Milliken v. Bradley Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    IN THE SUPREME COURT OF THE UNITED STATES

Term 19. . 

No..........

WILLIAM J. MIL LIKEN, Governor of the State of Michigan and ex-officio 
member of the Michigan State Board of Education; FRANK J. KELLEY. 
Attorney General of the State of Michigan; MICHIGAN STATE BOARD 
OF EDUCATION, a constitutional body corporate, and JOHN W. 
PORTER, Superintendent of Public Instruction, Department of Educa­
tion of the State of Michigan,

Petitioners,
-vs-

RONALD BRADLEY and RICHARD BRADLEY, by their Mother and 
Next Friend, VERDA BRADLEY: JEANNE GOINGS, by her Mother 
and Next Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE 
and DARRELL LOVE, by their Mother and Next Friend, CLARISSA 
LOVE; CAMILLE BURDEN, PIERRE BURDEN, AVA BURDEN, 
MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, by their 
Father and Next Friend, MARCUS BURDEN; KAREN WILLIAMS 
and KRISTY WILLIAMS, by their Father and Next Friend, C. WIL­
LIAMS; RAY LITT and MRS. WILBUR BLAKE, parents; all parents

(Continued on Inside Front Cover)

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

FRANK J. KELLEY 
Attorney General

ROBERT A. DERENGOSKI 
Solicitor General

EUGENE KRASICKY 
Assistant Attorney General

STEWART H. FREEMAN 
Assistant Solicitor General 
Counsel for Petitioners

The Seven Story Office Building 
525 W. Ottawa Street 
Lansing, Michigan 48913

Dated: May 5, 1972

P R IN T E D  B V  S P E A K E R -H IN E S  A N D  T H O M A S , IN C ., L A N S IN G , M IC H IG A N -----  1 9 7 2



having children attending the public schools of the City of Detroit, 
Michigan, on their own behalf and on behalf of their minor children, 
all on behalf of any person similarly situated; and NATIONAL ASSO­
CIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DE­
TROIT BRANCH; DETROIT FEDERATION OF TEACHERS, LOCAL 
231, AMERICAN FEDERATION OF 'TEACHERS, AFL-CIO; BOARD 
OF EDUCATION OF THE CITS OF DETROIT, a school district of 
the first class; PATRICK McDONALD, JAMES HATH A WAV and 
CORNELIUS GOLIGIITLY, members of the Board of Education of 
the City of Detroit; and NORMAN DRACHLER, Superintendent of 
the Detroit Public Schools; ALLEN PARK PUBLIC SCHOOLS, 
SCHOOL DISTRICT OF THE CITS OF BERKLEY, BRANDON 
SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL 
SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD 
SCHOOL DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN 
HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUB­
LIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF FEBNDALE. 
FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC 
SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT 
OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE 
CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT OF 
THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, 
LAKEVIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LIN­
COLN PARK PUBLIC SCHOOLS, MADISON DISTRICT PUBLIC 
SCHOOLS, MELVIN’DALE-NORTH ALLEN PARK SCHOOL DIS­
TRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, 
NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DIS­
TRICT, OXFORD AREA COMMUNITY SCHOOLS, BEDFORD UNION 
SCHOOL DISTRICT NO. 1, RICHMOND COMMUNITY SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF RIVER ROUGE, RIVER- 
VIEW COMMUNITY SCHOOL DISTRICT, ROSEVILLE PUBLIC 
SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, 
WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC 
SCHOOLS, WAYNE-WESTLAND COMMUNITY SCHOOLS, WOOD- 
HAVEN SCHOOL DISTRICT and WYANDOTTE PUBLIC SCHOOLS, 
KERRY and COLLEEN GREEN, by their Father and Next Friend, 
DONALD G. GREEN, JAMES, JACK and KATHLEEN ROSEMARY, 
by their Mother and Next Friend, EVELYN G. ROSEMARY, TERRI 
DORAN, by her Mother and Next Friend, BEVERLY DORAN, SHER­
RILL, KEITH, JEFFREY and GREGORY COULS, by their Mother 
and Next Friend, SHARON COULS, EDWARD and MICHAEL ROMES- 
BURG, by their Father and Next Friend, EDWARD M. ROMESBURG, 
JR., TRACEY and GREGORY ARLEDGE, by their Mother and Next 
Friend, AILEEN ARLEDGE, SHERYL and RUSSELL PAUL, by their 
Mother and Next Friend, MARY LOU PAUL, TRACY QUIGLEY, by 
her Mother and Next Friend, JANICE QUIGLEY, IAN, STEPHANIE, 
KARL and JAAKO SCNI, by their Mother and Next Friend, SHIRLEY 
SUNI, and TRI-COUNTY CITIZENS FOR INTERVENTION IN FED­
ERAL SCHOOL ACTION NO. 35257; DENISE MAGDOWSKI and 
DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE 
MAGDOWSKI; DAVID VIETTI by his Mother and Next Friend, 
VIOLET VIETTI, and the CITIZENS COMMITTEE FOR BETTER 
EDUCATION OF THE DETROIT METROPOLITAN AREA, a Mich­
igan non-Proflt Corporation, SCHOOL DISTRICT OF THE CITY 
OF ROYAL OAK, SOUTHFIELD PUBLIC SCHOOUS, GROSSE 
POINTE PUBLIC SCHOOLS,

Respondents.



INDEX

Opinions and Orders B elow _________________________  2

Jurisdiction To Review ____________________________  3

Questions Presented ________________________________ 3, 4

Statutory Provisions Involved ______________________  4

Statement of the C ase_______________________________ 5

Reasons For (Granting the Writ

I. The Order of November 5, 1971, Is A  “ Final 
Decision”  Within The Meaning Of Title 28 
U.S.C. §1291 _______ „_______________________  9

II. The Findings of Fact, and Conclusions Of 
Law, Which Underlie The Decision That A 
Condition Of De Jure Segregation Exists In 
The Detroit Public School System, Are Clear­
ly And Patently Erroneous__________________ 12

III. A  Metropolitan Plan Of Desegregation Is Con­
stitutionally Inappropriate In The Complete 
Absence Of A  Finding Either That The Geo­
graphically And Politically Independent Sub­
urban Detroit School Districts Are Themselves 
Guilty of De Jure Segregation Or, Alternative­
ly, That The School District Boundary Lines 
Were Created And Maintained With The In­
tent Of Promoting A Dual School System ___ 18

Conclusion -------------------------- -------------------------  --------- 20



CITATIONS

Beech Grove Investment Company v. Civil Bights Com­
mission, 380 Mich 405 (1968) _____________________  13

Bradley v. School Board of the City of Richmond,
—F Supp__, (ED Va, Jan. 5, 1972) _______________... 19

Brown v. Board of Education of Topeka, 347 US 483 
(1954) ______________________________________   13

Brown Shoe Co. v. United States, 370 US 294 (1962) 11

Davis v. School District of City of Pontiac, 309 F 
Supp 734 (ED Mich, 1970), a ff’d. 443 F2d 573 (CA 
6, 1971) __________________________________________  15

Deal v. Cincinnati Board of Education (Deal I), 369 
F2d 55 (CA 6, 1966), cert den 389 US 847 (1967) .... 14

Deal v. Cincinnati Board of Education (Deal II), 419 
F2d 1387, at 1392 (CA 6, 1969), cert den 402 US 
962 (1971) _______________________________________  15

Ferguson v. Gies, 82 Mich 358 (1890) _______________  13

Gillespie v. United States Steel Corp., 379 US 148 
(1964) ___________________________________________  12

Haney v. County Board of Education of Sevier County,
410 F2d 920 (CA 8, 1969) ________________________  19

Keyes v. School District No. 1, Denver, Colorado, 445
F2d 990 (1971), cert granted__U S __, 92 S Ct 707,
30 L Ed 2d 728 (1972) ___________________________  17

People ex rel Workman v. Board of Education of De­
troit, 18 Mich 399 (1869) ________________________  13

Swann v. Charlotte-Mecklenburg Board of Education,
402 US 1 (1971) _________________________________ 15

Title 28 U.S.C. §1291 ______________________________  9

XI



IN THE

SUPREME COURT OF THE UNITED STATES 

No_________

WILLIAM G. MILLIKEN, et al.,

vs.

RONALD BRADLEY, et al.,

Petitioners,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

The petitioners pray that a writ of certiorari be issued 
to review the judgment and opinion of the United States 
Court of Appeals for the Sixth Circuit entered in this 
proceeding on February 23, 1972. By such judgment, 
the United States Court of Appeals declined to review 
certain opinions and orders of the United States District 
Court for the Eastern District of Michigan, Southern 
Division, which decided that the School District of the 
City of Detroit was a de jure segregated public school 
system and directed the petitioners to prepare a “ Metro­
politan”  plan for the integration of the Detroit and sub- 
urban-Detroit School Systems.



-2—

OPINIONS AND ORDERS BELOW

The opinion of the District Court, entitled “ Ruling on 
Issue of Segregation,”  was entered on September 27, 
1971 and appears in the Appendix hereto, la  to 27a. 
The subsequent order of the District Court, dated No­
vember 5, 1971, directing the submission of a “ metro­
politan plan of desegregation”  also appears in the Ap­
pendix hereto, 29a to 30a. The District Court’s sub­
sequent findings of fact and conclusions of law, based 
upon the “ Ruling on Issue of Segregation,”  which de­
termined that “ relief of segregation in the public schools 
of the City of Detroit cannot be accomplished within the 
corporate geographical limits of the city,”  also appears 
in the Appendix hereto, 37a to 43a, as does the “ Rul­
ing on Propriety of Considering a Metropolitan Remedy 
to Accomplish Desegregation of the Public Schools of 
the City of Detroit,”  where the District Court found the 
power and “ is required to consider a metropolitan remedy 
for desegregation, ”  appearing in the Appendix hereto, 
31a to 36a.

