnndistent with Bailey v Patterson, su£ra, because the c o n stitutional quest ion o f maintenance of dual schools in the school d is tr ic ts under the facts in those ca ses was s imply no longer open. The rationale of Bai ley v Patterson, supra , however , does not apply . to d ispel the mandate of 28 USC § 2281 in the instant case as present ly postured since the statutes are th em se lves , on their face , neutral and n o n -s e g r e g a to ry and because the Constitution and statutes of the State o f Michigan have always been adopted, interpreted and en forced to defeat ra c ia l segregation in schoo l d is tr ic ts . See Convention C o m ment, A rt . 8, Sec. 2, 1963 C onst . , Workman v Board o j j ^ucM ionm jl Detroit , 18 Mich 399 (1869); Mason v School Di s t r m t _ o £ t h e _ C i t ^ ^ Flint, 6 Mich A PP 364, 149 NW2d 239 (1967); dipping, v L^nsing_Board of Education, 15 M ich App 441, 166 NW2d 472 (1968) [leave to appeal denied]. The instant case b eca m e a three - ju dge court case when the June 14 Ruling and Order was issued n e c e s s a r i ly restrain ing the o p e r ation of state statutes af fecting 53 loca l schoo l d is tr ic ts , 780,000 students and severa l thousand teachers and loca l schoo l adm in istrators . In the face of an order of such magnitude, it can s ca r c e ly be argued that - 81- cons iderat ions of e conom y in judic ial administration preva i l against the convening of a three - judge court under § 2281. Jone s v Dr anigin, 433 F2d 576 (CA 6, 1970). Rather, failure to convene a three - judge court under the mandate of 28 USC § 2281 wi l l m o r e likely result in "extended delay, duplication of jud ic ia l ef fort , and harm to the parties . See, Note, The Three Judge Distr ict C ou rt : Scope and P r o c e d u reJJnder § 2281, 77 Harv L R ev 299, 305 (1963). The June 14 Ruling and Order constitutes a usurpation of power and should, there fore , be set aside. - 82 - VI. WHAT IS THE P R E C I S E 'L E G A L STATUS UNDER S J A I L LAW OF L O C A L SCHOOL DISTRICTS AND BOARDS OF EDUCATION VIS-A-VIS THE STA TE OF MICHIGAN? A. Lega l Status o f School Distr icts School d is tr ic ts in Michigan, which are recogn ized m the 1963 Con stitution and established by the leg is lature, are entities having independent legal status and p ossess in g broad authority and d is cre t ion under state law o v e r the conduct of the educational p r o c e s s within their respect ive g e o g r a phic boundaries . A care fu l examination of Michigan constitutional and s ta tutory prov is ions establishes the autonomous nature of loca l school d istr icts and the vital role they play in the educational p r o c e s s in Michigan. B as ic to an understanding of the responsib i l i t ies fo r education in Michigan and in particular the legal status of schoo l d is tr ic ts is A rt ic le VIII, Section 2 of the Constitution o f 1963 which prov ides : "Sec . 2. The legis lature shall maintain and suppoit a s y s te m of f ree public e lem entary and secondary schoo ls as defined by law. Every schoo l d is tr ic t shall provide for the education of its pupils without d iscr im in at ion as to religion, c reed , race , c o lo r o r national orig in . " By the term s of this section,, the f ra m e rs of the 1963 Constitution c lear ly retained in the hands of the legis lature the pr im ary responsibi l i ty for the maintenance of the public schoo ls in Michigan. While this prov is ion is le ss detailed than that which it replaced (Art. XI, Sect ion 9 of the -8 3 - Constitution of 1908), the Convention Comment does not suggest that[36] it was intended to re l ieve the leg is lature of the bas ic responsib i l i t ies i m posed upon it under the 1908 Constitution. While the Michigan Constitution of 1963 recogn izes the existence o f schoo l d is tr ic ts by re ferr in g to them in at least four sect ions (Art. VIII, §2; Art . IX, §6; Art . IX, §11; and Art . IX, §16), the establishment of sp ec i f i c sch oo l d is tr ic ts has always been and continues to be the province o f the l e g i s la t u r e .^ ^ In Jones v Grand Ledge Public S ch o o ls , 349 Mich 1, 84 NW2d 327 (1957), the Court states at p 4: "It has been repeatedly recogn ized by this Court that the leg is lature is vested with complete au thority to determine the manner in which the d i rec t iv es of the Constitution shall be ca rr ied out, the creat ion and operation of a s y s te m of public s choo ls , the creating of schoo l d is tr ic ts , and the [3d "T h is is a rev is ion o f Sec. 9, A r t i c le XI, o f the present [1908] constitution which f ixes responsibi l i ty on the leg is lature to provide 'p r im a r y ' education. To co n fo r m to present pract ice and court in terpretat ions , 'p r im a r y ' is changed to 'e lem entary and secon dary ' . The balance of the sect ion is excluded because its restr ic t ions as to finance and definitions as to bas ic qualif ications needed to be e l i g i ble fo r state aid are better left to legislat ive determination. The ant i -d iscr im inat ion clause is placed in this sect ion as a dec larat ion which leaves no doubt as to where Michigan stands on this question. " [31 The legis lature has e x e r c i s e d this authority under the School Code of 1955 (MCLA §§340. 1 ct s e q . ) by establishing five c la ss es of lo ca l schoo l d istr icts f r o m the d istr icts exist ing at the time of the taking e f fect of the act. See MCLA §§340. 21, 340. 51, 340. 101, 340. 141 and 340. 181. -8 4 - powers and duties, of school o f f ic ia ls chosen in a cco rd a n ce with the law. " In Detroit Board of Education v Superintendent of Public Instruction, 319 Mich 436, 29 NW2d 902 (1947), the Court stated at p 450: "W e think it may fa ir ly be said that the te rm ' s c h o o l d is tr ic t ' is com m on ly regarded as a lega l d iv is ion of te rr i to ry , created by the State fo r educational purposes , to which the State has granted such powers as are deemed n e c e s s a r y to perm it the d istr ic t to function as a State agency. " That this grant of power to the legis lature under the 1963 Constitution r e mains essentia l ly unaltered is demonstrated by Penn School D istr ict No. 7 v Lewis Cass Intermediate School Distr ict , 14 Mich App 109, 165 NW2d 464 (19 68), where plaintiffs brought suit challenging the constitutionality o f the act fo r reorganizat ion of schoo l d is tr ic ts . (M.CLA §§338. 68 1 _et seq.) . In upholding the act and in responding to plaintiffs ' contention that the act was an unlawful delegation of legis lat ive authority, the Court states at pp 1 2 0 - 1 2 1 : "The legis lative power to alter schoo l d is tr ic t boundaries may be delegated to subordinate au thorit ies provided that standards are established fo r the guidance of the subordinate body. . . . In 47 A m Jur, Schools , §18, pp 310-11, it is said: 'Whatever the nature of the change, it is settled that the boundaries of schoo l d istr icts may be changed at the will of the leg is lature. - 85- In the e x e r c i s e of ' i ts power, the leg is lature may- act d irect ly , o r it may delegate its power to sub ordinate authorities without violating the general rule against the delegation of legis lat ive power. F o r example , the power to change boundaries may be c o n f e r r e d ’by the legis lature on adm in i strative agencies , ci t ies or towns, loca l boards o r o f f i c e r s , including tov/n boards, or county boards o r o f f i c e r s , or upon a state superinten dent of s c h o o l s . 1 " Thus, the power to alter school d is tr ic t boundaries, except where the leg is lature has chosen to rel inquish its authority in that resp ect to the sch oo l d is tr ic ts and the e le c to rs in certain limited situations, rests with the state leg is lature. ! As suggested above, the leg is lature in undertaking to fulfil l the r e sponsib il i ty vested in it under both the 1908 and 1963 Constitutions has made p rov is ion fo r the operation at present of approximately 600 schoo l d is tr ic ts in the state of Michigan. Each o f these entities has been e s ta b l i s h e d by the state fo r the purpose of ca rry ing out the state 's r e s p o n s i bil ity to maintain and support a sy s tem of free public education. In f u r therance of that purpose, the leg is lature has given local school d istr icts broad powers and d is cre t iona ry authority in many areas . In character iz ing the nature of schoo l d istr icts and their function in the state educational sch em e , the Michigan Supreme Court in R ichards v Birm ingham School D is t r i c t , 348 Mich 490, 84 NW2d 795 (1957), stated at p 506: "Schoo l d is tr icts organized under the statutes of this State are created for the spec i f i c - 8 6 - governmental purpose of carry in g out the consti tu tional powers and duties vested in the State l e g i s lature with re fe ren ce to education and the m ainte nance o f com m on schoo ls and institutions of higher learning. " And in Jones v Grand Ledge Public Schools , supra , at p 5 the Court states: "The general pol icy of the State has been to retain contro l o f ' i ts schoo l system, to be administered throughout the State under State laws by loca l State agencies organized with plenary powers in dependent of the lo ca l government with which, by locat ion and geographical boundaries, they are n e c e s s a r i ly c lo s e ly assoc ia ted and to a greater o r le ss extent authorized to co -o p e ra te . It is no part of the lo ca l se l f -g ov ern m en t inherent in the township or munic ipali ty except so far as the l e gis lature may choose to make it such. * * * The general schoo l laws w ere care fu l ly planned and enacted to guard that distinction; prov is ion was m ade fo r organization of the c o m m on schoo l d i s tr icts , w ith o f f i c e r s e lected at sch oo l meetings by e l e c t ors with defined qualif ications , and who as a s ch ool board were given large plenary powers and contro l of schoo l m a tte rs , p ract ica l ly inde pendent f r o m the loca l government of m unic ipa l ities in which the schoo ls were situated. " (E m phasis supplied) See also MacQueen v City C om m iss ion of Port Huron, 194 Mich 328, 160 NW 627 (1916); School Distr ict of the City of Lansing v State Board of Education, 367 Mich 591, 116 NW2d 866 (1962). In Hiers v Detroit Superintendent of Schools , 37 6 Mich 225, 136 NW2d 10 (1955), a case decided after the adoption o f the 1963 Constitution, -87 - the Michigan Supreme Court rea f f irm ed the extensive powers given to lo ca l school d is tr ic ts , stating at p 235: "We conclude, there fore , that defendants not only are given broad powers by the legis lature but specific powers em bracing the establishing of schoo ls and attendance areas within the d i s trict . " As suggested by the above cited case, in d ischarging the r e s p o n s i bility placed upon it by the Constitution of 1963 and e a r l ie r Michigan c o n stitutions, the leg is lature has granted to schoo l d is tr ic ts broad powers, duties and responsib i l i t ies . School d is tr icts e x e r c i s e these powers and undertake these duties and responsib i l i t ies independently of any other state agency and, m o re importantly, independently of the state defendants in this matte r. The leg is lature has spec i f i ca l ly established a schoo l d is tr ic t as a "body c o r p o r a t e " having recognized legal status. MCLA §340. 352 provides as fo l lows: "Sec . 352. Every schoo l d is tr ic t shall be a body corporate under the name provided in this act, and may sue and be sued in its name, may a c quire and take property , both real and personal, f o r educational purposes within or without its corporate limits, by purchase, gift, grant, d e v ise o r bequest , and hold and use the same for such purposes , and may sel l and convey the same as the interests of such d istr ic t may acquire , subject to the conditions of this act contained. As such body corporate , every school d istr ict shall be the s u c c e s s o r of any school d istr ict - 8 8 - previously exist ing within the same terr i tor ia l limits and shall be vested with all rights of action, with the title of all property , real and personal, of the d istr ic t of which it is the s u c c e s s o r , and the indebtedness and obligations of the d istr ic t s u p e r seded shall becom e and be the indebtedness and o b ligations of the succeeding d istrict , except as otherwise provided in chapters 3, 4 and 5, part 2 o f this action. E very schoo l d istr ict shall in all ca ses be presum ed to have been legally organized when it shall have e x e r c i s e d the franch ises and pr iv i leges of a d istr ic t fo r the t e r m o f 2 years ; and such school d istr ict and its o f f i c e r s shall be entitled to all the rights, pr iv i leges and immuni ties, and be subject to all the duties and liabilit ies con fer red upon schoo l d is tr ic ts by law. " Illustrative of the broad authority which the leg is lature has vested in a l o c a l schoo l d is tr ic t are the powers to: . 1. Acqu ire real and personal property . MCLA §§340. 2 6; 340. 77; 340. 113; 340. 1 65; 340. 192; 340. 352. 2. Hire and contract with duly qualified teachers . M CLA §340. 569. 3. Determine the length of the schoo l te rm s . MCLA §340. 575. 4. Control the adm iss ion of non resident pupils. MCLA §340. 582. 5. Determine course o f study and ca r r y on such grades , schoo ls and departments as it shall d e e m necessary . MCLA §340. 583. -8 9 - 6. Establish attendance areas within its district . MCLA §340. 589. ' 7. Arrange fo r transportation of non resident students. MCLA §340. 591. 8. Acqu ire transportation equipment. MCLA §340. 594. 9. Employ legal counsel. MCLA §340. 609. 