Brief of Intervenor School Districts

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Also includes Detroit Federation of Teachers, Local 231, American Federation of Teachers, AFL-CIO and Denise Magdowski as Defendants-Intervenors
Impact area
- Education
Topic
- School Desegregation
LDF Attorney
- Norman J. Chachkin
Cooperating Attorneys
Organizations
Matter
- Milliken v. Bradley
Case
- Milliken v. Bradley
U.S. state
- Michigan
Collection
- Case Files
Taxonomy
Identifier
- 5b15ce68-53e9-ef11-a730-7c1e5247dfc0
Cite this item

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 16, 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.]

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[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 - -

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"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 .

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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

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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 ,

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:

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

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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

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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

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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

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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

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