Appendix

    IN THE SUPREME COURT OF THE UNITED STATES
October Term 1973 

No.

WILLIAM G. MILLIKEN, Governor of the State of Michigan; FRANK J. KELLEY, 
Attorney General o f the State o f Michigan; MICHIGAN STATE BOARD OF EDU­
CATION, a constitutional body corporate, and JOHN W. PORTER, Superintendent 
of Public Instruction, of the State of Michigan; ALLISON GREEN, Treasurer of the 
State of Michigan; ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF 
THE CITY 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 PUBLIC SCHOOLS, SCHOOL DIS­
TRICT OF THE CITY OF FERNDALE, FLAT ROCK COMMUNITY SCHOOLS,

(Continued on Inside Front Cover)
-vs-

RONALD BRADLEY and RICHARD BRADLEY, by their Mother and Next Friend, 
VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH

(Continued on Inside Front Cover)

APPENDIX

BUTZEL, LONG, GUST, KLEIN & 
VAN ZILE

Of Counsel

HILL, LEWIS, ADAMS, 
GOODRICH & TAIT

Thomas E. Coulter
Of Counsel

CONDIT AND MC GARRY, P.C. 
Richard P. Condit,

Of Counsel
HARTMAN, BEIER, HOWLETT, 

MC CONNELL & GOOGASIAN 
Kenneth B. McConnell,

Of Counsel

FRANK J. KELLEY 
Attorney General
ROBERT A. DERENGOSKI
Solicitor General
EUGENE KRASICKY 
GERALD F. YOUNG 
GEORGE L. McCARGAR 
L. GRAHAM WARD
Assistant Attorneys General
Counsel for Petitioners 
525 W. Ottawa Street 
Lansing, Michigan 48913
WILLIAM M. SAXTON 
JOHN B. WEAVER 
ROBERT M. VERCRUYSSE 
X. ORHAN
1881 First National Building 
Detroit, Michigan 48226
Counsel for Petitioners, Allen 
Park Public Schools, et al, Southfield 
Public Schools and School District 
of the City of Royal Oak
DOUGLAS H. WEST
3700 Penobscot Building 
Detroit, Michigan 48226
Counsel for Respondent Grosse 
Pointe Public 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 COUN­
TY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, LAKEVIEW PUBLIC 
SCHOOLS, THE LAMPHERE SCHOOLS, LINCOLN PARK PUBLIC SCHOOLS, 
MADISON DISTRICT PUBLIC SCHOOLS, MELVINDALE-NORTH ALLEN PARK 
SCHOOL DISTRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, 
NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DISTRICT, OX­
FORD AREA COMMUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT 
NO. 1, RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE CITY 
OF RIVER ROUGE, RIVERVIEW COMMUNITY SCHOOL DISTRICT, ROSE­
VILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DIS­
T R IC T , WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC 
SC H O O LS, W AYN E-W ESTLA N D  COMMUNITY SCHOOLS, WOODHAVEN 
SCHOOL DISTRICT, and WYANDOTTE PUBLIC SCHOOLS; GROSSE POINTE 
PUBLIC SCHOOLS; SOUTHFIELD PUBLIC SCHOOLS; and SCHOOL DISTRICT 
OF THE CITY OF ROYAL OAK,

Petitioners,

GOINGS: BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, by their 
Mother and Next Friend, CLARISSA LOVE: CAMILLE BURDEN, PIERRE BUR­
DEN, 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. WILLIAMS; RAY LITT 
and MRS. WILBUR BLAKE, parents; all parents having children attending the pub­
lic 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 
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DETROIT 
BRANCH; BOARD OF EDUCATION OF THE CITY OF DETROIT, a school dis­
trict of the first class; PATRICK McDONALD, JAMES HATHAWAY and CORNEL­
IUS GOLIGHTLY, members of the Board of Education of the City of Detroit; and 
NORMAN DRACHLER, Superintendent of the Detroit Public Schools; DETROIT 
FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERATION OF 
TEACHERS, AFL-CIO; 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 Michigan 
non-profit Corporation; KERRY GREEN and COLLEEN GREEN, by their Father 
and Next Friend, DONALD G. GREEN, JAMES, JACK and KATHLEEN ROSE­
MARY, by their Mother and Next Friend, EVELYN G. ROSEMARY, TERRI 
DORAN, by her Mother and Next Friend, BEVERLY DORAN, SHERRILL, 
KEITH, JEFFREY and GREGORY COULS, by their Mother and Next Friend, 
SHARON COULS, EDWARD and MICHAEL ROMESBURG, by their Father and 
Next Friend, EDWARD M. ROMESBURG, JR., TRACEY and GREGORY AR- 
LEDGE, 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 SUNI, by their Mother and Next Friend, SHIRLEY SUNI, and 
TRI-COUNTY CITIZENS FOR INTERVENTION IN FEDERAL SCHOOL ACTION 
NO. 35257; MICHIGAN EDUCATION ASSOCIATION; and PROFESSIONAL PER­
SONNEL OF VAN DYKE,

Respondents.



INDEX TO APPENDIX

Complaint ............................................................................

Ruling on Issue of Segregation, dated September 27, 1971

October 4, 1971, proceedings ............................................

November 5, 1971, Order ................................................

Ruling on Propriety  of Considering a Metropolitan 
Remedy to Accomplish Desegregation of the Public 
Schools of the City of Detroit, March 24, 1972 ............

Findings of Fact and Conclusions of Law on Detroit-Only 
Plans of Desegregation, March 28, 1972 ..........................

Findings of Fact and Conclusions of Law in Support of 
Ruling on Desegregation Area and Development of 
Plans, June 14, 1972 ......................................................

Ruling on Desegregation Area and Order for Development 
of Plan of Desegregation, June 14, 1972 .......................

Order for Acquisition of Transportation, July 1 1, 1972 . .

Order, United States Court of Appeals for the Sixth 
Circuit .............................................................................

Opinion, June 12, 1973 ......................................................

Notice of Judgment, June 12, 1973 ...........................

Excerpt from June 24, 1971 Proceedings .........................

Judgment, June 12, 1973 ..................................................

17a

40a

46a

48a

53a

59a

97a

106a

108a

110a

241a

242a

244a

2a



la

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY and RICHARD )
BRADLEY, by their Mother and Next )
Friend, VERDA BRADLEY; JEANNE GO- )
INGS, by her Mother and Next Friend, )
BLANCHE GOINGS; BEVERLY LOVE, )
JIMMY LOVE and DARRELL LOVE, by ) 
their Mother and Next Friend, CLARISSA )
LOVE; CAMILLE BURDEN, PIERRE )
BURDEN, AVA BURDEN, MYRA BUR- )
DEN, 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 having chil- ) 
dren attending the public schools of the )
City of Detroit, Michigan, on their own be- ) 
half and on behalf of their minor children, ) 
all on behalf of any persons similarly situ- ) 
ated; and NATIONAL ASSOCIATION )
FOR THE ADVANCEMENT OF COLOR- )
ED PEOPLE, DETROIT BRANCH, )

Plaintiffs, ) CIVIL ACTION 
vs. ) NO. 35257

WILLIAM J. MILLIKEN, Governor of the )
State of Michigan and ex-officio member of )
Michigan State Board of Education; )
FRANK J. KELLEY, Attorney General of ) 
the State of Michigan; MICHIGAN STATE )
BOARD OF EDUCATION, a constitutional ) 
body corporate; JOHN W. PORTER, Act- ) 
ing Superintendent of Public Instruction, )
Department of Education and ex-officio )
Chairman of Michigan State Board of Edu- ) 
cation; BOARD OF EDUCATION OF THE )
CITY OF DETROIT, a school district of )



2a

th e first class; PATRICK McDONALD, ) 
JAM ES HATHAWAY and CORNELIUS ) 
GOLIGHTLY, members o f the Board o f ) 
E ducation  o f the City o f Detroit; and ) 
NORMAN DRACHLER, Superintendent o f ) 
the Detroit Public Schools, )

Defendants.

C O M P L A I N T

I.

The jurisdication of this Court is invoked under 28 U.S.C. 
Sections 1331(a), 1343(3) and (4), this being a suit in equity 
authorized by 42 U.S.C. Sections 1983, 1988 and 2000d, to re­
dress the deprivation under color of Michigan law, statute, custom 
and/or usage of rights, privileges and immunities guaranteed by the 
Thirteenth and Fourteenth Amendments to the Constitution of 
the United States. This action is also authorized by 42 U.S.C. Sec­
tion 1981 which provides that all persons within the jurisdiction 
of the United States shall have the same rights to the full and 
equal benefits of all laws and proceedings for the security of per­
sons and property as is enjoyed by white citizens. Jurisdiction is 
further invoked under 28 U.S.C. Sections 2201 and 2202, this be­
ing a suit for declaratory judgment declaring certain portions of 
Act No. 48 of the Michigan Public Acts of 1970 (a copy of which 
is attached hereto as Exhibit A) unconstitutional. This is also an 
action for injunctive relief against the enforcement of certain por­
tions of said Act No. 48 and to require the operation of the 
Detroit, Michigan public schools on a unitary basis.

II.

Plaintiffs, Ronald Bradley and Richard Bradley, by their 
Mother and Next Friend, Verda Bradley; Jeanne Goings, by her 
Mother and Next Friend, Blanche 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,



3a

Marcus Burden; Karen Williams and Kristy Williams, by their 
Father and Next Friend, C. Williams; Ray Litt and Mrs. Wilbur 
Blake, parents, are all parents or minor children thereof attending 
schools in the Detroit, Michigan public school system. All of the 
above-named plaintiffs are black except Ray Litt, who is white 
and who joins with them to bring this action each in their own 
behalf and on behalf of their minor children and all persons simi­
larly situated.

P lain tiff, National Association for the Advancement of 
Colored People, Detroit Branch, is an unincorporated association 
with offices at 242 East Warren Avenue, Detroit, Michigan, which 
sues on behalf of its membership who are members of the plaintiff 
class. Plaintiff, N.A.A.C.P., has as one of its purposes the advance­
ment of equal educational opportunities through the provision of 
integrated student bodies, faculty and staff.

III.

Plaintiffs, pursuant to Rule 23 of the Federal Rules of Civil 
Procedure, bring this action on their own behalf and on behalf of 
all persons in the City of Detroit similarly situated. There are com­
mon questions of law and fact affecting the rights of plaintiffs and 
the rights of the members of the class. The members of the class 
are so numerous as to make it impracticable to bring them all be­
fore the Court. A common declaratory and injunctive relief is 
sought and plaintiffs adequately represent the interests of the 
members of the class.

IV.

The defendants are:

1. William J. Milliken, Governor of the State of Michigan 
and ex-officio member of the State Board of Education;

2. Frank J. Kelley, Attorney General of the State of 
Michigan, who is responsible for enforcing the public acts and laws 
of the State of Michigan;



4a

3. The Michigan State Board of Education, a constitutional 
body corporate, which is generally charged with the power and re­
sponsibility of administering the public school system in the State 
of Michigan, including the City of Detroit;

4. John W. Porter, Acting Superintendent of Public Instruc­
tion, Department of Education, in the State of Michigan, and ex- 
officio member of the State Board of Education;

5. The Board of Education of the City of Detroit, a school 
district of the first class, organized and existing in Wayne County, 
Michigan, under and pursuant to the laws of the State of Michigan 
and operating the public school system in the City of Detroit, 
Michigan;

6. Patrick McDonald, James Hathaway and Cornelius 
Golightly, all residents of Wayne County, Michigan, and elected 
members of the Board of Education of the City of Detroit;

7. The remaining board members of the Board of Education 
of the City of Detroit;

8. Norman Drachler, a resident of Wayne County, Michigan, 
and the appointed Superintendent of the Detroit Public Schools.

V .

Plaintiffs seek a declaratory judgment declaring the last sen­
tence of the first paragraph of Section 2a and the entirety of Sec­
tion 12 of Public Act No. 48 of the Michigan Public Acts of 1970 
unconstitutional.

The challenged portion of Section 2a reads as follows:

Regions shall be as compact, contiguous and nearly equal as
practicable.

Section 12 reads as follows:

The implementation of any attendance provisions for the



5a

1970-71 school year determined by any first class school dis­
trict board shall be delayed pending the date of commence­
ment of functions by the first class school district boards 
established under the provisions of this amendatory act but 
such provision shall not impair the right of any such board to 
determine and implement prior to such date such changes in 
attendance provisions as are mandated by practical necessity. 
In reviewing, confirming, establishing or modifying atten­
dance provisions the first class school district boards esta­
blished under the provisions of this amendatory act shall have 
a policy of open enrollment and shall enable students to 
attend a school of preference but providing priority accep­
tance, insofar as practicable, in cases of insufficient school 
capacity, to those students residing nearest the school and to 
those students desiring to attend the school for participation 
in vocationally oriented courses or other specialized curri­
culum.

Plaintiffs also seek a temporary restraining order and pre­
liminary and permanent injunctions against the enforcement of 
said provisions of Act 48.

VI.

This is also a proceeding for a permanent injunction enjoining 
the defendant, Board of Education of the City of Detroit, its 
members and the Superintendent of Schools from continuing their 
policy, practice, custom and usage of operating the public school 
system in and for the City of Detroit, Michigan in a manner which 
has the purpose and effect of perpetuating a biracial segregated 
public school system, and for other relief, as hereinafter more 
fully appears.

VII.

On August 11, 1969, the Governor of the State of Michigan 
approved Act No. 244 of the Public Acts of 1969 (Mich. Stats. 
Ann. Section 15.2298), said Act being entitled, “AN ACT to re­
quire first class school districts to be divided into regional districts 
and to provide for local district school boards and to define their



6a

powers and duties and the powers and duties of the first class dis­
trict board.” (A copy of Act No. 244 is attached hereto as Exhibit 
B). Act No. 244 applies exclusively to the Board of Education of 
the School District of the City of Detroit, that being the only first 
class school district in the State of Michigan. The essence of Act 
No. 244 is that it provides the mandate and means for the admini­
strative decentralization of the Detroit school system and the ex­
tent thereof.

On March 2, 1970, the Detroit School Board’s attorney ren­
dered an opinion (attached hereto as Exhibit C) advising the Board 
that in effectuating decentralization under Act No. 244 the law 
imposed three limitations:

1. The Act itself required each district to have not less than
25,000 nor more than 50,000 pupils;

2. The United States Constitution required each district to 
be in compliance with the “one man, one vote” principle;

3. The United States Constitution, above all, required that 
the districts be established on a racially desegregated basis.

VIII.

In the 1969-70 school year, the Detroit Board of Education 
operated 21 high school constellations providing a public educa­
tion for 281,101 school children (excluding 12,758 students not 
listed in high school constellations and in adult programs). 61.9% 
of these students were Negro, 36.4% were white, and 1.7% were of 
other racial-ethnic minorities. Of the 21 high school constellations 
operated by the Detroit School Board in 1969-70, 14 were racially 
identifiable as “white” or “Negro” constellations. The high school 
constellations contain within them 208 elementary schools, 53 
junior high schools, and 21 senior high schools. Of the 208 ele­
mentary schools (enrolling 166,258 pupils), 114 (enrolling 92,225 
pupils) are identifiable as “Negro” schools and 71 (enrolling 
46,448 pupils) are identifiable as “white” schools. Of the 53 
junior high schools (enrolling 63,476 pupils), 24 (enrolling 31,201 
pupils) are identifiable as “Negro” schools and 18 (enrolling



7a

21,507 pupils) are identifiable as “white” schools. Of the 21 
senior high schools (enrolling 54,394 pupils, 11 (enrolling 25,351 
pupils) are identifiable as “Negro” schools and 6 (enrolling 19,183 
pupils) are identifiable as “white” schools.

IX.

On April 7, 1970, the Detroit Board of Education adopted a 
limited plan of desegregation (Exhibit D, attached hereto) for the 
senior high school level, which plan was to take effect on a stair­
step basis over a period of four years so that by 1972, there 
would be substantially increased racial integration. This plan for 
high school desegregation comtemplated a change in high school 
boundary lines, thereby changing the junior high feeder patterns in 
twelve of Detroit’s 21 senior high schools. The plan was designed 
so that by the year 1972, only three (as compared to the present 
17) of Detroit’s senior high schools would be racially identifiable 
as “Negro” or “white” high schools. The plan also provided that a 
student presently enrolled in a junior high school and who has a 
brother or sister presently enrolled in a senior high school would 
continue in senior high school at the school his brother or sister 
was presently attending. All those presently enrolled in senior high 
school would not, due to the stair-step feature of the plan, be 
affected and they would continue through graduation at the segre­
gated senior high school they were presently attending. The April 
7 plan did not involve, nor did it affect, the existing racially segre­
gated pattern of pupil assignments in the elementary and junior 
high schools.

X.

On April 7, 1970, the Detroit Board of Education by a four- 
to-two vote (the seventh member, now deceased, expressing his 
approval by letter from his hospital bed) adopted a regional 
boundary plan (attached hereto as Exhibit D) for administrative 
decentralization consisting of seven regions. The seven regions as 
established by the Board on April 7, 1970 contained an average of 
38,802 pupils per region with the smallest region containing 
33,043 pupils and the largest region containing 46,592 pupils, or a 
range of deviation of 13,549 pupils with an average deviation of



8a

2,892 pupils per region. The racial complexion of the pupil enroll­
ment in the seven regions averaged 61.7% Negro with the lowest 
percent Negro region being 34.4% and the largest percent Negro 
region being 76.7%, or a range of deviation of 42.3% Negro with 
an average regional deviation of 10.5% Negro.

XI.

The actions of the Detroit School Board on April 7, 1970 
approving a desegregation plan resulted in expressions of 
“community hostility” . A movement to recall the four members 
of the Detroit School Board who voted in favor of the April 7, 
1970 action was initiated by white citizens. The recall movement 
was resolved by the Detroit voters (of which a majority are white) 
at the August 4, 1970 election, which resulted in the removal of 
the four board members who had voted in favor of the April 7, 
1970 plan. The April 7th plan created a similar reaction in the 
Michigan State Legislature which culminated in the passage of 
Public Act 48, interposing the State and voiding the partial dese­
gregation plan, which Act was approved by the defendant, 
Governor Milliken, on July 7, 1970.

XII.

On July 28, 1970, the attorney for the Detroit Board of 
Education rendered an opinion (attached hereto as Exhibit E) that 
Act 48 has both the design and the effect of completely elimi­
nating the provisions of the April 7th plan adopted by the Board. 
Section 2a of the Act provides that “ [rjegions shall be as com­
pact, contiguous and nearly equal in population as practicable.” 
This provision was intended to and does eliminate the efforts of 
the Board on April 7, 1970 to create racially integrated regions. 
Section 12 of Act 48 eliminates all provisions of the Board’s April 
7th plan aimed at desegregation of the Detroit public schools by, 
first, delaying the implementation of the attendance provisions 
until January 1, 1971 and, second, by mandating an open enroll­
ment (“freedom of choice”) policy qualified only by a provision 
providing students residing nearest a school with an attendance 
priority over those residing farther away. Section 12 has the fur­
ther effect of eliminating two policies of the Detroit Board of



9a

Education: (1) prior to the adoption of Act 48, a student could 
transfer to a school other than the one to which he was initially 
assigned only if his transfer would have the effect of increasing 
desegregation in the Detroit school system; (2) prior to the adop­
tion of Act 48, whenever pupils had to be bused to relieve over­
crowding, they were transported to the first and nearest school 
where their entry would increase desegregation.

XIII.

Pursuant to the provisions of Section 2a of Act 48, the defen­
dant, Governor William G. Milliken, on July 22, 1970 appointed a 
three-member commission known hereafter as the Detroit Boun­
dary Line Commission to draw the boundary lines for the eight 
public school election regions mandated by Act 48. On August 4, 
1970 the Detroit Boundary Line Commission adopted its plan and 
presented its boundary lines for the eight election regions as called 
for in Act 48. The Boundary Line Commission’s August 4th plan 
(a copy of which is attached hereto as Exhibit F)Js a complete 
negation of the Board’s April 7th region plan. The August 4th plan 
creates eight regions with an average of 33,582 pupils in each 
region with a range of deviation of 19,942 (the largest region con­
tains 43,025 pupils while the smallest region contains 23,083) and 
an average deviation for each region of 22.9%. Under the plan 
adopted by the Detroit Boundary Line Commission on August 4, 
1970, there will be new racially segregated school regions estab­
lished in the defendant school system.

XIV.

Section 12 of the Act was enacted with the express intent of 
preventing the desegregation of the defendant system. It applies to 
but one school district in the State and reestablishes a policy 
found by the United States Supreme Court to be an inadequate 
method for elimination of segregated school attendance patterns. 
It seeks to reverse a finding of the United States District Court for 
the Eastern District of Michigan in Sherrill School Parents Com­
mittee v. The Board o f Ed. o f the School District o f the City o f 
Detroit, Michigan, No. 22092, E.D. Mich. Sept. 18, 1964, that the 
“Open School” program does not appear to be achieving substan-



10a

tial student integration in the Detroit School System presently or 
within the foreseeable future.

XV.

Plaintiffs allege that in the premises Public Act 48 on its face 
and as applied violates the Fourteenth Amendment to the Consti­
tution of the United States; the Act pertains solely to the Detroit 
Board of Education and thereby deliberately prohibits the Detroit 
Board of Education from making pupil assignments and estab­
lishing pupil attendance zones in a manner which all other school 
districts in the State of Michigan are free to do. Public Act 48 
thereby creates an irrational, unreasonable and arbitrary classifi­
cation which contravenes the equal protection and due process 
clauses of the Fourteenth Amendment. The distinction made by 
Public Act 48 is further unconstitutional by the fact that it applies 
solely to the Detroit school district where the bulk of Negro 
school children in the State of Michigan are concentrated.

XVI.

Public Act 48 further violates the Fourteenth Amendment to 
the United States Constitution in that the Act impedes the legally 
mandated integration of the public schools; the effect of the Act is 
to perpetuate the segregation and racial isolation of the past and 
give it the stamp of legislative approval. The Act, building upon 
the preexisting public and private housing segregation, has the pur­
pose, intent and effect of intensifying the present segregation and 
racial isolation in the Detroit public schools. The Act further vio­
lates the Fourteenth Amendment in that it constitutes a reversal 
by the State of Michigan of action taken by the Detroit School 
Board which action was consistent with and mandated by the Con­
stitution of the United States. In addition, Public Act 48 infringes 
upon the Thirteenth Amendment in that its effect is to relegate 
Negro school children in the City of Detroit to a position of 
inferiority and to assert the inferiority of Negroes generally, there­
by creating and perpetuating badges and incidents of slavery; and, 
also, in that it denies to black persons in Detroit the same rights to 
the full and equal benefit of all laws and proceedings as white 
citizens enjoy.



11a

XVII.

The defendants, Board of Education of the City of Detroit 
and Michigan State Board of Education, are charged under 
Michigan law and the Constitution and laws of the United States 
with the responsibility of operating a unitary public school system 
in the City of Detroit, Michigan.

xvm.
Plaintiffs allege that they are being denied equal educational 

opportunities by the defendants because of the segregated pattern 
of pupil assignments and the racial identifiability of the schools in 
the Detroit public school system. Plaintiffs further allege that said 
denials of equal educational opportunities contravene and abridge 
their rights as secured by the Thirteenth and Fourteenth Amend­
ments to the Constitution of the United States.

XIX.

The plaintiffs allege that the defendants herein, acting under 
color of the laws of the State of Michigan, have pursued and are 
presently pursuing a policy, custom, practice and usage of oper­
ating, managing and controlling the said public school system in a 
manner that has the purpose and effect of perpetuating a segre­
gated public school system. This segregated public school system is 
based predominantly upon the race and color of the students 
attending said school system; attendance at the various schools is 
based upon race and color; and the assignment of personnel has in 
the past and remains to an extent based upon the race and color of 
the children attending the particular school and the race and color 
of the personnel to be assigned.

XX.

The plaintiffs allege that the racially discriminatory policy, 
custom, practice and usage described in paragraph XIX has in­
cluded assigning students, designing attendance zones for elemen­
tary junior and senior high schools, establishing feeder patterns to 
secondary schools, planning future public educational facilities,



12a

constructing new schools, and utilizing or building upon the 
existing racially discriminatory patterns in both public and private 
housing on the basis of the race and color of the children who are 
eligible to attend said schools. The said discriminatory policy, cus­
tom, practice, and usage has resulted in a public school system 
composed of schools which are either attended solely or pre­
dominantly by black students or attended solely or predominantly 
by white students.

XXI.