10. Make rules and regulations relative to the public schoo ls of the d istr ict . MCLA §340. 614. 11. Levy authorized mil lage. MCLA §340. 643a. 12. A cqu ire property by eminent domain. MCLA §340.711. 13. Approve and se lect textbooks. MCLA §340. 882. A sch oo l d istr ict , there fore , while an agency of the state, is also a body corporate , recogn ized by the 1963 Constitution. It e x e r c i s e s e x p re ss powers granted to it by the leg is lature, giving it the capabili ty to m eet its distinct and separate responsib i l i t ies in term s o f providing fo r the education of the students within its d istr ict . -9 0 - B. R e lationship o f Loca l School Distr icts to .Slate Defendants 1. Constitutional and Statutory F ra m ew ork (a) Role of State Superintendent of Public Instruction and , State Board of Education under 1908 Constitution A rt i c le XI, Sect ion 2 o f the Constitution o f 1908 provided fo r a state superintendent of public instruct ion to be e lected ev ery two years . It p r o vided that he . . shall have general supervis ion of public instruct ion in the state" and that his duties and compensation . . shall be p re sc r ib e d by law. " ' A r t i c le XI, Sect ion 4 of the Constitution o f 1908 provided fo r a four m e m b e r e lected board of education. The duties of the state board were , however , limited in that it was charged only with the general superv is ion o f the "state norm al c o l l e g e and the state norm al s ch o o ls " and such duties as w ere " p r e s c r ib e d by law. " The School Code of 1955 in Sect ions 251 and fol lowing (MCLA §§340. 251 ct seep ) sets forth the duties and responsib i l i t ies of the state sup er in tendent. These included examination and auditing of o f f i c ia l r e co r d s and accounts of schoo l d istr icts , requiring each schoo l board to ob serv e laws relating thereto, requir ing ". . . all schoo l d is tr ic ts to maintain schoo l or provide educational faci l i t ies for all chi ldren resident in such d istr ict . . . , requir ing schoo l boards to c a r r y out safety recom m endations , and - 91 - preparing reports on the general condition of education within the state. (MCLA §340. 252). (b ) Role of S tate Superintendent of Public Instruction and State Board of Education under 1963 Constitution A rt i c le VIII, Section 3 of the Constitution o f 1963 prov ides , in p e r tinent part, as fo l lows: "Sec . 3. Leadership and general superv is ion ov er all public education, including adult education and instruct ional p rog ra m s in state institutions, except as to institutions of higher education granting b a c calaureate d egrees , is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, in cluding higher education, and shall advise the l e gis lature as to the f inancial requirements in c o n nection therewith. "The state board of education shall appoint a superintendent o f public instruction whose te rm of o f f i ce shall be determined by the board. He shall be the chairman of the board without the right to vote, and shall be responsib le fo r the execution of its po l ic ies . He shall be the principal executive o f f i c e r of a state department of education which shall have powers and duties provided by law. " The Constitution of 1963 also prov ides that executive and adm in i strative o f f i ce s and agencies are to be a l located by law among not m ore than twenty principal departments. (Art ic le V, Sect ion 2). The E x e c u tive Organization Act of 1965 (MCLA § § 1 6. 101 et s c q . ), which was a p parently promulgated to implement this new constitutional provis ion . -9 2 - prov ides f o r the establishment o f nineteen principal departments of governm ent including the department of education. (M.CLA §§16.400 et seq. ) The state superintendent of public instruction is the chie f e x e c u tive o f f i c e r of the department of education. (Art ic le VIII, Sect ion 3). A l l powers , duties and functions vested by law in the superintendent of public instruction have been transferred to the department of education. (MCLA §16.403). The state board of education is established as the head of the d e partment of education under MCLA §16.401. A l l powers , duties and functions vested by law in the state board of education have been tra n s fe r r e d to the department of education. (MCLA §16.402). In 1964, the leg is lature enacted M CLA §388. 1001 et s e q . , which further defines the role of the state board of education. Sect ion 1 provides that the old state board of education is succeeded by the new state board prov ided under the Constitution of 1963. Section 7 prov ides in part that the state board; " , . . may make such ordinances , by laws and regulations as it deem s p rop er fo r the g o v e rn ment and conduct of the board and for the trans action o f its business and the operation of the state institutions under its contro l if they arc not repugnant to the constitution o r laws of this state o r of the United States. " (Emphasis supplied) -9 3 - Section 9 con f i rm s the state board 's role o f leadership and general s u p e r v is ion and as the general planning and coordinating body f o r public ed u ca tion and prov ides for the state board to conduct r e s e a rc h studies into g e neral schoo l p rob lem s . Sect ion 10 sets forth certa in instances in which additional sp ec i f i c duties have been given to the state board. These in clude such matters as determination of teacher qualif ications , regulation o f schoo l bus transportation , the hearing of appeals f r o m dec is ion s on a l terations of boundaries of school d is tr ic ts as may be provided by law and. p er fo rm in g o f certa in other functions as are given to it by the School Code of 1955. Section 15 prov ides as fo l lows; "The state board of education shall p re s c r ib e rules and regulations that it deem s n eces sa ry to c a r r y out the prov is ions of this act, in accord a nce with A ct No. 88 of the P u b l i c Acts of 1943, as amended, being sect ions 24.71 to 24 .82 of the Compiled Laws of 1948, and subject to Act No. 197 o f the Public Acts of 1952, as amended, being s e c tions 24. 101 to 24. 110 of the Compiled Laws of 1 9 48 . " MCLA §§24.71 to 24. 82 and 24. 101 to 24. 110 w ere repealed and rep laced by the Administrat ive P roced u re Act of 1969 (P. A. 1969, No. 306; MCLA §24. 201 et s e q . ) which establishes a set proced ure including p rov is ion for leg is lat ive rev iew (MCLA §24. 245) of rules promulgated by an "a gen cy" which is defined to include a state department or board. -9 4 - 2 . Interpretation of Statutory and Constitutional F ra m ew ork The 1963 Constitution does not by its term s create or establish school d is t r i c t s . As we have seen, the power to create o r alter schoo l d is tr ic ts res ts with the leg is lature. However, in four dif ferent sect ions the Constitu tion makes re fe ren ce to local school d istr icts thus giving constitutional r e cognit ion to the important role of loca l schoo l d is tr ic ts in the Michigan edu cational p r o c e s s . Of p r im ary signif icance is the second sentence of A r t i c le VIII, Sect ion 2 which prov ides : " E v e r y schoo l d is tr ic t shall provide f o r the ed u ca tion of its pupils without d iscr im inat ion as to r e l i gion, creed , race, c o l o r or national orig in . " ( E m phasis supplied) The em phasized portion spec i f i ca l ly establishes that the p r im a ry r e s p o n s i bility and duty fo r the education of the ch i ldren of the state of Michigan shall continue to be with the lo ca l schoo l d is tr ic ts in which such chi ldren reside as it had been under the 1908 Constitution. J • By its term s, A r t i c le VIII, Sect ion 3, prov ides f o r an expanded role f o r the state board of education. We submit, however , that A rt ic le VIII, Section 3, docs not m ater ia l ly alter the powers granted by the legis lature to local schoo l d is tr ic ts . b s ] This is a restatement of A rt ic le XI, Sect ion 9 of the 1908 C onst i tution which provided in part: "The legis lature shall continue a sy s tem of p r im a ry schoo ls , whereby every school d istr ict in the state shall p r o vide for the educat ion o f its pupils without charge fo r tuition. " (Emphasis supplied) While (here is a paucity o f judic ial authority construing A rt ic le VIII o f the 1963 Constitution, the per cu r ia m opinion in Welling v Livonia Board o f Education, 382 Mich 620, 171 NW2d 545 (1969), restated the propos it ion that the leg is lature has set up a sy s tem of f ree public and secondary schoo ls by enacting the prov is ions of the schoo l code, thereby con ferr ing broad d i s c re t ion on lo ca l schoo l d is tr ic ts . Plaintiffs had brought two suits against lo ca l schoo l d is tr ic ts seeking mandamus or a mandatory injunction requir ing the defendant sch oo l d istr icts to provide full day instruct ion fo r students instead of half day p rog ra m s which had been adopted by the schoo l d is tr ic ts . The c ircu it courts granted the injunctions. On appeal, the Michigan Supreme Court, in a per cu r ia m opinion, r ev ersed the Circuit Courts' holdings. The Supreme Court stated that the lo ca l boards of education had not abused their d i s c re t io n in establishing half -day sess ions in the absence of rules o r regu lations by the state board of education. In a separate opinion signed by three ju s t i c e s ( "m inor i ty opinion"), it was stated that the control l ing question was "whether the length of a schoo l day . . . is determinable validly by l e g i s la tion, sp ec i f i ca l ly by PA 1967, No. 237. " (382 Mich at 624-625). The act in quest ion (MCLA §340. 575) gives to lo ca l schoo l d is tr ic ts the power to determine the length of the schoo l te rm but requires a m inim um of 180 days o f student instruction. The act is silent, on the question of what should c o n stitute a schoo l day. The minority opinion p ro f fe rs the view that in light of the powers given to the state board under A rt ic le VIII, Sect ion 3, a rule o r regulation adopted by the state board would overr id e any contravening - 96 - leg is lat ive enactment. The minority view, we submit, is without foundation and is entitled to no cred ence . ^9] - An analysis of the applicable constitutional and statutory prov is ions does not support the thesis that the state board p o s s e s s e s plenary rule m a king power which may ov err id e any confl ict ing legis lative enactment. The Constitution does not e x p r e ss ly give such rule making power to the state board. Further, there is no justi f ication for concluding that the f ra m e r s o f the Constitution intended, by implication, to grant such rule making authority to the state board. By the term s of A r t i c le VIII, Sect ion 3 the state board is given " leadersh ip and general superv is ion" functions with re sp e c t to public education as well as serving as the "g en era l planning and coordinating body. " The Convention Comment to A rt ic le VIII, §3 states in part as fo llows "This is a new sect ion combining and en larging upon the prov is ions in Sections 2 and 6, A r t i c le XI, o f the present constitution. It a t tempts to embody two fundamental pr inc ip les : &9] . . . . • u n • •The minority opinion was entirely unnecessary to the d ec is ion of the case in question since (a) the state board had adopted no rule o r regulation on the question at issue and (b) the act is silent on the point o f the length of a school day. Further, the act spec i f i ca l ly grants to the state board the power to establish rules for the i m plementation o f the term s of the act, which rules presumably could have defined the m inim um requirements o f a "day of student in struction. " -97- (1) the concern oh all people in educational p r o c e s s e s as a safeguard for d e m o c ra cy ; (2) greater public partic ipation in the operation of educational institutions. "The enlarged state board prov ides a p o l i c y making body on a state legel, Michigan is one o f three states that does not have such a board. Creation of a state board p laces the superintendent in the posit ion of having constantly available a consultative and d e l ib e r ative body of outstanding cit izens who are rep resen ta tive of the people of the state. * * ❖ "It is proposed that the board be the unifying and coordinating f o r ce for education within the state and r e c e i ve information f r o m all of the various levels of public education. Such information would be c o n s i dered by the board in determining advice to loca l school boards , governing boards of co l leges and univers it ies , and the legis lature as to the total needs of education in this state. "Appointment of the superintendent of public in s tru c tion by the state board fo l lows present day trends in other states and would assure se lec t ion f r o m among the m ost competent people ava.ila.ble. Michigan e lects its superintendent under the present constitution. The su perintendent would be cons idered as administrative head of the state department o f education and as such should be a staff o f f i c e r to the governor and on his administrative b o a r d . " (Emphasis supplied) The c le a r impact of the Convention Comment is that the state board is to serve as a c lear ing house of information f r o m all levels of education within the state and, based upon such information, is to render advice to the other entities within the state having educational responsibi l i ty . To view the state board as having a constitutionally der ived rule making authority which may overr id e legis lative enactments and in particular, the prov is ions - 98 - of the School Code of 1955, renders moot the adv isory role of the state board. If it had been intended fo r the state board to have plenary power to dictate sch oo l po l icy i r respec t iv e of leg is lat ive enactments, the duty to adv ise the leg is lature b e co m e s m eaningless ’. The minutes of the Constitutional Convention are helpful in d e t e r m i ning the breadth of authority granted to the state board. In commenting on the b o a rd 's proposed new role under the 1963 Constitution, delegate Romney stated: "In connection with the enlargement of the b oa rd 's act iv it ies , I think it is important to know that this enlargement of the b oa rd 's activ it ies does not in c re a s e the authority of the board beyond that now granted in the present constitution to the super in tendent of public instruction. " 4̂0] Except as p re sc r ib e d by law, the duties o f the superintendent under the 1908 Constitution w ere that of "genera l supervis ion. " That sup erv isory power was never construed to perm it the superintendent to fashion rules binding upon the loca l schoo l districts in contravention of existing legis lation. As we have seen, the leg is lature has defined certain additional duties o f the state board under MCLA §§388. 