The judgment of the United States Court of Appeals 
for the Sixth Circuit filed February 23, 1972, dismissing 
the appeal for want of a “ final”  decision, appears in 
the Appendix hereto, 44a to 45a.

Opinions of the United States Court of Appeals rendered 
at prior stages of the present proceeding are reported in 
433 F2d 897 and 438 F2d 945.



— 3—

JURISDICTION TO REVIEW

The judgment of the United States Court of Appeals 
for the Sixth Circuit was entered on February 23, 1972. 
This petition for certiorari was fded within 90 days of 
that date.

The jurisdiction of the Court is invoked under Sec­
tion 1291 of Title 28, United States Code.

QUESTIONS PRESENTED

I.

Where the United States District Court, after months 
of hearing testimony and argument, issues a “ Ruling 
on Issue of Segregation,”  which makes extensive findings 
of fact and conclusions of law and concludes that de jure 
segregation exists in the Detroit Public School system, and 
the District Judge thereafter enters an order, dated No­
vember 5, 1971, which directs the State officer-defendants 
in the case to submit “ a metropolitan plan of desegrega­
tion”  to the District Court, and the District Judge, re­
peatedly referring to his “ continuing jurisdiction,”  there­
after limits the proceedings and proofs to the question 
of how many geographically and politically independent 
school districts should be compelled, by order of the Federal 
Court, to join with the Detroit Public School system so 
as to achieve, through massive cross-district busing of 
students, a desirable racial balance in the new Federal 
Court-created super-school district, is this November 5, 
1971 order of the District Court a “ final decision”  for 
purposes of seeking judicial review?

The Petitioners contend that the answer is “ YES,”  
but the United States Court of Appeals said “ NO.”



4

XI.

Are the findings of fact and conclusions of law which 
underlie the decision of de jure segregation clearly er­
roneous ?

The Petitioners contend that the answer is “ YES,”  
hut the United States Court of Appeals refused to 
answer the question.

III.

Is a metropolitan plan constitutionally inappropriate in 
the complete absence of a finding either that the geo­
graphically and politically independent suburban Detroit 
school districts are themselves guilty of de jure segregation 
or, alternatively, that the school district boundary lines 
were created and maintained with the intent of promoting 
a dual school system?

The Petitioners contend that the answer is “ YES,”  
but the United States Court of Appeals refused to 
answer the question.

STATUTORY PROVISIONS INVOLVED

Section 1291 of Title 28, United States Code, provides:

“ The courts of appeals shall have jurisdiction of 
appeals from all final decisions of the district courts 
of the United States, the United States District Court 
for the District of the Canal Zone, the District Court 
of Guam, and the District Court of the Virgin Islands, 
excpt where a direct review may be had in the Supreme 
Court. ’ ’



— 5—

STATEMENT OF THE CASE

Plaintiffs commenced tins litigation on August 18, 1970, 
against the Board of Education of the City of Detroit, 
its members and superintendent of schools, the Governor, 
Attorney General, State Board of Education and State 
Superintendent of Public Instruction of the State of Mich­
igan. The State of Michigan was not named as a party 
Defendant. Plaintiffs challenged, on constitutional grounds, 
a legislative enactment of the State of Michigan, 1970 
PA  48, MCLA 388.171a et seq; MSA 15.2298(la) et seq, 
which allegedly delayed and interferred with the imple­
mentation of a voluntary plan of partial high school pupil 
desegregation which had been adopted by the Detroit Board 
of Education. Plaintiffs further alleged the existence of 
constitutionally impermissible racially identifiable pattern 
of faculty and student assignments in the Detroit Public 
Schools which pattern, they claimed, was the result of 
official policies and practices of the defendants and their 
predecessors in office.

At the conclusion of a hearing held upon Plaintiffs’ 
application for preliminary injunctive relief, the District 
Court denied all relief on the grounds that the existence 
of racial segregation in the Detroit School District had 
not yet been established. The court further dismissed the 
action as to the Governor and the Attorney General. Plain­
tiffs promptly appealed, on an emergency basis, to the 
United States Court of Appeals for the Sixth Circuit which 
declared the impugned statute (which had not been ruled 
upon below) to be unconstitutional and ordered reinstate­
ment of the Governor and Attorney General as parties. 
433 F2d 897.

Upon remand, plaintiffs moved in the District Court 
for an order requiring immediate implementation of the



voluntary plan of partial desegregation which had been 
purportedly impeded by the impugned State statute. After 
receiving additional plans preferred by the Detroit School 
District defendants and conducting a. hearing thereon, the 
district court entered an order approving an alternate plan 
which plaintiffs opposed as being constitutionally insuffi­
cient. Plaintiffs again claimed an emergency appeal, but 
the United States Court of Appeals refused to reach the 
merits of the appeal and remanded the case to the District 
Court with instructions that the entire case be tried on 
its merits forthwith. 438 F2d 945.

After a lengthy trial, the District Court, on September 
27, 1971, entered its “ Ruling on Issue of Segregation.”  
(la ). The court concluded, both as a matter of fact 
and of law, that the public schools in Detroit are “ segre­
gated on a racial basis”  (12a), and that both state and 
local defendants “ have committed acts which have been 
causal factors in the segregated condition ...”  (20a),

The Court went on to state:

“ Having found a de jure segregated public school 
system in operation in the City of Detroit, our first 
step, in considering what judicial steps must be 
ta k e n ....”  (26a).

Thereafter, the District Court gave certain oral instruc­
tions to the counsel for the State officer-defendants. These 
instructions were formalized by the Order of November 
5, 1971, wherein it was ordered:

‘ ‘ The Court having entered its findings of facts and 
conclusions of law on the issue of segregation on 
September 27, 1971;



“ IT  IS FURTHER ORDERED that the State de­
fendants submit a metropolitan plan of desegregation 
within 120 days.”  (29a-30a)

Following submission of several plans submitted by 
various parties, including the defendant State Board of 
Education, the Court, on March 24, 1972 proceeded to 
consider whether school district lines should be revised 
or ignored to combine city and suburban school popula­
tions in a way to achieve integration on a metropolitan 
basis. Brushing aside the arguments of the State officer- 
defendants, the Court held that any further discussion 
of the question of the existence of de jure segregation 
had been finally foreclosed by the “ Ruling on Issue of 
Segregation” .

“ The State defendants in this case take the position, 
as we understand it, that- no ‘ state action’ lias had 
a part in the segregation found to exist. This asser­
tion disregards the findings already made by this 
court, and the decision of the Court of Appeals as 
w e ll . . . .  (33a).

“ The schedule previously established for the hear­
ing on metropolitan plans will go forward as noticed, 
beginning March 28, 1972.”  (36a).

Thereafter, on March 28, 1972, the Court issued its 
“ Findings of Fact and Conclusions of Law on Detroit- 
Only Plans of Desegregation.”  Specifically incorporating 
its September-filed “ Ruling on Issue of Segregation,”  the 
Court found :



((

“ 1. The court has continuing jurisdiction of this 
action for all purposes, including the granting of ef­
fective relief. See Ruling on Issue of Segregation, 
September 27, 1971.”  (40a).

“ 2. On the basis of the court’s finding of illegal 
school segregation, the obligation of the school de­
fendants is to adopt and implement an educationally 
sound, practicable plan of desegregation that promises 
realistically to achieve now and hereafter the greatest
possible degree of actual school desegregation___ ”
(40a).

<<

“ That the court must look beyond the limits of the 
Detroit school district for a solution to the problem 
of segregation in the Detroit public schools is ob­
vious-----”  (42a).

Proceedings in the District Court are still continuing as 
of the date of the filing of this petition.

The State officer-defendants requested review of the 
District Court’s Order of November 5, 1971, in the United 
States Court of Appeals for the Sixth Circuit, by the filing 
of a claim of appeal on December 3, 1971. On Motion of 
the plaintiffs, the Court of Appeals, on February 23, 1972, 
dismissed the appeal. (44a).



— 9—

REASONS FOR GRANTING THE WRIT

I.

The Order Of November 5, 1971, Is A “Final Decision”
Within The Meaning Of Title 28 U.S.C. §1291.

Section 1291 of Title 28 provides that the Federal courts 
of appeals “ shall”  have jurisdiction of appeals from 
“ all final decisions of the district courts.”

On scrutiny of even the limited record appended hereto 
as an appendix, it indisputably appears that:

(1) The District Court has found that “ both the State 
of Michigan and the Detroit Board of Education have 
committed acts which have been causal factors in the 
segregated condition of the public schools of the City 
of Detroit.”  (20a)

(2) The District Court conclusively determined that 
‘ ‘ the circumstances of the case require judicial intervention
and equitable relief___ ”  (27a). As the Court stated
it: “ a right and a violation have been shown.”  (81a).

(3) The District Court, relying upon this ruling, has 
refused to hear any more proofs or argument relating 
to the question of whether there was, in fact, any state 
action as a predicate for the segregated condition of the 
Detroit Public Schools. (33a).