The plaintiffs allege that the racially discriminatory policy, 
custom, practice and usage described in paragraph XIX has also 
included assigning faculty and staff members employed by defen­
dants to the various schools in the Detroit school system on the 
basis of the race and color of the personnel to be assigned. Conse­
quently, a general practice has developed whereby white faculty 
and staff members have been assigned on the basis of their race 
and color to schools attended solely or predominantly by white 
students and Negro faculty and staff members have been assigned 
on the basis of their race and color to schools attended solely or 
predominantly by black students.

xxn.
The defendants have failed and refused to take all necessary 

steps to correct the effects of their policy, practice, custom and 
usage of racial discrimination in the operation of said school 
system and to insure that such policy, custom, practice and usage 
for the 1970-71 school year, and thereafter, will conform to the 
requirements of the Thirteenth and Fourteenth Amendments.

xxm.
Plaintiffs and those similarly situated and affected on whose 

behalf this action is brought are suffering irreparable injury and 
will continue to suffer irreparable injury by reason of the pro­
visions of the Act complained of herein and by reason of the 
failure or refusal of defendants to operate a unitary school system 
in the City of Detroit. Plaintiffs have no plain, adequate or com­



13a

plete remedy to redress the wrongs complained of herein other 
than this action for declaratory judgment and injunctive relief. 
Any other remedy to which plaintiffs could be remitted would be 
attended by such uncertainties and delays as to deny substantial 
relief, would involve a multiplicity of suits and would cause fur­
ther irreparable injury. The aid of this Court is necessary in 
assuring the citizens of Detroit and particularly the black public 
school children of the City of Detroit that this is truly a nation of 
laws, not of men, and that the promises made by the Thirteenth 
and Fourteenth Amendments are and will be kept.

WHEREFORE, plaintiffs respectfully pray that upon the 
filing of this complaint the Court:

1. Issue, pendente life, a temporary restraining order and a 
preliminary injunction:

a. Requiring defendants, their agents and other persons 
acting in concert with them to put into effect the partial plan 
of senior high school desegregation adopted by the defendant, 
Detroit Board of Education, on April 7, 1970, which plan 
called for its implementation at the start of the 1970-71 
school term, provided, however: (1) that the plan shall not be 
effected on a stair-step basis, but shall, in accord with 
Alexander v. Holmes County Board, 396 U.S. 19 (1969), be­
come completely and fully effective at the beginning of the 
coming (1970-71) school year; and (2) that those provisions 
which exclude a pupil who has a brother or sister presently 
enrolled in a senior high school from being affected by the 
plan shall be deleted in accord with Ross v. Dyer, 312 F.2d 
191 (5th Cir. 1963);

b. Restraining defendants, their agents and other per­
sons acting in concert with them from giving any force or 
effect to Sec. 12 of Act No. 48 of the Michigan Public Acts of 
1970 insofar as its application would impair or delay the dese­
gregation of the defendant system;

c. Restraining defendants from taking any steps to 
implement the August 4, 1970 plan, or any other plan, for



14a

new district or regional boundaries pursuant to Act 48, or 
from taking any action which would prevent or impair the 
im plem entation of the regions established under the 
defendant Board’s earlier plan which provided for non-racially 
identifiable regions;

d. Restraining defendants from all further school con­
struction  until such time as a constitutional plan for 
operation of the Detroit public schools has been approved and 
new construction reevaluated as a part thereof;

e. Requiring defendants to assign by the beginning of 
the 1970-71 school year principals, faculty, and other school 
personnel to each school in the system in accordance with the 
ratio of white and black principals, faculty and other school 
personnel throughout the system.

2. Advance this cause on the docket and order a speedy 
hearing of this action according to law and upon such hearing:

a. Enter a judgment declaring the provisions of Act No. 
48 complained of herein unconstitutional on their face and as 
applied as violative of the Thirteenth and Fourteenth Amend­
ments to the United States Constitution;

b. Enter preliminary and permanent decrees perpetu­
ating the orders previously entered;

c. Enter a decree enjoining defendants, their agents, 
employees and successors from continuing to employ policies, 
customs, practices and usages which, as described herein­
above, have the purpose and effect of leaving intact racially 
identifiable schools;

d. Enter a decree enjoining defendants, their agents, 
employees and successors from assigning students and/or 
operating the Detroit school system in a manner which re­
sults in students attending racially identifiable public schools;

e. Enter a decree requiring defendants, their agents,



15a

employees and successors to assign teachers, principals and 
other school personnel to schools to eliminate the racial 
identity of schools by assigning such personnel to each school 
in accordance with the ratio of white and black personnel 
throughout the system.

f. Enter a decree enjoining defendants, their agents, 
employees and successors from approving budgets, making 
available funds, approving employment and construction con­
tracts, locating schools or school additions geographically, and 
approving policies, curriculum and programs, which are de­
signed to or have the effect of maintaining, perpetuating or 
supporting racial segregation in the Detroit school system.

g. Enter a decree directing defendants to present a com­
plete plan to be effective for the 1970-71 school year for the 
elimination of the racial identity of every school in the system 
and to maintain now and hereafter a unitary, nonracial school 
system. Such a plan should include the utilization of all 
methods of integration of schools including rezoning, pairing, 
grouping, school consolidation, use of satellite zones, and 
transportation.

h. Plaintiffs pray that the Court enjoin all further con­
struction until such time as a constitutional plan has been 
approved and new construction reevaluated as a part thereof.

i. Plaintiffs pray that this Court will award reasonable 
counsel fees to their attorneys for services rendered and to be 
rendered them in this cause and allow them all out-of-pocket 
expenses of this action and such other and additional relief as 
may appear to the Court to be equitable and just.

Respectfully submitted,

Nathaniel Jones, General Counsel 
N.A.A.C.P.
1790 Broadway 
New York, New York



16a

Louis R. Lucas 
Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee

Bruce Miller and 
Lucille Watts, Attorneys for 
Legal Redress Committee 
N.A.A.C.P., Detroit Branch 
3426 Cadillac Towers 
Detroit, Michigan, and 
Attorneys for Plaintiffs



17a

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 TEACH- ) 
E R S, LOCAL N O . 231, AMERICAN ) 
FEDERATION OF TEACHERS, AFL-CIO, )

Defendant-Intervenor ) 
and )

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

CIVIL ACTION 
NO: 35257

RULING ON ISSUE OF SEGREGATION

This action was commenced August 18, 1970, by plaintiffs, 
the Detroit Branch of the National Association for the Advance­
ment of Colored People* and individual parents and students, on 
behalf of a class later defined by order of the Court dated February 
16, 1971, to include “all school children of the City of Detroit 
and all Detroit resident parents who have children of school age.” 
Defendants are the Board of Education of the City of Detroit, its 
members and its former superintendent of schools, Dr. Norman A. 
Drachler, the Governor, Attorney General, State Board of Educa­
tion and State Superintendent of Public Instruction of the State of 
Michigan. In their complaint, plaintiffs attacked a statute of the 
State of Michigan known as Act 48 of the 1970 Legislature on the 
ground that it put the State of Michigan in the position of uncon­
stitutionally 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.

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



18a

Plaintiffs also alleged that the Detroit Public School System was 
and is segregated on the basis of race as a result of the official 
policies and actions of the defendants and their predecessors in 
office.

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

Initially the matter was tried on plaintiffs’ motion for pre­
liminary 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 in­
junction since there had been no proof that Detroit has a segre­
gated school system. The Court of Appeals found that the “imple­
mentation 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 protect­
ing rights guaranteed by the Fourteenth Amendment.

The plaintiffs then sought to have this Court direct the de­
fendant Detroit Board to implement the April 7 Plan by the start 
of the second semester (February, 1971) in order to remedy the 
deprivation of constitutional rights wrought by the unconstitu­
tional statute. In response to an order of the Court, defendant 
Board suggested two other plans, along with the April 7 Plan, and 
noted priorities, with top priority assigned to the so-called “Magnet 
Plan.” The Court acceded to the wishes of the Board and approved 
the Magnet Plan. Again, plaintiffs appealed but the appellate court 
refused to pass on the merits of the plan. Instead, the case was 
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, inter-



19a

spersed by several brief recesses necessitated by other demands 
upon the time of Court and counsel. Plaintiffs introduced sub­
stantial evidence in support of their contentions, including expert 
and factual testimony, demonstrative exhibits and school board 
documents. At the close of plaintiffs’ case, in chief, the Court 
ruled that they had presented a prima facie case of state imposed 
segregation in the Detroit Public Schools; accordingly, the Court 
enjoined (with certain exceptions) all further school construction 
in Detroit pending the outcome of the litigation.

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

At the close of proofs intervening parent defendants (Denise 
Magdowski, et al.) filed a motion to join, as parties 85 contiguous 
“suburban” school districts — all within the so-called Larger 
Detroit Metropolitan area. This motion was taken under advise­
ment pending the determination of the issue of segregation.

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

In considering the present racial complexion of the City of 
Detroit and its public school system we must first look to the past 
and view in perspective what has happened in the last half century. 
In 1920 Detroit was a predominantly white 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 childbearing age. The population of 0-15 years of age con­
stituted 30% of the total population of which 60% were white and 
40% were black. In 1970 the white population was principally 
aging—45 years—while the black population was younger and of 
childbearing age. Childbearing blacks equaled or exceeded the 
total white population. As older white families without children of 
school age leave the city they are replaced by younger black 
families with school age children, resulting in a doubling of enroll­
ment in the local neighborhood school and a complete change in



20a

student population from white to black. As black inner city re­
sidents move out of the core city they “leap-frog” the residential 
areas nearest their former homes and move to areas recently 
occupied by whites.

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

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

0 - 4 years 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:



21a

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

1 0 - 14 years 50%
15 - 19 years 40%

The black population as a percentage of the total population 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%
(h) 1970 43.9%

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

(a) 1961 45.8%
(b) 1963 51.3%
(c) 1964 53.0%
(d) 1965 54.8%
(e) 1966 56.7%
( 0 1967 58.2%
(g) 1968 59.4%
(h) 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 housing
units was 553,000

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



22a

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

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

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

In the Western, Northwestern, Northern, Murray, North­
eastern, Kettering, King and Southeastern high school service



23a

areas, the following conditions exist at a level significantly higher 
than the city average:

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

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

The City of Detroit is a community generally divided by racial 
lines. Residential segregation within the city and throughout the 
larger metropolitan area is substantial, pervasive and of long stand­
ing. 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 broker­
age firms, to establish and to maintain the pattern of residential 
segregation throughout the Detroit metropolitan area. It is no 
answer to say that restricted practices grew gradually (as the black 
population in the area increased between 1920 and 1970), or that 
since 1948 racial restrictions on the ownership of real property 
have been removed. The policies pursued by both government and 
private persons and agencies have a continuing and present effect 
upon the complexion of the community — as we know, the choice 
of a residence is a relatively infrequent affair. For many years 
FHA and VA openly advised and advocated the maintenance of 
“ harmonious” neighborhoods, i.e., racially and economically



24a

harmonious. The conditions created continue. While it would be 
unfair to charge the present defendants with what other gov­
ernmental officers or agencies have done, it can be said that the 
actions or the failure to act by the responsible school authorities, 
both city and state, were linked to that of these other govern­
mental units. When we speak of governmental action we should 
not view the different agencies as a collection of unrelated units. 
Perhaps the most that can be said is that all of them, including the 
school authorities, are, in part, responsible for the segregated con­
dition which exists. And we note that just as there is an inter­
action between residential patterns and the racial composition of 
the schools, so there is a corresponding effect on the residential 
pattern by the racial composition of the schools.

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

During the decade beginning in 1950 the Board created and 
maintained optional attendance zones in neighborhoods under­
going racial transition and between high school attendance areas of 
opposite predominant racial compositions. In 1959 there were 
eight basic optional attendance areas affecting 21 schools. 
Optional attendance areas provided pupils living within certain 
elementary areas a choice of attendance at one of two high 
schools. In addition there was at least one optional area either 
created or existing in 1960 between two junior high schools of 
opposite predominant racial components. All of the high school 
optional areas, except two, were in neighborhoods undergoing 
racial transition (from white to black) during the 1950s. The two 
exceptions were: (1) the option between Southwestern (61.6% 
black in 1960) and Western (15.3% black); (2) the option between 
Denby (0% black) and Southeastern (30.9% black). With the 
exception of the Denby -  Southeastern option (just noted) 
all of the options were between high schools of opposite 
predominant racial compositions. The Southwestern-Western and 
Denby-Southeastern optional areas are all white on the 1950, 
1960 and 1970 census maps. Both Southwestern and South­
eastern, however, had substantial white pupil populations, and the



25a

option allowed w hites to escape integration. The natural, 
probable, foreseeable and actual effect of these optional zones was 
to allow white youngsters to escape identifiably “black” schools. 
There had also been an optional zone (eliminated between 1956 
and 1959) created in “an attempt. . . to separate Jews and Gentiles 
within the system ,” the effect of which was that Jewish 
youngsters went to Mumford High School and Gentile youngsters 
went to Cooley. Although many of these optional areas had 
served their purpose by 1960 due to the fact that most of the 
areas had become predominantly black, one optional area (South­
western-Western affecting Wilson Junior High graduates) con­
tinued until the present school year (and will continue to effect 
11th and 12th grade white youngsters who elected to escape from 
predom inantly  black Southwestern to predominantly white 
Western High School). Mr. Henrickson, the Board’s general fact 
witness, who was employed in 1959 to, inter alia, eliminate 
optional areas, noted in 1967 that: “In operation Western appears 
to be still the school to which white students escape from pre­
dominantly Negro surrounding schools.” The effect of eliminating 
this optional area (which affected only 10th graders for the 
1970-71 school year) was to decrease Southwestern from 86.7% 
black in 1969 to 74.3% black in 1970.

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

With one exception (necessitated by the burning of a white 
school), defendant Board has never bused white children to pre­
dominantly 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,



26a

probable and actual effect of continuing black and white pupils in 
racially segregated schools. The Board admits at least one instance 
where it purposefully and intentionally built and maintained a 
school and its attendance zone to contain black students. 
Throughout the last decade (and presently) school attendance 
zones of opposite racial compositions have been separated by 
north-south boundary lines, despite the Board’s awareness (since 
at least 1962) that drawing boundary lines in an east-west direc­
tion would result in significant integration. The natural and actual 
effect of these acts and failures to act has been the creation and 
perpetuation of school segregation. There has never been a feeder 
pattern or zoning change which placed a predominantly white 
residential area into a predominantly black school zone or feeder 
pattern. Every school which was 90% or more black in 1960, and 
which is still in use today, remains 90% or more black. Whereas 
65.8% of Detroit’s black students attended 90% or more black 
schools in 1960, 74.9% of the black students attended 90% or 
more black schools during the 1970-71 school year.

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

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

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

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

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



27a

economic lines.”

The defendant City Board has paid little heed to these statements 
and guidelines. The State defendants have similarly failed to take 
any action to effectuate these policies. Exhibit NN reflects con­
struction (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 construction 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 pri­
mary 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 re­
sponsibility for and supervision of public education, have acted 
directly to control and maintain the pattern of segregation in the 
Detroit schools. The State refused, until this session of the legisla­
ture, 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 limita­
tions, such as those on bonding and the working of the state aid 
formula whereby suburban districts were able to make far larger 
per pupil expenditures despite less tax effort, have created and 
perpetuated systematic educational inequalities.

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



28a

City of Detroit.

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

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

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

Plaintiffs urge the Court to consider alledgedly discriminatory 
practices of the Board with respect to the hiring, assignment and 
transfer of teachers and school administrators during a period 
reaching back more than 15 years. The short answer to that must 
be that black teachers and school administrative personnel were 
not readily available in that period. The Board and the intervening 
defendant union have followed a most advanced and exemplary 
course in adopting and carrying out what is called the “balanced 
staff concept” — which seeks to balance faculties in each school 
with respect to race, sex and experience, with primary emphasis 
on race. More particularly, we find:

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



29a

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 administra­
tors, during the past decade.

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

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

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

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

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

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

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

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



30a

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

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

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

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

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

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

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

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

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

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

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



31a

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

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



32a

substitutes, etc.—made teacher recruitment and placement dif­
ficult.

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

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

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

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

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

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

The Detroit School Board has, in many other instances and in 
many other respects, undertaken to lessen the impact of the forces 
of segregation and attempted to advance the cause of integration. 
Perhaps the most obvious one was the adoption of the April 7 
Plan. Among other things, it has denied the use of its facilities to 
groups which practice racial discrimination; it does not permit the 
use of its facilities 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



33a

about a substantial increase in the percentage of black students in 
manufacturing and construction trade apprenticeship classes; it 
became the first public agency in Michigan to adopt and 
implement a policy requiring affirmative act of contractors with 
which it deals to insure equal employment opportunities in their 
work forces; it has been a leader in pioneering the use of multi 
-ethnic instructional material, and in so doing has had an impact 
on publishers specializing in producing school texts and 
in truc tiona l materials; and it has taken other noteworthy 
pioneering steps to advance relations between the white and black 
races.

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

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

2. This action or these actions must have created or 
aggravated segregation in the schools in 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 
actions, have played a substantial role in promoting segregation. It 
is, the Court believes, unfortunate that we cannot deal with public 
school segregation on a no-fault basis, for if racial segregation in 
our public schools is an evil, then it should make no difference 
whether we classify it de jure or de facto. Our objective, logically, 
it seems to us, should be to remedy a condition which we believe 
needs correction. In the most realistic sense, if fault or blame must 
be found it is that of the community as a whole, including, of



34a

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 
firm s, in the  establishment and maintenance of segregated 
residential patterns — which lead to school segregation — to 
observe that blacks, like ethnic groups in the past, have tended to 
separate from the larger group and associate together. The ghetto 
is at once both a place of confinement and a refuge. There is 
enough blame for everyone to share.

CONCLUSIONS OF LAW

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

2. In considering the evidence and in applying legal stand­
ards it is not necessary that the Court find that the policies and 
practices, which it has found to be discriminatory, have as their 
motivating forces any evil intent or motive. Keyes v. Sch. Dist. No. 
1, Denver, 383 F. Supp. 279. Motive, ill will and bad faith have 
long ago been rejected as a requirement to invoke the protection 
of the Fourteenth Amendment against racial discrimination. Sims 
v. Georgia, 389 U.S. 404, 407-8.

3. School districts are accountable for the natural, probable 
and foreseeable consequences of their policies and practices, and 
where racially identifiable schools are the result of such policies, 
the school authorities bear the burden of showing that such 
policies are based on educationally required, non-racial con­
siderations. Keyes v. Sch. Dist., supra, and Davis v. Sch. Dist. o f 
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 o f Alabama v. 
U.S., 304 F.2d 583.



35a

5. The Board’s practice of shaping school attendance zones 
on a north-south rather than an east-west orientation, with the 
result tha t zone boundaries conformed to racial residential 
dividing lines, violated the Fourteenth Amendment. Northcross v. 
Bd. o f Ed., Memphis, 333 F. 2d 661.

6. Pupil racial segregation in the Detroit Public School 
S y s tem  and the r e s id e n t ia l  racial segregation resulting 
primarily from public and private racial discrimination are interde­
pendent phenomena. The affirmative obligation of the defendant 
Board has been and is to adopt and implement pupil assignment 
practices and policies that compensate for and avoid incorporation 
into the school system the effects of residential racial segregation. 
The Board’s building upon housing segregation violates the Fourte­
enth Amendment. See, Davis v. Sch. Dist. o f Pontiac, supra, and 
authorities there noted.

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

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

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

10. A school board may not, consistent with the Fourteenth 
Amendment maintain segregated elementary schools or permit 
educational choices to be influenced by community sentiment or



36a

the wishes of a majority of voters. Cooper v. Aaron, 358 U.S. 1, 
12-13, 15-16.

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

11. Under the Constitution of the United States and the con­
stitution 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 o f Education, 313 F. Supp. 380; Art. VIII, §§ 1 and 2, 
Mich. Constitution; Dasiewicz v. Bd. o f Ed. o f the City o f Detroit,
3 N.W. 2d 71.

12. That a state’s form of government may delegate the 
power of daily administration of public schools to officials 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 constitution. In such instances the constitu­
tional obligation toward the individual school children is a shared 
one. Bradley v. Sch. Bd., City o f Richmond, 51 F.R.D. 139, 143.

13. Leadership and general supervision over all public educa­
tion is vested in the State Board of Education. Art. VIII, § 3, 
Mich. Constitution of 1963. The duties of the State Board and 
superintendent include, but are not limited to, specifying the 
number of hours necessary to constitute a school day; approval 
until 1962 of school sites; approval of school construction plans; 
accreditation of schools; approval of loans based on state aid 
funds; review of suspensions and expulsions of individual students 
for misconduct [Op. Atty. Gen., July 7, 1970, No. 4705]; 
authority over transportation routes and disbursement of trans­
po rta tion  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;



37a

Bridgehampton School District No. 2 Fractional o f Carsonville, 
Mich. v. Supt. o f 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 educa­
tional instructions and provide proper educational facilities for the 
youth of the s ta te .” M.S.A. 15.3252. See also M.S.A. 
15.2299(57), providing in certain instances for reorganization of 
school districts.

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

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

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

16. The state further provides special funds to local districts 
for compensatory education which are administered on a per 
school basis under direct review of the State Board. All other state 
aid is subject to fiscal review and accounting by the state. M.S.A. 
15.1919. See also M.S.A. 15.1919(68b), providing for special sup­
plements to merged districts “for the purpose of bringing about un­
iformity of educational opportunity for all pupils of the district.” 
The general consolidation law M.S.A. 15.3401 authorizes annexa­
tion 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



38a

respect to so-called “first class” districts, i.e., Detroit, is generally 
treated as an annexation with the first class district being the sur­
viving entity. The law provides procedures covering all necessary 
considerations. M.S.A. 15.3184,15.3186.

17. Where a pattern of violation of constitutional rights is 
es tab lish ed  the affirmative obligation under the Fourteenth 
Amendment is imposed on not only individual school districts, but 
upon the State defendants in this case. Cooper v. Aaron, 358, U.S. 
1; Griffin v. County School Board o f Prince Edward County, 337 
U.S. 218; U.S. v. State o f Georgia, Civ. No. 12972 (N.D. Ga., 
December 17, 1970), rev’d on offer grounds, 428 F.2d 377; 
Godwin v. Johnston County Board o f Education, 301 F. Supp. 
1337; Lee v. Macon County Board o f 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 o f Education, 288 F. Supp. 
509; Smith v. North Carolina State Board o f Education, No.
15,072 (4th Cir., June 14, 1971).

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

Having found a de jure segregated public school system in 
operation in the City of Detroit, our first step, in considering what 
judicial remedial steps must be taken, is the consideration of 
intervening parent 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 achiev­
ed or ordered in their absence. Plaintiffs have opposed the motion 
to join the additional school districts, arguing that the presence 
of the State defendants is sufficient and all that is required, even 
if, in shaping a remedy, the affairs of these other districts will be 
affected.

In considering the motion to add the listed school districts we 
pause to note that the proposed action has to do with relief. 
Having determined that the circumstances of the case require 
judicial intervention and equitable relief, it would be improper for



39a

us to act on this motion until the other parties to the action have 
had an opportunity to submit their proposals for desegregation. 
Accordingly, we shall not rule on the motion to add parties at this 
time. Considered as a plan for desegregation the motion is lacking 
in specifity and is framed in the broadest general terms. The 
moving party may 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 reasonble time schedule, and because the views of 
counsel respecting further proceedings cannot but be of assistance 
to them and to the Court, this cause will be set down for pre-trial 
conference on the matter of relief. The conference will be held in 
our Courtroom in the City of Detroit at ten o’clock in the 
morning, October 4, 1971.

DATED: September 27, 1971

M _______________________________
Stephen J. Roth 

United States District Judge



40a

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

***

[3] THE CLERK: Case No. 35257 Bradley versus Milliken.
THE COURT: Are all the parties represented this morning? 
MR. LUCAS: Yes.
THE COURT: I take it they are.
As I indicated at the close of my opinion recently rendered, I 

thought it would be advisable for me to get together with counsel 
on this occasion so that we might chart our course from here on in 
these proceedings.

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

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

As the Court indicated during the course of [4] the taking of 
proofs, it entertains serious reservations about a plan of 
integration, which encompasses no more than the public schools 
of the City of Detroit. It appears to us that perhaps only a plan 
which embraces all or some of the greater Detroit metropolitan 
area can hope to succeed in giving our children the kind of 
education they are entitled to constitutionally. And we note here 
that the metropolitan area is like a giant jig-saw puzzle, with the 
school districts cut into irregular pieces, but with the picture quite 
plainly that of racial segregation.