1001 et s e q . and has therein given tiie state board the power to make rules and regulations to ca r ry out the p r o v i sions of the Act. MCLA §388. 1015. However, such rules and regulations must be adopted in accord a nce with the Administrat ive P ro ce d u r e s Act of Ror — ~ . . Offic ia l R e co rd s , State of Michigan Constitutional Convention, Vol . 1, p 1 190. -9 9 - 1969 and must be consistent with legis lative enactments. Of the remaining state defendants, none has any extensive authoiity o v e r lo ca l sch oo l d istr icts . The 'state superintendent was divested of much of his power by the 1963 Constitution and subsequent legislative enactments. He is e lected by the state board, serv es as its chairman without the right to vote and is responsible for the execution of its po l ic ies . He is the p r in cipal executive o f f i c e r of the state department of education. (Art ic le VIII, Section 3). The duties prev iously vested in h im under MCLA §§340. 251 et seq. and other prov is ions of the School Code of 1955 have all been tra n s fe r re d to the department of education. . The governor and attorney general p ossess no contro l with respect to the operation of school d is tr icts or the functioning of the public educational sy s tem in Michigan beyond the role of the g ov ernor as an ex o f f i c io m e m b e r of the state board without vote. (Art ic le VIII, Sect ion 3). Indeed, the status of schoo l d is tr ic ts as entities independent of the state defendants is c o n f i rm e d by the act ion of the governor and attorney general in instituting suit against three sch oo l d is tr ic ts to challenge the constitutionality of the M ic h i gan sy s tem of schoo l d is tr ic t finance. See Mill ike n v Green, Ingham County Circuit Court Civil A ct ion 13664-C, Michigan Supreme Court Docket No. 53 809. The Supreme Court of Michigan impliedly a f f i rm ed the independent status of schoo l d is tr ic ts by its O rd er of Cert i f icat ion of January 5, 1972, which recogn ized the validity of the action of the governor and attorney -100- general in instituting suit against the lo ca l schoo l d is tr ic ts . It is c lea r that constitutional recognit ion and leg is lat ive enactments have con fe r red broad authority upon loca l schoo l d is tr ic ts . This authority extends to the e x e r c i s e of independent d is c re t ion o v er many educational areas , including basic responsib i l i ty fo r the vital day to day a d m in is t ra tion of the public education sy s tem in Michigan. Neither the Michigan C on stitution nor any act of the leg is lature establishes loca l schoo l d is tr ic ts as agenc ies o f the state board of education, the superintendent of public in struction o r any other state defendant. L oca l schoo l d is tr ic ts are c o n s t i tutionally, leg is la t ive ly and judic ia l ly recogn ized as independent legal en tit ies created by the state of Michigan. S imilarly , the state board of edu cation is an independent entity. Each has its own powers and re s p o n s ib i li t ies and each in its own sphere is independent of the other. In sum m ary , the status of lo ca l schoo l d is tr ic ts in Michigan is such that there is no valid justi f ication fo r the conc lus ion that they need not be a c c o r d e d fundamental due p r o c e s s of law. The trial cou r t ' s fa ilure to o b serv e the pr inc ip les of due p r o c e s s with resp ec t to the Intervenors School D is tr ic ts is detailed below. - ] 0 1 - .VII. A R E THE EXPENDITURES REQUIRED BY THE DISTRICT COURT AUTHORIZED BY ANY CURRENT ACTS OF THE LEGISLATURE OF MICHIGAN NOW IN E F F E C T Under current Michigan law there are four separate appropriation acts creating potential sou rces of revenue f r o m the State T rea su ry for the State Board of Education, intermediate schoo l d is tr icts a n d /or for l o c a l schoo l d istr icts . An examination of each of these statutes indicates that the purposes and conditions placed on such appropriations do not prov ide a basis for d isbursing funds f r o m the State T re a su ry to cov er the expenditures requ ired by the Distr ict Court. A. E m erg en cy A pp rop r ia t ions , Act 120, Mich Pub Acts 1937 (Mich Comp Laws 5. 1 -5 .5 ) . (A. IXa64]) . This A ct authorizes a spec ia l ly designated C om m iss ion to appropriate funds for em e rg e n cy purposes , while the leg is lature is not in sess ion , in an amount not to exceed $1 00 ,00 0 .0 0 per year . It also contains, in Section 2, a condition precedent that: . . The c o m m is s io n shall not have the authority to appropriate m oney for any purpose that could have been anticipated and made while the leg is lature was in sess ion . . . . " Because of the obvious intended purpose of this em e rg e n cy appropriation Act , payment of the costs on any plan of desegregat ion would be an abuse -102- of the C o m m is s io n 's d iscret ion and outside its p ow ers , thus, such e x penditures requ ired by the Distr ict Court are l ikewise not authorized by the Act . B. E m e r gency Financial A s s i s t a n c e , Insolvent Sch oo ls , A ct 225, Mich Pub Acts 1972 (A IXa 617). This Act prov ides for a $300, 000. 00 revolv ing fund f r o m which em e rg e n cy f inancial ass is tance in the fo rm of loans to insolvent schoo l d istr icts can be made. One condition precedent to such a loan is that the annual co l lec t ions by the insolvent d istr ict on the tax settlement day of the particular year involved must be l e s s than 85% of the ad v a lo r e m taxes lev ied by that d istr ict . Repayment of the loans is to be made f r o m state schoo l aid payments to the district.. The funds so loaned are to be used to ass is t the d istr ic t in its financial needs until the end of the f is ca l year and the d istr ict must submit a balanced budget for the ensuing schoo l year . Because of the v ery l im ited scope of this appropriation Act , it could not be used to m eet the expenditures requ ired by the Dis tr ict Court. C. State School Aid Act, of 1972, Act 25 8, Mich Pub Acts of 1972 (A. IXa 621). The State School Aid Act of 1972 makes a llocation of the appropriations therein contained d irect ly to each l o c a l school d istr ict (and to a l im ited degree for v ery spec i f i c purposes to intermediate schoo l d i s t r ic ts ) . The allocations contained in Chapter 2 are made on the basis of - 10 3 - a form ula designed to equalize the per pupil expenditures as between the various schoo l d is tr ic ts , with such funds being applied by such distr icts only for sa la r ies , tuition, transportation, lighting, heating, ventilation, w ater s e r v i c e and the purchase of textbooks and supplies. Other chapters o f the Act make al location of funds appropriated fo r such sp ec i f i c purposes as Special Education, Vocational Education and other spec ia l educational p ro g ra m s . There is a lso a prov is ion for additional re im bursem en t to sch oo l d istr icts for certain transportation costs . Because the a pp rop r i ations and allocations are made only to the individual lo ca l schoo l d i s t r ic ts and intermediate schoo l d is tr ic ts , for the v e r y sp ec i f i c purposes stated therein , the A ct does not allow application of the funds so appro priated d irect ly f r o m the State to pay the expenditures required by the D istr ict Court. Insofar as the Dis tr ict Court m ay have lawful j u r i s d i c tion ov er the individual schoo l d istr icts , however , the funds so appropriated could be used by the individual recipient schoo l d istr ict fo r the purposes mandated by the Dis tr ict Court, but only to the extent of such funds actually r e ce iv e d by it and only to the extent otherwise falling within the pu rp oses , conditions and limitations placed on such funds by the Act. D. Department of Education A pp rop r ia t ion s , Act 246, Mich Pub Acts 1972 (A. IXa 597). This appropriation Act appropriates for the State Board of Education an amount not to ex ceed $30,93 6 ,4 5 0 .0 0 . The Act a lso sets forth, however , certain very sp ec i f i c ca teg or ies of expense for -1 0 4 - which the appropriated funds may be vised. The A ct further prov ides in Section 2(b) that each of the amounts set forth, "sha l l be used so le ly f o r the re sp ec t iv e purposes here in stated except as otherwise prov ided by l a w . " In Sect ion 7, the Act prov ides that the funds appropriated can be used only for p rog ra m s in existence and that no new or expanded p ro g ra m s can be established without ex p ress approval of the State l e g i s lature . Except to the l im ited extent that the funds sp ec i f i ca l ly app ro priated within a certa in ca tegory set forth in the Act could be construed to partia l ly encom pass a portion of the expenditures req u ired by the D istr ict Court, the funds so appropriated would not otherwise be available f o r the purposes set forth in the Distr ict Court 's Order of June 14, 1972. -105- VIII J DOES SECTION 308 OF THE "EDUCATION AMENDMENTS OF 1972", PUB. L. N O . -92-318 , A P P L Y TO M E T R O P O L I TAN TRANSPORTATION ORDERS WHICH HAVE BEEN OR M A Y BE ENTERED BY THE DISTRICT COURT IN THIS.CASE? A. The p lain m e a n ing of the words of Section 803 applied jj j_lj.S~ present: Orders of the D is tr ict Court indicate that Section_803Lj £ j y j £ l j £ ^ e to the D is tr ic t Court 's "Ruling On Desegregation A rea opment Of Plan Of Desegregat ion" , dated June 14, 1 9 7 3 JA —a2:L}Yl.iL be applicable to subsequent o rd ers implementing the_O rder_ofJ^ne_14^ Section 803, Pub. L. 92-318, "Education Amendments of 1972" was signed into law by the P res ident on June 23, 1972, and becam e e f fect ive by its terms on July 1, 1972. Intervenor School Distr icts contend that this sect ion, initially added during debates of the House of R epresentat ives as a r id er to the a b o v e - r e fe r e n c e d Public Law No. 92-318, is applicable to the June 14, 1972, "Ruling On Desegregat ion A re a and Order For Development Of Plan Of Desegregat ion" (A. Ia535), entered by the D is tr ic t Court and wil l be applicable to future o rd ers further implementing the June 14, 19/2, Order (A. Ia535), insofar as the transfer of students is ordered . Sect ion 803 prov ides : "S ec . 803. Notwithstanding any other law or prov is ion of law, in the case of any order on the part of any United States d istr ic t court which requires the transfer or t ra n sp or tation of any student or students f r o m any schoo l attendance - 1 0 6 - area p re s c r ib e d by competent State or local authority for the purposes of achieving a balance among students with resp ec t to race , sex, re l ig ion , or s o c i o e c o n o m ic status, the e f fect iveness of such order shall be postponed until al l appeals in connection with such order have been e x hausted or, in the event no appeals are taken, until the time for such appeals has expired. This sect ion shall expire at midnight on January 1, 1974." A care fu l c om p a r ison of the language of Section 803 with pertinent p rov is ions of the D is tr ic t Court 's Order of June 14, 1972 (A. Ia535) c le a r ly indicates that all of the prerequ is i tes of the application of the plain meaning of the language of Sect ion 803 are satis f ied by the Order of June 14, 1972 (A. Ia535). Sect ion I B . of the D is tr ic t Court 's Order of June 14, 1972 (A. Ia535), in part, provides : " . . . the panel is to devel op a plan for the a s s ig n ment of pupils. . . and shall develop as well a plan for the transportation of pupils, for implementation for al l grades , schoo ls and c lusters in the desegregat ion area . . . . the panel may re com m en d immediate implementation of an in ter im desegregat ion plan for grades K -6 , K -8 or K -9 in all or in as many c lusters as pract icable , with complete and final desegregat ion to p roceed no later than the fall 1973 term s. (A. Ia538). Sect ion II A . of the Distr ict Court 's Order of June 14, 1972, in part, prov ides : " Pupil reass ignment to a c co m p l ish desegregat ion of the Detroit public schoo ls is r c o uired within the geographica l area . . . r e fe r r e d to as the 'desegregat ion a r e a 1. " (A. Ia 539). [Emphasis added.] -107- Section II B. of the D is tr ic t Court 's Order of June 14, 1972, in part, prov ides : " . . . pupil reass ignments shall be ef fected within the c lusters d esc r ib ed in Exhibit P, M. 12 so as to achieve the greatest degree of actual desegregation to the end that, upon implementation, no school , grade or c la s s r o o m by j be] sub - stantially d isproportionate to the overa l l pupil rac ia l c o m p o s i t i o n . " (A. Ia539-540). [Emphasis added.] Sect ion II E. of said Order, in part, provides : "Transporta t ion and pupil ass ignment shall . . . be a two way p r o c e s s with both black and white pupils sharing the respons ib i l i ty for transportation requirements at all grade l e v e l s . " (A. Ia540). Finally, Sect ion II I. of the D is tr ic t Court 's Order, in part, provides "T h e State B oard of Education and the State, Superinten- dentof Education shall with resp ect to all schoo l construction and expansion, ' c on s ider the factor of ra c ia l balance along with other educational cons iderat ions in making dec is ions about new sch oo l s ites , expansion of present faci l i t ies * * * ' , " (A. Ia541). [Emphasis added.] It is true that the Order of June 14, 1972, (A. Ia535) does not spec i fy the particular students to be trans ferred and transported f r o m one attendance area , p r e s c r ib e d by their loca l schoo l d istr ict , to another attendance area, p r e s c r ib e d by the D is tr ict Court, and the p re c i se date of such transfer and transportation is not spec i f ied . However, it is abundantly c lear as indicated by the above - re fer red to portions of that Order that: -108- 1. T ra n s fer of students has been ordered (Sections I B. , II A. and II E. ) (A. Ia538, 539, 540). 