(4) The District Court, by way of equitable relief, has 
rejected all available remedies other than revising or ignor­
ing school district boundary lines so as to combine the 
historically and geographically independent city and sub­



—10

urban school populations in a way to achieve integration 
on a metropolitan basis. (42a).

Thus, the special and unusual circumstances here pre­
sented are that the District Court, as a matter of “ con­
tinuing jurisdiction (40a), is now conducting the separate 
and distinct remedy phase of the trial, a phase limited 
solely to the question of how many legally separate school 
districts should be lumped together, by order of the Fed­
eral District Court, to the new Federal court-created super 
school district of the metropolitan Detroit area.

While that remedy phase of the matter is being litigated, 
the State officer-defendants here seek judicial review of 
the initial phase. We seek access to a forum so that we 
may question whether the finding of a “ violation”  is 
clearly erroneous.

No practical difficulty is thereby presented. The tran­
script of testimony on the initial phase of the District 
Court proceeding is already prepared. The appeal on 
the initial phase can proceed without any conflict with 
the continuing proceeding on the remedy phase now before 
the District Court.

Indeed, the practicalities of the situation mandate re­
view without further delay. The Court of Appeals, and 
ultimately this Court, should review this matter before 
hundreds of thousands of children are loaded onto school 
buses to attend school long distances from home and the 
educational programs, financing and the entire operation 
of scores of school districts are disrupted. The next school 
year begins in September. The District Judge has, as 
yet, given no indication of when he will announce which 
plan the Court is adopting or what the effective date of



—11

the plan will be, thereby leaving open the distinct possibil­
ity that appellate review may not he completed prior 
to the effective date of the plan, unless review commences 
now.

The correctness of the decision below, finding a lack 
of finality, is open to serious question. The refusal of 
the Sixth Circuit to permit an appeal on this record can­
not be justified in light of the rule plainly adopted by 
this Court in Brown Shoe Co. v. United States, 370 US 
294, at 306-309 (1962).

In Brown, the question was whether an order for di­
vestiture in a Clayton Anti-Trust Act (Title 15 U.S.C. 
§25) prosecution was “ final”  where the single provision 
of the judgment by which its finality might he questioned 
was one requiring the appellant there to propose a plan 
for effectuating the trial court’s order or divestiture. The 
Court found the requisite finality.

In Brown, the propriety of divestiture was considered 
in the trial court and was disputed before this Court on 
an “ all or nothing”  basis. (370 US at 309). Here, the 
question of the existence of de jure segregation was fully 
considered below. Here, we dispute the ruling of de jure 
segregation in the Detroit Public Schools and the later 
holding that a metropolitan remedy, necessarily involving 
massive cross-district busing, is constitutionally required, 
on the same “ all or nothing”  basis.

Repetitive judicial consideration of the same question 
will not occur here any more than it did in Brown. The 
issue here, like the issue in Brown, is ripe for review in 
the here and now, and may, thereafter, be foreclosed.

It is axiomatic under our jurisprudential experience 
that for purposes of appellate review a decision “ final”



— 12—

within the meaning of Title 28 U.S.C. §1291 “ does not 
necessarily mean the last order possible to be made in 
a case.”  Gillespie v. United States Steel Corp., 379 US 
148, at 152 (1964).

The delay in withholding review of the issue until the 
full details of a busing plan have been approved by the 
District Court is clearly and profoundly inimical to the 
public interest. The unsettling influence of uncertainty as 
to the affirmance of the initial, underlying decision of 
de jure segregation, which will compel massive cross-district 
busing, would only make still more difficult the task of 
operating a system of free public schools.

There are issues for the here and now. The order in 
question is at least within the twilight zone of finality. 
A  Detroit-only plan, if constitutionally required, could in­
volve 300,000 children. A metropolitan plan for the De­
troit and suburban school districts could involve 86 separate 
school districts and 1,000,000 children. Both plans involve 
massive busing of school children. The public interest here 
mandates a practical rather than a technical construction 
of the right of access to Federal appellate review.

II.

The Findings Of Fact, And Conclusions Of Law, Which 
Underlie The Decision That De Jure Segregation Exists 
In The Detroit Public School System, Are Clearly And 
Patently Erroneous.

In the event that this petition is granted, the State 
officer-defendants believe that they can demonstrate 
through thorough analysis of the testimony and exhibits, 
that the findings of fact made below — insofar as they



-1 3 -

seem to support a finding of de jure segregation — are 
clearly erroneous, F.R.C.P. 52(a). The conclusions of law 
are also patently in error.

It was not until 1954 that this Court reconsidered and 
rejected the ‘ ‘ separate but equal ’ ’ doctrine. Brown v. Board 
of Education of Topeka, 347 US 483 (1954). The Supreme 
Court of the State of Michigan had, however, some 64 
years prior to this Court’s decision in Broivn rejected the 
“ separate but equal”  doctrine as violating State law. 
Ferguson v. Gies, 82 Mich 358 (1890). By Act 130 of 
the Public Acts of 1885, the Michigan legislature made 
it a criminal offense for any person to deny equal treat­
ment to any other person, for reasons based on race, in 
any place of public accommodation within this State. In 
the one reported case where a school district sought to 
segregate by regulation, its actions were promptly nullified 
by the legislature and the Michigan Supreme Court. People 
ex rel Workman v. Board of Education of Detroit, 18 Mich 
399 (1869). The State of Michigan does not now have, 
nor has the State ever countenanced, a “ dual school 
system.”  Racial segregation in public education was de­
clared to be a violation of the public policy of the State 
of Michigan in 1867, nearly a century in advance of this 
Court’s decision in Brown. See review of public policy 
of State of Michigan in Beech Grove Investment Company 
v. Civil Rights Commission, 380 Mich 405, at 434-435 (1968).

The District Court, in its “ Ruling on Issue of Segre­
gation,”  stated the following:

“ . . .  The principal causes undeniably have been popu­
lation movement and housing patterns, but state and 
local governmental actions, including school board 
actions, have played a substantial role in promoting 
segregation. It is, the Court believes, unfortunate that



-14—

we cannot deal with public school segregation on a 
no-fault basis, for if racial segregation in our public 
schools is an evil, then it should make no difference 
whether we classify it de jure or de facto . . . [Em­
phasis supplied] (20a)

Primarily, the evidence upon which the District Court 
relied concerned segregated patterns in housing. None 
of the defendants has any constitutional or statutory power 
over housing. Much of this evidence attempted to show 
that the Federal government, principally through its public 
housing, YA and FHA mortgage insurance programs, had 
been a willing partner with private individuals and firms 
in the creation and perpetuation of racially segregated 
neighborhoods, even to the point of insisting upon them. 
Appendix 9a. In admitting such evidence, over continu­
ing objections of defendants, the District Court ignored 
the clear and binding commands of the Court of Appeals 
for the Sixth Circuit.

The Sixth Circuit — prior to deciding not to decide this 
case — had quite wisely held that evidence of alleged 
discrimination in the public and private housing markets 
should be excluded from the trial of this type of case. The 
Sixth Circuit reasoned quite correctly that such discrimina­
tion is caused, if in fact it does exist, by persons other 
than the school officials. It is a situation the Sixth Circuit 
reasoned, over which educational officials may have no 
power. We emphasize here that none of the defendants 
has any power over housing. Therefore, the Sixth Circuit 
concluded, appropriate relief is available as against those 
who infringed upon rights in housing in a civil action with 
those wrong-doers as defendants, rather than in a school 
case with school officials as defendants. Deal v. Cincinnati 
Board of Ed/ucation (Deal I), 369 F2d 55, at 60-61 (CA 
6, 1966), cert den 389 US 847. This ruling was restated



15-

with vigor in Deal v. Cincinnati Board of Education (Deal 
II), 419 F2d 1387, at 1392 (OA 6, 1969), cert den 402 
US 962.

The concept has also been stated in Davis v. School 
District of Pontiac, 309 F Supp 734 (ED Mich, 1970), 
aff’d 443 F2d 573 (CA 6, 1971) and Swann v. Charlotte- 
MecMenburg Board of Education, 402 US 1, at 22-23, (1971), 
where this Court said:

“ The constant theme and thrust of every holding 
from Brown I  to date is that state-enforced separation 
of races in public schools is discrimination that violates 
the Equal Protection Clause. The remedy commanded 
was to dismantle dual school systems.

“ We are concerned in these cases with the elimina­
tion of the discrimination inherent in the dual school 
systems, not with myriad factors of human existence 
which can cause discrimination in a multitude of ways 
on racial, religious, or ethnic grounds. The targ-et of the 
cases from Brown I  to the present was the dual school 
system. The elimination of racial discrimination in 
public schools is a large task and one that should not be 
retarded by efforts to achieve broader purposes lying 
beyond the jurisdiction of school authorities. One 
vehicle can carry only a limited amount of baggage. 
It would not serve the important objective of Brown I 
to seek to use school desegregation cases for purposes 
beyond their scope, although desegregation of schools 
ultimately will have impact on other forms of dis­
crimination. We do not reach in this case the question 
whether a showing that school segregation is a con­
sequence of other types of state action, without any 
discriminatory action by the school authorities, is a 
constitutional violation requiring remedial action by



a school desegregation decree. This case does not 
present that question and we therefore do not decide 
it.