We need not recite the many serious problems such a plan 
entails, suffice it to say that a plan of such dimensions can hardly 
be conceived in a day, to say nothing of the time it will require for 
implementation. A large metropolitan area such as we have in our 
case can not be made the subject of instant integration. We must 
bear in mind that the task we are called upon to perform is a social



41a

one, which society has been unable to accomplish. In reality, our 
courts are called upon, in these school cases, to attain a social goal, 
through the educational system, by using law as a lever.

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

[5] “The hope, or dream, that one day we will have become a 
people without motivations born of our differing racial beginnings 
will have a better chance of fulfillment if patience accompanies 
our endeavors.”

I would sum up our endeavors in developing a metropolitan 
plan as an embarkation on an uncharted course in strange waters 
in an effort to rescue disadvantaged children. It behooves us to 
take proper soundings and proceed with care. To use the 
vernacular “Right on!” but steady as we go.

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

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

If that plan is not delivering on its promise to provide an 
improved integrated quality education it should be abandoned, 
and the Board should consider putting before [6] the Court an 
up-dated April 7 Plan, or such other plan as, in its judgment, will 
most effectively accomplish desegregation in its schools. If the 
Magnet Plan is proving itself then the Board might well consider 
whether features of the April 7 Plan, for example, the change to 
an east-west, rather than north-south orientation of attendance 
zones, can be incorporated in it in the interest of advancing 
integration.

What we have said are all generalities. They have to do with



42a

possible courses of action. My remarks, however, are not intended 
as a limitation on the Board or on the state authorities in 
discharging their duties to move as rapidly as possible toward the 
goal of desegregation.

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

“--school authorities should make every effort to achieve 
the greatest possible degree of actual desegregation, taking 
into account the practicalities of the situation.”
Because these cases arise under different local conditions and 

involve a variety of local problems their [7] remedies likewise will 
require attention to the specific case. It is for that reason that the 
Court has repeatedly said, the Supreme Court, that each case must 
be judged by itself in its own peculiar facts.

As early as Brown II the court had this to say:
“Full implementation of these constitutional principles may 

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

“In fashioning and effectuating the decrees, the courts will 
be guided by equitable principles.... At stake is the personal 
interest of the plaintiffs in admission to public schools as soon 
as practicable on a nondiscriminatory basis.”
I might say in that regard, as you lawyers know the Supreme 

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

I would like to hear from counsel with respect [81 to a 
timetable for the formulation and presentation of a plan of 
desegregation; first by the Board of the City of Detroit and then



43a

by the state officials.
***

[26] THE COURT: Within thirty days the Detroit Board of 
Education should submit to the Court a concise report of progress 
on the Magnet Plan, and along with it an evaluation of its worth in 
helping to bring about a better and higher quality of education. 
Copies of both the report and also the [27] evaluation shall be 
made available to the other parties litigant at the same time.

Such other parties may have ten additional days in which to 
submit their views and evaluations of the progress under the 
Magnet Plan.

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

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

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

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

With respect to matters of speed in having a plan or having 
plans and proceeding on them, I think you should [28] know 
something about my manner of working. In a case, particularly 
like this, I feel my way to a decision and I certainly don’t propose 
to jump to judgment.

I would remind counsel as I keep reminding myself in this 
case that our objective is quality education for all of our children. 
I am not too concerned about the parties litigant here. Depending 
on what we do, the winners or losers in this case will be the school 
children now living, as well as those yet to be born. I am reminded



44a

of that by Mr. Ritchie’s observation that he considers his plan one 
that will reach into the future.

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

On the other hand I do not propose to stop the voice of 
anybody who is apt to be affected by the plan. So this is a matter 
of mechanics. When the time comes that [29] action has to be 
taken in that regard we will give it further thought and make a 
decision that we believe will be a fair one and yet will permit us to 
proceed with some dispatch in achieving some remedial effects and 
perhaps putting into effect some plans for desegregation.

The time table is understood, is it?
MR. BUSHNELL: Yes, sir.
MR. LUCAS: Yes.
THE COURT: I am not going to-unless you gentlemen 

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

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

THE COURT: Anybody disagree with that?
Anything further at this time, gentlemen, with respect to the 

matter before us?
MR. KRASICKY: I take it if there will be further hearings we 

will be notified in due time?
THE COURT: Yes. I have not come back to the point 

brought out by Mr. Bushnell. I don’t know what the report and 
the evaluation by the Board and the criticisms that might be 
offered by other parties litigant will amount to. Should it develop 
that I wish to have testimony on disputed points we may schedule



45a

them. That will just have to wait until I have received [30] the 
report and evaluations.

Gentlemen, thank you for your attendance and your 
assistance.

We will be in recess.



46a

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 TEACH- )
ERS, LOCAL NO. 231, AMERICAN FED- ) CIVIL ACTION 
ERATION OF TEACHERS, AFL-CIO, ) NO. 35257

Defendant- )
Intervenor )

and )
DENISE MAGDOWSKI, et al., )

Defendants- )
Intervenor )

ORDER

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

PRESENT: HONORABLE STEPHEN J. ROTH 
United States District Judge

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

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



47a

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

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

/s/ STEPHEN J. ROTH_______
UNITED STATES DISTRICT JUDGE

DATE: November 5, 1971. 
SIGNED:



48a

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 TEACH- ) CIVIL ACTION 
ERS, LOCAL NO. 231, AMERICAN ) NO. 35257  
FEDERATION OF TEACHERS, AFL-CIO, )

Defendant- )
Intervenor )

and )
DENISE MAGDOWSKI, et al., )

Defendants- )
Intervenor )

et al. )

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 segregation exists 
in the public schools of the City of Detroit because of, among 
other causes, the acts of the State of Michigan and the Detroit 
Board of Education. In the language of Swann, HI “a right and a 
violation have been shown.” [2] Given the constitutional violation, 
judicial authority, when properly invoked, must be exercised to 
right the wrong. In addressing itself to this task the Supreme Court 
has said that the “scope of a district court’s equitable powers to 
remedy past wrongs is broad, for breadth and flexibility are



49a

inherent in equitable remedies.”^ ]  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.” [4] The task is to correct the condition 
which offends the Constitution. Illustrative of what was meant by 
the Supreme Court, see the legislative and congressional 
reapportionment cases.[5]

Under the circumstances of this case,[6] the question 
presented is whether the court may consider relief in the 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 concluded its hearing on plans submitted by the plaintiffs 
and the Detroit Board of Education for the intra-city 
desegregation of the Detroit public schools. A ruling has not yet 
been made on these plans, but in accordance with the mandate of 
the Court of Appeals that a hearing on the merits be concluded at 
the earliest possible time, we consider it necessary to proceed 
apace with a resolution of the issue before us, z'.e.,the propriety of 
weighing the legal availability of a metropolitan remedy for 
segregation.

The State defendants in this case take the position, as we 
understand it, that no “state action” has had a part in the 
segregation found to exist. This assertion disregards the findings 
already made by this court, and the decision of the Court of 
Appeals as well.[7] Additionally, they appear to view the



50a

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 subdivisions 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 autonomous bodies, for to the extent it has 
seen fit the State retains control and supervision; and 2. It 
assumes that any metropolitan plan, if one is adopted, would, of 
necessity, require the dismantling of school districts included in 
the plan.

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



51a

It seems to us that Brown1̂ 1 is dispositive of the issue:

‘'In fashioning and effectuating the decrees, the courts will be 
guided by equitable principles. Traditionally, equity has been 
characterized by a practical flexibility in shaping its remedies 
and by a facility for adjusting and reconciling public and 
private needs. These cases call for the exercise of these 
traditional attributes of equity power. At stake is the personal 
interest of the plaintiffs in admission to public schools as soon 
as practicable on a nondiscriminatory basis. To effectuate this 
interest may call for elimination of a variety of obstacles in 
making the transition to school systems operated in 
accordance with the constitutional principles set forth in our 
May 17, 1954, decision. Courts of equity may properly take 
into account the public interest in the 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.”

* * *
“*** courts may consider problems related to administra­
tion, arising from the physical condition of the school plant, 
the school transportation systems, personnel, revision of 
school districts and attendance areas into compact units to 
achieve a system of determining admission to the public 
schools on a nonracial basis, and revision of local laws and 
regulations which may be necessary in solving the foregoing 
problems.”

We conclude that it is proper for the court to consider 
metropolitan plans directed toward the 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 desegregate such schools, the 
court is of the opinion that it is required to consider a 
metropolitan remedy for desegregation.



52a

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

DATE: March 24th, 1972.

M _____________________________
Stephen J. Roth 

United States District Judge

[11
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1.

[2]
Ibid., p. 15.

[3]
Ibid., p. 15.

[4]
Ibid., pp. 15, 16.

15]
Reynolds v. Sims, 377 U.S. 533.

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

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

[7]
See “ Ruling on Issue o f Segregation,” supra; Bradley v. Milliken, 433  

F.2d 897.
[ 8 ]

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



53a

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 TEACH- ) CIVIL ACTION 
ERS, LOCAL NO. 231, AMERICAN FED- ) NO: 35257 
ERATION OF TEACHERS, AFL-CIO, )

Defendant- )
Intervenor - )

and )
DENISE MAGDOWSKI, et al., )

Defendants- )
Intervenor )

et al. )

FINDINGS OF FACT AND CONCLUSIONS OF LAW
ON

DETROIT-ONLY PLANS OF DESEGREGATION

In accordance with orders of the court defendant Detroit 
Board of Education submitted two plans, limited to the corporate 
limits of the city, for desegregation of the public schools of the 
City of Detroit, which we will refer to as Plan A and Plan C; plain­
tiffs submitted a similarly limited plan, which will be referred to as 
the Foster Plan. Hearings were had on said plans on March 14, 15, 
16, 17 and 21, 1972. In considering these plans the court does not 
limit itself to the proofs offered at the hearing just concluded; it 
considers as part of the evidence bearing on the issue ( i. e., City- 
Only Plans) all proofs submitted in the case to this point, and it 
specifically incorporates herein by reference the Findings and Con­
clusions contained in its “Ruling on Issue of Segregation,” filed 
September 27, 1971.

The court makes the following factual findings:



54a

PLAN A.

1. The court finds that this plan is an elaboration and exten­
sion of the so-called Magnet Plan, previously authorized for imple­
mentation as an interim plan pending hearing and determination 
on the issue of segregation.

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

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

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

PLAN C.

1. The court finds that Plan C is a token or part-time desegre­
gation 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 accomplish 
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- racially identifiable as 
Black.



55a

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

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

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

6. The plan does not lend itself as a building block for a met­
ropolitan 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 in­
creasing the Black student population.

9. It would subject the students and parents, faculty and 
administration, to the trauma of reassignments, with little likeli­
hood 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.



56a

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, Sepember 27, 1971.

2. On the basis of the court’s finding of illegal school segre­
gation, the obligation of the school defendants is to adopt and 
implement an educationally sound, practicable plan of desegre­
gation 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 o f Education, 396 U.S. 19; Carter v. West Feliciana Parish 
School Board, 396 U.S. 290\Swann v. Charlotte-Mecklenburg 
Board o f Education, 402 U.S. 1.

3. Detroit Board of Education Plans A and C are legally insuf­
ficient because they do not promise to effect significant desegre­
gation. 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 popula­
tion 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 geo­
graphical limits of the city. The State, however, cannot escape its 
constitutional duty to desegregate the public schools of the City 
of Detroit by pleading local aurhority. As Judge Merhige pointed 
out in Bradley v. Richmond, (slip opinion p. 64):

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



57a

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

“In any case, if political boundaries amount to insuperable 
obstacles to desegregation because of structural reason, such 
obstacles are self-imposed. Political subdivision lines are crea­
tions 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 today few would doubt that 
they could not withstand constitutional challenge. In seeking for 
solutions to the problem of school segregation, other federal 
courts have not “treated as immune from intervention the admini­
strative structure of a state’s educational system, to the extent 
that it affects the capacity to desegregate. Geographically or 
administratively independent units have heen compelled to merge 
or to inititate or continue cooperative operation as a single system 
for school desegregation purposes.” *

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 obvious; that it has the authority, nay 
more, the duty to (under the circumstances of this case) do so 
appears plainly anticipated by Brown II,2 seventeen years ago. 
While other school cases have not had to deal with our exact 
situation, 3 the logic of their application of the command of 
Brown II supports our view of our duty.

Date: MARCH 28th, 1972.

/s /__________________________
Stephen J. Roth 

United States District Judge



58a

FOOTNOTES
[ 1 ]
Bradley v. Richmond, supra [slip opinion p. 6 8 ].

[ 2 ]
Brown v. Bd. o f Ed. o f 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 o f the City of Richmond, supra, slip 
opinion pp. 664-65; Hall v. St. Helena Parish School Board, 197 F. Supp. 649 
(E.D. La. 1961), aff’d. 287 F.2d 376 (5th Cir. 1961) and 368 U.S. 515 
(1962); Lee v. Macon County Bd. o f 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).



59a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs

WILLIAM G. MILLIKEN, et al.,
Defendants

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

Defendant-
Intervenor

and
DENISE MAGDOWSKI, et al.,

Defendants-
Intervenor

et al.

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

CIVIL ACTION NO: 
35257

FINDINGS OF FACT AND CONCLUSIONS OF LAW 
IN SUPPORT OF RULING

ON DESEGREGATION AREA AND DEVELOPMENT OF PLANS

On the basis of the entire record in this action, including 
particularly the evidence heard by the court from March 28 
through April 14, 1972, the court now makes the following 
Supplementary Findings of Fact and Conclusions of Law. It



60a

should be noted that the court has taken no proofs with respect 
to the establishment of the boundaries of the 86 public school 
districts in the counties of Wayne, Oakland and Macomb, nor 
on the issue of whether, with the exclusion of the city of 
Detroit school district, such school districts have commited acts 
of de jure segregation.

INTRODUCTION

1. On September 27, 1971, this court issued its Ruling on 
Issue of Segregation. On October 4, 1971, this court issued 
from the bench guidelines to bind the parties in the submission 
of plans to remedy the constitutional violation found, i.e., 
school segregation; and in particular this court noted that the 
primary objective before us was to deveop and implement a 
plan which attempts to “achieve the greatest possible degree of 
actual desegregation, taking into account the practicalities of 
the situation.” The same day this court reiterated these require­
ments by orders “ that the Detroit Board of Education submit a 
plan for the desegregation of its schools within 60 days” and 
“that the State defendants submit a metropolitan plan of de­
segregation within 120 days.” In response to these orders hear­
ings were held, and thereafter rulings issued, on Detroit-only 
plans (see Findings of Fact and Conclusions of Faw on Detroit- 
Only Plans of Desegregation) and on the propriety of con­
sidering remedies which extend beyond the corporate 
geographic limits of the City of Detroit. (See Ruling on Pro­
priety of Considering a Metropolitan Remedy to Accomplish 
Desegregation of the Public Schools of the City of Detroit.) 
Between March 28, 1972 and April 14, 1972, hearings were 
held on metropolitan proposals for desegregation of the Detroit 
public schools.

2. From the initial ruling on September 27, 1971, to this 
day, the basis of the proceedings has been and remains the 
violation: de jure school segregation. Since Brown v. Board o f 
Education the Supreme Court has consistently held that the 
remedy for such illegal segregation is desegregation. The racial 
history of this country is writ large by constitutional adjudica­
tion from Dred Scott v. Sanford to Plessy v. Ferguson to



61a

Brown. The message in Brown was simple: The Fourteenth 
Amendment was to be applied full force in public schooling. 
The Court held that “state-imposed” school segregation 
immeasurably taints the education received by all children in 
the public schools; perpetuates racial discrimination and a his­
tory of public action attaching a badge of inferiority to the 
black race in a public forum which importantly shapes the 
minds and hearts of succeeding generations of our young 
people; and amounts to an invidious racial classification. Since 
Brown the Supreme Court has consistently, and with increasing 
force, held that the remedy upon finding de jure segregation is 
prompt and maximum actual desegregation of the public 
schools by all reasonable, feasible, and practicable means avail­
able. This court finds that there is nothing in the law, wisdom, 
or facts, and the particular circumstances and arguments, 
presented in this case which suggest anything except the affir­
mance of these principles in both fact and law.

3. The task before this court, therefore, is now, and, since 
September 27, 1971, has always been, how to desegregate the 
Detroit public schools. The issue, despite efforts of the inter- 
venors to suggest a new rationale for a return to the discredited 
“separate but equal” policy, 1 is not whether to desegregate. 
That question has been foreclosed by the prior and settled com­
mands of the Supreme Court and the Sixth Circuit. Our duty 
now is to “grapple with the flinty, intractable realities” 2 Qf 
implementing the constitutional commands.

4. In the most recent set of hearings, several issues were 
addressed generally, including appropriate methods of pupils 
reassignment to desegregate schools; quality and capacity of 
school facilities; transportation needs incident to school de­
segregation; the effects of new school construction, and 
judicially established controls thereon, on any plan of de­
segregation; the reassignment of faculty and restructuring of 
facilities incident to pupil reassignment to accomplish school 
desegregation; appropriate and necessary interim and final 
administrative and financial arrangements; appropriate com­
munity, parental, staff, and pupil involvement in the deseg­
regation process; and attention to individual, cultural, and



62a

ethnic values, respect, dignity and identity. But the primary 
question addressed by these hearings, in the absence of submis­
sion of a complete desegregation plan by the state, remains the 
determination of the area necessary and practicable effectively 
to eliminate “root and branch” the effects of state-imposed and 
supported segregation and to desegregate the Detroit public 
schools.

SUPPLEMENTARY FINDINGS OF FACT

A. The Desegregation Area

5. The State Board of Education filed six (6) “plans” 
without recommendation or preference; intervening defendants 
Magdowski, et al., filed a proposal for metropolitan desegrega­
tion which included most of the tri-county area; the defendant 
Detroit Board of Education filed a proposal for metropolitan 
desegregation which included the entire tri-county area. 3 At 
the hearing plaintiffs presented a modification of the three pro­
posals which actually described areas within which pupil deseg­
regation was to be accomplished.

6. In the consideration of metropolitan plans of deseg­
regation of the Detroit public schools, the State defendants 
stand as the primary defendants. They bear the initial burden of 
coming forward with a proposal that promises to work. In the 
context of this case, they represent the “school authorities ” 4 
to whom equity courts traditionally have shown deference in 
these matters. 5 Yet in its submission without recommendation 
of six (6) “plans” the State Board of Education has failed to 
meet, or even attempt to meet, that burden and none of the 
other State defendants has filled the void.

7. The State Board refused to make any recommenda­
tions to the court about the appropriate area for desegregation. 
In State Defendant Porter’s words, the State Board “didn’t 
make a decision, period.” Defendants Milliken and Kelley 
merely filed objections to all six (6) plans.

8. Three of the State “plans” merely proposed concepts 
alternative to maximum actual desegregation. The Racial 
Proportion Plan described a statistical method of d etermining the



63a

number of transfers involved in achieving a particular racial 
ratio in each school once an area of desegregation had been 
chosen. The Equal Educational Opportunity and Quality 
Integration Plan was admitted to be a non-plan and described 
criteria for education which, in whole or part, might, or might 
not, be applicable to any school system.

9. Only one State “plan,” the Metropolitan District Re­
organization Plan, attempted to describe an area within which 
desegregation should occur, called the “initial operating zone” 
(sometimes referred to hereafter as the “State Proposal”). That 
“plan,” however, was primarily concerned with discussing a new 
governance structure for the desegregation area. Pupil reassign­
ment was mentioned only in passing and no foundation was laid 
by State defendants for the particular area of desegregation 
described. Further, it suffered from the default of the State 
defendants by their stubborn insistence that under their self- 
serving, and therefore self-limiting, view of their powers they 
were free to ignore the clear order of this court and abdicate 
their responsibility vested in them by both the Michigan and 
Federal Constitution for supervision of public education and 
equal protection for all citizens.

10. From the very limited evidence in the record in sup­
port of the area in that state proposal, the primary foundation 
appears to be the particular racial ratio attained in that plan, 
approximately 65% black, 35% white, with the provision that 
the area could be expanded if “white flight” ensued. In the 
absence of any other persuasive foundation, such area is not 
based on any definable or legally sustainable criteria for either 
inclusion or exclusion of particular areas; and the concept of an 
“initial operating zone” raises serious practical questions, which 
should be avoided if a more permanent solution is now possible. 
In short, the area described by the “initial operating zone” does 
not appear to be based primarily on relevant factors, like elim­
inating racially identifiable schools; accomplishing maximum 
actual desegregation of the Detroit public schools; or avoiding, 
where possible, maintaining a pattern of schools substantially 
disproportionate to the relevant school community’s racial com­
position by force of deliberate action by public authority. Nor,



64a

on the evidence in this record, is the “initial operating zone” 
based on any practical limitation of reasonable times and dis­
tances for transportation of pupils. These factors seem to have 
played little part in the creation of the “initial operating zone” 
and are reflected less in its result.

11. At the hearings, moreover, the State defendants did 
not purport to present evidence in support, or even in opposi­
tion, to the State Proposal. The State, despite prodding by the 
court, presented only one witness, who merely explained what 
appeared on the face of the various State “Plans” submitted. 
The State’s cross examination of witnesses was of no assistance 
to the court in ascertaining any preference, legal or educational. 
Put bluntly, State defendants in this hearing deliberately chose 
not to assist the court in choosing an appropriate area for effec­
tive desegregation of the Detroit public schools. Their resistance 
and abdication of responsibility throughout has been consistent 
with the other failures to meet their obligations noted in the 
court’s earlier rulings. Indeed, some of the submissions spoke as 
clearly in opposition to desegregation as did the legislature in 
Sec. 12 of Act 48 ruled unconstitutional by the Sixth Circuit.

12. In such circumstances little weight or deference can be 
given to the unsupported submission of the State Board of 
Education. In light of the available alternatives and the facts 
produced at the hearing bearing on the issue, the court finds 
that State defendants offered no basis for ruling that the “initial 
operating zone” is the appropriate area within which to effec­
tively desegregate the Detroit public schools.

13. Similarly, the newly intervening, defendant school dis­
tricts did not attempt at the hearing to assist the court in 
determining which area was appropriate to accomplish effective 
desegregation. They were given the opportunity, by express 
written order and several admonitions during the course of the 
hearings, to assist the court in the task at hand but chose in 
their best judgment instead, in the main, to suggest their view 
that separate schools were preferable. The failure of the group 
of 40 districts to even comment that the court should exclude 
certain districts under any number of available rationales may in



65a

part be explained by the awkward position chosen by them and 
their counsel of having single representation for districts on 
different sides of the various suggested perimeters.

14. The plans of intervening defendants Magdowski, et al., 
and the defendant Detroit Board of Education are similar. With 
slight variations they include the entire tri-county, metropolitan 
Detroit area, with that area divided into several regions or 
clusters to make the planning for accomplishing desegregation 
more manageable. Although both have as their main objective 
desegregation, their larger area arises primarily from a heavy 
emphasis on such factors as white flight and an appropriate 
socio-economic balance in each cluster and school. 6

15. The authors of the Detroit Board and Magdowski 
plans readily admit that the regions or clusters for pupil reas­
signment which involve Mt. Clemens and Pontiac are not direct­
ly related to desegregation of the Detroit public schools and 
may be disregarded without any substantial adverse effect on 
accomplishing our objective. No other party has expressed any 
disagreement with that view. And the court finds that these two 
regions or clusters, for purposes of pupil reassignment, need not 
be included at this time in the desegregation area.

16. With the elimination of these two clusters there are, 
then, three basic proposals to be considered for the desegrega­
tion area: the State Proposal; the Detroit Board Proposal, and 
the proposal of defendant-intervenors Magdowski, et al. In 
addition, as noted, plaintiffs filed a modification of these three 
proposals.

17. Each of these proposals starts from the same two 
premises: (1) the tri-county area  ̂ constitutes the relevant 
school community which can serve as an initial benchmark in 
beginning the evaluation of how to effectively eliminate the 
racial segregation of Detroit schools; (2) but in some instances 
reasonable time and distance limitations for pupil transporta­
tion, and in other instances the actual area required to eliminate 
the pattern of racially identifable schools, limit the area within 
which pupil reassignment should occur. In terms of proof, put­
ting aside arguments of impotence by the State defendants,



66a

there was absolutely no contradictory evidence on these two 
criteria. The entire tri-county area includes areas, pupils, and 
schools in 86 school districts; it includes approximately one 
million students, of whom approximately 20% are black. Based 
on the evidence concerning school and non-school factors,  ̂
and reasonable time and distance limitations for pupil transpor­
tation, the court finds that both premises are accurate.^

18. The State Proposal includes the areas, pupils and 
school in 36 school districts, approximately 550,000 students 
are included of whom 36% are black. The Detroit Board Pro­
posal (excluding clusters 8 and 12) includes the areas, pupils, 
and schools in 69 school districts; approximately 850,000 stu­
dents are included, of whom 25% are minority. ^  The CCBE 
Proposal includes the areas, pupils, and schools in some 62 
school districts; approximately 777,000 students are included 
of whom 197,000 (25.4%) are black. Plaintiffs’ Proposal 
includes the areas, pupils, and schools in 54 school districts; 
approximately 780,000 students are included, of whom
197,000 (25.3%) are black.