2, The transfers have been ordered for the purpose of achieving a balance with resp ec t to ra ce . (Sections II B. and II I). (A. Ia539-540, 541). F r o m the above it is unquestionable that the Order of the D is tr ic t C o u r t dated June 14, 1972, constitutes an order " * * * which requires the transfer or transportation of any student or students * * * for the purposes of achieving a balance among students with resp ec t to race , sex, re l ig ion oi s o c i o e c o n o m ic status *** " (Sec. 803, Pub. L. No. 92-318). Any fu ithei o rd e rs of the D is tr ic t Court implementing its mandate of June 14, 1972, that students shall be t ransferred , must a lso be held to be within the plain meaning of the words of Sect ion 803, Education Amendments of 1972, sujma_. Intervenor School Distr icts recogn ize , however , that strained a r g u ments and construct ions wil l be a sserted by Appe l lees to the e f fect that Sect ion 803 must be construed to be inapplicable to the present Orders of the Court below, and to any future o rd ers implementing the Order of June 14, 1972 (A. Ia535). We contend that such arguments as have been, and wil l be, a sser ted by A ppe l lees are intended to obfuscate, the c lea r intent of C ongress as e x p r e sse d in the C ongress iona l R e co rd of its debates and as exp ressed in the plain language of Section 803. Such arguments, which we fee l are - 109- e f fe c t ive ly rebutted in the following portions of this Brie f , have the effect of emasculat ing this sect ion to the degree of rendering it a nullity. B . . The significant legis lative h istory of Section 8 0 3 , 'Education A m e n d m e nts of 1972" , indicates the intent of Congress to halve this sect ion applied to the present o rd ers of the Court be low . 1. It is appropriate for this Court to examine the f loor debates in connection with this amendment to determine the intent of C ongress . It has been repeatedly held that the courts m ay have r e s o r t to the legis lative h istory of a statute, including statements made on the f loor of the Senate or House of Representat ives in o rd er to construe any language of doubtful meaning. Speaking to this point Mr. Justice Frankfurter , jo ined by Just ices Black and Burton, in a dissenting opinion, in agreem ent with the m a jor i ty opinion on the particular point, stated: "It has never been questioned in this Court that c o m mittee reports as w el l as statements by those in charge of a bi l l or of a report , are authoritative elucidations of the scope of a m e a s u r e . " Schwegmann Bros v Calvert Dist i l lers C o rp , 341 US 384, 399, 400, 95 L Ed 1035, 1050, 1051 (1951). See also : Duplex Printing v P e e r in g , 254 US 443, 474, 65 L Ed 349 (1921); and Rai lroad C om m iss ion v Chicago B & Q R. C o , 257 US 563, 66 L Ed 371 (1922). - 110- The United States Supreme Court has em phas ized that weight m ust be given to statements made by the sponsors of a bill . In Woodwor Manufacturers As so v NLRB, 386 US 612, at 639-640, 18 L Ed 357, 375 (1967) the court stilted: " T o o , 'we have often cautioned against the danger, when interpreting a statute, of re l iance upon the views of its l e g is lat ive opponents. In their zeal to defeat a bill , they under standably tend to overstate its reach. ' LaborJBoard v F_ruit_ & Vegetable P a c k e r s , 377 US 58, 66, 12 L Ed 2d 129, 135, 84 S Ct 1063. It is the sponsors that we look to when the m ea n ing of the statutory w ords is in doubt. 1 Scliwegmann P ros^ v. Calvert Dist i l lers Corp. , 341 US 384, 394-395, 95 L Ed 1035, !047 , 1048, 71 S Ct 745, 19 A L R 2d 1119. See Mastro P la s tics Corp. v Labor B oard , 350 US 270, 288, 100 L Ed 309, 322, 76 S Ct 3 4 9 . " In United States v United Mine Wo r k e r s , 330 US 258, 91 L Ed 884 (1947), statements w e r e made regarding the p roper construct ion of a statute by the sponsor of the bi l l in the blouse of Representat ives and by the ranking m inority m e m b e r of the com m ittee which reported the bill. These statements w e r e not challenged by any representat ive voting fo i the bill and because the Senate did not express a contrary understanding, the Court felt that such leg is lat ive h is tory was "determ inat ive guidance" in establishing the p roper statutory construct ion. The m a ss iv e number of ca ses which have been decided on the basis of leg is la t ive h is tory is i l lustrated by Appendix A to Mr. Just ice Frankfurter 's dissenting opinion in C o m m is s io n e r of Internal Revenue v C hurch , using three pages to Hs. "D e c is io n s During the Past Decade in v/hich Legis lat ive History was D ec is ive of Construction of a Part icu lar Statutory P r o v i s i o n " . 335 US 632, 687, 688, 93 L Ed 288, 321, 322, 323 (1949). Because Section 803 was introduced by C ongressm an B room f ie ld on the f l o o r of the House of Representat ives , sitting as a com m ittee of the whole , without p r io r re fe re n ce to any com m ittee of the House of R e p r e sentatives, C on g ressm a n B r o o m f ie ld 's statements, cited herea fter and subsequent statements by House Conferees after the sect ion had been xe- f e r r e d to Conference Comm ittee between the House and Senate, b e c o m e of great im portance in cons ider ing the leg is la t ive h is tory of Section SOo. The above-quoted standards for re fe re n ce to such leg is la t ive h is tory e m phasize that statements by the sponsors of a bil l , o r the p erson s p r in c ip ally in charge of m anagement of the bill in the particular House are to be a f forded greater weight than statements made by the opporents . 2. T he leg is lat ive h is tory of Section 803 as re f le c ted in the Con g ress iona l R e co rd of the debates following the introduction of that sect ion overwhelmingly Indicates the Intent of C ongress that th is sect ion apply to the Orders of the Court b e lo w . As indicated Section 803 was f i r s t introduced by C ongressm an W il l iam S. B room f ie ld in the United States House of R epresentat ives on N ov em ber 4, 1971, as a n on -germ a ne amendment to the "Education Amendments of 1972". Address ing the House of Representat ives , sitting - 1 1 2 - as a com m ittee of the whole , Mr,. B room f ie ld stated: " M r . Chairman, my amendment would postpone the e f fect iveness of any U. S. d istr ict court o rd e r requir ing the f o r c e d busing of chi ldren to achieve rac ia l balance until all appeals to that o rd er have been exhausted. ❖ m m . . [S jome U.S . federa l courts have o r d e r e d busing in recent months. In many instances, I feel that these o rd e r s are breaking new constitutional ground--that these o r d e r s have c rea ted a new and unprecedented extention of exist ing law.•A. mm *v* *v* "W e can expect that many of these dec is ions order ing busing wil l be appealed and that on appeal they may be overturned. However, the appeals p r o c e s s is a long and difficult one. It may take two or three y ea rs . Thus, b e fore the courts can com plete ly decicie this question, b e fore the law is crystalized. once and for all, busing wil l have b e c o m e an a ccom p l ished fact. " M r . Chairman, f o r c e d busing may prove to be an expensive, t ime consuming and disruptive mistake. "M y amendment would only delay a l o w e r cou r t 's busing o rd er until all those parties have had a chance to plead their case at their . court of last r e sor t . " C ongress ion a l R e co rd - House H10407, II1040 8, Noverobei 4, 1971. On the same date C ongressm an Nedzi, a c o - s p o n s o r of the s o - c a l l e d B ro o m f ie ld Amendment, Section 803, "Education Amendments of 19 /2 , detailed the entire background of the instant cause in the Distr ict Couit and the events leading to the subm iss ion of Section 803. C ongressm an N edz i 's rem a rks are too extensive to be repeated in this Brief , how ever , they c lea r ly indicate the significant o c c u r r e n c e s motivating the sponsors -113- Section 803 on the o c ca s io n of the subm iss ion of that sect ion as an am end ment to the Education Amendments of 197 2 and the intent of the sponsors to af fect the cou rse o f rem ed y in this litigation. C ongress iona l R e c o r d - House H10416, H10417, N ovem ber 4, 1971. Following passage of the "Education Amendments o f 1972" in the House, with Section 803 as an amendment, and passage of the "Education Amendments of 1972" in the Senate, but containing dif ferent "ant i -bus ing" amendments, the Act again came up for debate in the House on a motion to send it to Conference Committee . In address ing Section 803, the f o l l o w ing debate in the House was had on M arch 8, 1972: "M R . BROOMFIELD. Mr. Speaker, J r is e to s tress the im p o r t ance of retaining the House language of the amendment to stay b us ing o rd e rs until ail appeals have been exhausted. " M r . Speaker, the other body would have us d iscr im inate against som e busing o r d e r s . Some o rd e rs would be stayed pending appeal and others would not. We should write the law so that it applies uniform ly to all ca ses which involve busing, otherwise , this law wil l be by definition, unfair. * * * "M R . G E R A L D R. FORD. I would like to ask the gentleman severa l questions. F irs t , if the B room fie ld amendment r e t r o a c t iv e ? "M R . BROOMFIELD. Yes ; it is. "M R . G E R A L D R. FORD. It is re troact ive in its ent irety? "MR. BROOMFIELD. In its entirety. "M R . G E R A L D R. FORD.* The second question is this: Your amendment states that the e f fect iveness of "any o r d e r " to achieve a ra c ia l balance of students "sha l l be postponed, " "Now, does that mean that it would affect o rd ers which have already been put into effect or put into partial e f f e c t ? In other w ords , all would be suspended pending final appeal? "M R . BROOMFIELD. That is c o r r e c t . ■ "M R . GE R A LD R. FORD. Mr. Speaker, if the gentleman wil l y ie ld further, is it the intent of the author of the amendment that this stay during an appeal of any o rd er shall be equally applicable not only to o rd e r s involving fo r c e d busing but to desegregation ca ses genera l ly? "M R . BROOMFIELD. Y es ; it would be, in both c a s e s . " Congress iona l R e c o r d - House - H1852, H1853, March 8, 1972. Following the above debates the Education Amendments o f 1972 were r e f e r r e d to a C onference Committee which, after extended debate, filed its report , dated May 23, 1972, which stated in pertinent part as fo l lows: "T h e con feren ce agreement contains the p r e c i s e language of the House amendment and prov ides that this sect ion shall expire m id night, January 1, 1974. This sect ion does not authorize the reop en ing of final o rd e rs , how ever , appealable o rd ers are con s id ered to be within the scope of this amendment. Tlx: con fe rees are hopeful that the jud ic ia ry wil l take such action as may be n e c e s s a r y to e x pedite the resolution of the issues subject to this sect ion. " (Emphasis supplied). U. S. House of R epresentat ives , 92d C ongress , 2d Session, Report No. 92- 1085, Education Amendments of 1972, May 23, 1972, p. 220. The Conference Committee Report was brought be fore the Senate in - 115 - May of 1972. Senator Pe l l was the manager in the Senate fo r the Con fe ren ce Committee Report containing Section 803. During the ensuing debates on the Senate f loor on May 23, 1972, the following o ccu rred : "Senator P e l l ................The con ferees struggled long and hard over the s o - c a l l e d busing amendments. The Conference Report adopts v e rb a t im the B room fie ld Amendment, except that the duration of the Amendment is l im ited to January 1, 1974. During conference d iscuss ion , there was d isagreement as to the meaning of the B ro o m f ie ld language. Here I would say that a l i tera l reading of the language by a non - law yer would indicate that if a lo ca l educa tional agency is under an appealable o rd er to transport students to achieve ra c ia l balance, that lo ca l educational agency can r e ce ive a stay of that o rd er whether it has been implemented or not, I expect that today 's debate wil l bring d isagreem ent f r o m those who have m o r e of a legal