“ Our objective in dealing with the issues presented 
by these cases is to see that school authorities exclude 
no pupil of a racial minority from any school, directly 
or indirectly, on account of race; it does not and 
cannot embrace all the problems of racial prejudice, 
even when those problems contribute to dispropor­
tionate racial concentrations in some schools.”

The District Court, in its decision on de jure segregation 
found “ . . . that both the State of Michigan and the Detroit 
Board of Education have committed acts which have been 
causal factors in the segregated condition of the public 
schools of the City of Detroit . . . ”  (20a). It must be 
emphasized that the State of Michigan is not a party de­
fendant herein. There is no recognized principle in our 
jurisprudence under which a suit against certain state 
officers may be used as a launching pad for findings against 
the state itself.

Aside from evidence relating to housing patterns, the 
record contains no evidence of a pattern or scheme, but 
rather evidence which at best shows only a few random and 
isolated incidents. Thus, for example, one finding of fact 
relates to an isolated incident in which a lowly functionary 
of the local school board had authorized the busing of a 
small number of black students past a white school to 
attend a newer school in a black neighborhood. (11a). This 
incident was isolated in scope to a few students during a 
relatively short period of time. The record shows that 
the problem was promptly corrected as soon as it was 
brought to the attention of policy-making officials.



— 17-

The District Court ruled, based on 30 specific findings, 
that there was no de jure segregation of faculty in the 
Detroit public schools. Yet, the District Court concluded 
that the same defendants were guilty of de jure segregation 
as to the assignment of pupils. (15a).

The District Court’s findings concerning de jure segrega­
tion in school attendance patterns were, in large part, of 
the most general nature. In Keyes v School District No. 1, 
Denver, Colorado, 445 F2d 990, 1002-1007 (1971), Cert
grant, ____ US ____ (1972), 30 L Ed 2d 728 (1972), the
Tenth Circuit Court affirmed findings of de jure segrega­
tion as to specific schools, but no others, and ordered a 
remedy only in those specific schools where de jure segrega­
tion existed. Herein, the District Court made broad findings 
of de jure segregation as to pupil attendance and, on that 
basis, jumped to a metropolitan remedy without considering 
specific schools in making its findings.

This appeal, therefore, affords an excellent vehicle for 
a determination by this Court as to whether as a matter 
of law a condition of de jure segregation may be said to 
exist where the evidence shows little more than a few un­
related incidents, isolated as to scope and duration, in­
volving local officials, and no wrongdoing by the State 
officer-defendants, hut some possible wrong-doing in the 
area of housing by agencies of the Federal government and 
by private individuals.

I f  de jure segregation can be said to exist on this 
record, then it appears that there is no longer any valid 
distinction to be made between de jure and de facto segrega­
tion. (20a). And, if that is so, this Court should clearly so 
state.



— 18—

III.

A Metropolitan Plan Of Desegregation Is Constitutionally 
Inappropriate In The Complete Absence Of A Finding 
Either That The Geographically And Politically Inde­
pendent Surburban Detroit School Districts Are Them­
selves Guilty Of De Jure Segregation Or, Alternatively, 
That The School District Boundary Lines Were Created 
And Maintained With The Intent Of Promoting A Dual 
School System.

This is not ordinary, run-of-the-mill litigation. The case 
poses— if this Court chooses to acknowledge and reach 
it—a significant aspect of a wide, growing and disturbing 
problem.

The District Judge in this case first, in substance, 
abolished the distinction between segregation de facto and 
segregation de jure. (Reason No. II, supra.)

Then, the District Judge proceeded to decide (1) that 
busing was the only adequate remedy available, (2) that a 
Detroit-only busing plan was inadequate, (3) and, therefore, 
that a metropolitan plan was the only possible remedy in 
this case. (35a; 41a; 42a).

Having so decided, the District Judge then commenced 
a new phase of the case limited to the question of how many 
of the 700,000 or so children in the 86 independent suburban 
Detroit school districts should be included in his metropoli­
tan plan.

Busing is, of course, an available instrument to provide 
a better educational opportunity to children in substandard 
or de jure segregated schools. For such children, an im­



-1 9 -

perfect answer today may prove to be far more valuable 
than a more perfect answer tomorrow. For a child, tomor­
row may be too late. Busing must, however, be recognized 
for what it is, an imperfect and temporary tool, a crutch 
and not a cure.

As far as we know, neither this Court nor any Court of 
Appeals has ever approved the use of busing on the scale 
here contemplated. While a few decisions do' speak of 
“piercing the veil” where a system of de jure segregation 
is perpetuated by carefully gerrymandered school district 
lines, no decision has ever approved the lumping of polit­
ically and geographically independent suburban school 
districts into an urban busing plan simply because they 
happen to be there. Ill

No finding of the District Court indicates the existence 
of de jure segregation in the suburban school districts. 
Likewise, no finding of the District Court indicates that 
these school district lines were drawn for any improper 
purpose or by any improper method.

Then, there is the whole question of the jurisdiction,
i.e., the power, of the Federal District Court to adopt a 
metropolitan plan without a specific finding of de jure 
segregation as to the included suburban school districts.

If the true basis of the District Court’s action rests upon 
an implicit finding that the schools in Detroit are sub­
standard, can the Judge without any further ado simply 
order children bused into these schools from the suburbs! 
Is not the answer to this problem in the area of school

[1]
Compare Haney v County Board of Sevier County, 410 F2d 920 (CA 8,

1969) and Bradley v School Board, of the City of Richmond, ,__ ___  F Supp
__ ___ (ED Va, dec. Jan. 5, 1972), where the Court found a state-wide
policy of de jure segregation in the schools.



-20—

finance and construction rather than massive cross-district 
busing?

Can the District Court alter local control of schools by 
creating a super school district that might well thereafter 
constitute the largest school district in the United States?

Even assuming that busing is an appropriate instrument 
for dealing with the problem of the children attending the 
Detroit School System, this case poses the important and 
difficult question of whether a metropolitan plan of busing 
may ever be used by a Federal court in the total absence of 
any finding of a metropolitan-wide de jure policy of segre­
gation.

CONCLUSION

For the aforegoing reasons, a write of certiorari should 
issue to review the judgment of the Sixth Circuit.

Respectfully submitted,

FRANK J. KELLEY
Attorney General
ROBERT A. DERENGOSKI 
Solicitor General
EUGENE KRASICKY 
Assistant Attorney General
STEWART H. FREEMAN 
Assistant Solicitor General 
Counsel for Petitioners
The Seven Story Office Building 
525 W. Ottawa Street 
Lansing, Michigan 48913

Dated: May 5, 1972



APPENDIX



Index to Appendix

Page
United States District Court, Eastern District 
of Michigan, Southern Division:

Ruling on Issue of Segregation .._______________  la

Order of November 5, 1971 ................... ..... .............  29a

Ruling On Propriety of Considering 
A  Metropolitan Remedy To Accomplish 
Desegregation Of The Public Schools 
Of The City of Detroit____ ...______________________  31a

Findings Of Fact And Conclusions Of Law 
On Detroit-Only Plans Of Desegregation ________  37a

United States Court of Appeals For The Sixth Circuit: 
Order Of The United States Court Of Appeals 
For the Sixth Circuit _____ ____________ _______ _ 44a



Ruling on Segregation

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs,

v.

WILLIAM G. M1LLIKEN, et al.,
Defendants,

DETROIT FEDERATION OF CIVIL ACTION
TEACHERS, LOCAL No. 231, NO. 35257
AMERICAN FEDERATION OF 
TEACHERS, AFL-CIO,

Defendant-Intervenor,

and
DENISE MAGDOWSKI, et al.,

Defendants-Intervenor

RULING ON ISSUE OF SEGREGATION

This action was commenced August 18,1970, by plaintiffs, 
the Detroit Branch of the National Association for the 
Advancement of Colored People* and individual parents 
and students, on behalf of a class later defined by order of 
the Court dated February 16, 1971, to include “all school 
children of the city of Detroit and all Detroit resident 
parents who have children of school age.” Defendants are 
the Board of Education of the City of Detroit, its members 
and its former superintendent of schools, Dr. Norman A.

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



2a Ruling on Segregation

Drachler, the Governor, Attorney General, State Board 
of Education and State Superintendent of Public Instruc­
tion of the State of Michigan. In their complaint, plaintiffs 
attacked a statute of the State of Michigan known as Act 
48 of the 1970 Legislature on the ground that it put the 
State of Michigan in the position of unconstitutionally 
interfering with the execution and operation of a voluntary 
plan of partial high school desegregation (known as the 
April 7, 1970 Plan) which had been adopted by the Detroit 
Board of Education to be effective beginning with the fall 
1970 semester. Plaintiffs also alleged that the Detroit Public 
School System was and is segregated on the basis of race 
as a result of the official policies and actions of the de­
fendants and their predecessors in office.

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

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



Ruling on Segregation 3a

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

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

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

At the close of proofs intervening parent defendants 
(Denise Magdowski, et al.) filed a motion to join, as 
parties 85 contiguous “ suburban”  school districts—all with­
in the so-called Larger Detroit Metropolitan area. This



4a Ruling on Segregation

motion, was taken under advisement pending* the determina­
tion of the issue of segregation.