19. The State Proposal approaches what may be con­
sidered a substantial disproportion in the context of this case. It 
is to be remembered that within any desegregation area, the 
racial composition of desegregated schools will vary from the 
area’s racial mix. Given the variations in school plant, demo­
graphic and geographic factors, limiting the desegregation area 
to the State Proposal would result in some schools being sub­
stantially disproportionate in their racial composition to the 
tri-county area, and other schools racially identifable, all with­
out any justification in law or fact. This finding is supported by 
the lack of any apparent justification for the desegregation area 
described by the State Proposal except a desire to achieve an 
arbitrary racial ratio.

20. Transportation of children by school bus is a common 
practice throughout the nation, in the state of Michigan, and in 
the tri-county area. Within appropriate time limits it is a con­
siderably safer, more reliable, healthful and efficient means of 
getting children to school than either car pools or walking, and 
this is especially true for younger children.



67a

21. In Michigan and the tri-county area, pupils often 
spend upwards of one hour, and up to one and one half hours, 
one-way on the bus ride to school each day. Consistent with its 
interest in the health, welfare and safety of children and in 
avoiding impingement on the educational process, state educa­
tional authorities routinely fund such transportation for school 
children. Such transportation of school children is a long­
standing, sound practice in elementary and secondary education 
in this state and throughout the country. And the court finds 
such transportation times, used by the state and recommended 
here, are reasonable in the circumstances here presented and 
will not endanger the health or safety of the child nor impinge 
on the educational process. For school authorities or private 
citizens to now object to such transportation practices raises the 
inference not of hostility to pupil transportation but rather 
racially motivated hostility to the desegregated school at the 
end of the ride.

22. The Plaintiffs’ Proposal made reference to P.M.8, 
based on the TALUS regional transportation and travel times 
study. Although there was dispute over the meaning of the 
study, such studies are deemed sufficiently reliable that major 
governmental agencies customarily rely on their projection for a 
variety of planning functions. When used by the plaintiffs, P.M. 
8, in conjunction with the Detroit Board’s survey of maximum 
school to school travel times, served as a rough guideline within 
which the plaintiffs’ modification of other proposals attempted 
to stay in an effort to provide maximum desegregation without 
any more transportation time than is required to desegregate. 
This court finds that the utilization of these two factors, and 
the lower travel time estimates which should result, is a reason­
able basis for the modification in the circumstances of this case. 
The court’s duty and objective is not to maximize transporta­
tion but to maximize desegregation and within that standard it 
will always be reasonable to minimize transportation. To that 
end the court has accepted the more conservative perimeter for 
the desegregation area suggested as a modification by plaintiffs 
because it provides no less effective desegregation.

23. Based on these criteria, the State Proposal is too nar­
rowly drawn.



68a

24. Based on these criteria, parts of the Detroit Board 
Proposal are too sweeping.

25. Based on these criteria, the CCBE Proposal and the 
Plaintiffs’ Proposal, roughly approximate the area so de­
scribed 11.

26. There is general agreement among the parties, and the 
court so finds, that on the west the areas, schools, and pupils in 
the Huron, Van Buren, Northville, Plymouth and Novi districts 
12 (1) are beyond the rough 40-minute travel time line; (2) are 
not necessary to effectively desegregate schools involved in the 
regions and clusters abutting those schools; and, (3) at this 
writing, are not otherwise necessary, insofar as pupil assignment 
is concerned, to provide an effective remedy now and hereafter. 
(See Findings 63-69 below.)

27. In the southwest the school districts of Woodhaven, 
Gibralter, Flat Rock, Grosse lie and Trenton are within reason­
able time and distance criteria set forth above. These virtually 
all-white districts are included in the Detroit Board Proposal but 
excluded from the plaintiffs’ modification. The areas, schools 
and pupils in such school districts are similarly not necessary to 
effectively desegregate. (Clusters 13, 14, and 15 in Plaintiffs’ 
Proposal are 20.5%, 24.4% and 22.7% black respectively.) There 
is nothing in the record which suggests that these districts need 
be included in the desegregation area in order to disestablish the 
racial identiflability of the Detroit public schools. From the 
evidence, the primary reason for the Detroit School Board’s 
interest in the inclusion of these school districts is not racial 
desegregation but to increase the average socio-economic 
balance of all the schools in the abutting regions and clusters. In 
terms of what this court views as the primary obligation estab­
lished by the Constitution — racial desegregation — the court 
deems the proper approach is to be more conservative: the 
court finds it appropriate to confine the desegregation area to 
its smallest effective limits. This court weighs more heavily the 
judicially recognized concern for limiting the time and distance 
of pupil transportation as much as possible, consistent with the 
constitutional requirement to eliminate racially identifiable 
schools, than a concern for expanding the desegregation area to



69a

raise somewhat the average socio-economic balance of a rela­
tively few clusters of schools. 13

28. To the north and northeast, the only major disagree­
ment among the Detroit Board Proposal and plaintiffs’ 
modification relates to the areas, schools, and pupils in the 
Utica School District. This district is a virtually all-white, long, 
relatively narrow area extending several miles in a north-south 
direction away from the city of Detroit. Only the southern part 
of the district is within the rough, TALUS 40-minute travel 
time line.

29. The Detroit Board argues that Utica should be includ­
ed in order to raise the average socio-economic balance of the 
abutting clusters and schools. In this instance, however, the 
overall racial composition of the cluster, 27.0% black, may tend 
toward disproportionate black relative to the tri-county starting 
point.

30. Mr. Henrickson, the planner for the Board, also sug­
gested that Cluster 3 of Plaintiffs’ Proposal, because of its 
omission of Utica, might present some problems, which he 
admitted could be solved, in designing a plan of pupil reassign­
ment for the desegregation of schools. (See Findings 34-39 
below.)

31. In light of these relevant, and competing, considera­
tions the question presented by the Utica situation is close; 
however, at this writing, the court determines that the areas, 
schools, and pupils in the Utica School District need not be 
included, and therefore, should not be included in the deseg­
regation area. * 4

32. The court finds that the appropriate desegregation 
area is described by plaintiffs’ modification of the three primary 
proposals. Within that area the racial identifiability of schools 
may be disestablished by implementation of an appropriate 
pupil desegregation plan. The area as a whole is substantially 
proportionate to the tri-county starting point. Within the area it 
is practicable, feasible, and sound to effectively desegregate all 
schools without imposing any undue transportation burden on 
the children or on the state’s system of public schooling. The



70a

time or distance children need be transported to desegregate 
schools in the area will impose no risk to the children’s health 
and will not significantly impinge on the educational process.

B. Ousters

33. The Detroit Board Proposal makes use of 16 regions 
or clusters. These clusters range from 36,000 to 105,000 pupils 
and from 17.5% to 29.7% “minority.” The clusters are arranged 
along major surface arteries and utilize the “skip,” or non­
contiguous zoning, technique to minimize the time and distance 
any child need spend in transit. The use of these clusters basical­
ly subdivides the planning for pupil reassignment within the 
desegregation area into a series of smaller, manageable and 
basically independent plans. Thus, although as the new inter- 
venors suggest devising a desegregation plan for a system with 
some 800,000 pupils has never been attempted, the practical 
and manageable reality is that desegregation plans for systems 
with from 36,000 to 100,000 pupils has been done and such 
plans have been implemented.

34. Plaintiffs’ Proposal uses the same cluster technique 
and the same clusters, modified to fit the desegregation area. 
The 15 clusters range from 27,000 to 93,000 pupils and from 
20.5% to 30.8% black. Only three relevant objections were 
raised by Mr. Henrickson, to the clusters as modified.

35. First, Cluster 4 was challenged as “concealing” a 
“problem,” namely effective desegregation of other schools 
resulting from the omission of Utica from plaintiffs’ modifica­
tion. On cross-examination Mr. Henrickson admitted that the 
“problem” of actual pupil desegregation for these other schools 
could be “solved,” that all schools within Cluster 4 could be 
affectively desegregated, and that Cluster 4 was smaller than the 
Detroit Board Cluster 6. The objection was thus narrowed to 
the possibility that a suburban high school constellation feeder 
pattern might have to be split between two Detroit high school 
constellation feeder patterns in order to desergregate. Several of 
the Detroit Board’s clusters, however, also contain two Detroit 
high school feeder patterns.



71a

36. This objection, splitting an existing feeder pattern, 
was raised directly in reference to Cluster 12. In neither 
instance, however, did Mr. Henrickson suggest that the time or 
distance of transportation involved was too long or that it would 
present administrative difficulty in devising a pupil assignment 
plan for either cluster. The objection relates solely to a matter 
of administrative convenience, namely the use of existing feeder 
patterns in preparing pupil assignments. For example, Mr. 
Henrickson previously admitted that in drawing a pupil assign­
ment plan, an alternative to use of existing feeder patterns 
would be to “wipe the slate clean,” and disregard existing 
feeder patterns. In fact one of the State plans suggested use of 
census tracts as an alternative. 1 5 On numerous occasions in the 
past Mr. Henrickson himself has reassigned parts of one feeder 
pattern to another school in order to relieve overcrowding 
and/or accomplish desegregation. The objection to such 
practice, therefore, is admittedly insubstantial.

37. The third objection relates to the exchange of Detroit 
Northern for Detroit Murray in Clusters 6 and 15 requiring that 
the students transported, if they proceed on their entire journey 
by way of the expressway, encounter an interchange which 
tends to be rather slow-moving. Such transportation time and 
distance, however, is well within the rough criteria for reason­
ableness and is shorter than or comparable to the maximum 
trips required in the Detroit Board’s clusters. In other instances, 
Mr. Henrickson admitted that pupils in the Detroit proposal 
might also have to travel through similar interchanges. More­
over, the objection to this particular increase in travel time must 
be weighed against the apparent general decrease in time which 
would be required in plaintiffs’ modified clusters as compared 
with the Detroit Board’s clusters. In any event the desegregation 
panel, based on its investigation of all aspects of pupil assign­
ment, remains free to suggest a modification of these clusters in 
order to reduce the time and number of children requiring 
transportation.

38. With that caveat, the court finds that plaintiffs’ 
modification of the Detroit Board’s clusters provides a 
workable, practicable, and sound framework for the design of a 
plan to desegregate the Detroit public schools.



72a

C. Pupil Assignment and Transportation.

39. Example of various methods of pupil assignment to 
accomplish desegregation have been brought to the attention of 
the court by the parties: pairing, grouping, and clustering of 
schools; various strip, skip, island, and non-contiguous zoning; 
various lotteries based on combinations of present school assign­
ment, geographic location, name, or birthday. Judicious use of 
these techniques — coupled with reasonable staggering of school 
hours and maximizing use of existing transportation facilities — 
can lead to maximum actual desegregation with a minimum of 
additional transportation.

40. Quite apart from desegregation, under any circum­
stances, transportation for secondary pupils living more than IV2 

miles, and elementary pupils, living more than 1 mile from 
school, is often demanded by parents and should be provided. 
Moreoever, it is essential to the effectiveness of any desegrega­
tion plan that transportation be provided free to all students 
requiring it under that criteria. (Brewer v. Norfolk Board of 
Education,____F. 2d_____(April 1972) (4th Cir.)

41. In the recent past more than 300,000 pupils in the 
tri-county area regularly rode to school on some type of bus; 
this figure excludes the countless children who arrive at school 
in car pools, which are many, many times more dangerous than 
riding on the school bus.

42. Throughout the state approximately 35-40% of all stu­
dents arrive at school on a bus. In school districts eligible for 
state reimbursement of transportation costs in the three 
affected counties, the percent of pupils transported in 1969-70 
ranged from 42 to 52%.

43. In comparison approximately 40%, or 310,000, of the
780,000 children within the desegregation area will require 
transportation in order to accomplish maximum actual deseg­
regation.

44. Hence, any increase in the numbers of pupils to be 
transported upon implementation of a complete desegregation 
plan over the number presently transported, relative to the state



73a

and the tri-county area, should be minimal. Indeed, any increase 
may only reflect the greater numbers of pupils who would be 
transported in any event but for the state practice, which af­
fected the segregation found in this case, and which denies state 
reimbursement to students and districts wholly within city 
limits regardless of the distance of the child from the school to 
which assigned. ^(Ruling on Issue of Segregation at 14.) The 
greatest change is the direction of the buses.

45. There is uncontradicted evidence that the actual 
cost of transportation for a two-way plan of desegregation 
should be no greater than 50 to 60 dollars per pupil trans­
ported, comparable to the present costs per pupil through 
the state. Increases in the total costs of pupil transportation in 
the desegregation area, therefore, will result primarily from pro­
viding all children requiring transportation a free ride instead of 
imposing the costs of transportation for many on the families in 
districts which are ineligible for state reimbursement and which 
fail to provide transportation.

46. By multiple use of buses, careful routing, and econo­
mies of scale resulting from a comprehensive system of pupil 
transportation, it may be possible to achieve savings in per pupil 
costs. For example in 1969-1970 many school districts in the 
tri-county area which used the same bus for even two loads per 
day lowered their per pupil costs to $40 or less. In a co­
ordinated, urban pupil transportation system it may be possible 
to raise the bus use factor to three of more. (See “First Report” 
State Survey and Evaluation.)

47. In the tri-county area in the recent past there were 
approximely 1,800 buses (and another 100 smaller vans) used 
for the transportation of pupils. Assuming a rough average of 50 
pupils per bus carrying three loads of students per day, this 
transportation fleet may prove sufficient to carry some 270,000 
pupils.

48. Various public transit authorities now transport an 
additional 60,000 pupils on their regular public runs.

49. The degree to which these plausible bus-use factors



74a

can be realized to their maximum, and whether these public 
transit facilities may be fully utilized in a plan of desegregation, 
must be answered upon careful investigation by a panel of ex­
perts.

50. There is no disagreement among the parties, and the 
court so finds, that additional transportation facilities, at least 
to the number of 350 buses, will have to be purchased to meet 
the increase in the number of students who should be provided 
transportation for either an interim or final plan of desegrega­
tion.

51. For all the reasons stated heretofore — including time, 
distance, and transportation factors — desegregation within the 
area described in physically easier and more practicable and 
feasible, than desegregation efforts limited to the corporate 
geographic limits of the city of Detroit.

52. The issue of transportation of kindergarten children, 
and their inclusion in part or in full in the desegregation plan, 
may require further study. There was general agreement among 
the experts who testified that kindergarten, but for “political” 
considerations, should be included, if practicable, in the deseg­
regation plan. Kindergarten, however, is generally a half-day 
program. Transportation of kindergarten children for upwards 
of 45 minutes, one-way, does not appear unreasonable, harmful, 
or unsafe in any way. In the absence of some compelling justifi­
cation, which does not yet appear, kindergarten children should 
be included in the final plan of desegregation.

53. Every effort should be made to insure that transporta­
tion and reassignment of students to accomplish desegregation 
is “two-way” and falls as fairly as possible on both races. 
Although the number of black and white children transported 
and reassigned at the outset will be roughly equal, it is 
inevitable that a larger proportion of black children will be 
transported for a greater proportion of their school years than 
white children, if transportation overall is to be minimized. To 
mitigate this disproportion, every effort should be made at the 
outset to randomize the location of particular grade centers. In 
the short term, full utilization of vastly under-capacity inner-



75a

city schools may also help to mitigate the disproportion for 
some black children; and in the long term, new school capacity, 
consistent with other constitutional commands and the overall 
needs of the desegregation area and the surrounding area, should 
be added in Detroit, in relative proximity to concentrations of 
black student residence.

D. Restructuring o f Facilities and 
Reassignment of Teachers

54. In the reassignment of pupils to accomplish deseg­
regation the court finds that facilities must be substantially 
reallocated and faculty substantially reassigned by reason of the 
clustering, pairing and grouping of schools.

55. In order to make the pupil desegregation process fully 
effective the court finds that it is essential to integrate faculty 
and staff and to insure that black faculty and staff representa­
tion at every school is more than token. The court has pre­
viously found and reaffirms that “a quota or racial balance in 
each school which is equivalent to the system-wide ratio and 
without more” is educationally unsound, and that the desid­
eratum is the balance of staff by qualifications for subject and 
grade level, and then by race, experience and sex. It is obvious, 
given the racial composition of the faculty and staff in the 
schools in the metropolitan plan area, and the adjusted racial 
composition of the students, that vacancies and increases and 
reductions in faculty and staff cannot effectively achieve the 
needed racial balance in this area of the school operation. 
Active steps must be taken to even out the distribution of black 
teachers and staff throughout the system.

56. In the desegration area approximately 16% of the 
faculty and 12% of the principals and assistant principals are 
black. In this context “token” means roughly less than 10% 
black. Moreover, where there is more than one building adminis­
trator in any school, a bi-racial administrative team is required 
wherever possible.

57. Every effort should be made to hire and promote, and 
to increase such on-going efforts as there may be to hire and



76a

promote, additional black faculty and staff. Because of the 
system atic and substantial under-employment of black 
administrators and teachers in the tri-county area, an affirma­
tive program for black employment should be developed and 
implemented.

58. The rated capacity of classrooms in the Detroit public 
schools is 32; in some of the suburban districts the average rated 
capacity is as low as 24 or 25. Utilization should be redeter­
mined on a uniform basis.

59. In respect to faculty and staff, school facilities, and 
the utilization of existing school capacity, normal administra­
tive practice in handling the substantial reallocation and reas­
signment incident to pupil desegregation should produce 
schools substantially alike.

60. In the circumstances of this case, the pairing, grouping 
and clustering of schools to accomplish desegregation with 
minimum transportation often requires use of grade arrange­
ments such as K-4, K-5, or even K-6. In so planning pupil reas­
signments, it is sometimes necessary, and often administratively 
practicable, to include grades K-8 or even K-9 to achieve the 
maximum actual desegregation with the minimum trans­
portation. Grade structures in most elementary schools in the 
desegregation area is a basic K-6; however, almost all other 
combinations are found. They differ within and among various 
districts.

61. In the reassignments of pupils and teachers and the 
reallocation of equipment and facilities required to accomplish 
desegregation, the elementary grades and schools present rela­
tively few administrative difficulties, while the high school 
grades and facilities present the greater difficulties, particularly 
with respect to scheduling and curriculum.

62. For these reasons, if it develops that interim choices 
must be made because of the impossibility of immediate deseg­
regation of all grades, schools, and clusters in the desegregation 
area, the weight of the evidence is, and the court so finds, that 
desegregation should begin first at the earliest grades for entire



77a

elementary school groupings throughout as many clusters as 
possible.

E. School Construction

63. Relative to suburban districts the Detroit public 
schools, as a whole, are considerably over-capacity. (See also 
Finding 58, supra.) To alleviate this overcrowding equalize rated 
capacity and' minimize and equalize transportation burdens 
borne by black pupils in the city, needed new school capacity, 
consistent with other requirements of a desegregation plan, 
should be added on a priority basis in the city of Detroit.

64. Relevant to the court’s choice of a desegregation area 
more limited than the Detroit Board Proposal is the testimony, 
elecited on cross-examination from two of the primary authors 
of that proposal, related to the effects of controlling new school 
construction. The broader area in the Detroit proposal was 
chosen without any real consideration of the impact of control­
ling school construction in an area larger than the desegregation 
area. Upon reflection, both Dr. Flynn and Mr. Henrickson 
admitted that closely scrutinizing and limiting the addition of 
capacity to areas outside the desegregation area might lead them 
to re-evaluate the need, in the context of maintaining now and 
hereafter a unitary system, to include an area as sweeping as 
recommended by the Detroit Board Proposal.

65. In our Ruling on Issue of Segregation, pp. 8-10, this 
court found that the “residential segregation throughout the 
larger metropolitan area is substantial, pervasive and of long 
standing” and that “governmental actions and inaction at all 
levels, Federal, State and local, have combined with those of 
private organizations, such as loaning institutions and real estate 
associations and brokerage firms, to establish and to maintain 
the pattern of associations and brokerage firms, to establish and 
to maintain the pattern of residential segregation through the 
Detroit metropolitan area.” We also noted that this deliberate 
setting of residential patterns had an important effect not only 
on the racial composition of inner-city schools but the entire 
School District of the City of Detroit. (Ruling on Issue of Seg­
regation at 3-10.) Just as evident is the fact that suburban



78a

school districts in the main contain virtually all-white schools. 
The white population of the city declined and in the suburbs 
grew; the black population in the city grew, and largely was 
contained therein by force of public and private racial discrim­
ination at all levels.

66. We also noted the important interaction of school and 
residential segregation: “Just as there is an interaction between 
residential patterns and the racial composition of the schools, so 
there is a corresponding effect on the residential pattern by the 
racial composition of schools.” Ruling on Issue of Segregation 
at 10. Cf Swann v. Charlotte-Mecklenberg, 402 U.S. 1, 20-21 
(1971); “People gravitate toward school facilities, just as 
schools as located in response to the needs of people. The loca­
tion of schools may thus influence the patterns of residential 
development of a metropolitan area and have important impact 
on composition of inner city neighborhoods.”

67. Within the context of the segregatory housing market, 
it is obvious that the white families who left the city schools 
would not be as likely to leave in the absence of schools, not to 
mention white schools, to attract, or at least serve, their chil­
dren. * 8 Immigrating families were affected in their school and 
housing choices in a similar manner. Between 1950 and 1969 in 
the tri-county area, approximately 13,900 “regular classrooms,” 
capable of serving and attracting over 400,000 pupils, 19 were 
added in school districts which were less than 2% black in their 
pupil racial composition in the 1970-71 school year. (P.M. 14; 
P.M. 15).

68. The precise effect of this massive school construction 
on the racial composition of Detroit area public schools cannot 
be measured. It is clear, however, that the effect has been sub­
stantial. 20 Unfortunately, the State, despite its awareness of 
the important impact of school construction and announced 
policy to control it, acted “in keeping generally, with the 
discriminatory practices which advanced or perpetuated racial 
segregation in these schools.” Ruling on Issue of Segregation at 
15; see also id., at 13.

69. In addition to the interim re-evaluation of new school



79a

construction required in the order, pursuant to the State 
Board’s own requirements, the final plan will consider other 
appropriate provisions for future construction throughout the 
metropolitan area.

F. Governance, Finance and Administrative Arrangements

70. The plans submitted by the State Board, the Detroit 
Board, and the intervening defendants Magdowski, et al., discuss 
generally possible governance, finance and administrative ar­
rangements 21 which may be appropriate for operation of an 
interim or final plan of desegregation. Without parsing in detail 
the interesting, and sometimes sensible, concepts introduced by 
each plan, it is sufficient to note that each contemplates over­
laying some broad educational authority over the area, creating 
or using some regional arrangement (with continued use or 
eventual redrawing of existing districts), and considerable input 
at the individual school level. The court has made no decision in 
this regard and will consider the matter at a subsequent hearing.

71. Each concept needs to be “fleshed-out” in the hard 
prospect of implementation of a final plan of desegregation and 
what is necessary and essential, and only that, for the successful 
operation of that plan of school desegregation now on an 
interim basis and hereafter on a permanent footing.

72. There are now some 86 school districts in the tri­
county area of varying size, numbers of pupils, shapes, and 
wealth.

73. In another context, the State Board of Education 
found each related to a “metropolitan core city” (Detroit) as 
“city,” “town,” or “urban fringe” districts.

74. The boundaries of these school districts in general 
bear no relationship to other municipal, county, or special dis­
trict governments, needs or s e rv ic e s .22

75. Some educational services are already provided to stu­
dents on an interdistrict, county, intercounty, or metropolitan 
basis: and many support services are provided by the inter­
mediate school districts and the State Department of



80a

Education. For various reasons many pupils already cross school 
district lines to attend school or receive educational services. 23

76. In many respects — patterns of economic life, work, 
play, population, planning, transportation, health services — the 
tri-county area constitutes a rough series of interrelated com­
munities constituting, in the view of the United States Census 
Bureau, a single standard metropolitan statistical area.

77. Local units of government in the metropolitan area 
have in many instances joined together for the purpose of pro­
viding better solutions to problems confronting them. In such 
instances various units of government have either disregarded 
local boundaries or have concluded that the problems were such 
as to call for a metropolitan solution. In some cases they have 
created overlay organizations. SEMCOG, recreational autho­
rities, a metropolitan sewage system, SEMTA, and the Detroit 
Water System are examples of these metropolitan approaches.