background on the subject than I. However, I would say that the Senate is not in the habit of enacting fr ivo lous language, and those who interpret our work as a sham and a fraud do in justice to both the Senate and the House. " S8282. Senator Javits, speaking against the B room fie ld Amendment, stated: "Then, Mr. President , we com e to the B room fie ld Amendment, which was finally c o m p r o m is e d as between the two bodies , and here again we have an absolutely flat, automatic stay of any order until appeals have been exhausted. At least , if you take the language for what the House sponsors say it means - and I wil l d iscuss that in a moment - you have an automatic stay for 19 (s ic ) months of any low er court o rd er which would seek either to transfer or to t ra n s port students in resp ec t of what again I say the Amendments House sponsors c la im is an effort to desegregate in o rd er to com ply with the Constitution." S8286. Senator Dominick, who is the ranking minority m e m b e r of the E duca tion Subcommittee of the Senate and a m e m b e r of the Conference Committee which reported on Section 803, stated as fo l lows: - 116- MR, DOMINICK, Mr. President , as the ranking minority m e m b e r of the Education Subcommittee, I r ise in support of the Conference R eport of the Education Amendments of 197 2. >:< * * To those co l leagues who oppose the C onference Report because e f fect of the B room fie ld language is ambiguous or not strong enough I point out that this was the best we could get. May I quote to you som e leg is la t ive h istory f r o m the House side descr ib ing exact ly what is intended by the language. On M a rch 8, 197 2, the dist ing uished minority leader (Mr. G erald R. Ford) asked the author of the Amendment severa l highly pertinent questions . The co lloquy went like this: "M R . G E R A L D R. FORD. I would like to ask the gentleman severa l questions. F irs t , is the B room fie ld amendment re troa ct ive ? MR. BROOMFIELD. Y es ; it is. MR. G E R A L D R. FORD. Is it re troact ive in its ent irety? MR. BROOMFIELD. In its entirety. MR. G E R A L D R. FORD. The second quest ion is this: Your amendment states that the e f fect iveness of 'any o r d e r 1 to achieve a rac ia l balance of students 'shall be postponed. ' Now does that mean that it would affect o rd e rs which have already been put into effect or put into partial e f f e c t ? In other w ords , all would be suspended pending final appeal? MR. BROOMFIELD. That is c o r r e c t . " The only limitations that the con ference placed on the express and c le a r ly intended language of the B room fie ld Amendment are the t e r mination date of January 1, 1974, and the statement of the c o n f e r en ce 's quali f ication that it affects only appealable o rd e rs . I under stand this quali f ication to add nothing other than to substantiate the finality of the o rd e r language already contained in the Amendment. In view of the language and the leg is lat ive intent, I be l ieve that the e f fect of B room f ie ld is c lea r , and my co l leagues should vote a c c o r d ingly with full knowledge of the consequences . C ongress ion a l R e co rd - Senate, S8396, S8397, May 24, 19/2 . The C onference Committee Report was brought b e fore the House in June of 1972, and C ongressm an Quie, the ranking m inor ity m e m b e r of the House Committee on Education and Labor and a m e m b e r of the Conference Committee , co -m a n a g ed the Report with C ongressm an Perkins On June 8, 1972, C ongressm an Quie stated: "• • • [t]he B room f ie ld amendment . . . was a imed solely at stay ing Federa l court desegregat ion o rd ers involving the transfer or transportation o f students until all appeals are exhausted oi until the time for taking such appeals has expired without one being taken. This is an extrem ely important and n e c e s s a r y action d e signed to obtain equity and uniformity in these ca ses , and perhaps to give the Federa l jud ic ia ry som e t ime to a s s e s s the m ood of C ongress and the country with resp ec t to w holesa le busing of s c h o o l children. "A c co rd in g ly , the con ference report contains without substantive change the m ost significant and e f fect ive of the amendments c o v e red by the instructions of the House. F or the f i rs t t ime in the f ie ld of schoo l desegregat ion the C ongress wil l be ex erc is in g its authority, which is l im ited under the Constitution, to regulate the actions of Federa l cour ts . " Congress iona l R e c o r d - House, H5404, June 8, 1972. In the debate on accepting the Conference Comm ittee Report the following co l loquy o c c u r r e d between C ongressm an B room fie ld and Con g re ssm a n O'Hara, c o - s p o n s o r s of Section 803, and C ongressm an Perkins, the Chairman of the C onference Committee and the Chairman o f the House Comm ittee on Education and Labor: "M R . O 'HARA. Mr. Speaker, I am part icu lar ly interested in the prov is ions of sect ion 803 of the con lc i cnce report . F irs t , I would like to ask MR. BROOMFIELD about bis meaning •when his amendment spoke of an o rd er of a d istr ict court requi i ing the transfer or transportation of students " f o r the purpose of achieving a balance among students with resp ec t to race , sex, r e l ig ion, or s o c i o e c o n o m ic status. " In all of the court o r d e r s with which I am fam il iar , the court has stated that its purpose is to p r e vent unconstitutional segregation of students. May I inquire of the gentleman f r o m Michigan if it was his intention that sect ion 803 apply to o rd e rs that have the pra ct i ca l ef fect of achieving some, sort of rac ia l balance, although the court may have stated that its o r d e r was entered fo r the purpose of co rre c t in g unconstitutional segregat ion ? MR. BROOMFIELD. Y es ; it was my intention to cov er such ca ses and spec i f i ca l ly , it was my intention to c o v e r ca ses like those now being lit igated in R ichmond and Detroit. MR. O 'HARA. May I ask the chairman of the con feren ce c o m m it tee , the gentleman f r o m Kentucky, if his understanding is the same as that of the gentleman f r o m Michigan (MR. BROOMFIELD) ! MR. PERKINS. Y es , it is . It is m y understanding that sect ion 803 co v e rs d istr ict court o rd e rs which require the t rans fer or transportation of students fo r rac ia l purposes whether the court ̂ o rd er is f ram ed in te rm s of c o rre c t in g unconstitutional segregation or whether it is f ra m ed in te rm s of "ach iev ing a balance among students with resp ect to race . " MR. O 'HARA. If I could continue to have the attention of the gent leman f r o m Kentucky, the e f fect ive date of sect ion 803 is July 1 of this year. The joint explanatory statement of the com m ittee of con ference says: "T h is sect ion does not authorize the reopening of final orders , however , appealable o r d e r s are con s id ered to be within the scope of this amendment. " Does this mean that if an order requiring the transfer o r t ra n sp or t ation o f students has been entered pr ior to July 1, 197 2, the e f fe c t iveness of such ord er shall be postponed until all appeals in c on n ec tion with such o rd er have been exhausted, or , in the event that no appeals are taken, until the t ime for such appeal has expired MR. PERKINS. The gentleman f r o m Michigan is c o r r e c t . Section 803 wil l apply to such o rd ers whether entered be fore or after July 1, 1972, as long as appeals of such o rd ers have not been exhausted or , in the event no appeal of such ord er was taken, until the t ime for such appeal has expired. MR, O'HARA. I thank the gentleman fro m Michigan and the gentle man f r o m Kentucky fo r their explanations and I urge adoption of the con feren ce report with the very important prov is ions contained in sect ion 803. C ongress iona l R e c o r d - House, H5416, June 8, 1972. Later in the same debate, C ongressm an B room fie ld made the f o l lowing statement: M r. Speaker, I would like to address one final point. There has been som e confusion, som e misunderstanding about the operation of m y antibusing amendment. I have read with a great deal of surpr ise that my amendment only applies to busing for purposes o arr iv ing at a rac ia l balance. I have seen m y amendment quoted out of context so as to imply that it wil l not be ef fect ive in preventing the vast m a jor i ty of b us ing which is or wil l be o rd ered . I suggest that a com plete reading of the language reads, " f o r the purpose of achieving a balance among students with resp ec t to ra ce , sex, re l ig ion o r s o c i o e c o n o m ic status. " I repeat it halts busing o r d e r e d on the basis of s o c i o e c o n o m ic status. That phrase was purposely added to my bill and retained only after a great deal of thought. Our feeling was that the phrase is wide enough and open enough to include any rationale or basis which a court might conce ive of in o rd e r to justi fy busing. I rea l ized that by limiting the language only to ca ses involving rac ia l balance, there would be those who would try to skirt and evade the obvious and c lea r intent of my bill . My bil l delays all busing o rd e rs pending appeal and s o c i o e c o n o m ic c o v e rs enough ground to make sure that happens. C ongress ion a l R ecord - House, 115419, June 8, 1972. - 120- >- h The extensive quotations f r o m the Congress iona l R e c o r d o f l e g i s lative debate set forth above c lear ly evinces a leg is lat ive intent that Section 803 apply to the spec i f i c litigation now b e fo re this Court. the m otive of C ongress in passing this leg is lat ion is made apparent by the many re fe r e n c e s to the unsettled state of the law in cases like those pend ing in Detroit, Michigan and Richmond, Virginia . It is apparent that the le g is la to rs w ere concerned with implementation of plans where substantial lega l questions rem ained unreso lved on appeal. As this Court has p r e v ious ly indicated, there is at least one question of f i r s t im p r e s s io n in vo lved in the case at bar. Under these c i r cu m stan ces it is apparent that C ongress intended that implementation by way of student transfer be d e fe r r e d pending exhaustion of appeals and ultimate resolut ion of such questions . , The a b o v e - r e fe r e n c e d quotations f r o m the C ongress iona l R e co rd rep resent only a portion of the v ery extensive debates on Section 803. Opposition debate on this sect ion further exem pli f ies the plain and simple fact that all m e m b e rs of C ongress understood this sect ion to apply to any rem ed y involving the transfer of students for the purpose of achieving, as a rem ed ia l effect , rac ia l balance. F r o m the above, the leg is lat ive intent of C ongress may be su m m a rized as fo l lows: (a) That Section 803 is intended to apply " r e t r o s p e c t i v e ly " , that - 1 2 1 - is , to all o rd e rs t ransferr ing students that arc still subject to appeal, even i f entered p r io r to July 1, 1972. v (b) That its purpose is to give the appellate F edera l courts o p p o r tunity to rev iew o rd e rs affected by Section 803 be fore rem ed ia l im p le m entation. (c) That the o rd ers affected by the Section are those requir ing the transfer o r transportation of students in a desegregat ion case , whether or not the intent of the o rd e r is to c o r r e c t i llegal segregation. If the e f fect of the o rd er is to achieve a balance with resp ect to race , as a part of the rem edy o r d e r e d by the Court, the e f fect iveness of the o rd er is p ost poned during appeals. (d) That the sect ion was spec i f i ca l ly intended to be applicable to the instant cause. 3 . Section 803 was introduced in C ongress as an entirely s e parate and severab le amendment to the Education Amendments of 1972 and should not be construed in conjunct ion with any other sect ions o f Public Law 9 2 -3 1 8 . Appel lees have argued that Section 80 3 should be read in conjunc tion with the prov is ions of Section 802, "Education Amendments of 1972" and construed in con form ity with that Section. The a b o v e - r e fe r e n c e d - 1 22- leg is la t ive h is tory c lea r ly indicates that Section 803 was submitted as an entirely separate sect ion without regard to the prov is ions o f Section 802 and was designed to a ccom p l ish an entirely distinct ob ject ive , delay of implementation of student t rans fer plans until exhaustion o f all appeals in the federa l courts . It should be noted in this reg a rd that the amendment had never been r e f e r r e d to a com m ittee of C ongress for cons iderat ion and that the C ongress ion a l R e c o r d c lea r ly indicates that the amendment was con s id ered by m e m b e r s of C ongress to be not germ ane to the or ig inal legis lat ion b e fore the House o f Representat ives . C ongress iona l R e c o r d - House, H10407- 10409. Attempts w e r e made by m e m b e r s of the House of R ep resentatives at the t ime of the original introduction to prevent c o n s id e r ation of this amendment because it was not germ ane to the orig inal l e g i s lation. Careful examination of H10407- 10409, C ongress ion a l R ecord , c lea r ly indicates that the chairman ruled that ob ject ions to that effect w ere ra ised " too late" . In this regard it should be noted that it is a cus tom and precedent of the House of Representat ives that when an amendment to a bill is o f fered , and read by the c le rk of the House of Representat ives , object ion must im m ediate ly be made as to the g erm a n en ess " of the am end ment to the original legislat ion, or such ob ject ion is lost . A ccord ing ly , attempts to explain away the c lea r im port of Section 803 by re fe ren ce to other sect ions of the Education Amendments of 1972 are without m erit , - 123 - since this rider must be construed as a separate and distinct legislative enactment. . 