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

In considering the present racial complexion of the 
City of Detroit and its public school system we must first 
look to the past and view in perspective what has happened 
in the last half century. In 1920 Detroit was predominantly 
white city—91%—and its population younger than in more 
recent times. By the year 1960 the largest segment of the 
city’s white population was in the age range of 35 to 50 
years, while its black population was younger and of child­
bearing age. The population of 0-15 years of ag*e constituted 
30% of the total population of which 60% were white and 
40% were black. In 1970 the white population was princi­
pally aging—45 years—while the black population was 
younger and of childbearing age. Childbearing blacks 
equaled or exceeded the total white population. As older 
white families without children of school age leave the city 
they are replaced by younger black families with school age 
children, resulting in a doubling of enrollment in the local 
neighborhood school and a complete change in student 
population from white to black. As black inner city resi­
dents move out of the core city they “ leap-frog” the resi­
dential areas nearest their former homes and move to 
areas recently occupied by whites.

The population of the City of Detroit reached its high­
est point in 1950 and has been declining by approximately 
169,500 per decade since then. In 1950, the city population 
constituted 61% of the total population of the standard



Ruling on Segregation 5a

metropolitan area and in 1970 it was but 36% of the metro­
politan area population. The suburban population has in­
creased by 1,978,000 since 1940. There has been a steady 
out-migration of the Detroit population since 1940. Detroit 
today is principally a conglomerate of poor black and white 
plus the aged. Of the aged, 80% are white.

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

0— 4 years 42%
5— 9 years 36%

10—14 years 28%
15—19 years 18%

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

0—- 4 years 48%
5—■ 9 years 50%

10—14 years 50%
15—19 years 40%



Ruling on Segregation6a

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

(a) 1900 1.4%
(b) 1910 1.2%
(c) 1920 4.1%
(d) 1930 7.7%
(e) 1940 9.2%
(f) 1950 16.2%
(g) 1960 28.9%
(b) 1970 43.9%

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

(a) 1961 45.8%
(b) 1963 51.3%
(c) 1964 53.0%
(d) 1965 54.8%
(e) 1966 56.7%
(f) 1967 58.2%
(g) 1968 59.4%
(b) 1969 61.5%
(i) 1970 63.8%

For the years indicated the housing characteristics in the 
City of Detroit were as follows:

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

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

The percentage decline in the white students in the 
Detroit Public Schools during the period 1961-1970 (53.6% 
in 1960; 34.8% in 1970) has been greater than the per­
centage decline in the white population in the City of



Ruling on Segregation 7a

Detroit during the same period (70.8% in 1960; 55.21% 
in 1970), and correlatively, the percentage increase in 
black students in the Detroit Public Schools during the 
nine-year period 1961-1970 (45.8% in 1961; 63.8% in 1970) 
has been greater than the percentage increase in the 
black population of the City of Detroit during the ten- 
year period 1960-1970 (28.9% in 1960; 43.9% in 1970). 
In 1961 there were eight schools in the system with­
out white pupils and 73 schools with no Negro pupils. In 
1970 there were 30 schools with no white pupils and 11 
schools with no Negro pupils, an increase in the number 
of schools without white pupils of 22 and a decrease in 
the number of schools without Negro pupils of 62 in this 
ten-year period. Between 1968 and 1970 Detroit experienced 
the largest increase in percentage of black students in the 
student population of any major northern school district. 
The percentage increase in Detroit was 4.7 % as contrasted 
with­

New York 2.0%
Los Angeles 1.5%
Chicago 1.9%
Philadelphia 1.7%
Cleveland 1.7%
Milwaukee 2.6%
St. Louis 2.6%
Columbus 1.4%
Indianapolis 2.6%
Denver 1.1%
Boston 3.2%
San Francisco 1.5%
Seattle 2.4%

in 1960, there were 266 schools in the Detroit School sys­
tem. In 1970, there were 319 schools in the Detroit School 
system.



8a Ruling on Segregation

In the Western, Northwestern, Northern, Murray, North­
eastern, Kettering, King and Southeastern high school serv­
ice areas, the following conditions exist at a level signifi­
cantly higher than the city average:

(a) Poverty in children

(b) Family income below poverty level

(c) Kate of homicides per population

(d) Number of households headed by females

(e) Infant mortality rate

(f) Surviving infants with neurological 
defects

(g) Tuberculosis cases per 1,000 population

(h) High pupil turnover in schools

The City of Detroit is a community generally divided by 
racial lines. Residential segregation within the city and 
throughout the larger metropolitan area is substantial, per­
vasive and of long standing. Black citizens are located in 
separate and distinct areas within the city and are not 
generally to be found in the suburbs. While the racially 
unrestricted choice of black persons and economic factors 
may have played some part in the development of this 
pattern of residential segregation, it is, in the main, the 
result of past and present practices and customs of racial 
discrimination, both public and private, which have and 
do restrict the housing opportunities of black people. On 
the record there can be no other finding.

Governmental actions and inaction at all levels, federal, 
state and local, have combined, with those of private 
organizations, such as loaning institutions and real estate 
associations and brokerage firms, to establish and to



Ruling on Segregation 9a

maintain the pattern of residential segregation throughout 
the Detroit metropolitan area. It is no answer to say that 
restricted practices grew gradually (as the black popula­
tion in the area increased between 1920 and 1970), or that 
since 1948 racial restrictions on the ownership of real prop­
erty have been removed. The policies pursued by both 
government and private persons and agencies have a con­
tinuing and present effect upon the complexion of the 
community—as we know, the choice of a residence is a 
relatively infrequent affair. For many years FHA and 
VA openly advised and advocated the maintenance of 
“ harmonious” neighborhoods, i.e., racially and economically 
harmonious. The conditions created continue. While it 
would be unfair to charge the present defendants with what 
other governmental officers of agencies have done, it can 
be said that the actions or the failure to act by the respon­
sible school authorities, both city and state, were linked to 
that of these other governmental units. When we speak 
of governmental action we should not view the different 
agencies as a collection of unrelated units. Perhaps the 
most that can be said is that all of them, including the 
school authorities, are, in part, responsible for the segre­
gated condition which exists. And we note that just as 
there is an interaction between residential patterns and 
the racial composition of the schools, so there is a cor­
responding effect on the residential pattern by the racial 
composition of the schools.

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

During the decade beginning in 1950 the Board created 
and maintained optional attendance zones in neighborhoods 
undergoing racial transition and between high school at-



10a Ruling on Segregation

tendance areas of opposite predominant racial composi­
tions. In 1959 there were eight basic optional attendance 
areas affecting 21 schools. Optional attendance areas pro­
vided pupils living within certain elementary areas a choice 
of attendance at one of two high schools. In addition there 
was at least one optional area either created or existing in 
1960 between two junior high schools of opposite predomi­
nant racial components. All of the high school optional 
areas, except two, were in neighborhoods undergoing racial 
transition (from white to black) during the 1950s. The two 
exceptions were: (1) the option between Southwestern
(61.6% black in 1960) and Western (15.3% black); (2) the 
option between Denby (0% black) and Southeastern (30.9% 
black). With the exception of the Denby-Southeastem 
option (just noted) all of the options were between high 
schools of opposite predominant racial compositions. The 
Southwestern-Western and Denby-Southeastem optional 
areas are all white on the 1950, 1960 and 1970 census maps. 
Both Southwestern and Southeastern, however, had sub­
stantial white pupil populations, and the option allowed 
whites to escape integration. The natural, probable, fore­
seeable and actual effect of these optional zones was to allow 
white youngsters to escape identifiably “ black” schools. 
There had also been an optional zone (eliminated between 
1956 and 1959) created in “ an attempt. . .  to separate Jews 
and Gentiles within the system,” the effect of which was 
that J©wish youngsters went to Mumford High School and 
Gentile youngsters went to Cooley. Although many of these 
optional areas had served their purpose by 1960 due to the 
fact that most of the areas had become predominantly black, 
one optional area (Southwestern-We stern affecting Wilson 
Junior High graduates) continued until the present school 
year (and will continue to effect 11th and 12th grade white 
youngsters who elected to escape from predominantly black 
Southwestern to predominantly white Western High



Ruling on Segregation 11a

School). Mr. Henrickson, the Board’s general fact witness, 
who was employed in 1959 to, inter alia, eliminate optional 
areas, noted in 1967 that: “ In operation Western appears to 
be still the school to which white students escape from 
predominantly Negro surrounding schools.”  The effect of 
eliminating this optional area (which affected only 10th 
graders for the 1970-71 school year) was to decrease South­
western from 86.7% black in 1969 to 74.3% black in 1970.

The Board, in the operation of its transportation to 
relieve overcrowding policy, has admittedly bused black 
pupils past or away from closer white schools with available 
space to black schools. This practice has continued in 
several instances in recent years despite the Board’s avowed 
policy, adopted in 1967, to utilize transportation to in­
crease integration.

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

The Board has created and altered attendance zones, 
maintained and altered grade structures and created and 
altered feeder school patterns in a manner which has had 
the natural, probable and actual effect of continuing black 
and white pupils in racially segregated schools. The Board 
admits at least one instance where it purposefully and 
intentionally built and maintained a school and its at­
tendance zone to contain black students. Throughout the 
last decade (and presently) school attendance zones of 
opposite racial compositions have been separated by north- 
south boundary lines, despite the Board’s awareness (since 
at least 1962) that drawing boundary lines in an east-west 
direction would result in significant integration. The



12a Ruling on Segregation

natu ral and actual effect of these acts and failures to act 
has been the creation and perpetuation of school segrega­
tion. There has never been a feeder pattern or zoning 
change which placed a predominantly white residential 
area into a predominantly black school zone or feeder 
pattern. Every school which was 90% or more black in 
1960, and which is still in use today, remains 90% or more 
blaek. Whereas 65.8% of Detroit’s black students attended 
90% or more black schools in 1960, 74.9% of the black stu­
dents attended 90% or more black schools during the 
1970-71 school year.