78. Indeed, the State defendants at this very moment are 
attempting in state court to strike down one irrationality, and 
the discriminatory effect, of the existing school district arrange­
ment, i.e., finance, apparently in the hope of moving to a virtual 
state-wide assumption of costs.

79. In such circumstances there has been no showing that 
the existing school district boundaries are rationally related to 
any legitimate purpose; and the court finds that the particular 
welter of existing boundaries for 86 school districts is not 
necessary to the promotion of any compelling state interest.

80. On the basis of the present record, the court is of the 
view that the shifts in faculty, staff, resources and equipment 
and the exchanges of pupils necessary to accomplish maximum 
actual desegregation may be made, at least on an interim basis, 
by contractual agreements or otherwise among and between the 
existing school districts. The court has serious reservations, 
however, whether such procedures will inevitably threaten the 
continuing effectiveness of a plan of desegregation over the 
long-term. On these issues more evidence and further hearings 
will be necessary before reaching a final decision.



81a

81. The State defendants, and in particular the State 
Board of Education which is charged with the primary respon­
sibility for public education in Michigan, are the primary parties 
to be charged with responsibility to undertake that vital inquiry 
and return with recommendations about those governance, 
financial, and administrative arrangements which are necessary 
and essential to the successful implementation of a plan of de­
segregation on an interim and continuing basis.

G. Involvement o f Affected Persons and Communities 
and Protection Against Racial Discrimination 

in the Desegregation Process

82. The court has received uncontroverted evidence in the 
plans filed by every party and in testimony, and advice in 
several briefs amicus curiae, and the court finds, that the follow­
ing additional factors are essential to implementation and 
operation of an effective plan of desegregation in the circum­
stances of this case:

(a) Bi-racial councils made up of the parents and staff, 
and, where appropriate, pupils, should be set up at 
each school; the persons most affected must be 
encouraged and given every opportunity to parti­
cipate in the implementation of desegregation.

(b) Curriculum content, and all curriculum materials and 
student codes, must be re-evaluated and reflect the 
diversity of ethnic and cultural backgrounds of the 
children now in the schools. As far as possible, those 
immediately affected by these decisions at the indi­
vidual school level should participate in that process.

(c) In-service training for faculty and staff for multi­
ethnic studies and human relations should be 
required; we must, after all, rely primarily on our 
teachers and children to respect, nurture, and deal 
with the diversity of students present in the deseg­
regated school.

(d) The entire grading, reporting, counselling, and testing 
program should be reviewed in light of desegregated



82a

schools compared to traditional schools and to avoid 
imposing the effects of past discrimination on the 
children. Tracking, whether so labeled or by any test, 
which has racial effects should not be utilized; within 
schools a pattern of classes which are substantially 
disproportionate in their racial composition from the 
relevant school or grade mix should be closely 
scrutinized and maintained only if necessary to pro­
mote a compelling educational objective.

83. In making the finding above, we remind the parties 
that this court’s task is to enforce constitutional rights not to 
act as a schoolmaster; the court’s task is to protect the con­
stitutional rights here found violated with as little intrusion into 
the education process as possible. The court’s objective is to 
establish the minimum constitutional framework within which 
the system of public schools may operate now and hereafter in 
a racially unified, non-discriminatory fashion. Within that 
framework the body politic, educators, parents, and most par­
ticularly the children must be given the maximum opportunity 
to experiment and secure a high quality, and equal, educational 
opportunity. However, experience has proven that specific 
goals, deadlines and methods of reporting and review must be 
required in all desegregation cases to insure compliance.

H. Timing

84. The burden remains with State defendants to show 
why desegregation for all schools, grades, classrooms, and pupils 
in the desegregation area should not proceed now, i.e., in the 
context of this litigation, for the 1972 fall term. The design and 
implementation of desegregation plans for all grades in 15 
clusters — including pupil assignments, necessary reassignment 
of faculty and restructuring of facilities, planning and acquiring 
the needed transportation facilities — is conceded by all parties 
to be a major undertaking. Yet next fall will already be a full 
year, not just four or six or even eight weeks, Cf. Carter v. West 
Feliciano Parish School Bd., 396 U.S. 290 (1970), after the 
initial ruling by this court of the need for maximum feasible 
desegregation “now.” In such circumstances the burden to 
prove the infeasibility of implementation of complete relief is 
high.



83a

85. The desegregation panel, therefore, must make every 
effort to plan to implement as much actual desegregation, for as 
many clusters, schools, grades, classrooms, and students as pos­
sible.

86. At a minimum, there is agreement among, and 
evidence from, the experts that desegregating several grades, and 
more particularly entire elementary schools, within many, if not 
all, clusters may be accomplished in the fall.

87. In view of Findings 60 to 62, supra, if hard choices 
must be made for the fall, any interim plan should attempt to 
desegregate grades K-6, K-8, or K-9 in as many entire clusters as 
possible; and, in the absence of some other showing, there 
appears no reason why a complete plan may not be imple­
mented by fall 1973. 24

88. A heavy burden rests with those who seek delay in 
any way, shape, kind, degree or extent to convince the court 
that maximum actual desegregation cannot proceed effectively 
forthwith.

89. In view of the time constraints, the need to discharge 
this burden forthwith, the State defendants’ default in assisting 
this court to determine the appropriate desegregation area, and 
the State defendants’ asserted and evident lack of available plan­
ning capacity suited to the task, the court finds that some addi­
tional entity must be charged with the task of preparing a pupil 
assignment plan to accomplish maximum actual desegregation 
and a transportation plan within the framework this day 
established. To that end a panel of skilled experts, broadly re­
presentative of the parties and their interests, appointed by the 
court and assigned that task, is required to discharge effectively 
and promptly these two tasks.

90. State defendants remain charged with the duty, how­
ever, of coming forward with other necessary reports and plans 
concerning those governance, administrative, and financial ar­
rangements necessary and essential to the implementation of an 
effective plan of desegregation on an interim and on-going basis.



84a

I. The Plan

91. Based on the entire evidence amassed in this case, the 
court finds that an educationally sound, administratively fea­
sible, constitutionally adequate, practicable and effective plan 
of desegregation may be developed, implemented, and operated 
hereafter for the desegregation area as set forth in findings 1-90 
above.

CONCLUSIONS OF LAW

1. The court has continuing jurisdiction of this action for 
all purposes, including the granting of effective relief. Bradley v. 
Milliken, Ruling on Issue of Segregation, September 27, 1971; 
Findings of Fact and Conclusions of Law on Detroit-Only Plans 
of Desegregation, March 28, 1972.

2. A de jure segregation violation having been found, the 
minimum remedy is maximum actual desegregation, taking into 
account the practicalities of the situation. 25 Bradley v. Mil­
liken, Oral Order, October 4, 1971; Findings of Fact and Con­
clusions of Law on Detroit-Only Plans of Desegregation, March 
28, 1972; Brown v. Board o f Education, 347 U.S. 383 (1954), 
349 U.S. 294 (1954); Green v. County School Bd., 391 U.S. 
430 (1968); Alexander v. Holmes County Bd. o f Ed., 396 U.S. 
19 (1969); Carter v. West Feliciano School Bd., 396 U.S. 290
(1970) ; Swann v. Charlotte Mecklenberg Bd. o f Ed., 402 U.S. 1
(1971) ; Davis v. Board o f School Commissioners o f Mobile, 402 
U.S. 33 (1971); Davis v. School District o f City o f Pontiac, 443 
F. 2d 573, cert, denied, 925 U.S. 233 (1971).

3. The remedial obligation rests with school authorities, 
but where in any way they fail, or are unable because of the 
circumstances of the case, to fulfill any part of the obligation 
promptly and fully, the court has broad equity power, and the 
duty, to insure that demonstrable progress be made now; that a 
schedule for planning be adopted forthwith; and that necessary 
planning be specifically ordered and immediately undertaken in 
order that a constitutionally adequate plan may be fashioned 
and finally ordered implemented as soon as possible. Swann v. 
Charlotte-Mecklenberg Board o f Education, 311 F. Supp. 265 
(W.D.N.C. 1970), affd,  402 U.S. 1 (1971); Carter v. West



85a

Feliciano School Bd., 396 U.S. 226, 227-228 (1969), 396 U.S. 
290 {\91G)\ Acree v. County Board o f Education, No. 72-1211 
(5th Cir. March 31, 1972); Rule 53, Fed. R. Civ. P., P.A.R.C. v. 
Pennsylvania, 334 F. Supp. 1247, 1266-7 , (E.D. Pa. 1971). 
Only then will the court in this case be apprised fully of the 
practicalities of the situation, and what is reasonable and fea­
sible, in order that a final order may issue. School authorities, 
of course, will be given an opportunity to (1) raise relevant 
objections, (2) make suggestions for modifications, (3) or pre­
sent an alternative plan of desegregation; and their judgment 
and expertise will be considered and given appropriate weight 
by the court.

4. Funds must either be raised or reallocated, where 
necessary, to remedy the deprivation of plaintiffs’ con­
stitutional rights and to insure that no such unconstitutional 
neglect recurs again. Shapiro v. Thompson, 397 U.S. 254, 
265-266 (1970); Boddie v. Connecticut, 91 S. Ct. 780, 788 
(1971); Griffin v. Illinois, 351 U.S. 12 (1956); Graham v. 
Richardson, 403 U.S. 365, 374-375 (1971); Mayer v. Chicago, 
404 U.S. 189, 197 (1971); Griffin v. Prince Edward County, 
377 U.S. 218 (1964); Hoosier v. Evans, 314 F. Supp. 316, 
320-321 (D. St. Croix, 1970); United States v. School District 
151, 301 F. Supp. 201, 232 (N.D. 111. 1969), a ff’d as modified, 
432 F. 2d 1147 (7th Cir. 1970), cert, denied, 402 U.S. 943 
(1971); Plaquemines Parish School Board v. U.S., 415 F. 2d 319
(5th Cir. 1970); Bradley v. Richmond,______ F. Supp____ ,
(April 1971); Brewer v. Norfolk, No. 71-1900 (4th Cir., March 
7, 1972) (Slip op. at pp. 7-8). It would be a cruel mockery of 
constitutional law if a different rule were to be applied to 
school desegregation cases. After all schooling is this nation’s 
biggest industry and the most important tast of government left 
to the states by the Constitution. In this case, were a different 
rule to be applied, it would constitute a gigantic hypocrisy: 
After all the money which has been spent over the years 
creating and maintaining the segregated condition, the relatively 
small amounts of money required to undo that segregation can 
be found. The law, surely, requires at least that. And the ap­
plication of the commands of Swann does require that in almost 
every school desegregation case which has been brought to this 
court’s attention.



86a

5. In the substantial reassignment of faculty and re­
structuring of facilities required by the clustering, pairing, and 
grouping of schools to accomplish pupil desegregation, normal 
administrative practice should lead to schools with substantially 
like facilities, faculty and staff, and equipment. Swann, supra, 
402 U.S. at 18-20. Moreover, special care should be taken in the 
necessary reassignment of faculty to avoid creating or maintain­
ing the racial identification of schools “simply by reference to 
the racial composition of teachers and staff.” Swann, supra, 402 
U.S. at 18. In any event, the equitable discretion of the court is 
broad enough to insure that those aspects of faculty deseg­
regation and equalization of facilities which are essential to the 
effective operation of a desegregation plan are included in the 
planning and final order, Swann, supra, 402 U.S. at 15; U.S. v. 
Montgomery County Board o f Ed., 395 U.S. 225 (1969); Hecht 
v. Bowles, 321 U.S. 329-330 (1944); and no contract, union 
agreement or otherwise, or Board policy or practice may 
impede these Fourteenth Amendment obligations. U.S. v. 
Greenwood Municipal Separate School District, 406 F. 2d 
1086, 1094 (5th Cir.), cert, denied, 395 U.S. 907 (1969), Berry 
v. Benton Harbor,_____ F. Supp_____ (W.D. Mich. 1971).

6. The Federal courts have repeatedly rejected plans 
exempting the lower grades from integration, relying less on 
educational data than upon the hard legal fact that segregation 
at any age is a denial of the equal protection of the law. See, 
e.g., United States v. Jefferson County Bd. o f Educ., 372 F.2d 
836 (9th Cir. 1966), aff’d on rehearing en banc, 380 F.2d 385 
(5th Cir. 1967). To leave grades K through 3 exempt from a 
desegregation plan is not to eliminate segregation “root and 
branch.” Green v. County School Board o f New Kent County, 
391 U.S. 430(1968).

7. The consistent application of settled constitutional law 
invests this court with the equitable power, and the duty, to 
order preparation, and thereafter implementation, of a practic­
able and sound plan which embodies the principles set forth in 
these findings and conclusions and the attached memorandum 
and order. See, generally, Ruling on Propriety of Considering a 
Metropolitan Remedy to Accomplish Desegregation of the



87a

Public Schools of the City of Detroit, March 24, 1972; Findings 
of Fact and Conclusions of Law on Detroit-Only Plans, March 
24, 1972; oral ruling on offers of proof, April 13, 1972; and the 
cases cited therein.

8. School construction practices throughout the metro­
politan area have added to and reinforced the pattern of seg­
regation referred to. Although there were vacant seats through­
out the city to which students could have been assigned at lesser 
cost and with the achievement of integration, continued sums 
were expended for construction of new schools designed to 
service particular areas of racial concentration, and such schools 
opened as and have continued to be racially identifiable in 
violation of the Fourteenth Amendment. Swann v. Chariotte- 
Mecklenberg Bd. o f Educ., 402 U.S. 1, 18-20 (1971); United 
States V. School Dist. 151, 404 F.2d 1125, 1132-33 (7th Cir. 
1968); Davis v. School Dist. o f Pontiac, 309 F. Supp. 734, 
741-42 (E.D. Mich. 1970), affd,  443 F.2d 573 (6th Cir. 1971); 
Spangler v. Pasadena City Bd. o f Educ., 311 F. Supp. 501, 
517-18 (C.D. Calif. 1970); Johnson v. San Francisco Unified 
School Dist., Civ. No. C-70-1331 (N.D. Calif. April 28, 1971); 
Brewer v. School Board o f the City o f Norfolk, 397 F.2d 37, 42 
(4th Cir. 1968); Cf. Sloan v. Tenth School Dist. o f Wilson
County,______F.2d_____ (6th Cir. 1970); United States v.
Board o f Educ. o f Polk County,____F. 2d___ 4th Cir. 1968);
Kelley v. Altheimer,_____F.2d____ (8th Cir. 1967); Bradley v.
School Bd.,______ F. Supp______ (E.D. Va. 1971); Clark v.
Board o f Educ. o f Little Rock, 401 U.S. 971 (1971).

9. The legal effects of racially discriminatory 
confinement to a school district are not different from the ef­
fects of such containment within a district. E.g., Lee v. Macon 
County Board o f Education, 558 F.2d 746 (5th Cir. 1971); 
Haney v. County Board Sevier, 410 F.2d 920 (8th Cir. 1969), 
429 F.2d 364 (8th Cir. 1970).

10. Where the actions of state defendants and local school 
authorities throughout the metropolitan area have had the 
natural, foreseeable, and actual effect of building upon, taking 
advantage of, and encouraging racially segregated demographic 
patterns deliberately fixed by governmental action at all levels



88a

with the effect of creating and maintaining racial segregation in 
the public schools, there is a present obligation to eliminate the 
continuing effects of such violation; and the District Court has 
the duty, upon default by school authorities, to intervene to 
secure compliance with the Constitution pursuant to the sound 
exercise of traditional equity powers consistent with the 
practicalities of the local situation. Swann v. Charlotte- 
Mecklenberg, 402 U.S. 1, 15-16, 20-21,31-32 (1971). Cf Find­
ings of Fact and Conclusions of Law on Detroit-Only Plans of 
Desegregation, p.5, Conclusion 4. In devising remedies where 
state-imposed segregation has been established, it is the respon­
sibility of school authorities and district courts to see to it that 
future school construction and abandonment is not used and 
does not serve to perpetuate or re-establish the violation. 
Swann, supra, 402 U.S. at 21.

11. Moreoever, where the State, and named defendants, 
are substantially implicated in the segregation violation found 
and are ultimately responsible for public schooling throughout 
the state, the consistent application of constitutional principles 
requires that this court take all steps necessary and essential to 
require them to desegregate the Detroit public schools ef­
fectively and maintain, now and hereafter, a racially unified, 
non-discriminatory system in the absence of a showing that the 
judicial intervention here contemplated will frustrate the pro­
motion of a legitimate and compelling state policy or interest. 
Reynolds v. Sims, 377 U.S. 533, 575 (1964); Hunter v. City o f 
Pittsburg,  207 U.S. 1 61, 178- 179 (1907); Phoenix v. 
Kolodziejski, 399 U.S. 204, 212-213 (1970); Kramer v. Union 
Free School District, 395 U.S. 621, 633 (1969); Williams v. 
Illinois, 399 U.S. 235, 244-45 (1970); Shelton v. Tucker, 364 
U.S. 479, 488 (1966); Green v. County School Bd., 391 U.S. 
430, 439, 442; Swann v. Charlotte-Mecklenberg, 402 U.S. 1 
(1971); Davis v. Bd. o f School Commissioners, 402 U.S. 33 
(1971); Brown v. Board o f Education, 347 U.S. 483 (1954); 
Brown v. Board o f Education, 349 U.S. 292, 300 (1955); 
Monroe v. Board o f Commissioners, 391 U.S. 450,459 (1968).



89a

FOOTNOTES

1. In the main such proof entirely misses the point: the 
violation here found has to do with school segregation caused in 
substantial part by force of public authority and action; yet the 
intervening defendants’ questions and offer of proof speak 
mainly to educational theory and recent and sometimes con­
tradictory research about narrowly measured educational ef­
fects, mostly on achievement test scores, of quite limited begin­
nings of racial, or socio-economic integration of various types 
and as compared with the effects of dollar or other resource 
inputs and continued segregation. This court does not under­
stand, however, that such research, from the Coleman report to 
its many reanalyses, formed the primary bases for the Brown 
decision or any of its progeny. See, e.g., Brunson v. Bd. of 
Trustees, 429 F.2d 820, 826 (4th Cir. 1970) (J. Sobeloff, con­
curring). In the context similar to newly intervening defendants’ 
objections to desegregation, the Supreme Court in Swann specifi­
cally held that such factors constitute an impermissible limit 
upon the duty to desegregate. 402 U.S. at 24, Fn. 8. Citation to 
such research, either in support or rejection of school deseg­
regation, misses the primary point: insofar as pupil assignments 
are concerned, the system of public schooling in every state 
must be operated in a racially non-discriminatory, unified 
fashion; until that objective is met, the very system of public 
schooling constitutes an invidious racial classification. The 
adoption of an education theory having the effect of main­
taining a pattern of de jure segregation is therefore clearly 
impermissible. (Whether such theories, research, or evidence on 
educational quality or inequality form the basis for requiring 
judicial intervention and relief in the absence of a finding of de 
jure segregation is a question this court need not face.)

In any event, the Court of Appeals for the Sixth Circuit 
held, on June 19, 1970, that greater, not less, desegregation is 
the proper manner to alleviate the problem of disparity in 
achievement. Monroe v. Board of Commissioners, Jackson, 
Tenn., 427 F.2d 1005, 1008 (C.A. 6, 1970).

2. Chief Justice Burger in Swann v. Charlotte-Mecklenberg 
Bd. ofEduc.,402 U.S. 1,6.



90a

3. Defendants Magdowski, et al., originally opposed to de­
segregation, during the course of the taking of proofs on the 
issue of segregation, conceded that the public schools of the 
city of Detroit were in fact segregated, and took the early lead 
in suggesting that the only effective avenue for desegregation 
was a metropolitan plan. The Detroit Board of Education, while 
continuing to deny that it has been guilty of any act of seg­
regation, took the position that if desegregation were to be 
undertaken it could be done only on a metropolitan basis. So 
that now the white parents of the city of Detroit and its Board 
of Education — the parties most directly involved with the lot 
of the students in the Detroit school system — see no alternative 
to, and, for all practical purposes seek a metropolitan solution 
to the basic Detroit school problem.

4. In the context of this hearing, the defendant Detroit 
Board of Education is not in a position to act as the usual 
“school authority” primarily responsible for suggesting an ap­
propriate desegregation area simply because its authority does 
not extend beyond the geographic limits of the city of Detroit. 
The competence, knowledge of local conditions, and expertise 
of those schoolmen who helped prepare the Detroit Board’s 
proposal, however, may be utilized and given appropriate weight.

5. In Oliver v. Kalamazoo Board of Education, #K88-71, 
Judge Fox pointed out the primary responsibility of the state: 
“The State of Michigan is represented by two entities, but the 
entity is an agent of the State . . . [T]he Constitution says 
something about your [the State’s! responsibility.” The court 
went on to order the State to take an active role. Pre-trial order 
and transcript, May 1, 1972.

6. The Detroit Board plan places heavier reliance on white 
flight and socio-economic factors, while the Magdowski pro­
posal in addition places an emphasis on maintaining a minimum 
percentage black in each school. These considerations in no way 
determine the court’s choice of a desegregation area necessary 
to meet constitutional requirements. In fairness, however, it 
also should be noted that the desegregation area, which the 
court deems to best meet constitutional requirements, also 
happens in the main, to meet the other concerns expressed in



91a

these two proposals. That the Board’s interest in socio­
economic integration is largely met by racial desegregation is 
not surprising. There is uncontroverted evidence in the record, 
and the court so finds, that there is a high correlation between 
blacks and persons of a low socio-economic status, the result, in 
the main, of the cumulative effects of past and present racial 
discrimination including discrimination in education. At some 
point hereafter, of course, school authorities with responsibility 
for implementation and operation of the racially-unified non- 
discriminatory school system contemplated, or parts thereof, 
may and should include in its plan other educational goals and 
needs whether or not they are required by the law or any court. 
Swann v. Charlotte-Mecklenberg, 402 U.S. at 16.

7. If a state is constitutionally forbidden to institute a 
system of racial segregation by the use of artificial boundary 
lines, it is likewise forbidden to perpetuate a system whose 
effect is to maintain segregation. “There is no legally protected 
vested interest in segregation. If there were, then Brown v Board 
of Education and the numerous decisions based on that case 
would be pointless. Courts will not say in one breath that public 
school systems may not practice segregation, and in the next 
that they may do nothing to eliminate it.” Wanner v School Bd. 
of Arlington County, 357 F.2d 452, (Soboloff, Cir. J.), pp. 454 
and 455. The historic fact is that existing conditions are based 
on a design to segregate the races. To hold that segregation, 
once accomplished, is sacrosanct and beyond constitutional 
reach, is to say that the United States Constitution and its 
Amendments, and their provisions for equality, are mere 
rhetoric.

8. See Findings 70-78, infra.

9. The interplay of these two factors summarizes two 
other guideposts or starting points: maximum feasible deseg­
regation and eliminating racially identifiable schools. Factors 
such as time and distance limitations, together with the rough 
definitions of substantial disproportion with the relevant school 
community’s pupil racial composition, in turn largely determine 
the meaning of “eliminating racially identifiable schools” and 
what constitutes “maximum feasible desegregation,” in the



92a

particular circumstances here present and in the context of a 
prior finding of segregation.

10. The Detroit Board Proposal contemplates desegrega­
tion on a “minority”-white basis. The proof in this cause, how­
ever, has been aimed at the segregation of black children and 
white children; similarly the remedy has been so defined, 
argued, and in the main presented by parties. The court finds, 
therefore, that the area, and further planning, should, in the 
main, be confined to a black-white breakdown.

11. To the Southwest, Plaintiffs’ Proposal falls on the side 
of less time in transit than the 40-minute guideline because 
inclusion of more area is not required to desegregate, (see Find­
ing 27, infra.)

12. Moreover, in the main, the areas, schools, and pupils 
in these districts are not as fully members of the greater Detroit 
school community: many are less urban; they are the furthest in 
terms of time, distance, and contact from the Detroit area’s 
economic and social activities [SIC]; and many are more 
oriented, if anything, to urban areas other than Detroit, for 
example, the Ann Arbor - Ypsilanti area.

13. The court notes, however, that the range of average 
socio-economic status for the various regions or clusters in 
Plaintiffs’ Proposal is similar to that in the Detroit Board Pro­
posal: based on the Michigan Assessment the range in Plaintiffs’ 
Proposal happens to be 44.7 to 53.7, while in the Detroit Board 
Proposal the range is 46.3 to 53; and only three of the 15 
clusters of schools in Plaintiffs’ Proposal fall below 46.3.