4. Section 803 has re t rosp ect iv e application to the Order of the Court below dated June 14, 1972. It could be contended by Appel lees that s ince the e f fect ive date of the Education Amendments of 1972 was July 1, 1972, that sect ion cannot be held to have application to an o rd er of a d istr ict court entered pr ior to that date. Such a contention would be a sser ted in opposition to the overwhelming weight of authority. It has been held repeatedly that stat utes governing p roced u res b e fore a court of law are presum ed to have . r e t ro sp e c t iv e application, and the general rule is best ex p r e sse d as f o l lows: "Unless an intent to the contrary is ex p ressed , a statute providing, or m e r e ly affecting, the rem ed y may apply to, and operate on, causes of action which had a ccru ed and w e r e exist ing at the t ime of the enactment of the statute, as w el l as causes of action thereafter to a ccru e , and to all actions whether c o m m e n ce d be fo re or after its enact ment, and a lso , unless an intent to the contrary is ex p r e sse d such enactments as do not affect the nature of the rem edy, but relate so le ly to incidents of p roced u re , are applicable to. all proceed ings taken in pending actions f r o m the time they take e f f e c t . " 82 C . J . S . Sec. 422 Statutes. " A re trosp ec t iv e law, in a legal sense, is one which takes away o r im pa irs vested rights acquired under existing laws, o r creates a new obligation and im poses a new duty, o r attaches a new disability, in resp ect of transactions or cons iderat ions already past. Hence, rem edia l statutes, or statutes relating to r em ed ies or modes of p rocedure , which do not create new or take away vested rights, but only operate in furtherance of - 124 - the rem edy or confirmation of rights already existing, do not com e within the legal conception of a re t rosp ec t iv e law, or the general rule against the re trosp ect ive operation of statutes. To the contrary , statutes or amendments pertain ing to p roced u re are generally held to operate r e t r o s p e c t ively , where the statute or amendment does not contain language c lea r ly showing a contrary intention. " 50 Am. Jur. Sec. 482, Statutes. One recent dec is ion of the United States Court of Appeals for the Second Circuit appears to be particular ly apposite to the instant case , Banco Nacional de Cuba v F a r r , 383 F 2d 166 (2d Cir 1967), cert denied, 390 US 956, ren denied, 390 US 1037 (1968) and wel l il lustrates application of the rule of re t rosp ec t iv e application. This case involved the e x p r o priation of p roperty by the Cuban Government and the application of the H ickenlooper Amendment on the power of federa l courts to deal with such, expropriat ions . : The Dis tr ict Court had held that it had jur isd ic t ion over the subject matter of the case and granted sum m ary judgment for the defendants, holding that the expropriat ion of sugar by the Cuban Government vio lated International law. This dec is ion was a f f i rm ed by the Court of Appeals but r e v e r s e d by the Supreme Court of the United States, which held that the "act of state doctr ine" prevented the United States courts f r o m e x a m ining the validity of the acts of the Cuban Government under International law. The case was remanded to the Distr ict Court and while proceed ings - 125 - relative to the entry of an o rd er w e r e pending, the Hickenlooper A m en d ment was enacted, and provided, with resp ec t to expropriation ca ses : ” , . . no court of the United States shall decline ( jurisdict ion) on the ground of the Federa l act of state doctr ine. . . . In holding that the Hickenlooper Amendment was fully applicable to tire ca se already pending, the Second Circuit Court of Appeals stated at page 173: " M o r e o v e r , it is w el l established that when a statute spec i f i ca l ly applies to past transactions . . . it applies to pending cases too because a case must be decided accord ing to the law as it exists at the t ime of final judgment. " The Court further stated, at page 173, " leg is la t ive h is tory of a statute is useful when the meaning of the statute is not apparent f r o m the language. " The Court then concluded that because of the language of the statute itsel f , as w el l as the leg is la t ive h is tory of the Amendment and significant statements by the proponent of the Amendment, the statute had re t rosp ec t iv e application and the Court had jur isd ic t ion over the sub je c t matter of the case , notwithstanding the p r io r mandate of the United States Supreme Court d isc la iming jur isd ict ion . Section 803 is i tse l f c lea r ly procedura l in nature. The ultimate substantive constitutional rights of the parties wil l not be determined in any resp ec t by its application, for such rights wil l be determined only upon considerat ion thereof by the appellate courts . No substantive rights - 1 ? . 6 - are created or taken away by Section 803, which m ere ly prov ides for the manner in which the rights of all of the parties are to be en forced and protected during the continuing p r o c e s s of litigation. There is nothing in Section 803 which indicates an intention that it should have prosp ect ive application only. To the contrary , it applies to " any o r d e r " by " any United States Distr ict Court" , until " all appeals in connection with such ord er have been exhausted. " , and it is c lear f r o m its own term s that its application is not l im ited only to certain o rd e r s en tered after a certain date. In addition, the leg ia lative h istory of Section 803 which has been d escr ib ed above, can leave no doubt of the intention of C ongress as to its intended re trosp ec t iv e application, not only to cases in general but spec i f i ca l ly to the case at bar. 5* A construction that Section 803 is intended to apply only to "de facto segregat ion" cases would render this sect ion a nullity . The argument has been made that Section 803 should be confined in its application so le ly to ca ses involving "de facto segregat ion" . This a r gument is based upon the holding of the United States Supreme Court in Swann v Charlotte -M ecklenburg Board of Education, 40 2 US 1, 28 L Ed 2d 554, 91 S. C. 1267 (1971). In that case , at pages 17-18 the court c o n strued the meaning of Section 2 0 0 0 c - 6, 42 USC; Title IV, Civil Rights Act of 1964. That Act prov ided in pertinent part: - 127- . . nothing herein shall em pow er any o f f ic ia l or court of the United States to issue tiny o rd e r seeking to achieve a rac ia l balance in any schoo l by requiring the transportation of pupils or students f r o m one schoo l to another or one schoo l d istr ict to another in o rd er to achieve such rac ia l balance, or otherwise enlarge the existing power of the court to insure com pl iance with the constitutional standards. 11 The above-quoted language was contained in a sect ion authorizing the Attorney General to institute federa l suits to achieve 1 desegregat ion . Desegregation was defined, in Tit le IV: 11 'D esegregat ion ' means the assignment of students to public s ch oo ls and within such schoo ls without regard to their race , co lo i , re l ig ion or national origin , but 'desegregat ion ' shall not mean the assignment of students to public schoo ls in o rd er to o v e r c o m e ra c ia l imbalance . " The Supreme Court held that Section 2 0 0 0 c -6 was designed to f o r e c l o s e interpretation of the Civil Rights Act of 1964 as expanding the exist ing pow ers of federa l courts to en force the equal protect ion clause of the 14th Amendment. The Court said in that regard : " T h e r e is no suggestion of an intention to r e s t r i c t those powers or withdraw f r o m courts their h is tor ic equitable rem ed ia l powers . The leg is lat ive h is tory of Tit le IV indicates that C ongress was c o n cern ed that the Act might be read as creating a right of action under the 14th Amendment in the situation of s o - c a l l e d 'de facto s e g ie g a - t ion ' , where rac ia l imbalance exists in the schoo ls but with no show ing that this was brought about by d is cr im in atory action of state authorities. In short there is nothing in the Act that prov ides us m ater ia l ass is tance in answering the question of rem edy for state- im p os ed segregation in violation of Brown II. " 402 US 1 2 18. - 1 2 8 - In so holding the court pointed out at 40 2 US 16: "Schoo l authorities are traditionally charged with broad power to form ulate and im plement educational po l icy and might w e l l c o n clude, fo r example, that in o rd er to prepare students to l ive in a p lura l ist ic soc ie ty each schoo l should have a p r e s c r ib e d ratio of negro to white students reflect ing the proport ion for the d istr ic t as a whole . To do this as an educational po l icy is within the broad d is cre t ion ary powers of school authorit ies; absent a finding of a con s t i tutional violation, however , that would not be within the authority of a federa l court. As with any equity case , the nature of the violation determ ines the scope of the rem edy. In default by the schoo l auth or i t ies of their obligation to p ro f fe r acceptable r e m e d ie s , a d istr ict court has broad power to fashion a r em ed y that wil l assure a unitary schoo l system. " The substance of the Supreme Court 's construct ion of Section 2 0 0 0 c - 6, Tit le IV, Civil Rights Act of 1964 constitutes a s im ple holding that the Con . g r e s s was making it c lea r that the powers of the federa l courts would not be expanded to include the granting of r e l ie f in situations involving de facto segregat ion as a bas is of l i ability fo r the schoo l d istr ict . Since that is the ca se it should be c lea r that to construe Section 803 as being applicable only to situations of de facto segregation, where by the Supreme Court 's own w ords the federa l courts have no authority to grant re l ie f , would e f fect ive ly render the Section a virtual nullity and be against all tenets of statutory construct ion. Conceivably , there may be some rare o cca s ion s where a federal court would b ecom e involved in the enforcem ent of a schoo l b o a r d ’ s volun tary des ire to eliminate de facto segregation. Such c a se s must of necess i ty be ex trem e ly rare and to confine the meaning of Section 803 to such in stances only, would be to attribute fr ivo lous m otives to the C ongress of the United States. It should be c lea r f r o m the above-quoted leg is la t ive h is tory that Section 803 cannot be construed in conjunct ion with Section 802, " E d u ca tion Amendments of 1972", since its or ig in was separate and distinct f r o m that sect ion, that it was in fact intended to affect ca ses involving questions of c.e jure segregation and that C ongress intended to affect any remedy w here in the Distr ict Court, reg a rd less of the basis of liabil ity , sought to achieve a balance between ra ces . In the case at bar the Distr ict Court has indicated that transfer of students shall be e f fected to the end that there shall be no d isproport ion between the r a c e s in any sch oo l or grade in the schoo l d istr icts affected. To state that Section 803 was not intended to apply to the Detroit desegregat ion case because the foundation of liability was de jure se g r e g a tion falls within the character izat ion of Senator Pel l who stated on the Senate f l o o r on May 23, 197 2: "I expect that today 's debate wil l bring d isagreem ent f r o m those who have m o r e of a legal background on the subject than I. However, I would say that the Senate is not in the habit of enacting fr ivo lous language, and those who interpret our work as a sham and a fraud do in justice to both the Senate and the House. S8282. - 130- IX. IF SECTION 803 OF THE EDUCATION AMENDMENTS OF 197 2 IS A P P L IC A B L E , AS STATED IN THE F O R E GOING QUESTION, IS SAID PROVISION OF LAW ______________________ CONSTITUTIONAL ?__________________ A. Section 803, "Education Amendments of 1972", is a proper e x e r c i s e of the power of Congress under A rt ic le HI, Section 1 ° f .lhe__Con- stitution of the United States. A r t i c le III, Section 1, of the Constitution of the United States p r o v ides as fo l lows: • "Sec . 