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

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

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

Defendant State Board’s “ School Plant Planning Hand­
book” requires that

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



Ruling on Segregation 13a

The defendant City Board has paid little heed to these 
statements and guidelines. The State defendants have sim­
ilarly failed to take any action to effectuate these policies. 
Exhibit NN reflects construction (new or additional) at 
14 schools which opened for use in 1970-71; of these 14 
schools, 11 opened over 90% black and one opened less 
than 10% black. School construction costing $9,222,000 is 
opening at Northwestern High School which is 99.9% 
black, and new construction opens at Brooks Junior High, 
which is 1.5% black, at a cost of $2,500,000. The construc­
tion at Brooks Junior High plays a dual segregatory role: 
not only is the construction segregated, it will result in a 
feeder pattern change which will remove the last majority 
white school from the already almost all-black Mackenzie 
High School attendance area.

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

The State and its agencies, in addition to their general 
responsibility for and supervision of public education, have 
acted directly to control and maintain the pattern of segre­
gation in the Detroit schools. The State refused, until this 
session of the legislature, to provide authorization or funds 
for the transportation of pupils within Detroit regardless 
of their poverty or distance from the school to which they 
were assigned, while providing in many neighboring, mostly 
white, suburban districts the full range of state supported 
transportation. This and other financial limitations, such 
as those on bonding and the working of the state aid formula 
whereby suburban districts were able to make far larger per 
pupil expenditures despite less tax effort, have created and 
perpetuated systematic educational inequalities.



14a Ruling on Segregation

The State, exercising what Michigan courts have held 
to be is “plenary power” which includes power “ to use a 
statutory scheme, to create, alter, reorganize or even dis­
solve a school district, despite any desire of the school dis­
trict, its board, or the inhabitants thereof,” acted to re­
organize the school district of the City of Detroit.

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

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

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

Plaintiffs urge the Court to consider allegedly discrimina­
tory practices of the Board with respect to the hiring, as­
signment and transfer of teachers and school administrators 
during a period reaching back more than 15 years. The 
short answer to that must be that black teachers and school



Ruling on Segregation 15a

administrative personnel were not readily available in 
that period. The Board and the intervening defendant union 
have followed a most advanced and exemplary course in 
adopting and carrying out what is called the “balanced 
staff concept”—which seeks to balance faculties in each 
school with respect to race, sex and experience, with pri­
mary emphasis on race. More particularly, we find:

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

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

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

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

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

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

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



16a Ruling on Segregation

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

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

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

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

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

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

14. In recent years, the Board has come under pressure 
from large segments of the black community to assign male 
black administrators to predominantly black schools to 
serve as male role models for students, but such assign­
ments have been made only where consistent with the 
balanced staff concept.

15. The numbers and percentages of black teachers in 
Detroit increased from 2,275 and 21.6%, respectively, in



Ruling on Segregation 17a

February, 1961, to 5,106 and 41.6%, respectively, in October, 
1970.

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

Number of schools without black teachers—decreased 
from 41, to 4.

Number of schools with more than 0%, but less than 
10% black teachers—decreased from 58, to 8.

Total number of schools with less than 10% black 
teachers—decreased from 99, to 12.

Number of schools with 50% or more black teachers— 
increased from 72, to 124.

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

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

Number of schools with more than 0%, but less than 
10% black teachers—decreased from 41, to 8.

Total number of schools with less than 10% black 
teachers—decreased from 47, to 12.

Number of schools with 50% or more black teachers 
—increased from 120, to 124.

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

19. If account is taken of other elements necessary to 
assure quality integrated education, including qualifica­
tions to teach the subject area and grade level,, balance of



18a Ruling on Segregation

experience, and balance of sex, and further account is taken 
of the uneven distribution of black teachers by subject 
taught and sex, the total number of transfers which would 
be necessary to achieve a faculty racial quota in each school 
corresponding to the system-wide ratio, if attainable at all, 
would be infinitely greater.

20. Balancing of staff by qualifications for subject, and 
grade level, then by race, experience and sex, is educa­
tionally desirable and important.

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

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

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

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

25. The Board did not segregate faculty by race, but 
rather attempted to fill vacancies with certified and qua­
lified teachers who would take offered assignments.

26. Teacher seniority in the Detroit system, although 
measured by system-wide service, has been applied con­
sistently to protect against involuntary transfers and 
“ bumping” in given schools.



Ruling on Segregation 19a

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

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

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

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

The Detroit School Board has, in many other instances 
and in many other respects, undertaken to lessen the impact 
of the forces of segregation and attempted to advance the 
cause of integration. Perhaps the most obvious one was the 
adoption of the April 7 Plan. Among other things, it has 
denied the use of its facilities to groups which practice 
racial discrimination; it does not permit the iise of its 
facilities for discriminatory apprentice training programs; 
it has opposed state legislation which would have the effect 
of segregating the district; it has worked to place black 
students in craft positions in industry and the building 
trades; it has brought about a substantial increase in the 
percentage of black students in manufacturing and con­
struction trade apprenticeship classes; it became the first 
public agency in Michigan to adopt and implement a policy 
requiring affirmative act of contractors with which it deals



20a Ruling on Segregation

to insure equal employment opportunities in their work 
forces; it has been a leader in pioneering the use of multi­
ethnic instructional material, and in so doing* has had an 
impact on publishers specializing in producing school texts 
and instructional materials; and it has taken other note­
worthy pioneering steps to advance relations between the 
white and black races.

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

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

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

3. A  current condition of segregation exists. We find 
these tests to have been met in this case. We recognize 
that causation in the case before us is both several and 
comparative. The principal causes undeniably have been 
population movement and housing patterns, but state and 
local governmental actions, including school board ac­
tions, have played a substantial role in promoting segrega­
tion. It is, the Court believes, unfortunate that we cannot 
deal with public school segregation on a no-fault basis, for 
if racial segregation in our public schools is an evil, then 
it should make no difference whether we classify it de jure 
or de facto. Our objective, logically, it seems to us, should 
be to remedy a condition which we believe needs correction.



Ruling on Segregation 21a

In the most realistic sense, if fault or blame must be found 
it is that of the community as a whole, including, of course, 
the black components. We need not minimize the effect of 
the actions of federal, state and local governmental officers 
and agencies, and the actions of loaning institutions and 
real estate firms, in the establishment and maintenance of 
segregated residential patterns—which lead to school segre­
gation—-to observe that blacks, like ethnic groups in the 
past, have tended to separate from the larger group and 
associate together. The ghetto is at once both a place of 
confinement and a refuge. There is enough blame for every­
one to share.

CONCLUSIONS OF LAW

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

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

3. School districts are accountable for the natural, prob­
able and forseeable consequences of their policies and 
practices, and where racially identifiable schools are the 
result of such policies, the school authorities bear the bur­
den of showing that such policies are based on educationally



22a Ruling on Segregation

required, non-racial considerations. Keyes v. Sch. Dist., 
supra, and Davis v. Sch. Dist. of Pontiac, 309 F. Supp. 734, 
and 443 F.2d 573.

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

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

6. Pupil racial segregation in the Detroit Public School 
System and the residential racial segregation resulting 
primarily from public and private racial discrimination 
are interdependent phenomena. The affirmative obliga­
tion of the defendant Board has been and is to adopt and 
implement pupil assignment practices and policies that 
compensate for and avoid incorporation into the school 
system the effects of residential racial segregation. The 
Board’s building upon housing segregation violates the 
Fourteenth Amendment. See, Davis v. Sch. Dist. of Pontiac, 
supra, and authorities there noted.

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



Ruling on Segregation 23a

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

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

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

“ A  citizen’s constitutional rights can hardly be in­
fringed simply because a majority of the people choose 
that it be.”  Lucas v. 44th Gen’1 Assembly of Colorado, 
377 U.S. 713, 736-737.

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

12. That a state’s form of government may delegate 
the power of daily administration of public schools to



24a Ruling on Segregation

officials with less than state-wide jurisdiction does not 
dispel the obligation of those who have broader control to 
use the authority they have consistently with the constitu­
tion. In such instances the constitutional obligation toward 
the individual school children is a shared one. Bradley v. 
Sch. Bd., City of Richmond, 51 F.R.D. 139, 143.

13. Leadership and general supervision over all public 
education is vested in the State Board of Education. Art. 
VIII, § 3, Mich. Constitution of 1963. The duties o f the 
State Board and superintendent include, but are not limited 
to, specifying the number of hours necessary to constitute 
a school day; approval until 1962 of school sites; approval 
of school construction plans; accreditation of schools; ap­
proval of loans based on state aid funds; review of suspen­
sions and expulsions of individual students for misconduct 
[Op. Atty. Gen., July 7, 1970, No. 4705]; authority over 
transportation routes and disbursement of transportation 
funds; teacher certification and the like. M.S.A. 15.1023 (1). 
State law provides review procedures from actions of local 
or intermediate districts (See M.S.A. 15.3442), with author­
ity in the State Board to ratify, reject, amend or modify the 
actions of these inferior state agencies. See M.S.A. 15.3467; 
15.1919(61); 15.1919(68b); 15.2299(1); 15.1961; 15.3402; 
Bridgehampton School District No. 2 Fractional of Carson- 
ville, Mich. v. Supt. of Public Instruction, 323 Mich. 615. 
In general, the state superintendent is given the duty “  [t]o 
do all things necessary to promote the welfare of the 
public schools and public educational instructions and pro­
vide proper educational facilities for the youth of the 
state.”  M.S.A. 15.3252. See also M.S.A. 15.2299(57), pro­
viding in certain instances for reorganization of school 
districts.