14. Because of the closeness of the question, particularly 
as it relates to any problems which may arise hereafter in 
establishing a pupil desegregation plan, the court feels that some 
opportunity should be given to the expert panel to suggest a 
modification of this tentative resolution. See also Findings 
34-38 below.

15. A common practice in other cases is the use of “pupil
locator” maps. See Northcross v. School Board of City of 
Memphis,_____ F. 2d______(6th Cir. 1971).



93a

16. For years these city-contained school districts, which 
include some suburban districts in the desegregation area, as 
well as the Detroit Public Schools, have demanded without suc­
cess that this inequitable state practice be changed so that all 
districts could be reimbursed on the same basis for pupil trans­
portation.

17. The figure almost twice that which appears in several 
of the State “plans” was based on the assumption that busing 
would be “one-way” with black children being assigned to sub­
urban schools. Mr. Wagner, the state official in charge of pupil 
transportation, provided the information on which that esti­
mate was based and also informed his superiors that a two-way 
plan of desegregation and transportation would cost much less 
per pupil. The state defendants did not bring this important fact 
to the court’s attention in any of their submissions; it was un­
covered and fully explored in the disposition of Mr. Wagner 
taken by plaintiffs.

18. This phenomenon was noted in Swann, 402 U.S. 1, 
20-21. The principle was long known, and actively, supported 
by the F.H.A. For example, consider that public agency’s early
understanding in its 1936 manual that white subdivision 
developments require white schools: “if the children of people 
living in such area are compelled to attend school where the 
majority or a good number of the pupils represent a far lower 
level of society or an incompatible racial element, the neighbor­
hood under consideration will prove far less stable and desirable 
than if the condition did not exist.”

19. This figure assumes 30 children/regular classroom. 
Although rated capacities may be lower, the figure for regular 
classrooms does not include several types of instructional, 
recreational, laboratory, and other rooms which add overall 
pupil capacity to schools.

20. The resulting pattern is unmistakable: “Residential 
segregation within the city and throughout the larger metro­
politan area is substantial, pervasive and of long standing. Black 
citizens are located in separate and distinct areas within the city 
and are not generally found in the suburbs. While the racially



94a

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 or racial discrimination, both 
public and private, which have and do restrict the housing op­
portunities of black people. Perhaps the most that can be said is 
that all of them [various governmental units], including school 
quthorities, are, in part, responsible for the segregated condition 
which exists.” Ruling on Issue of Segregation, 8 and 10. More­
over, an examination of PX 181, 192 and 185 shows that black 
children often remain isolated in predominately black schools in 
the few suburban school districts with any numbers of black 
pupils. In the last several weeks the local press has reported that 
the United States Office of Education cut off funds for one 
such district.

21. Included in this set of arrangements are contract rela­
tionships of various types concerning personnel, property and 
debts.

22. The defendant, William G. Milliken, Governor of the 
State of Michigan, in his amicus brief filed in the Supreme 
Court of the United States, No. 71-1332, San Antonio In­
dependent School District v. Demetrio P. Rodriquez, says, page 
II:

“ 1. Amici, whose individual and particular interests 
are set forth in more detail below, are the Governors of the 
above-listed States. As Governors and Chief executive of­
ficers of their respective States, Amici are responsible for 
upholding and carrying out the commands of the Con­
stitutions and laws of their various States, including the 
provisions thereof requiring the establishment of public 
schools and school districts and commanding the children 
of their States to attend school. Amici are responsible for 
financial decisions affecting all State operations, including 
those pertaining to support and financing of the public 
schools.

“Amici are deeply concerned about the ongoing and 
continuing crisis in public education and the difficulties



95a

facing public educational systems in their States and 
around the nation. Amici recognize that grave inequities 
exist because of variation in local property tax bases upon 
which local school districts must rely in order to support 
their school systems. Amici believe that these inequalities 
in educational resources violate the requirements of the 
Equal Protection Clause of the Fourteenth Amendment to 
the United States Constitution and that these inequalities 
must be eliminated* * * *”

The Governors’ amicus brief, speaking of the State of 
Texas, could as well be said of the State of Michigan, when 
it used these words:

“It is also undisputed that the local school districts 
and their boundaries, and hence the aggregate value of 
the property they contain, are entirely the creation of and 
their maintenance is the responsibility of the State of 
Texas. Furthermore, the detailed regulation of public 
education financing in Texas * * * is a state not a local 
responsibility. Indeed, the school districts have the power 
to raise funds for education only as a result of delegation 
by the State of its own power to tax for the general wel­
fare.” (Page 8 of brief.)

“Since the State could not discriminate directly 
against students residing in poorer localities, it should not 
be permitted to accomplish the same result by dividing its 
responsibility for equal education with local school 
districts and failing to supplement the funds raised by the 
school districts sufficiently to eliminate discrimination.” 
*(Page 11 of brief.)

*Compare Griffin v. County School Board, 377 U.S. 218 
(1964). While a State may delegate certain of its functions to 
smaller subdivisions such as cities or counties, it cannot escape 
accountability for their actions. Such subdivisions are “created 
as convenient agencies for exercising such of the governmental 
powers of the State as may be entrusted to them * * * * The 
number, nature, and duration of [their] powers * * * and the 
territory over which they shall be exercised rests in the absolute



96a

discretion of the State.” Hunter v. City of Pittsburg, 207 U.S. 
161, 178 (1907).

23. For years black children in the Carver School District 
were assigned to black schools in the inner city because no 
white suburban district (or white school in the city) would take 
the children.

24. These findings are made on the basis of the present 
record and are subject to modification based on evidence which 
may be developed once the specific problems of actual deseg­
regation are faced in the planning process.

25. See, Kelley, et al. v. Metropolitan Bd. of Educ., CCA 
6, Nos. 71-1778-79, page 22, slip opinion, May 30, 1972:

“Perhaps the primary thing that the Swann case 
decided was that in devising plans to terminate such 
residual effects, it is appropriate for the school system and 
the District Judge to take note of the proportion of white 
and black students within the area* and seek as practical a 
plan as may be for ending white schools and black schools 
and substituting therefor schools which are representative 
of the area in which the students live.”

*The area referred to in this case is all of Davidson 
County, including the City of Nashville, which is in­
cluded in the jurisdiction of defendant Metropolitan 
Board of Education.



97a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs

WILLIAM G. MILLIKEN, et al.,
Defendants

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

Defendant-
Intervenor

and
DENISE MAG DOW SKI, et al.,

Defendants-
Intervenor

et al.

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CIVIL ACTION NO 
35257

RULING ON DESEGREGATION AREA
AND

ORDER FOR DEVELOPMENT OF 
PLAN OF DESEGREGATION

On September 27, 1971 the court made its Ruling on Issue 
of Segregation, holding that illegal segregation exists in the 
public schools of the City of Detroit as a result of a course of 
conduct on the part of the State of Michigan and the Detroit 
Board of Education. Having found a constitutional violation as 
established, on October 4, 1971 the court directed the school 
board defendants, City and State, to develop and submit plans 
of desegregation, designed to achieve the greatest possible de­
gree of actual desegregation, taking into account the practicali-



98a

ties of the situation. The directive called for the submission of 
both a “Detroit-only” and a “Metropolitan” plan.

Plans for the desegregation of the Detroit schools were 
submitted by the Detroit Board of Education and by the plain­
tiffs. Following five days of hearings the court found that while 
plaintiffs’ plan would accomplish more desegregation than now 
obtains in the system, or which would be achieved under either 
Plan A or C of the Detroit Board of Education submissions, 
none of the plans would result in the desegregation of the pub­
lic schools of the Detroit school district. The court, in its find­
ings of fact and conclusions of law, concluded that “relief of 
segregation in the Detroit public schools cannot be accom­
plished within the corporate geographical limits of the city,” 
and that it had the authority and the duty to look beyond such 
limits for a solution to the illegal segregation in the Detroit 
public schools. Accordingly, the court ruled, it had to consider 
a metropolitan remedy for segregation.

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

The hearing on the proposals have set the framework, and 
have articulated the criteria and considerations, for developing 
and evaluating an effective plan of metropolitan desegregation. 
None of the submissions represent a complete plan for the 
effective and equitable desegregation of the metropolitan area, 
capable of implementation in its present form. The court will 
therefore draw upon the resources of the parties to devise, pur­
suant to its direction, a constitutional plan of desegregation of 
the Detroit public schools.



99a

Based on the entire record herein, the previous oral and 
written rulings and orders of this court, and the Findings of 
Fact and Conclusions of Law filed herewith, IT IS ORDERED:

I.

A. As a panel charged with the responsibility of pre­
paring and submitting an effective desegregation plan in accor­
dance with the provisions of this order, the court appoints the 
following:

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

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

3. Merle Henrickson, Detroit Board of Education;

4. Aubrey McCutcheon, Detroit Board of Education;

5. Freeman Flynn, Detroit Board of Education;

6. Gordon Foster, expert for plaintiffs;

7. R ic h a rd  M orshead, representing defendant 
Magdowski, et ah;

8. A designee of the newly intervening defendants;*

9. Rita Scott, of the Michigan Civil Rights Commission.

Should any designated member of this panel be unable to 
serve, the other members of the panel shall elect any necessary 
replacements, upon notice to the court and the parties. In the

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



100a

absence of objections within five days of the notice, and pend­
ing a final ruling, such designated replacement shall act as a 
member of the panel.

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

C. The parties, their agents, employees, successors. 
[SIC] and all others having actual notice of this order shall 
cooperate fully with the panel in their assigned mission, includ­
ing, but not limited to, the provision of data and reasonable full 
and part-time staff assistance as requested by the panel. The 
State defendants shall provide support, accreditation, funds, 
and otherwise take all actions necessary to insure that local 
officials and employees cooperate fully with the panel. All 
reasonable costs incurred by the panel shall be borne by the 
State defendants; provided, however, that staff assistance or 
other services provided by any school district, its employees or 
agents, shall be without charge, and the cost thereof shall be 
borne by such school district.



101a

II.

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

Lakeshore Birmingham Fairlane
Lakeview Hazel Park Garden City
Roseville Highland Park North Dearborn 

Heights
South Lake Royal Oak Cherry Hill
East Detroit Berkley Inkster
Grosse Pointe Femdale Wayne
Centerline Southfield Westwood
Fitzgerald Bloomfield Hills Ecorse
Van Dyke Oak Park Romulus
Fraser Redford Union Taylor
Harper Woods West Bloomfield River Rouge
Warren Clarenceville Riverview
Warren Woods Farmington Wyandotte
Clawson Livonia Allen Park
Hamtramck South Redford Lincoln Park
Lamphere Crestwood Melvindale
Madison Heights Dearborn Southgate
Troy Dearborn Heights Detroit

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

B. Within the limitations of reasonable travel time and 
distance factors, pupil reassignments shall be effected within the 
clusters described in Exhibit P.M. 12 so as to achieve the 
greatest degree of actual desegregation to the end that, upon 
implementation, no school, grade or classroom by substantially



102a

disproportionate to the overall pupil racial composition. The 
panel may, upon notice to the parties, recommend reorganiza­
tion of clusters within the desegregation area in order to mini­
mize administrative inconvenience, or time and/or numbers of 
pupils requiring transportation.

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

D. Consistent with the requirements of maximum actual 
desegregation, every effort should be made to minimize the 
numbers of pupils to be reassigned and requiring transportation, 
the time pupils spend in transit, and the number and cost of 
new transportation facilities to be acquired by utilizing such 
techniques as clustering, the “skip” technique, island zoning, 
reasonable staggering of school hours, and maximization of use 
of existing transportation facilities, including buses owned or 
leased by school districts and buses operated by public transit 
authorities and private charter companies. The panel shall de­
velop appropriate recommendations for limiting transfers which 
affect the desegregation of particular schools.

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

F. Faculty and staff shall be reassigned, in keeping with 
pupil desegregation, so as to prevent the creation or continua­
tion of the identification of schools by reference to past racial 
composition, or the continuation of substantially disproportion­
ate racial composition of the faculty and staffs, of the schools 
in the desegregation area. The faculty and staffs assigned to the 
schools within the desegregation area shall be substantially dese­
gregated, bearing in mind, however, that the desideratum is the



103a

balance of faculty and staff by qualifications for subject and 
grade level, and then by race, experience and sex. In the context 
of the evidence in this case, it is appropriate to require assign­
ment of no less than 10% black faculty and staff at each school, 
and where there is more than one building administrator, every 
effort should be made to assign a bi-racial administrative team.

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

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

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

J. Pending further orders of the court, existing school 
district and regional boundaries and school governance arrange­
ments will be maintained and continued, except to the extent 
necessary to effect pupil and faculty desegregation as set forth 
herein; provided, however, that existing administrative, finan­



104a

cial, contractual, property and governance arrangements shall be 
examined, and recommendations for their temporary and per­
manent retention or modification shall be made, in light of the 
need to operate an effectively desegregated system of schools.

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

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

Ill

The State Superintendent of Public Instruction, with the 
assistance of the other state defendants, shall examine, and 
make recommendations, consistent with the principles estab­
lished above, for appropriate interim and final arrangements for 
the (1) financial, (2) administrative and school governance, and
(3) contractual arrangements for the operation of the schools 
within the desegregation area, including steps for unifying, or 
otherwise making uniform the personnel policies, procedures, 
contracts, and property arrangements of the various school dis­
tricts.

Within 15 days of the entry of this order, the Super­
intendent shall advise the court and the parties of his progress in 
preparing such recommendations by filing a written report with 
the court and serving it on the parties. In not later than 45 days 
after the entry of this order, the Superintendent shall file with 
the court his recommendations for appropriate interim and final 
relief in these respects.

In his examination and recommendations, the Super­
intendent, consistent with the rulings and orders of this court,



105a

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

IV.

Each party may file appropriate plans or proposals for 
inclusion in any final order which may issue in this cause. The 
intent of this order is to permit all the parties to proceed apace 
with the task before us: fashioning an effective plan for the de­
segregation of the Detroit public schools.

Fifteen days after the filing of the reports required herein, 
hearings will begin on any proposal to modify any interim plan 
prepared by the panel and all other matters which may be inci­
dent to the adoption and implementation of any interim plan of 
desegregation submitted. The parties are placed on notice that 
they are to be prepared at that time to present their objections, 
alternatives and modifications. At such hearing the court will 
not consider objections to desegregation or proposals offered 
“instead” of desegregation.

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

DATE: JUNE 14, 1972.

/sf
Stephen J. Roth 

United States District Judge



106a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al, )
Plaintiffs, )

v. )
WILLIAM G. MILLIKEN, et al, )

Defendants, ) 
and )

D ET R O IT FEDERATION OF TEACH- ) Civil Action 
ERS, LOCAL 231, AMERICAN FEDERA- ) No. 35257  
TION OF TEACHERS, AFL-CIO, )

Defendant-Intervenor, ) 
and )

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

et al. )

ORDER
FOR ACQUISITION OF TRANSPORTATION

At a session of the United States District Court, Federal 
Building, Detroit, Michigan, on the 11th day of July, 1972.

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

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



107a

dants, including the added State Defendant State Treasurer Allison 
Green, as set forth below in Paragraph 2. Said order, lease, or 
other contract shall be entered into by negotiation and without 
the necessity for bids forthwith and in no event later than Thurs­
day, July 13, 1972.

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

United States District Judge



108a

NO. 72-8002
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

)
)
)WILLIAM G. MILLIKEN, et al,

Defendants-Appellants ) O R D E R
and )

)
)

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

Defendant-Intervenor
and

DENISE MAGDOWSKI, et al,
Defendants-Intervenors

Before: PHILLIPS, Chief Judge, EDWARDS and PECK, Circuit 
Judges.

The District Court has certified that certain orders entered by 
him in this case involve controlling questions of law, as provided 
by 28 U. S. C. § 1292(b), and has made a determination of finality 
under Rule 54(b), Fed. R. Civ. P.

This court concludes that among the substantial questions 
presented there is at least one difficult issue of first impression 
which never has been decided by this court or the Supreme Court. 
In so holding we imply nothing as to our view of the merits of this 
appeal. We conclude that an immediate appeal may materially 
advance the ultimate termination of the litigation. Accordingly, it 
is ORDERED that the motion for leave to appeal be and hereby is 
granted.

It is further ORDERED that the appeal in this case be ad­
vanced on the docket of this court and scheduled for hearing 
Thursday, August 24, 1972, at 9 a.m. The appendix and simul­
taneous briefs of all parties shall be filed not later than 25 days



109a

after the entry of this order. Reply briefs shall be filed not later 
than August 21, 1972. Typewritten appendix and briefs may be 
filed in lieu of printed briefs, together with ten legible copies pro­
duced by Xerox or similar process. An appendix must be filed. The 
court will not entertain a motion to hear the appeal on the original 
record.

The motion for stay pending appeal having been considered, it 
is further ORDERED that the Order for Acquisition of Trans­
portation, entered by the District Court on July 11, 1972, and all 
orders of the District Court concerned with pupil and faculty 
reassignment within the Metropolitan Area beyond the geo­
graphical jurisdiction of the Detroit Board of Education, and all 
other proceedings in the District Court other than planning pro­
ceedings, be stayed pending the hearing of this appeal on its merits 
and the disposition of the appeal by this court, or until further 
order of this court. This stay order does not apply to the studies 
and planning of the panel which has been appointed by the Dis­
trict Court in its order of June 14, 1972, which panel was charged 
with the duty of preparing interim and final plans of desegre­
gation. Said panel is authorized to proceed with its studies and 
planning during the disposition of this appeal, to the end that 
there will be no unnecessary delay in the implementation of the 
ultimate steps contemplated in the orders of the District Court in 
event the decision of the District Court is affirmed on appeal. 
Pending disposition of the appeal, the defendants and the School 
Districts involved shall supply administrative and staff assistance 
to the aforesaid panel upon its request. Until further order of this 
court, the reasonable costs incurred by the panel shall be paid as 
provided by the District Court’s order of June 14, 1972.

Entered by order of the Court.

/s/ James A. Higgins
Clerk



110a

Nos. 72-1809 -  72-1814

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

R o n a l d  B r a d l e y , e t  a l .,

Plaintiffs-Appellees,

v.
W il l ia m  G. M il l ik e n , Governor of 

Michigan, etc.; B o a r d  o f  E d u c a ­
t io n  o f  t h e  C it y  o f  D e t r o it ,

Defendants-Appellants,
and

D e t r o it  F e d e r a t io n  o f  T e a c h e r s  
L o c a l  231, A m e r ic a n  F e d e r a t io n  
o f  T e a c h e r s , AFL-CIO,

Defendant-Intervenor-Appellee, 
and

A l l e n  P a r k  P u b l ic  Sc h o o l s , e t  a l ., j 
Defendants-Intervenors-Appellants j 

and j
K e r r y  G r e e n , e t  a l .,

Defendants-Intervenors-Appellees.

A p p e a l  from the 
United States District 
Court for the Eastern 
District of Michigan, 
Southern Division.

Decided and Filed June 12, 1973.

Before P h il l ip s , Chief Judge, W e ic k , E d w a r d s , C e l e b r e z z e , 
P e c k , M c C r e e , M il l e r , K e n t  and L iv e l y , Circuit Judges.

Phillips, C.J., delivered the opinion of the Court, in which 
Edwards, Celebrezze, Peck, McCree and Lively, JJ., joined. 
Weick, J. (pp. 82-111) and Miller, J. (pp. 130-131) filed dis­
senting opinions and Kent, J., (pp. 112-129) filed a separate



111a

opinion concurring in part and dissenting in part. Judge Kent 
died May 28, 1973 after the opinions were in the hands of 
the printer.

P h il l ip s , Chief Judge. This is a school desegregation case 
which, as originally filed, was directed against the school sys­
tem of Detroit, Michigan, but on this appeal involves both 
Detroit and school districts located in the surrounding met­
ropolitan area.

The present appeal is the fourth time that the case has been 
before this court since the complaint was filed August 18, 
1970. The earlier decisions of this court are reported at Brad­
ley v. Milliken, 433 F.2d 897 (1970); Bradley v. Milliken, 438 
F.2d 945 (1971); and Bradley v. Milliken, 468 F.2d 902, 
cert, denied, 409 U.S. 844 (1972). (On November 27, 1972 
the original panel dismissed for want of jurisdiction an 
“emergency motion” by the Detroit Board of Education 
that State officials be required to provide funds to keep the 
Detroit public schools operating for 180 regular days of
instruction during the current school y e a r .----F .2 d ------.)
On February 27, 1973, the Supreme Court denied re­
view in Bloomfield Hills School District v. Roth, West Bloom­
field School District v. Roth, and Birmingham School District
v. Roth, —  U.S.----, 41 U.S.L.W. 3460. In these cases this court
had denied applications for writs of mandamus or prohibition 
against District Judge Roth. The School Districts contended 
that the District Judge usurped jurisdiction by failing to con­
vene three-judge courts and by subjecting the School Districts 
to his ruling and order in the school desegregation case in spite 
of the fact that the Districts were not parties to the desegre­
gation proceedings and had not been found to have committed 
any act of de jure segregation. The action of the Supreme 
Court was without prejudice to the right of the School Dis­
tricts to file application to intervene in the present action.)

Oral arguments were heard before a panel of this court 
on August 24, 1972. An opinion was announced by the panel 
on December 8, 1972, affirming two orders of the District 
Court, viz: (1) Ruling on Issue of Segregation, reported at

2 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



112a

338 F.Supp. 582, and (2) Findings of Fact and Conclusions 
of Law on “Detroit only” plans of desegregation, dated March 
28, 1972. The decision of the panel vacated the remaining 
three orders on appeal (enumerated below), but affirmed in 
principle the ruling of the District Court on the propriety of 
a metropolitan remedy to accomplish desegregation.

On January 16, 1973, this court granted rehearing in banc. 
Under the provisions of Rule 3(b) of the local rules of this 
court, the effect of granting rehearing in banc is “to vacate 
the previous opinion and judgment of the court, to stay the 
mandate and to restore the case on the docket as a pending 
appeal.”

Oral arguments before the court in banc were heard Feb­
ruary 8, 1973.

No specific desegregation plan has been ordered by the 
District Court. The procedural history of the litigation is set 
forth below.

Before this court at the present time are four interlocutory 
orders from which we have granted appeal pursuant to 28 
U.S.C. § 1292(b) and one final order, viz:

1. Ruling on Issue of Segregation, dated September 27, 
1971, reported at 338 F.Supp. 582;

2. Findings of fact and conclusions of law on “Detroit only” 
plans of desegregation, dated March 28, 1972;

3. Ruling on Propriety of a Metropolitan Remedy to Ac­
complish Desegregation of the Public Schools of the City of 
Detroit, dated March 24, 1972;

4. Ruling on Desegregation Area and Development of 
Plan, and Findings of Fact and Conclusions of Law in support 
thereof, dated June 14, 1972; and

5. Order dated July 11, 1972, directing Michigan State 
officials to purchase 295 school buses (which this court con­
siders to be a final order).

On July 13, 1972, following oral argument, the original panel 
granted a motion for a temporary stay of the District Courts

Nos. 72-1809 -14 B radley , e t  al. v. Milliken, e t  al. 3



113a

order of July 11, 1972, ordering the purchase of 295 school 
buses.

On July 17, 1972, following oral argument, the original panel 
directed that its stay order remain in effect until entry by the 
District Court of a final desegregation order or until certification 
by the District Court of an appealable question as provided by 
28 U.S.C. § 1292(b).

Thereafter, on July 19, 1972, the District Court certified that 
the orders set forth above involve controlling questions of 
law, as provided by 28 U.S.C. § 1292(b), and made a deter­
mination of finality under Rule 54(b), Fed. R. Civ. P.

On July 20,1972, the original panel entered an order granting 
the interlocutory appeal concluding that:

“[A]mong the substantial questions presented there is at 
least one difficult issue of first impression that never has 
been decided by this court or the Supreme Court. In so 
holding we imply nothing as to our view of the merits of 
this appeal. We conclude that an immediate appeal may 
materially advance the ultimate termination of the litiga­
tion.”

The motion for leave to appeal was granted and the case 
was advanced for oral arguments on the merits on August 
24, 1972.