1. The judic ia l power of the United States, shall be vested in one suprem e Court, and in such in ter ior Courts as the C ongress may f r o m time to t ime ordain and establish. The United States Supreme Court has held that the above-quoted sect ion gives the power to regulate low er federa l courts in the e x e r c i s e of their jur isd ic t ion . Sheldon v Sill, 49 US (8 How. ) 440 (1850). Thus the power extended to C ongress under Section 1, A r t i c le III of the Constitution has been held to be d irect ly paralle l to that granted to the C ongress to regulate the appellate jur isd ic t ion of the United States Supreme Court. This power was dramatical ly il lustrated in Ex Parte Me Car d ie , 7 Wall. 506, 19 L Ed 264 (1 868). There a civil ian held for trial by a m il i tary co m m is s io n was denied a Writ of Habeas Corpus by the Circuit - 131- Court. While an appeal f r o m thi's denial was pending b e fo re the Supreme Court of the United States, C ongress passed a statute taking away the appellate jur isd ic t ion of the Supreme Court in habeas corpus c a s e s . The Supreme Court held that this was a legit imate e x e r c i s e of cong ress iona l power and that the leg is lat ion deprived the United States Supreme Court of ju r isd ic t ion even though the Act was passed after the Supreme Court had a lready taken jur isd ic t ion of the case . This was so even though the cause b e fore the Court involved an a l leged vio lation of the plaintiff 's con stitutional rights. The power of the C ongress of the United States to regulate the grant ing of stays during the c o u r se of appeals has been e x e r c i s e d throughout the h is tory of this country. At the very inception of our court system , C ongress provided in Section 23 of the Judiciary Act of 17 89 that the t imely filing of a Writ of E r r o r after the entry of a final o rd er in either a c ir cu it court or the Supreme Court of the United States operated as an automatic supersedeas and stay of execution and further prov ided for an automatic ten-day stay o f execution during the p er iod for filing Writs of E r r o r , cf. Brocket ! v B ro ck e t ! , 43 US 2 How. 238, 11 L Ed 251 (1844); Slaughter House c a s e s , 77 US (10 Wall) 273, 19 L Ed 915 (1869). There are numerous instances of the e x e r c i s e of the regulatory p ow ers of C ongress over the manner and procedure of granting rem ed ies : - 3 32 - 1. Labor . Although the C ongress may not c i r c u m s c r i b e the orig inal ju r i s d i c tion of the Supreme Court, it may l imit or even rem ov e the general ju r isd ic t ion of the low er federal courts . This power is i l lustrated in the ca se of Lauf v E. G. Shinner L Co. , 303 US 323, 82 L Ed 8 /2 (1938), involving the construct ion o f certain prov is ions of the N o rr is -L a G u a rd ia Act . That Act prov ided that "no court of the United States shall have jur isd ic t ion to issue a tem p ora ry or permanent injunction in any ca se in volv ing or growing out of a labor dispute" unless certain v ery sp ec i f i c findings w ere made by the court, involving substantial and i r repa ra b le in jury in balancing the in terests of the parties . In the Lauf case , the Supreme Court in upholding this prov is ion , stated s imply, at page 330, " T h e r e can be no question of the power of C ongress thus to define and l imit the jur isd ic t ion of the in fer io r courts of the United States. " 2. Voting Rights. The question of C on g ress ' power over the low er federa l courts arose in another context, involving the elimination of the jur isd ic t ion of the d is tr ic t court to entertain certain matters arising under the Voting Rights Act of 1965. In re ferr ing to that prov is ion of the Act which requires states to seek certain re l ie f only in one district court in the United States, the Supreme Court, in South Carolina v Katzcnbach, 383 US 301, 15 L Ed 2d 769 (1966) stated, at page 331: "Despite South C aro l ina 's argument to the contrary , C ongress might appropriately l imit litigation under this p rov is ion to a single court in the Dis tr ict of Co lum bia ,pursuant to its constitutional power under Art . Ill, §1, to 'ordain and establish ' in fer io r federa l t r i bunals . " 3, Selective Serv ice The l im ited nature of the jur isd ic t ion of the in fer io r federa l courts , as determined by the C on g ress , is further il lustrated in the se lect ive s e r v i c e ca ses . In Falbo v United States, 320 US 549, 88 L Ed 305 (1944), the Supreme Court held that a se lec t ive s e rv i c e registrant could not defend a prosecut ion on the ground that he was wrongfully c lass i f ied , where the o f fense was a failure to report for induction. The court held that until the registrant had exhausted all administrative appeals, the courts of the United States had no jur isd ic t ion to entertain his c la im that he had been im p r o p e r ly inducted. Following the Falbo case , the United States Supreme Court ruled in Estep v United States, 327 US 114, 90 L Ed 567 (1946), that in a case where the registrant had exhausted all administrative appeals b e fore refusing to submit to induction, C ongress had p roper ly l im ited the scope of the cour t 's rev iew to determining whether or not the lo ca l draft board had acted beyond its jur isd ict ion . In speaking for three of the ju s t i c e s , - 134- : Just ice Douglas stated at pages 122 and 123: "Tlie p rov is ion making the dec is ions of the l o ca l boards ' f inal means to us that C ongress*chose not to give administrative action under this Act the customary scope of jud ic ia l rev iew which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the c lass i f i ca t ion made by the lo ca l boards was justi f ied. The dec is ions of the lo ca l boards made in con form ity with the regulations are final even though they may be e rron eou s . The quest ion of jur isd ic t ion of the lo ca l board is rea ch ed only if there is no basis in fact for the c lass i f i ca t ion which it gave the registrant. " In a concurr ing opinion, Mr, Just ice Rutledge stated at page 13 2: "I have no doubt that C ongress could make administrative o r e x ecutive actions final in such matters as these in the sense of exc lud ing all judic ia l rev iew , excepting only what may be required by the Constitution in the absence of suspension of the writ of habeas c o r p u s . " In the case of Edwards v Selective Service Eocal B oard , 111. 43 2 1 . 2d 287 (5th Cir. 1970), the subject of jud ic ia l rev iew o f l o ca l draft board c lass i f i ca t ions again cam e up for review. In that case , involving a r e g i s trant who sought to enjoin his induction into the a rm ed f o r c e s , the court held that jud ic ia l rev iew of reg istrant 's c lass i f i ca t ion was b a rred by Con gress ion a l mandate. In its opinion, the 5th Circuit Court of Appeals stated at page 290: "T h is Court and the court whose o rd er we rev iew are each and both in fer io r courts of l im ited jur isd ict ion . The route of our reasoning proper ly starts with the presumption that we lack subject matter jur isd ic t ion until it has been demonstrated to exist . This has - 135 - long been the bas ic tenet of federa l jur isp rud ence , (citations om itted ) . The power to ordain and establish these courts is v ested in the C ongress ; and, with exceptions not pertinent here , C ongress lias the power to give, withhold and re s tr i c t our j u r i s diction. " (Emphasis added) See also C ar lson v United States, 364 F 2d 914 (10t.h Cir 1966). 4. P r i c e Control The E m e r g e n cy P r i c e Control Act of 1942 gave r is e to severa l cases d iscuss ing the power of the C ongress to l imit jud ic ia l rev iew in the area of w art im e p r i c e contro ls . That Act prov ided that a person subject to an o rd e r or regulation of the A dm in istrator under the Act could f i r s t file a protest of the A d m in is tra to r ' s action and could therea fter appeal such action only to the E m e r g e n cy Court of Appeals created under the Act and thereafter to the United States Supreme Court. The A ct also prov ided that the E m e r g e n cy Court of Appeals and the Supreme Court had exc lus ive jur isd ic t ion over the subject matter involved and no other court, federa l , state or t e r r i to r ia l , could have jur isd ic t ion o r power to cons ider the va l idity of any regulation or o rd er of the A dm in istrator . Finally, the Act prov ided that the E m ergency Court of Appeals and the United States Supreme Court w e r e denied the jur isd ic t ion to issue a t em p ora ry stay or injunction to prohibit the en forcem ent of the A d m in is tra to r 's regulations or o rd ers during the pendency of an appeal f r o m the denial of a protest , taken to the E m erg en cy Court of Appeals or the Uniteo. States Supreme Court. In Eockerty v Phil l i p s , 319 US 182, 87 L Ed 1339 (1943), the Supreme - 136 - Court upheld the validity of that .portion of the statute rem oving j u r i s d i c tion of the subject matter f r o m all other courts . In its opinion, the Court stated at 319 US 187: " T h e r e is nothing in the Constitution which requ ires C ongress to confer equity jur isd ic t ion on any particular in fer io r federal court. All federa l courts , other than the Supreme Court, derive their jur isd ic t ion wholly fi 'om the e x e r c i s e of the authority to 'ordain and establish ' in fer ior courts , c o n fe r re d on C ongress by A r t i c le 3, §1, o f the Constitution. . . . The Congress iona l power to ordain and establish in fer io r courts includes the power ' o f invest ing them with jur isd ic t ion either l imited, concurrent , or exc lus ive , and of withholding jur isd ic t ion from, them in the exact degrees and cha ra c ter which to C ongress may se e m proper for the public g o o d .1" (Emphasis added) And at 319 US 188, the Court stated: "In light of the explic it language of the Constitution and our de c is ions , it is plain that C ongress has the power to provide that the equity jur isd ic t ion to restra in enforcem ent of the Act, or of regula.- tions promulgated under it, be res t r i c ted to the E m ergen cy Court, and, upon rev iew of its dec is ions , to this Court. " In a subsequent opinion, Yakus v United States, 321 US 414, 88 L Ed 834 (1944), the Court cons idered the question not ra ised in L o c k e r t y , as to whether C ongress could withhold f r o m the courts actually vested with subject matter jur isd ic t ion of p r ice contro l appeals, (the E m ergen cy Court of Appeals and the United States Supreme Court) the power to stay an o rd er o r regulation of the P r i c e Control A dm in istrator o r the power to issue an injunction prohibiting the en forcem ent of such ord er or regula tion. In upholding this p rov is ion of the E m ergen cy P r i c e Control Act, the -137- Supreme Court stated, at 321 US 43 / : "In the c i r cu m stan ces of this case we find no denial of due p r o c e s s in the statutory prohibition of a tem p ora ry stay or injunc tion. " And at 321 US 441-442: "H e re , in the e x e r c i s e of the power to protect the national e c o n omy f r o m the disruptive influences of inflation in t ime of war C ongress has seen fit to postpone injunctions restraining the o p e r a tions of p r i c e regulations until their lawfulness could be ascerta ined by an appropriate and expeditious p rocedure . In so doing it has done only what a court of equity could have done, in the e x e r c i s e of i ts d iscre t ion to protect the public Interest. What the courts could do C ongress can do as the guardian of the public interest of the nation in t ime of war. " (Emphasis added) Finally, at 321 US 444, the court stated: " T h e r e is no constitutional requirement that test be made in one tribunal rather than in another, so long as there is an opportunity to be heard and for judic ia l rev iew which satis f ies the demands of due p r o c e s s , as is the case here . " The a b ov e -c i ted authorities w ere com m ented upon favorably by the Supreme Court in S. Carolina v Katzenbac.b supra , where in upholding the power of C ongress to l imit certain ca ses to a single court in the Distr ict of Columbia the m ajor i ty opinion said, at 383 US 331, 15 L Ed 2d 788: "Desp ite South Carol ina 's argument to the contrary , C ongress might appropriate ly l imit lit igation under this prov is ion to a single court in the Distr ict of Columbia, pursuant to its constitutional power under Art. Ill, §1, to 'ordain and establish ' in fer io r federal tr ibunals . See Bowles v Willingham, 321 US 503, 510-512, 88 E Ed 892, 900, 901, 64 S Ct 641; Yakus v United States, 321 US 414, 427-431, 88 L Ed 834, 849-852, 64 S Ct 660; Eockertv v P h i l l ip s , 319 US 182, 87 L Ed 1 339, 63 S Ct 1019." -13 8 - Of spec ia l interest , because of the m arked similai ' ity in language, is the E co n o m ic Stabilization Act of 1970, as amended December 22, l i / J , which prov ides in Section 211, 12 U. S. C .A . 1904 note, A pr i l 19( 2 Sup plement, as fo l lows: " ( e ) (1) . . . [N]o in ter locutory or permanent injunction r e straining the enforcement, operation, or execution of this title, o r any regulation o r o rd er issued thereunder, shall be granted by any d istr ict court of the United States or judge thereof . " (f) The e f fect iveness of a final judgment of the T em p or a r y E m e r g e n cy Court of Appeals enjoining or setting aside in whole or in part any p rov is ion of this title, o r any regulation or o rder is su ed thereunder, shall be postponed until the expiration of thii ty days f r o m the entry thereof , except that i f a petition for a w i i t of c e r t i o r a r i is .filed with the Supreme Court under subsection (g) within such thirty days, the e f fect iveness of such judgment shall be postponed until an ord er of the Supreme Court denying such petition b e c o m e s final, or until other final disposit ion of the action by the Supreme Court. " The constitutionality of the E con om ic Stabilization Act of 19 76 was recently upheld by a three - judge United States Distr ict Court, in an e x tensive opinion, Amalgamated Meat Cutters and Butcher Wp_rk_v CormaEw, U .S .D . C. , Dist. C o l . , 337 F. Supp 7 3 7 (1 9 7 1 ) . We recog n ize that the argument may be made that Lockerty v Phil lips and Y akus, supx a, a ie distinctive dec is ions rest ing upon the e x e r c i s e of the war power granted under the Constitution. Of particular note, on this point is the com m ent of that Court, at 3 37 F. Supp 762: "W e end this sect ion of the opinion with broad c los ing re fe ren ces to precedent . F irs t a last w ord as to Yakus. We do not understand - 139 - Yakus to rest in a cru c ia l sense of the e x e r c i s e of the war power. No c la im is made to us that this 1970 law l ies outside the sub stantive powers of C ongress , but only that its powers should have been e x e r c i s e d with different techniques. Nor does \ akus depend on the ex istence of the state of war as a condition. As pointed out by Justice Rutledge, in a dissenting opinion that c o n cu r re d with the m ajor ity on this issue , 321 US at 462-463 , 64 S Ct at 685, the leg is lat ion 'as the Court 's opinion demonstrates does not go beyond the limits a llowed by peacet im e precedents in the substantive delegation. B • Section 803 does not violate any constitutional requirement of due p r o c e s s of la w . 