14. State officials, including all of the defendants, are 
charged under the Michigan constitution with the duty



Ruling on Segregation 25a

of providing pupils an education without discrimination 
with respect to race. Art. VIII, § 2, Mich. Constitution of 
1963. Art. I, § 2, of the constitution provides:

“ No person shall he denied the equal protection 
of the laws; nor shall any person be denied the en­
joyment of his civil or political rights or be dis­
criminated against in the exercise thereof because of 
religion, race, color or national origin. The legislature 
shall implement this section by appropriate legisla­
tion.”

15. The State Department of Education has recently 
established an Equal Educational Opportunities section 
having responsibility to identify racially imbalanced school 
districts and develop desegregation plans. M.S.A. 15.3355 
provides that no school or department shall be kept for 
aniy person or persons on account of race or color.

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



26a Ruling on Segregation

17. Where a pattern of violation of constitutional rights 
is established the affirmative obligation under the Four­
teenth Amendment is imposed on not only individual 
school districts, but upon the State defendants in this 
case. Cooper v. Aaron, 358, TJ.S. 1; Griffin v. County 
School Board of Prince Edward County, 337 U.S. 218; 
U.S. v. State of Georgia, Civ. No. 12972 (N.D. Ga., Decem­
ber 17,1970), rev ’d on other grounds, 428 F.2d 377; Godwin 
v. Johnston County Board of Education, 301 F. Supp. 1337; 
Lee v. Macon County Board of Education, 267 F. Supp. 458 
(M.D. Ala.), aff’d sub nom., Wallace v. U.S., 389 U.S. 
215; Franklin v. Quitman County Board of Education, 
288 F. Supp. 509; Smith v. North Carolina State Board 
of Education, No. 15,072 (4th Cir., June 14, 1971).

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

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

In considering the motion to add the listed school dis­
tricts we pause to note that the proposed action has to 
do with relief. Having determined that the circumstances



Ruling on Segregation 27a

of the ease require judicial intervention and equitable 
relief, it would be improper for us to act on this motion 
until the other parties to the action have had an op­
portunity to submit their proposals for desegregation. Ac­
cordingly, we shall not rule on the motion to add parties 
at this time. Considered as a plan for desegregation the 
motion is lacking in specifity and is framed in the broadest 
general terms. The moving party may wish to amend its 
proposal and resubmit it as a comprehensive plan of 
desegregation.

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

DATED: Sept. 27, 1971.

STEPHEN J. BOTH /%/
Stephen J. Both
United States District Judge





Order of November 5th 29a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs,

v.

WILLIAM G. MILLIKEN, ct al.,
Defendants,

DETROIT FEDERATION OF 
TEACHERS, LOCAL No. 231, 
AMERICAN FEDERATION OF 
TEACHERS, AFL-CIO,

Defendant-In tervenor,

CIVIL ACTION 
NO. 35257

and

DENISE MAGDOWSKI, et al.,
Defendants-Intervenor

ORDER OF NOVEMBER 5, 1971

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

Present: HONORABLE STEPHEN J. ROTH 
United States District Judge

The Court having entered its findings of fact and con­
clusions of law on the issue of segregation on September 
27, 1971;



30a Order of November 5th

IT IS ORDERED that the Detroit Board of Education 
submit a report on and an evaluation of the so-called 
Magnet Plan within 30 days; and that other parties litigant 
may within 10 days thereafter file responses to such 
report and evaluation.

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

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

IT IS FURTHER ORDERED that as to both the De­
troit and the State plans, other parties litigant shall have 
an additional 30 days in which to submit objections and/or 
alternate plans.

STEPHEN J. ROTH / s /
United States District Judge

DATE SIGNED: November 5, 1971.



Riding on Metropolitan Plan 31a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs,

v.

WILLIAM G. MILLIKEN, et al.,
Defendants,

DETROIT FEDERATION OF 
TEACHERS, LOCAL No. 231, 
AMERICAN FEDERATION OF 
TEACHERS, AFL-CIO,

Defendant-In tervenor,

and

DENISE MAGDOWSKI, et al.,
Defendants-Intervenor

et al.

CIVIL ACTION 
NO. 35257

RULING ON PROPRIETY OF CONSIDERING A 
METROPOLITAN REMEDY TO ACCOMPLISH 

DESEGREGATION OF THE PUBLIC SCHOOLS 
OF THE CITY OF DETROIT

In its prior ruling, “ Ruling on Issue of Segregation”  
(September 27, 1971), the court has found that segrega­
tion exists in the public schools of the City of Detroit 
because of, among other causes, the acts of the State of 
Michigan and the Detroit Board of Education. In the 
language of Swann,H1 “ a right and a violation have been



32a Ruling on Metropolitan Plan

shown.” [2] Given the constitutional violation, judicial au­
thority, when properly invoked, must be exercised to right 
the wrong. In addressing itself to this task the Supreme 
Court has said that the “ scope o f a district court’s equit­
able powers to remedy past wrongs is broad, for breadth 
and flexibility are inherent in equitable remedies. ” 11 2 3 4 5 61 And, 
it pointed out, “ a school desegregation case does not differ 
fundamentally from other cases involving the framing of 
equitable remedies to repair the denial of a constitutional 
right.’ ’Ml The task is to correct the condition which 
offends the Constitution. Illustrative of what was meant 
by the Supreme Court, see the legislative and congres­
sional reapportionment cases.151

Under the circumstances of this case,!®! the question 
presented is whether the court may consider relief in 
the form of a metropolitan plan, encompassing not only 
the City of Detroit, but the larger Detroit metropolitan 
area which, for the present purposes, we may define as 
comprising the three counties of Wayne, Oakland and 
Macomb. It should be noted that the court has just con­
cluded its hearing on plans submitted by the plaintiffs 
and the Detroit Board of Education for the intra-city

[1]
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 TJ.S. 1.

[2]
Ibid., p. 15.

[3]
Ibid., p. 15.

[4]
Ibid., pp. 15, 18.

[5]
Reynolds v. Sims, 377 TJ.S. 533.

[6]
See “Ruling on Issue of Segregation,” supra, indicating a black student 

projection for the school yeiar 1980-81 of 80.7%.



Ruling on Metropolitan Plan 33a

desegregation of the Detroit public schools. A  ruling 
has not yet been made on these plans, but in accordance 
with the mandate of the Court of Appeals that a hearing 
on the merits be concluded at the earliest possible time, 
we consider it necessary to proceed apace with a resolu­
tion of the issue before us, i.e., the propriety of weighing 
the legal availability of a metropolitan remedy for segre­
gation.

The State defendants in this case take the position, as 
we understand it, that no “ state action”  has had a part 
in the segregation found to exist. This assertion dis­
regards the findings already made by this court, and 
the decision of the Court of Appeals as wellJD Addition­
ally, they appear to view the delegation of the State’s 
powers and duties with respect to education to local 
governmental bodies as vesting the latter with sovereign 
powers which may not be disturbed by either the State 
or the court. This we cannot accept. Political subdi­
visions of the states have never been considered sovereign 
entities, rather “ they have been traditionally regarded as 
subordinate governmental instrumentalities created by the 
state to assist it in carrying out of state governmental 
functions.”  Reynolds v. Sims, 377 U.S. 533, 575. Perhaps 
the clearest refutation of the State’s asserted lack of 
power to act in the field of education is Act 48 of 1970. 
The State cannot evade its constitutional responsibility 
by a delegation of powers to local units of government. 
The State defendants’ position is in error in two other 
respects: 1. The local school districts are not fully au­
tonomous bodies, for the extent it has seen fit the State 
retains control and supervision; and 2. It assumes that

m
See “Ruling on Issue of Segregation,” supra; Bradley v. Milliken, 433 

F,2d 897.



34a Ruling on Metropolitan Plan

any metropolitan plan, if one is adopted, would, of neces­
sity, require the dismantling of school districts included 
in the plan.

The main thrust of the objections to the consideration 
of a metropolitan remedy advanced by intervening school 
districts is that, absent a finding of acts of segregation 
on their part, individually, they may not be considered 
in fashioning a remedy for relief of the plaintiffs. It 
must be conceded that the Supreme Court has not yet 
ruled directly on this issue; accordingly, we can only pro­
ceed by feeling our way through its past decisions with 
respect to the goal to be achieved in school desegrega­
tion cases. Green v. County School Board, 391 U.S. 430, 
teaches us that it is our obligation to assess the effec­
tiveness of proposed plans of desegregation in the light 
of circumstances present and the available alternatives; 
and to choose the alternative or alternatives which promise 
realistically to work now and hereafter to produce the 
maximum actual desegregation. As Chief Justice Burger 
said in Swann, “ in seeking to define the scope of remedial 
power of courts in an area as sensitive as we deal with 
here, words are poor instruments to convey the sense of 
basic fairness inherent in equity.”  Substance, not, seman­
tics, must govern.