The July 20, 1972 order of the original panel included the 
following stay order, which has remained in effect pending 
final disposition of the appeal on its merits:

“The motion for stay pending appeal having been con­
sidered, it is further ORDERED that the Order for Ac­
quisition of Transportation, entered by the District Court 
on July 11, 1972, and all orders of the District Court con­
cerned with pupil and faculty reassignment within the 
Metropolitan Area beyond the geographical jurisdiction 
of the Detroit Board of Education, and all other proceed­
ings in the District Court other than planning proceedings, 
be stayed pending the hearing of this appeal on its merits 
and the disposition of the appeal by this court, or until fur­
ther order of this court. This stay order does not apply to

4 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



114a

the studies and planning of the panel which has been ap­
pointed by the District Court in its order of June 14, 
1972, which panel was charged with the duty of pre­
paring interim and final plans of desegregation. Said 
panel is authorized to proceed with its studies’ and plann­
ing during the disposition of this appeal, to the end that 
there will be no unnecessary delay in the implementation 
of the ultimate steps contemplated in the orders of the 
District Court in event the decision of the District Court 
is affirmed on appeal. Pending disposition of the appeal, 
the defendants and the School Districts involved shall 
supply administrative and staff assistance to the aforesaid 
panel upon its request. Until further order of this court, 
the reasonable costs incurred by the panel shall be paid 
as provided by the District Court’s order of June 14, 1972.”

This court also has granted leave to appeal to various in­
tervening parties and leave to file numerous amicus briefs. 
The briefs and arguments of all the parties have been con­
sidered in the disposition of this appeal.

We agree with two of the rulings of the District Court sum­
marized above: (1) The Ruling on the Issue of Segregation 
and (2) the Findings of Fact and Conclusions of Law on 
“Detroit-only” plans of desegregation. We hold that the find­
ings of fact of the District Court as set forth in these rulings 
are not clearly erroneous, Rule 52(a), Fed. R. Civ. P., but to the 
contrary are supported by substantial evidence.

As to the District Court’s third ruling pertaining to the pro­
priety of a Metropolitan remedy, we agree in part and re­
verse in part. We vacate this and the two remaining orders 
and remand to the District Court for further proceedings as 
hereinafter set forth in detail in this opinion.

I. Chronology of Proceedings

On April 7, 1970, the Detroit Roard of Education adopted 
a plan to effect a more balanced distribution of black and 
white students in the senior high schools through enactment 
of changes in attendance zones involving some 12,000 pupils,

Nos. 72-1809 -14 Bradley, e t  al. v. Milliken, e t  al. 5



115a

to become effective over a three year period. Three months 
later this modest effort was thwarted by the legislature of 
the State of Michigan through enactment of Act 48 of the 
Public Acts of 1970. Section 12 of the Act delayed implementa­
tion of the plan. The four members of the Board who sup­
ported the April 7 plan were removed from office through a 
citizen initiated recall election. The new members of the 
board and the incumbent members who had originally op­
posed the April 7 plan thereafter rescinded it.

The complaint in this case was filed by individual black 
and white school children and their parents, and the Detroit 
branch of the NAACP against the Board of Education of the 
City of Detroit, its members, and the then Superintendent 
of Schools, as well as the Governor, the Attorney General, 
the State Board of Education and the State Superintendent 
of Public Instruction of the State of Michigan. (The State 
of Michigan as such is not a party to this litigation. References 
thereto should be read as references to the public officials, 
State and local, through whom the State is alleged or shown 
to have acted.)

The complaint alleged that the Detroit public school system 
was and is segregated on the basis of race as the result of 
actions and policies of the Board of Education and of the 
State of Michigan. The complaint specifically challenged the 
constitutionality of Act 48 of the Public Acts of 1970 of the 
State of Michigan, which in effect repealed the April 7, 1970 
high school desegregation plan formulated by the Detroit 
Board.

The case was heard originally on plaintiffs’ motion for a 
preliminary injunction to restrain the enforcement of Act 
48. In response to this motion the District Judge denied a pre­
liminary injunction, did not rule on the constitutionality of Act 
48, but granted the motion of the Governor and Attorney Gen­
eral of Michigan for dismissal of the cause as to them. On 
appeal this court held that § 12 of Act 48 was an unconstitu­
tional interference with the lawful protection of Fourteenth 
Amendment rights, that there was no abuse of discretion in

6 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



116a

denying a preliminary injunction, and that the Governor 
and Attorney General should not have been dismissed as par­
ties defendant at that stage of the proceeding. The case was 
remanded to the District Court for an expedited trial on 
the merits. 433 F.2d 897.

On remand plaintiffs moved for immediate implementation 
of the April 7 plan. On December 3, 1970, following an 
evidentiary hearing on that plan and two updated plans, the 
District Court ordered implementation of the “Magnet” or 
“McDonald” plan effective at the beginning of the next full 
school year, pending ultimate disposition on the merits. Plain­
tiffs appealed and filed a motion for summary reversal. This 
court again held that the District Court had not abused its 
discretion in refusing to adopt the April 7 plan prior to an 
evidentiary hearing on the allegations of constitutional viola­
tions in the complaint. We remanded the case with in­
structions to proceed to trial expeditiously on the merits of 
plaintiffs’ allegations concerning the Detroit public school 
system. 438 F.2d 945. The trial of the case on the issue of 
segregation began April 6, 1971, and continued until July 
22, 1971, consuming 41 trial days. On September 27, 1971, 
the District Court issued its ruling on the issue of segrega­
tion, holding that the Detroit public school system was racially 
segregated as a result of unconstitutional practices on the part 
of the defendant Detroit Board of Education and the Michigan 
State defendants. 338 F.Supp. 582.

A decision on a motion to join a large number of suburban 
school districts as parties defendant was deferred on the 
ground that the motion was premature, in that no reasonably 
specific desegregation plan was before the court. The Detroit 
Board of Education was ordered to submit desegregation plans 
limited to the City, while State defendants were directed 
to submit plans encompassing the three-county metropolitan 
area. An effort was made to appeal these orders to this 
court. On February 23, 1972, this court held the orders to be 
non-appealable and dismissed the appeal. 468 F.2d 902, cert, 
denied, 409 U.S. 844 (1972).

Nos. 72-1809 -14 Bradley, e t  al. v. Milliken, e t  al. 7



117a

After further proceedings concerning proposals for a Detroit 
only desegregation remedy and the presentation of three plans 
therefor, the District Judge on March 24, 1972, issued a 
ruling entitled “Ruling on Propriety of Considering a Metro­
politan Remedy,” and on March 28, 1972, he issued “Findings 
of Fact and Conclusions of Law on Detroit Only Plans of 
Desegregation.” He rejected all Detroit only plans, saying 
in part: “Relief of segregation in the public schools of the 
City of Detroit cannot be accomplished within the corporate 
geographical limits of the city.”

Subsequently, the District Court issued an order on June 
14, 1972, entitled “Ruling on Desegregation Area and Order 
for Development of Plan for Desegregation.” In this ruling 
and order the District Court established tentative boundaries 
for a metropolitan remedy and provided for a panel of nine 
members to design plans for integration of the Detroit schools 
and those of 53 metropolitan school districts within certain 
guidelines.

The panel recommended preparatory purchases of school 
buses prior to implementation of an interim plan in Septem­
ber 1972. Following a hearing, the District Court on July 
11 ordered State defendants to purchase or otherwise acquire 
295 school buses.

In view of the intervening Congressional action by the en­
actment of the “Rroomfield Amendment,” certification was 
made to the Attorney General of the United States that the 
constitutionality of § 803 of the Education Amendments of 
1972, Pub. L. No. 92-318, 86 Stat. 235, had been called into 
question. The Department of Justice intervened, filed a brief 
and participated in the oral arguments before this court.

II. The Issues

All of the parties to this litigation in one form or another 
present three basic issues which we phrase as follows:

1. Are the District Court’s findings of fact pertaining to 
constitutional violations resulting in system-wide racial segre-

8 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



118a

gation of the Detroit Public Schools supported by substan­
tial evidence or are they clearly erroneous?

2. Based on the record in this case, can a constitutionally 
adequate system of desegregated schools be established with­
in the geographic limits of the Detroit school district?

3. On this record does the District Judge’s order requiring 
preparation of a metropolitan plan for cross-district assign­
ment and transportation of school children throughout the 
Detroit metropolitan area represent a proper exercise of the 
equity power of the District Court?

III. The Constitutional Violations

(A) Constitutional violations found to have been committed 
by the Detroit Board of Education:

(1) Segregative zoning and assignment practices.

(a) The District Judge found that the Detroit 
Board of Education formulated and modified 
attendance zones to create or perpetuate racial 
segregation. He also found that the feeder sys­
tem for junior and senior high schools was de­
signed to maintain rather than eliminate black 
or white schools at the higher levels. Its prac­
tice of shaping school attendance zones on a 
north-south rather than an east-west orientation 
resulted in attendance zone boundaries con­
forming to racial dividing lines.

(b) He further found that the Detroit Board of 
Education’s policies involved a substantial 
number of instances of transporting black chil­
dren past white schools with available school 
space.

He also found that it was the policy of the Board
of Education to create optional attendance areas

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 9



119a

which permitted white students to transfer to all 
white or predominately white schools located nearer 
the city limits.
The District Judge also found that the policies of 
the Detroit Board of Education (and State Board 
of Education) concerning school construction in 
some instances had the purpose of segregating stu­
dents on a racial basis and in many others resulted 
in maintaining or increasing segregation.

The District Judge’s findings of fact pertaining to al­
teration of zones and feeder patterns are as follows:

“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 pur­
posefully and intentionally built and maintained a school 
and its attendance zone to contain black students. 
Throughout the last decade (and presently) school at­
tendance zones of opposite racial compositions have been 
separated by north-south boundary lines, despite the 
Board’s awareness (since at least 1962) that drawing 
boundary lines in an east-west direction would result in 
significant integration. The natural and actual effect of 
these acts and failures to act has been the creation and 
perpetuation of school segregation. There has never been 
a feeder pattern or zoning change which placed a pre­
dominantly 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 black.” 338 F.Supp. at 588.

The legal conclusion of the District Judge is as follows:
“5. The Board’s practice of shaping school attendance 

zones on a north-south rather than an east-west orienta­
tion, with the result that zone boundaries conformed to

10 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



120a

racial residential dividing lines, violated the Fourteenth 
Amendment. Northcross v. Board of Ed. of Memphis,
6 Cir., 333 F.2d 661.” 338 F.Supp. at 592-93.

* * *
“9. The manner in which the Board formulated and 

modified attendance zones for elementary schools had 
the natural and predictable effect of perpetuating racial 
segregation of students. Such conduct is an act of de 
jure discrimination in violation of the Fourteenth Amend­
ment. United States v. School District 151, D.C., 286 F. 
Supp. 786; Brewer v. School Board of City of Norfolk, 4 
Cir, 397 F.2d 37.” 338 F.Supp. at 593.

There is, of course, other legal support for the con­
clusions set out above. Davis v. School District of Pontiac, 
443 F.2d 573, 576 (6th Cir.), cert, denied, 404 U.S. 913 (1971); 
United States v. Board of Education, Ind. School District No. 
1, 429 F.2d 1253, 1259 (10th Cir. 1970); United States v. 
Jefferson County Board of Education, 372 F.2d 836, 867-68 
(5th Cir. 1965), aff’d in banc, 380 F.2d 385 (5th Cir. 1966), 
cert, denied sub nom, Caddo Parish School Board v. United 
States, 389 U.S. 840 (1970); Clemons v. Board of Education, 
228 F.2d 853, 858 (6th Cir.), cert, denied, 350 U.S. 1006 
(1956); Spangler v. Pasadena Board of Education, 311 F. 
Supp. 501, 522 (C.D. Cal. 1970).

Witness Charles Wells, defendant School Board’s assistant 
superintendent in charge of the Office of Pupil Personnel 
Services, read into the record and testified in support of the 
minutes of a meeting of the Citizens Association for Better 
Schools. Mr. Wells was the president of the Citizens As­
sociation at the time the meeting was conducted. His testi­
mony includes the following:

“Q. (By Mr. Lucas) Go ahead, sir.
“A. ‘November 3, 1960.

‘TO: Honorable Nathan Kaufman, Chairman
Committee on Equal Education Opportunity.

Nos. 72-1809 - 14 Bradley, e t  a l  v. Milliken, e t  al. 11



121a

‘We should like to begin our presentation by reviewing 
with you briefly the development of our organization. We 
feel it is significant as it represents an attempt on the 
part of people who make up this organization to effective­
ly deal with the frustrations historically inherent in at­
tempting to provide for minority group children an ade­
quate education within the Detroit Public School System. 
A majority of the people of the Negro race moved into 
the now Center District from other school districts with­
in the limits of the City of Detroit. Although better 
housing conditions were but one of the motives for such 
a move, of equal importance was a desire to provide their 
children with a more equitable and enriched educational 
experience.

‘They were aware of the increased population within 
their new geographical area, and accepted the counselling 
of the then new administration of the Board of Edu­
cation, to the effect that additional tax monies would 
have to be made available if educational standards within 
the City of Detroit were to be improved, or even main­
tained. Consequently, each of them made a strong per­
sonal investment in the millage campaign of Spring 1959. 
In this campaign, initially, their efforts did not meet the 
wholehearted approval of the Negro community, since 
from past experience, particularly involving other millage 
campaigns, members of the Negro community had ob­
served that the results of the expenditures of monies 
obtained from additional taxes, had little effect on the 
facilities, the equipment, or the curriculum available to 
their children.

‘Despite this resistance, they were aware that there 
would be less justification for demanding adequate edu­
cational opportunities for their children if they did not 
accept their responsible share for the successful passing 
of the millage program. As a consequence of their ef­
forts, their respective schools voted overwhelmingly for 
the millage program, and they logically expected that 
positive results would follow their efforts.

12 B radley, e t  al. v. M illiken, e t  al. Nos. 72-1809 - 14



122a

‘Their first disillusionment occurred only a few months, 
but yet a few weeks after the passage of the millage — 
they were rewarded with the creation of the present 
Center District. In effect this District, with a few minor 
exceptions, created a segregated school system. It ac­
complished with a few marks of the crayon on the map, 
the return of the Negro child from the few instances of 
an integrated school exposure, to the traditional pre­
dominantly uniracial school system to which he had for­
merly been accustomed in the City of Detroit.

‘Their attempts to meet this threat to their children’s 
educational experience through existing school organiza­
tions met with little success. Their conferences with 
District and City-Wide administrators including the super­
intendent, Dr. Samuel Brownell, resulted in only ration­
alizations concerning segregated housing patterns, and 
denials of any attempts at segregation. When it was 
pointed out that regardless of motivation, that segrega­
tion was the result of their boundary changes, little com­
promise was effected, except in one or two instances, 
where opposition leadership was most vocal and ag­
gressive.

‘Concurrent with boundary changes, it was alarming­
ly noticeable that the school population within the Cen­
ter District was rapidly increasing, and that the priority 
building program would have little positive effect in 
dealing with the problem. Attempts to discuss this prob­
lem with school and district administration gave promise 
of only minimal relief.

‘Finally, it had been earlier noted by new residents 
moving into what is now the Center District that prior 
to and during its change from a uniracial (predominant­
ly white) to a biracial system and again to a uniracial 
(predominantly Negro) school system that the quality 
of their children’s previous educational experiences did 
not eqiup them to compete on an equal basis with resi­
dent children in the same grade and classifications.

‘These experiences made them aware that no one or­
ganization composed of one or several schools, could ef­

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 13



123a

fectively coordinate the mutual concern of the many 
parents residing within the Center District. Thus out of 
the several discussions of groups of people whose primary 
concern was the adequate and equitable education of their 
children, this organization was born. It is felt that no 
better description of its purpose, its objective, and its 
reason for being can be found than in the preamble to 
its Constitution, which is:

‘PREAMBLE: Our interest is in equal educational op­
portunities for all persons within the City of Detroit.

‘We do not believe that such opportunities are possible 
within a segregated school system.

‘We oppose a policy of containment of minority groups 
within specified boundaries, an example of which is the 
Center District. While the above is of utmost concern 
to us we are also aware that there is need for improve­
ment and enrichment of the standards within this district 
in practice as well as in theory.

‘We believe that once standards have become reason­
ably adequate, that such standards should be maintained. 
It should be further recognized that future population 
shifts brought about by urban redevelopment will ad­
versely affect the above goals in the Center District, unless 
there is anticipation of the impact of this population 
growth upon this district.

‘Since the inception of our organization we have noted 
the following:

‘The public school system of the City of Detroit is 
divided into nine administrative districts, one of which 
is the Center District.

‘Yet, every day, when the children in this city leave 
their homes to go forth to public schools, approximately 
one out of every four leaves a home in the Center District. 
Of the 154,969 children enrolled in public elementary 
schools as of September 30, 1960, 36,264 or 23.4 percent 
of these children leave a home in the Center District.

B radley, e t  al. v. M illiken, e t  al. Nos. 72-1809 - 14



124a

‘There are 221 elementary school buildings in the De­
troit Public School System. Of these 28 are in the Center 
District. This means, then, that the 23.4 percent of the 
total elementary school population is accommodated in 
12.7 percent of the buildings.

‘Fifteen percent of these children sit in classes of 40 to 
44 students per class. This is in comparison to:

Nos. 72-1809 -14 B radley, e t  al. v. Milliken, e t  al. 15

East .13 percent
North .05 percent
Northeast .04 percent
Northwest .08 percent
South .01 percent
Southeast .01 percent
West .05 percent

‘Sixty-two and one-half percent of all the children in 
the city’s elementary schools who sit in classes of 45 to 
49 are children in the Center District. These schools in 
the Center District find their capacities short by 6,352 
pupil stations. In other words, their capacities are over­
taxed to the extent of 16 percent; and the future build­
ing program, as set forth by the superintendent’s report 
of October 17, 1960, will make available only 11,189 ad­
ditional pupil stations within the next ten-year period. 
However, this will be insufficient to meet the demands of 
the Center District. Therefore, it is apparent that a 
school bussing program will have to become a permanent 
part of the school housing program. Thus the manner 
in which the bussing program is administered becomes a 
matter of acute concern.

‘Presently, children are being bussed by grades. Under 
this system a number of problems are created:

1) It makes necessary a reorganization of the 
bussing school, as well as the school into which the 
children are bussed.

2) They are not integrated into the school into 
which they are bussed, except in minor instances.



125a

3) There is a possibility of the separation of the 
family unit.

4) Parents are unable to establish a good rapport 
with the teachers and administrators in the new 
school since there exists a time limit in which these 
children will be members of that school.

‘It is recommended that a policy of bussing by geo­
graphical areas instead of by grades be instituted so as 
to eliminate the above problems.

‘The emphasis on curricula objective are not compara­
ble in the various school districts of the Detroit School 
System. There is a tendancy in the Center District to 
stereotype the educational capacity of the children. This 
means that children entering the schools in this district 
whose background enables them to comprehend an en­
riched educational program, are not challenged.

‘For example, one student in the Hutchins Intermediate 
School who desired to prepare for entrance into an East­
ern college found that Latin was not offered, and only 
after considerable effort by members of the community, 
along with his family, was Latin placed back in the school 
curriculum. Many other instances can be cited upon 
request.

‘Conversely, children whose initial capacity is retarded 
by deprived socio-economic circumstances also go un­
challenged. The District Administrator has admitted that 
no program exists to take care of these children.

‘The curriculum and counselling as they now exist, 
do not encourage students to achieve their maximum ca­
pacities. We feel that the responsibility for any inequities 
in the educational experience offered to any group of 
children within a given school system must be assumed 
by those persons charged with the overall responsibility 
of administering that system.

‘Therefore, we recommend that strong policies be adopt­
ed by the top administration to erase inequities of the

Bradley, e t  al. v. M illiken, e t  al. Nos. 72-1809 - 14



126a

Detroit Public School System, and a policy of super­
vision through all levels of administration be instituted 
at all levels of administration to insure equal educational 
opportunities to all children.

‘The Citizens’ Association for Better Schools.’

“Q. Do you join in that statement in submission to the 
committee?

“A. Yes, I did.”

Mr. Wells cited the example of the Center (administrative) 
District, where attendance boundaries were shaped in a gerry­
mandered fashion to conform to the racial residential pattern.

“Q. With regard to that same situation, you were ex­
pressing a problem which your committee had met in 
attempting to discuss this. Can you tell me how you 
came to be discussing this with the Board at that time?

“A. It was not with the Board of Education, I be­
lieve it was with the administration of the school system.

“Q. The administrative staff?
“A. Including the superintendent.
“Q. All right.
“A. Our initial concern about the boundaries of the 

center district grew out of the concern we had in 1960 
about the changing of the attendance areas between the 
Central High School and the Mackenzie High School.

“Q. Is that the optional attendance area also set up in 
that?

“A. A part of that was optional. Well, let’s put it 
that way, a part of it had been optional, the proposal was 
to eliminate the option. In the process of eliminating the 
option what it would mean would be that by and large 
the few black children who had been attending Mackenzie 
would have been pulled back into the Central area.

“Q. Mackenzie at that time was a majority white 
school?

“A. Predominately white.
“Q. Central by that time had become black?

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 17



127a

“A. Predominately black.
“Q. So the cancellation of the optional area which 

had been there had the effect of preventing black chil­
dren choosing Mackenzie, is that correct?

“A. That is right.
“Q. Were there any other schools — there is a ref­

erence made to the establishment of the center district 
boundaries — were there any other schools which had 
not previously been in certain feeder patterns that were 
drawn back into the center district?

“A. I am trying to remember now as I said eleven 
years.

“Q. I understand.
“A. If I remember correctly, the Sherrill School which 

also had been a part of it, that portion north of Tireman 
had been attending Mackenzie and they in turn, the total 
school then would have been returned to the Chadsey 
area.

“Q. What about Tappan and that area, are you fa­
miliar at all with changes that took place?

“A. Tappan was the junior high school in which Win­
terhalter, the elementary school in the area south of 
Davison just west of Ewald Circle attended. At that 
time the students from that area attended Tappan and 
all students from Tappan attended Mackenzie.

“The new change would mean that the students from 
Winterhalter, and I think McKerrow which is just below 
Winterhalter would have attended Tappan through the 
9th grade, but then had been pulled back into the center 
district to attend Central High School.

“The other students in Tappan would have gone to 
Mackenzie.

“Q. The other students in Tappan, were they pre­
dominately white students?

“A. Yes. Our concern about this region really at that 
time was that we could draw a line which separated the 
black residents from the white residents and almost to 
the alley and that in effect was the boundary line of 
the center district.”

Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



128a

There was evidence that school feeder patterns were changed 
so as to make particular junior high schools or senior high 
schools either generally white or generally black, as shown 
in the following testimony:

“MR. CALDWELL: Your Honor, I have copies of
the Mumford High School district in 1959 which is taken 
from Plaintiff’s Exhibit 78-A, and this makes it easier to 
see the schools.

“Q. Let’s get back to the 1962-’63 overlay.
“Prior to the 1962-’63 — first of all, will you point out 

to the Court where the Vandenberg and Vemor Schools 
are.

“A. This triangle to the northwest corner of this area, 
(indicating)

“Q. Prior to 1962-63 where did the Vemor and Van- 
derburg youngsters go to high school?

“A. Mumford High School.
“Q. A boundary change was made in 1962-63?
“A. That’s right.
“Q. Where did those youngsters go to school in that 

year?
“A. Ford High School.
“Q. How long did that feeder pattern continue?
“A. Until 1966-67 when they returned to Mumford.
“Q. All right.
“MR. CALDWELL: Plaintiffs’ Exhibit 128-A, your

Honor, reflects that in 1960 Vandenburg and Vernor were 
0 percent black. Mumford was 16.1 black, Ford was .1 
percent black. With regard to Vandenburg and Vernor, 
there was a gradual increase in the black population until 
1966 when Vandenburg was 39.5 percent black and Ver­
nor was 39.8 percent black.

“Then in 1967 the change was made taking Vandenburg 
and Vernor back into Mumford. Vandenburg had be­
come 70 percent black, Vernor had become 63.2 percent 
black. That year the change was made and Mumford 
was 78.1 percent black, Ford was 4.1 percent black.

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 19



129a

“Q. I believe that feeder pattern continued into the 
current school year?

“A. That is right.
“Q. Those schools now feed back into Ford High 

School this year?
“A. That is right.”

The effect of such a policy was attested to by Dr. Gordon 
Foster of the University of Miami, director of the Florida 
School Desegregation Consulting Center:

“Q. The effect, Doctor, then, of the removal of Van- 
denberg and Vemor from the Ford feeder pattern into 
the Mumford feeder pattern, what was the effect in terms 
of race?

“A. The effect of this move in 1967-68 of the transfer 
back of the two elementary schools was to increase the 
segregation at Mumford, to take blacks from the Ford 
High School and, therefore, increase the segregated pat­
tern there, and, in my opinion, it reinforced inevitably 
the perception that Ford would be kept white as a 
matter of basic policy and that Mumford would be a 
racially contained isolated high school attendance area.”