1. There is no constitutional requ irem ent of im m edia cy of r e l i e f where the basis of appeal involves the quest ion of the ex is t ence of de jure s e gregation as a matter of la w . Appe l lees have prev ious ly argued that Sect ion 803 is unconstitutional f o r the rea son that it abrogates a constitutional interest in im m ediate re l ie f . This argument is based on the teachings of the United .States Supreme Court in Alexander v Holmes County Board of Education, 39 6 US 19, 24 L Ed 19 (1969) and Carter v West Fel ic iana Par ish School B oard , 396 US 290, 24 L Ed 2d 477 (1970). These ca ses are further a m p l i f i ca tions of the principle stated in Green v County School Board of New Kent County, 391 US 430, 20 L Ed 2d 716 (1968). In that case the United States Supreme Court re iterated the "de l iberate spoeci ' standai d established in the second Brown dec is ion in 1955, 349 US 294, was no longer applicable , - 14 0 - c. f. Griff in v County School Board, 377 US 218, 12 L Ed 2d 256 (1964), and that the burden on a schoo l board today is to com e forw ard with a plan that p r o m is e s to work and " p r o m is e s rea l is t ica l ly to work now ". 391 US 439, 20 L Ed 2d 724. Reasoning f r o m the conc lusions of these ca ses , opponents of the validity of Section 803 argue that there is now a const i tutional interest in im m ediate implementation o f a plan upon a p r im a fac ie showing of continued segregation. It is submitted that the princip le of the above ca ses does not extend to the facts of the ca se at bar, which are totally distinguishable. In each of the above cited ca ses , the ex istence of a dual schoo l system , constitut ing de jure segregation, was not at issue . Each one of the schoo l system s in the a b ove -c i ted cases had operated dual system s p r ior to 1954, and thereafter , by operation of state law. This s imple fact was either admitted o r prev ious ly adjudicated in all of those ca ses . Thus the issue of " l iab i l i ty" had been com plete ly r e so lv ed and the only question be fore the United States Supreme Court and the low er appellate courts was that of the timing and e f f i ca cy of implementing a plan of desegregation . The com m ent of Just ices Harlan and White in a concurr ing opinion in Carter v West F e l i c i ana Parish School hoard , supra , to the e f fect that the burden, in actions s im i lar to the Alexander case , should be shifted f r o m plaintiffs, seeking r e d re s s for a denial of constitutional rights, to defendant school - 141 - boards , and to the further effect-that: "What this means is that upon a pr im a facie showing of non com pl iance with this Court 's holding in Green v County School Board of New Kent County, _391 US 430, 20 L Ed 2d 716, 88 S Ct 1689 (1968), suff ic ient to demonstrate a l ikel ihood of su c ce ss at tria l, plaintiffs may apply for immediate r e l i e f that wil l at once extirpate any lingering vestiges of a constitutionally prohibited dual schoo l system . " must be read as applicable only to a case where the issue of the existence of a "constitutionally prohibited dual schoo l sy s tem " has been reso lv ed unfavorably to the defendant school board. We contend that the teachings of the Supreme Court in the a b ove -c i ted line of ca ses apply only after full reso lut ion of the issue of de jure segregation. In the case at bar, this issue has not been fully r e so lv e d through appellate p r o c e s s . In this cause there are ser ious questions of law, both as to the issue of the e x is tence of de jure segregation within the schoo l d istr ict o f the City of Detroit and as to the appropriateness of m etropol i tan re l ie f . T h ere has been no allegation or adjudication of the ex istence of a dual schoo l system within the intervenor school d istr icts . A ccord in g ly , it should be readily apparent that the Supreme Court has not ruled that the right to implementation of a plan of desegregat ion under the Constitution is im m ediate , except in instances where the ex istence of a dual schoo l system in vio lation of the Constitution has been finally adjudicated or admitted. Support for this contention is found in severa l ca ses granting stays where quest ions of law not prev ious ly adjudicated have been ra ised . -142- In Corpus Christ i Independent School Distr ict v C i s n e r o s , 404 US 1211 (1971) Justice Black granted a stay in a case involving "a v ery anomalous, new, and confusing situation” where there w ere quest ions "not here to fore passed on by the full court, but which should be. " A stay was granted in Bradley v School Board of R ichm ond , Nos. 72-1058, 1059, 1060 ana 1150 (C. A. 4, Feb. 8, 1972) where the issue of m etropol i tan consol idation o f independent schoo l d istr icts was ra ised fo r the f i r s t t ime, and by this Court in N orth cross v Board of Education of M em p his , M i s c . No. 1576, ( C .A . 6, July 5, 1972) en banc. Thus, Section 803 should not be held unconstitutional in the context o f the case at bar where there has been no exhaustion of appellate rem edies on the issues of liabil ity in the f irst instance. Because of the ex istence of questions of f irs t im p r e s s io n in this cause , it is not n e c e s s a r y for this Court to con s ider the application of Section 803 to an o rd er transferr ing students in a ca se where the issue of de jure segregation, and hence liability, has been fully adjudicated. How ever , we would suggest to the Court that even in such instance, Section 80 3 does not constitute a violation of a constitutional right of due p r o c e s s of law, since appeals under such c i r cum stan ces may be expedited, or d is p osed of sum m ari ly on motion, without undue delay to the litigants. -143- 2. S cc tion 80 3 do cfs not constitute the imposit ion of a rule of dec is ion upon the United States c o u r ts . Appel lees have argued that Section 803 is an unconstitutional v io la tion of the doctrine of separation of powers because it is an attempt to im p os e a rule of dec is ion in ca ses over which the courts have general jur isd ic t ion , and pr inc ipal ly re ly in that reg a rd upon the United States v K le in , 80 US (13 Wall. ) 128 (1872). It should be noted that there the C ongress required the Supreme Court upon the finding of certa in facts to d ec lare at that point that its jur isd ic t ion on appeal had cea sed and d ism iss the act ion. The Court there held that the leg is la ture was prescr ib in g a ■ rule of dec is ion to the jud ic iary and accord ing ly had invaded the powers of the jud ic iary . It would seem patent that Section 803 in no way dictates the ultimate judic ia l reso lut ion of any question. It s imply does not affect a substantive right in any fashion. A ccord ing ly , the sect ion constitutes a reasonable and restra in ed e x e r c i s e of the regulatory power of C ongress ov er the p roced u res of the courts . The touchstone of A ppe l lees ' arguments relative to the doctrine of separation of powers is their re l iance upon the ex istence of a constitutional right in im m edia cy arising under A lexan der , supra . As indicated supra , there can be no such right to im m ediate re l ie f where questions of f irst im p r e s s io n or the basic issue of the ex istence of de j ure segregation subsist. - 144- " o v e r b r o a d "3. A ppe l lees ' argurhents that: Soc.t lon 803 is and constitutes an involvement of the United States in d i s c r im in ation are without m erit . • Appel lees argued in a Supplemental M em orandum prev ious ly f i led with this Court that Section 803 exceed ed the rational basis o r in t e res t for which it was intended and that it c reated a suspect c la f f i f i ca - tion involving the United States in d iscrimination . We have indicated prev ious ly that contro l ov er the jur isd ic t ion of, and regulation of the conduct of, the courts , emanates proper ly f r o m Section 1 of A r t i c le III of the Constitution of the United States and, that contro l may extend to ca ses involving constitutional rights. The answer to the contentions a sser ted by Appel lees must be that: (a) Section 803 constitutes a rational and reasoned declaration of the legit imate public interest in reso lut ion of i ssues on appeal be fore im plementation of plans involving the transfer of students to rem ed y al leged vio lations of constitutional rights. (b) That the C ongress in no way has attempted to im pose upon the courts any inhibition to rem edy deprivations of constitutional rights, once the deprivation has been found and determined by the courts with finality. It should be noted that none of the ca ses cited by Appellees in support -145- of their contention that the statute is overb roa d or c reates a suspect c lass i f i ca t ion , thereby involving the United States in d iscrimination , deal with p rocedura l statutes. The cases cited all touch upon state action in abrogation of the substantive constitutional rights of the cit izens under the 14th Amendment. Intervenor School Distr icts accord ing ly contend that Section 803, "Education Amendments of 1972", is applicable to the case at bar and, that i f this Court should a f f i rm the court below, a stay of implementation should be granted by this Court pending d isposit ion o f an application for Writ of C e r t io ra r i to the United States Supreme Court. CONCLUSION The Rulings and Orders issued by the court below are grounded not upon constitutional pr inciples but upon the D is tr ict C ourt ’ s perception of the fed era l judic ia l sy s tem as an instrument for s o c ia l r e fo rm . This is c le a r ly illustrated by the October 4, 1971, statement of the D istr ict Court in p r e - t r ia l conference , as fo l lows: "A s the Court indicated during the cou rse of the taking of proo fs , it entertains ser ious reservat ions about a plan of integration, which en com p a sses no m o r e than the public schoo ls of the City of Detroit . It appears to us that perhaps only a plan which em b ra ce s all or som e of the greater Detroit m etropoli tan area can hope to su cceed in giving our children -146- the kind of education, they are entitled to constitutionally. And we note here that the metropoli tan area is like a giant j i g - s a w puzzle, with the schoo l d istr icts cut into i r regu la r p e ices , but with the picture quite plainly that of rac ia l segregation. "W e need not rec i te the many serious prob lem s such a plan entails; suff ice it to say that a plan of such d imensions can hardly be conce ived in a day, to say nothing of the time it wi l l require for implementation. A large metropoli tan area such as we have in our case ca n not be made the subject of instant integration. We must bear in mind that the Disk we are ca l led upon to p er fo rm is a so c ia l one, which soc ie ty has been unable to a c c o m plish. In reali ty our courts are cal led upon, in these sch oo l ca ses , to attain a so c ia l goal, through the educa tion system , by using law as a level".*- ^ (A. lVa454-455). How ever w e l l intended the so c ia l object ive sought to be achieve by the D is tr ic t Court, said ob ject ive is beyond the scope of judic ia l authority. Intervenor School D is tr ic ts pray that this Court r e v e r s e and set aside the fol lowing Rulings and Orders of the D is tr ic t Court: 1. Ruling On Issue Of Segregation, September 27, 1971. (A. Ia 194). 2. Ruling On P rop r ie ty Of Considering A Metropoli tan R em edy To A c c o m p l i s h Desegregat ion Of The Public Schools Of The City Of Detroit , M arch 24, 1971 (A. Ia439). 3. Findings Of Fact And Conclusions Of Law On Detro it -Only Plans Of Desegregation , M arch 28, 1972. (A. Ja456). 4. Findings Of Fact And Conclusions Of Law In Support Of Ruling Of D esegregat ion A re a And Development Of Plans, June 14, 1972 (A. Ia497). -147- [41] as It is submitted that the role of the federa l jud ic iary is not to use the a lever to integrate soc iety through the education system , but s im ply 3 C f K c~/*+C ' J Mgggg&e segregated schools . law to 5. Ruling On Desegregat ion A rea And Order F or Development. Of Plan Of Desegregation , June 14, 1972 (A. Ia535). 6. Order F or Acquis it ion Of Transportation, July 11, 1972 (A. Ia576). And remand the case to the D is tr ic t Court for entry of an Order d ism iss ing plaintiffs ' complaint. R espect fu l ly submitted, BUT ZED, LONG, GUST, KLEIN & VAN ZILE 1881 F ir s t National Building Detroit , Michigan 4822 6 Telephone: (313) 963-8142 Attorneys f o r A l len Park Public Schools et al HILL, LEWIS, ADAMS, GOODRICH & TA IT Detroit , Michigan 4822 6 Telephone: (313) 962-6485 A tto rn e y s fo r C r o s s e Pointe Public Schools -148- CONDIT AND Me GARRY, P. C. By Richard P. Condit 860 West Long Lake Road B loom fie ld Hills, Michigan 48013 Telephone: (313) 645-5205 Attorneys for Southfield Public Schools HARTMAN, BEIEG, HOW L E T T , M cC O N N E L L k GOOGASIAN 74 West Long Lake Road B loom fie ld Hil ls , Michigan 48013 Telephone: (313) 645-9400 Attorneys fo r School D is tr ic t of the City of Royal Oak By. -■ y^u:. Kenneth 13. M cConnel l -149