It seems to us that Brownie is dispositive of the issue:

“ In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. Tra­
ditionally, equity has been characterized by a practical 
flexibility in shaping its remedies and by a facility 
for adjusting and reconciling public and private needs. 
These cases call for the exercise of these traditional 
attributes of equity power. At stake is the personal 
interest of the plaintiffs in admission to public schools



Ruling on Metropolitan Plan 35a

as soon as practicable on a nondiscriminatory basis. 
To effectuate this interest may call for elimination 
of a variety of obstacles in making the transition 
to school systems operated in accordance with the 
constitutional principles set forth in our May 17, 
1954, decision. Courts of equity may properly take 
into account the public interest in the elimination of 
such obstacles in a systematic and effective manner. 
But it should go without saying that the vitality of 
these constitutional principles cannot be allowed to 
yield simply because of disagreement with them.”

# * ♦

“  * * * the courts may consider problems related 
to administration, arising from the physical condition 
of the school plant, the school transportation systems, 
personnel, revision of school districts and attendance 
areas into compact units to achieve a system of de­
termining admission to the public schools on a non- 
racial basis, and revision of local laws and regula­
tions which may be necessary in solving the foregoing 
problems. ’ ’

We conclude that it is proper for the court to consider 
metropolitan plans directed toward the desegregation of 
the Detroit public schools as an alternative to the present 
intra-city desegregation plans before it and, in the event 
that the court finds such intra-city plans inadequate to 
desegrate such schools, the court is of the opinion that 
it is required to consider a metropolitan remedy for 
desegregation.

Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, at 300 and 301.
[8]



36a Ruling on Metropolitan Plan

The schedule previously established for the hearing 
on metropolitan plans will go forward as noticed, begin­
ning March 28, 1972.

DATE: March 24th, 1972.

STEPHEN J. ROTH / s /
Stephen J. Roth
United States District Judge



Ruling on Detroit-Only Plan 37a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs,

V.

WILLIAM G. MILLIKEN, et al.,
Defendants,

DETROIT FEDERATION OF 
TEACHERS, LOCAL No. 231, 
AMERICAN FEDERATION OF 
TEACHERS, AFL-CIO,

Defendant-In tervenor,

CIVIL ACTION 
NO. 35257

and

DENISE MAGDOWSKI, et al.,
Defendants-Intervenor

FINDINGS OF FACT AND CONCLUSIONS OF LAW
ON

DETROIT-ONLY PLANS OF DESEGREGATION

In accordance with orders of the court defendant De­
troit Board of Education submitted two plans, limited 
to the corporate limits of the city, for desegregation of 
the public schools of the City of Detroit, which we will 
refer to as Plan A  and Plan C; plaintiffs submitted a 
similarly limited plan, which will be referred to as the 
Foster Plan. Hearings were had on said plans on March



38a Ruling on Detroit-Only Plan

14, 15, 16, 17 and 21, 1972. In considering these plans 
the court does not limit itself to the proofs offered at 
the hearing just concluded; it considers as part of the 
evidence bearing on the issue [i.e., City-Only Plans) all 
proofs submitted in the case to this point, and it specifi­
cally incorporates herein by reference the Findings and 
Conclusions contained in its “ Ruling on Issue of Segre­
gation,”  filed September 27, 1971.

The court makes the following factual findings:

PLAN A.

1. The court finds that this plan is an elaboration and 
extension of the so-called Magnet Plan, previously author­
ized for implementation as an interim plan pending hear­
ing and determination on the issue of segregation.

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

3. We find, at the Middle School level, that the ex­
panded model would affect, directly, about 24,000 pupils 
of a total of 140,000 in the grades covered; and its effect 
would he to set up a school system within the school 
system, and would intensify the segregation in schools 
not included in the Middle School program. In this sense, 
it would increase segregation.

4. As conceded by its author, Plan A is neither a de­
segregation nor an integration plan.



Ruling on Detroit-Only Plan 39a

PLAN C.

1. The court finds that Plan 0  is a token or part-time 
desegregation effort.

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

PLAINTIFFS’ PLAN.

1. The court finds that Plaintiffs’ Plan would accom­
plish more desegregation than now obtains in the system, 
or would be achieved under Plan A or Plan C.

2. We find further that the racial composition of the 
student body is such that the plan’s implementation would 
clearly make the entire Detroit public school system ra­
cially identifiable as Black.

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

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



40a Ruling on Detroit-Only Plan

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

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

7. The plan would make the Detroit school system 
more identifiably Black, and leave many of its schools 
75 to 90 per cent Black.

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

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

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

CONCLUSIONS OF LAW

1. The court has continuing jurisdiction of this action 
for all purposes, including the granting of effective relief. 
See Ruling on Issue of Segregation, September 27, 1971.

2. On the basis of the court’s finding of illegal school 
segregation, the obligation of the school defendants is 
to adopt and implement an educationally sound, praeti-



Ruling on Detroit-Only Plan 41a

cable plan of desegregation that promises realistically to 
achieve now and hereafter the greatest possible degree 
of actual school desegregation. Green v. County School 
Board, 391 U.S. 430; Alexander v. Holmes County Board 
of Education, 396 U.S. 19; Carter v. West Feliciana Parish 
School Board, 396 U.S. 290; Swann v. Charlotte-Mecklen­
burg Board of Education, 402 U.S. 1.

3. Detroit Board of Education Plans A  and C are 
legally insufficient because they do not promise to effect 
significant desegregation. Green v. County School Board, 
supra, at 439-440.

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

5. The conclusion, under the evidence in this case, is 
inescapable that relief of segregation in the public schools 
of the City of Detroit cannot be accomplished within 
the corporate geographical limits of the city. The State, 
however, cannot escape its constitutional duty to desegre­
gate the public schools of the City of Detroit by pleading 
local authority. As Judge Merhige pointed out in Bradley 
v. Richmond, (slip opinion p. 64):

“ The power conferred by state law on central and 
local officials to determine the shape of school at­
tendance units cannot be employed, as it has been 
here, for the purpose and with the effect o f sealing 
off White conclaves of a racial composition more 
appealing to the local electorate and obstructing the 
desegregation of schools. The equal protection clause



42a Ruling on Detroit-Only Plan

has required far greater inroads on local government 
structure than the relief sought here, which is attain­
able without deviating from state statutory forms. 
Compare Reynolds v. Sims, 377 U.S. 533; Gomillion 
v. Lightfoot, 364 U.S. 339 ; Serrano v. Priest, 40 U.S. 
L.W. 2128 (Calif. Sup. Ct. Aug. 30, 1971).

“ In any ease, if political boundaries amount to in­
superable obstacles to desegration because of struc­
tural reason, such obstacles are self-imposed. Political 
subdivision lines are creations of the state itself, after 
all.”

School district lines are simply matters of political con­
venience and may not be used to deny constitutional rights. 
If the boundary lines of the school districts of the City 
of Detroit and the surrounding suburbs were drawn to­
day few would doubt that they could not withstand con­
stitutional challenge. In seeking for solutions to the prob­
lem of school segregation, other federal courts have not 
“ treated as immune from intervention the administrative 
structure of a state’s educational system, to the extent 
that it affects the capacity to desegregate. Geographically 
or administratively independent units have been compelled 
to merge or to initiate or continue cooperative operation 
as a single system for school desegregation purposes. ” IU

That the court must look beyond the limits of the De­
troit school district for a solution to the problem of 
segregation in the Detroit public schools is obvious; that 
it has the authority, nay more, the duty to (under the 
circumstances of this case) do so appears plainly antici-

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



Ruling on Detroit-Only Plan 43a

pated by Brown 11,121 seventeen years ago. While other 
school cases have not had to deal with onr exact situ­
ation,^] the logic of their application of the command 
of Brown II supports our view of our duty.

Date: MABCH 28th, 1972.

STEPHEN J. BOTH / s /
Stephen J. Both
United States District Judge

12]
Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, pp. 300-301.

[3]
Haney v. County Board of Education of Sevier County, 410 F.2d 920 

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



44a Order of 6th Circuit

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al
Plaintiffs-Appellees, 

Cross-Appellants,
V.

W ILLIAM  GL MILLIKEN, et al
Defendants-Appellants, 

Cross-Appellee, NOS. 72-1064
DETROIT FEDERATION OF 

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

Defendant-Intervenor-
Appellee,

and

72-1065
72-1066

DENISE MAGDOWSKI, et al
Defendants-Intervenor.

ORDER OF THE UNITED STATES COURT OF 
APPEALS FOR THE SIXTH CIRCUIT

Before: CELEBREZZE, MCCREE and KENT, 
Circuit Judges.

These are appeals from an order entered on November 
5, 1971, following a “pretrial conference” held on October 
4, 1971. The order from which these appeals are taken 
requires the parties to submit proposed plans for desegre­
gation of the Detroit schools within a stipulated period of



Order of 6th Circuit 45a

time which time had not passed at the time the appeals 
were filed. The order in question is not a final order within 
the meaning of Title 28 U.S.C. § 1291, neither is it an 
interlocutory order or decree which may be appealed to 
this Court under Title 28 U.S.C. § 1292(a).

No party to the action has sought a certificate from 
the District Court or from this Court for an interlocutory 
appeal under the provisions of Title 28 U.S.C. § 1292(b). 
There being no final order from which an appeal may be 
taken, and the cross-appellants having agreed that their 
appeal may be dismissed with the original appeal,

IT  IS ORDERED that the motions to dismiss the ap­
peals be granted.

ENTERED BY ORDER OF THE 
COURT

JAMES A. HIGGINS /a /
Clerk