Similar testimony regarding the segregative effect of alter­
ing school feeder patterns was given with respect to the 
Jefferson and Hutchins Junior High Schools, Garfield and 
Spain Junior High Schools, Burton and Irving Elementary 
Schools, Higginbotham Elementary School, Jackson and Foch 
Junior High Schools, Stellwagen, Keating and Clark Elemen­
tary Schools, Cleveland and Nolan Junior High Schools, Cour- 
ville Elementary School, Ford and Brooks Junior High Schools, 
Osborne and Pershing High Schools, Parkman Elementary 
School, the Ellis, Sills, Newberry and Sampson Elementary 
Schools, and Northwestern and Chadsey High Schools.

The District Judge made the following findings of fact 
pertaining to busing black children to black schools past 
white schools:

20 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



130a

“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 avail­
able 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 transporta­
tion to increase integration.

“With one exception (necessitated by the burning of 
a white school), defendant Board has never bused white 
children to predominantly black schools. The Board has 
not bused white pupils to black schools despite the enor­
mous amount of space available in inner-city schools. 
There were 22,961 vacant seats in schools 90% or more 
black.” 338 F.Supp. at 588.

The legal conclusion of the District Judge follows:
“8. The practice of the Board of transporting black 

students from overcrowded black schools to other identi- 
fiably black schools, while passing closer identifiably white 
schools, which could have accepted these pupils, 
amounted to an act of segregation by the school authori­
ties. Spangler v. Pasadena City Bd. of Ed., D.C., 311 
F.Supp. 501.” 338 F.Supp. at 593.

Additional support for the District Judge’s legal conclusion 
includes: United States v. School District 151, 286 F.Supp. 786, 
798 (N.D. 111. 1967), a fd , 404 F.2d 1125, 1131 (7th Cir. 
1968), on remand, 301 F.Supp. 201, 211, 222 (N.D. 111. 1969), 
a fd , 432 F.2d 1147, 1150 (7th Cir. 1970), cert, denied, 402 
U.S. 943 (1971); United States v. Board of School Commis­
sioners, Indianapolis, lnd., 332 F.Supp. 655, 669 (S.D. Ind. 
1971) a fd  474 F.2d 81 (7th Cir. 1973).

The following testimony pertains to busing black children 
from overcrowded black schools past white schools with 
available pupil capacity to other black schools:

“Q. I am trying to anticipate, Mr. Ritchie’s question. 
Have you noted some examples of the bussing of black 
children from black schools to other black schools?

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 21



131a

“A. I have.
“Q. Could you give us a couple illustrations?
“MR. BUSHNELL: While Dr. Foster is looking

through his notes, might I make the request that we 
made yesterday that on conclusion of his testimony we 
have access to the notes made?

“MR. LUCAS: At the conclusion, yes. We have no
objection to that.

“A. In 1960-61, and we don’t have any record for 
’61-62 so I am not certain as to that year, students were 
transported from Angell to Greenfield Park. This has 
already been part of our testimony, I believe, 186 students 
and students from Angell to Higginbotham, 118 students. 
In 1969 -

“Q. Excuse me, Doctor, let me ask you if the Angell- 
Higginbotham — were there white schools available with 
space, from your examination of the records?

“A. Yes, there were.
“Q. Between Angell and Higginbotham?
“A. Yes, sir, I believe I testified to that before.
“Q. All right.
“A. In 1969 the Ruthruff Elementary School which 

was 99 percent black transported 143 children to Herman 
Elementary, 55 percent black.

*  *  *

“Q. (By Mr. Lucas, continuing) Dr. Foster, would 
you step to the map.

“I think we were talking about the Ruthruff-Herman 
Schools.

“A. Yes. We were testifying at recess about trans­
portation of blacks past white schools. In 1969 we stated 
that Ruthruff Elementary which is here in the south­
eastern portion of the Mackenzie High School zone on 
the large 1970-71 attendance area map, in 1969 trans­
ported 143 children to Herman Elementary School which 
is just below the blue area on the undermap here — 
Herman Elementary School (indicating). Herman in 
1969 was 55.6 percent black. Ruthruff was 99.1 percent 
black and I think it is important to note that the access

22 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



132a

to Herman goes right past the Parkman Elementary 
School which at that time had 136 spaces available and 
according to their capacity figures —

“Q. Parkman was what percentage?
“A. Parkman I don’t have the figure for ’69 and ’70. 

Parkman was 12.8 percent black.”
# o *

“A. Another example was the Parker Elementary 
School which is in the general center of the Mackenzie 
High School zone. Parker in 1970 was 79.4 black; 61 
children were bussed from Parker again to the Herman 
Elementary School which at that time was 58.5 percent 
black and again past the Parkman Elementary which in 
1970 was 12.8 percent black.

“Q. Did Parkman have capacity at that time, Doctor?
“A. Parkman in ’70, according to my data, had 121 

spaces.
» 9  *

“Q. Excuse me, would you give us the A. L. Homes.
“MR. BUSHNELL: I thought the Court ruled on that?
“THE COURT: He says he is pursuing a non-cumula-

tive matter here. If that be true he may go ahead.
“A. A. L. Holmes School, children were bussed from 

this school over to the McGraw School which is in the 
south end of the Northwestern District in center city. 
In 1970-71 the Post Junior High School, which is lo­
cated —

“MR. BUSHNELL: If the Court please, Mr. Lucas
just pointed out the location of Post which the witness 
obviously couldn’t find on the map.

“THE COURT: Well, he hasn’t moved it.
“A. I noted the west section of Cooley instead of the 

east. The Post Junior High School and Clinton Schools, 
which are in the east section of the Cooley High School 
attendance zone transported 54 students to the Jefferson 
School which is now in the Murray zone and it is lo­
cated in the eastern section of the Murray High School 
attendance area. I think it is important to note that

Nos. 72-1809 - 14 Bradley,  e t  a t  v. Milliken, e t  al. 23



133a

these students who were bussed came from a consider­
able distance north and there were several possibilities —

“Q. Excuse me, were the Post children in a black 
school or white school?

“A. The Post School this year, 1970-71 was 99.3 per­
cent black. The Clinton School from which they also 
came was 97 percent black.

“Q. What about Jefferson?
“A. Jefferson was 87.6 percent black. There were two 

or three other possibilities much closer to the Post-Clinton 
area. One would have been in the western portion of the 
Mackenzie district here (indicating).

“Q. What is the racial composition?
“A. At this time it had 35.4 percent black with a ca­

pacity of 109 stations available. Another possibility would 
have been the Vetal School in the Redford zone, the 
southern portion of the Redford High School zone, which 
at this time was 2 percent black with vacancies of 203 
pupil stations and a third alternative could have been 
the Coffey School to the east of the Ford attendance area 
which at this time was 29 percent black with 69 pupil 
stations available.

“Q. Did you say to the east was part of the Ford 
attendance area or outside of that, Doctor?

“A. It’s in the Ford attendance area.# # *

“THE COURT: Well, to save time why don’t we pro­
ceed on the assumption that that was his testimony. 
But if it proves otherwise we will strike it.

“MR. LUCAS: Thank you, sir.
“Q. (By Mr. Lucas) Doctor, I understand that the 

policy of the district is that bussing to relieve overcrowd­
ing would be done in such a manner as to improve in­
tegration at the receiving school. From your examina­
tion of the current bussing examples which you have 
given, do you have an opinion as to whether or not that 
policy has or has not been followed?

“A. Well, I think from the examples I have given so 
far it would give an indication that integration could

Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



134a

have been effeeted in a much better way if the children, 
instead of going to the schools would have been dropped 
off at other schools where the racial balance was quite 
different. $ $ «

“Q. Are there any white schools from your examina­
tion of data, Doctor Foster, between Angell and Higgin­
botham which had capacity at that time?

“A. Yes, there were several which were a good deal 
closer to Angell than Higginbotham. The effect of this 
sort of zoning pattern was to provide segregated student 
ratios at all three of the elementary schools, and in 
terms of things that could be done or could have been 
done at that particular time to correct the segregated 
situation, it is my opinion that, first of all, the students 
being bussed from Angell could have been dropped off 
at any number of places on the way to Higginbotham, 
schools which had the space and had a better racial 
composition for this sort of input. This having been 
done, zone lines could have been redrawn at these three 
schools to have approached a racial balance situation 
which, in my opinion, would have helped to stabilize the 
situation at that time. This would have also assisted in 
the overcrowding at Pasteur and a couple of classrooms 
extra at Higginbotham.

“Q. Do you have an opinion, Doctor, as to the per­
ception created by the maintenance of the Higginbotham 
School under those circumstances, including the transpor­
tation of black students from Angell into it?

“A. Well, it is obvious that if you transport black 
children past white schools to an all black school that the 
community is going to perceive this as a segregated in­
tent, a segregated action. If you have a boundary situa­
tion which isolates and enforces black students to a par­
ticular area when the boundary lines could be changed 
to effectuate a better pattern racially, then it seems to 
me that community perception would also be that the 
school is not doing what it could in terms of integration 
and equal opportunity.

Nos. 72-1809- 14 Bradley,  et al. v. Milliken, et al. 25



135a

“Q. Doctor, from your examination of the data in 
1960 are there any administrative reasons, any administra­
tive problems which would indicate to you a reason 
why this boundary was maintained rather than drawn 
in some other fashion?

“A. In terms of school capacity there are none, no.”

Defendant’s witness (Mr. Henrickson) admitted instances 
of busing black students past closer white schools to black 
schools:

“Q. We find on the under and over capacity map in 
the Higginbotham area that there were three schools sur­
rounding Higginbotham. Vemor, which is listed as be­
ing 121 over capacity; MacDowell, 103, is it? Pasteur, 
90. At the same time we find that Higginbotham was 
489 under capacity. Is that what the exhibit shows, sir?

“A. Yes.
“Q. We also know, do we not, that Pasteur, Mac­

Dowell and Vernor were white schools?
“A. Both Pasteur and MacDowell at that time, as I 

recall, had some beginning of black students as a result 
of the growth of the settlement of the Higginbotham 
area.

“Q. They were predominately white schools at that 
time?

“A. Yes.
“Q. Higginbotham was all or virtually all black?
“A. Yes.
“Q. Indeed, it had been the same in 1950, had it not?
“A. Yes.
“Q. At the same time that we are talking about you 

were transporting youngsters from Angell to Higgin­
botham, is that correct?

“A. Yes.
“Q. Those were black kids being transported from 

Angell to Higginbotham?
“A. Yes.
“Q. We also know on that exhibit that they were

26 Bradley, et  al. v. Milliken, e t  al. Nos. 72-1809-14



136a

transported past such schools as Fitzgerald and Clinton 
which had more than enough capacity to handle them?

“A. We have made no denial of that.”

For some years it was a Board of Education policy to trans­
port classrooms of black children intact to white schools where 
they were educated in segregated classes.

Testimony as to the intact busing practice follows:

“Q. (By Mr. Lucas, continuing) Will you go into the 
Detroit system, Doctor, on transportation.

“A. Answering it generally, counsellor, my answer 
would be that the intact bussing is the practice of trans­
porting classrooms of children intact from one school to 
another and leaving them intact when they are educated 
at the receiving school.

“Q. Doctor, when such transportation occurs from a 
school which is 90 percent or more black to a school which 
is predominantly a white school, what effect, if any, does 
this have in terms of racial segregation on those chil­
dren?

“A. This would lead to what we call classroom seg­
regation or segregation within a particular school. It 
could be sometimes resegregation, but essentially it is a 
segregated situation within a school which could be seg­
regated or not segregated generally.

“Q. Doctor, in your experience with school segregation 
and school desegregation plans, is this a technique which 
you have had to deal with in the past?

“A. On occasion, yes, sir.
“Q. Doctor, did you examine data or relevant informa­

tion with respect to the transportation practices in the 
Detroit school system in connection with this type of 
bussing, intact bussing?

“A. Yes, sir.
“Q. What did your examination reveal, Doctor?
“A. It is my understanding from the data that there 

was intact bussing generally in the late ’50’s, as I said, 
and early ’60’s.

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137a

“Q. How did that intact transportation operate, Doc­
tor?

“A. It involved transporting classrooms in whole from 
one school to another receiving school and at the receiv­
ing school the classrooms were kept intact for instructional 
purposes.

“Q. Was this policy changed at any time, Doctor, as 
far as you know?

“A. It is my understanding it was changed in the 
middle ’60’s but I don’t remember the exact date.

“Q. What would the change be, Doctor? What type 
of bussing would result in terms of relieving overcrowd­
ing?

“A. You simply gather children up on a geographical 
basis and transport them and assign them at random 
to whatever grade they are in the receiving school rather 
than keeping them in an intact classroom.”

Segregating children by race within schools has been held 
repeatedly to be unconstitutional. Jackson v. Marvell School 
District No. 22, 445 F.2d 211, 212 (8th Cir. 1970); Johnson 
v. Jackson Parish School Board, 423 F.2d 1055 (5th Cir. 1970).

The record indicates that in at least one instance Detroit 
served a suburban school district by contracting with it to 
educate its black high school students in a Detroit high school 
which was overwhelmingly black by transporting them away 
from nearby suburban white high schools and past Detroit 
high schools which were predominately white.

The District Judge found on this score that for years black 
children in the Carver School District were assigned to black 
schools in the inner city because no white suburban district 
(or white school in the city) would take the children.

This finding is supported by the testimony of Detroit School 
Superintendent Drachler, which follows:

“Q. When was the Carver District in existence as a 
separate entity?

“A. The Carver District? The Carver is not in De­
troit.

28 Bradley, e t  al. v. Milliken, e t  at. Nos. 72-1809 -14



138a

“Q. Is it a separate school district whose students at­
tended some Detroit high schools, in particular Northern?

“A. Oh, I see what you’re referring to. I am told that 
back in ’57, ’58, at that time I was not in Central Office, 
there were some students from Carver District who did 
not have a place for adequate high school facilities. An 
arrangement was made with Detroit for the Carver stu­
dents to come in on buses and go to Northern High 
School. Now, the nearest school to Carver was Mum- 
ford at the time. And they did go past Mumford towards 
Northern.

“Q. Is Carver a black district?
“A. Yes, black and very poor.
“Q. Has Carver District subsequently merged with 

Detroit?
“A. Oak Park.
“Q. With Oak Park?
“A. That’s right.
“Q. And at that time the transportation was termi­

nated?
“A. That’s right. By the way, as a result of those 

youngsters coming, there was a rumor spread that De­
troit children were being bussed, say, from the Higgin­
botham, which is north — Higginbotham area which is 
north of Mumford High School area but in Detroit, that 
they were being bussed to Northern, too, because they 
were black students, people saw black students from the 
Eight Mile area coming down. But to the best of my 
knowledge these were outside students.

“Q. There were black children being bussed to Hig­
ginbotham, weren’t they?

“A. There were black children being bussed to Hig­
ginbotham.

“Q. From Angell?
“A. From Angell past some white schools. And when 

the issue was brought to Doctor Brownell’s attention by 
me in about ’59 or ’60 — there were a series of instances

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 29



139a

like that. There was the Angell, there was from the 
military fort in the southwest, they were bussing their 
own children up to the Noble, and Doctor Brownell, as 
soon as it was brought to his attention, abolished that 
as well as the optional areas.

“Q. Was this so-called intact bussing, that is a class 
being brought as a unit?

“A. Generally speaking, yes. That policy of changing 
to geographic bussing occurred about ’62-’63 as a result 
of the Equal Education Opportunities Committee.

“Q. Was all of the bussing done in the City of De­
troit of an intact nature until the Equal Opportunities 
study?

“A. To the best of my knowledge it was. I know 
when my children were being bussed, they were bussed 
intact.”

(2) Optional Areas.
The record demonstrates that in many instances when 

neighborhoods in Detroit began to experience some inmigra­
tion of black families, it was Board of Education policy to 
create optional attendance zones, thereby allowing white stu­
dents to change schools to all white or predominately white 
schools, generally located farther toward the city limits. For 
many years the record indicates this practice to have been 
pervasive. It continued in at least one instance up to the 
1970-71 school year.

As to optional attendance zones, the District Judge found:
“During the decade beginning in 1950 the Board cre­

ated and maintained optional attendance zones in neigh­
borhoods undergoing racial transition and between high 
school attendance areas of opposite predominant racial 
compositions. In 1959 there were eight basic optional 
attendance areas affecting 21 schools. Optional attendance 
areas provided pupils living within certain elementary 
areas a choice of attendance at one of two high schools. 
In addition there was at least one optional area either 
created or existing in 1960 between two junior high

30 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



140a

schools of opposite predominant racial components. All 
of the high school optional areas, except two, were in 
neighborhoods undergoing racial transition (from white 
to black) during the 1950s. The two exceptions were: 
(1) the option between Southwestern (61.6% black in 
1960) and Western (15.3% black); (2) the option be­
tween 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 South­
western-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 (elimi­
nated between 1956 and 1959) created in ‘an attempt 
. . .  to separate Jews and Gentiles within the system,’ 
the effect of which was that Jewish youngsters went to 
Mumford High School and Gentile youngsters went to 
Cooley. Although many of these optional areas had 
served their purpose by 1960 due to the fact that most 
of the areas had become predominantly black, one op­
tional area (Southwestern-Western affecting Wilson Jun­
ior High graduates) continued until the present school 
year (and will continue to effect 11th and 12th grade 
white youngsters who elected to escape from predominant­
ly black Southwestern to predominantly white Western 
High School). Mr. Henrickson, the Board’s general fact 
witness, who was employed in 1959 to, inter alia, elimi­
nate optional areas, noted in 1967 that: ‘In operation 
Western appears to be still the school to which white 
students escape from predominantly Negro surrounding 
schools.’ The effect of eliminating this optional area 
(which affected only 10th graders for the 1970-71 school 
year) was to decrease Southwestern from 86.7% black in 
1969 to 74.3% black in 1970.” 338 F.Supp. at 587-88.

Nos. 72-1809 -14 Bradley,  e t  al. v. Milliken, e t  al. 31



141a

From these facts the District Judge arrived at the following 
legal conclusion:

“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, D.C., 269 F.Supp. 
401, aff’d sub nom., Smuck v. Hobson, 408 F.2d 175. 
[(D.C. Cir. 1969)].” 338 F.Supp. at 593.

Additional support for the District Judge’s legal con­
clusion includes: United States v. Texas Education
Agency, 467 F.2d 848 (5th Cir. 1972); Northcross v. Board 
of Education of Memphis, 333 F.2d 661, 665-66 (6th 
Cir. 1964) (different but analogous situation); United States 
v. Board of School Commissioners of Indianapolis, 332 F. 
Supp. 655, 668 (S.D. Ind. 1971) affd 474 F.2d 81 (7th Cir. 
1973); Spangler v. Pasadena City Board of Education, 311 
F.Supp. 501, 502 (C.D. Cal. 1970).

The effect of use of optional zones was described in Dr. 
Foster’s testimony:

“The first method or technique I might cite that is 
used to maintain segregation would be the use of op­
tional zones.

“Would it be possible for me to step to the board to 
illustrate?

“Q. Please do.
(The witness proceeded to the blackboard.)
“A. Optional zones are sometimes also referred to as 

dual zones or dual overlapping zones. I think it will 
be easier for me to illustrate this briefly.

(The witness drew a sketch on the board.)
“A. If you have, let’s say, two high school districts, 

District X and District Y, frequently when you set up 
an optional zone you carve the zone out of one district, 
occasionally two, but assume we carve it out of District 
Y and the children in this optional zone are then per­
mitted to go to either high school X or high school Y,

32 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



142a

this becomes in a sense an overlapping zone because 
if we refer to the boundaries of school District X at 
this point it not only includes the previous boundary but 
also takes in the optional zone.

“District Y in turn would include its previous bound­
aries, also including the optional zone. I think this may 
explain the origin of the connotation of the word ‘over­
lapping’.

“Essentially optional zones are set up for two or three 
reasons, one is to allow white students or black students 
the option of attending one of the two attendance areas 
which make up the boundaries of the zone and another 
is for, occasionally for religious purposes to provide al­
ternatives for persons of different religions. Sometimes 
these are set up for socio-economic reasons and I have 
on occasion seen them set up by boards of superin­
tendents as political gimicks in order to help pass a bond 
issue or one thing or another or a school board or super­
intendent will set up temporary optional zones as a favor 
to certain constituents in return for assistance in helping 
the school board with one thing or another.

“I think in the frame work in which we operate they 
are used primarily for maintaining segregated patterns.

* a *

“Q. Dr. Foster, have you made a study and analysis 
of optional zones in the Detroit school system?

“A. Yes, I have.”

Dr. Foster’s analysis of the purpose and effect of each op­
tional zone in existence in the Detroit School District is 
exemplified in his testimony on the Mackenzie-Central option.

“Q. Doctor Foster, do you have an opinion as to the 
administrative use of the optional attendance zone in 
1960 between and prior to that in Mackenzie-Central 
area?

“A. Yes. I think it was used primarily — you mean 
as to the purpose of it?

“Q. Well, as to whether or not it had any administra­
tive value that you know of, Doctor, aside from race?

Nos. 72-1809 - 14 Bradley, et  al. v, Millikeni, e t  al. 33



143a

“A. In terms of assignment I can see no advantage to 
it.

*> #  *

“Q. Do you have an opinion as to its use in terms of 
segregation or desegregation, Doctor Foster?

“A. In my opinion it was used as an optional zone 
to allow whites during the period it was in existence in 
the ’50’s and also until such time as it was done away 
with in 1962 to be assigned to predominantly white Mac­
kenzie High School.

“Q. Doctor Foster, from your examination of the 1950 
census and in turn the 1960 census exhibits, do you have 
an opinion as to the effect of such an optional zone on 
the community residence pattern in the community?

# * #
“A. Community people and residents in a situation 

such as this generally have a perception that there is 
something wrong with their school, that the whites need 
an optional zone to get out into a less black situation and, 
therefore, this increases their perception of racial isola­
tion and, in fact, physical containment.

“Q. Does this have an effect, Doctor, in terms of the 
residence pattern? I believe you testified in 1950 the 
optional area was entirely white or zero to 4.9 per cent 
white.

* * *
“A. In my opinion this tends to increase the instability 

of the community because they generally feel this is an ad 
hoc temporary interim situation and it increases white 
flight in this sort of situation.

# * «
“Q. Doctor Foster, does the use of these techniques in

some areas have an effect in terms of the perception of 
the community of schools besides the actual two schools 
to which the option was involved?

* « *
“A. Thank you. Yes, I think the perception is not only

Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



144a

of rank and file community residents, but people of con­
siderable influence in the community, along with School 
Board administration people, School Board members, 
School Board officials. In many cases they have sub­
stantiated this perception that I have recounted; that the 
optional zones did lead to greater pupil segregation 
and a feeling of frustration that the school authorities 
were not doing what was called for in terms of desegre­
gation, and it had a generally debilitating effect on the 
image of the schools as far as all of these groups were 
concerned.”

Mr. Henrickson, defendant School Board’s principal wit­
ness and divisional director of planning and building studies 
in the School Housing Division, did not deny the discriminatory 
effect of at least some of these optional zones.

“Q. In 1959 optional areas frustrated integration, did 
they not?

“MB. BUSHNELL: Objection to the form of the ques­
tion.

“THE COURT: He may answer.
“A. Some of these areas in 1959 had no effect what­

ever with movement of black or white students. They 
were either all black or all white. Some of them such 
as the Western-Southwestern area can be said to have 
frustrated integration and continued over the decade.”

(3) Building Construction.
The District Judge found and the record contains evidence 

that the Detroit Board of Education practices in school con­
struction generally tended to have segregative effect; the great 
majority of schools were built in either overwhelming all 
black or all white neighborhoods so that the new schools 
opened as one race schools.

The District Judge’s school construction findings were as 
follows:

Nos. 72-1809 -14 Bradley,  e t  al. v. Milliken, e t  al. 35



145a

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

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

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

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

The defendant City Board has paid little heed to these 
statements and guidelines. The State defendants have 
similarly failed to take any action to effectuate these 
policies. Exhibit NN reflects construction (new or ad­
ditional) 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 construction at Brooks Junior High plays a dual seg- 
regatory 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, ‘con­
tains’ the black population and perpetuates and com­
pounds school segregation.” 338 F.Supp. at 588-89.

Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



146a

Other cases in which such findings have been held to con­
stitute a de jure act of segregation include: Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 21 (1971); 
Cisneros v. Corpus Christi Independent School Dist., 467 F.2d 
142 (5th Cir. 1972), pet. for cert, filed, 41 U.S.L.W. 3225 (Oct. 
31, 1972); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), 
petition for cert, filed, 41 U.S.L.W. 3114 (U.S. Aug. 28, 1972); 
Davis v. School District of Pontiac, 443 F.2d 573, 576 (6th 
Cir.), cert, denied 402 U.S. 913 (1971); Sloan v. Tenth School 
District, 433 F.2d 587, 590 (6th Cir. 1970); United States 
v. Board of Education of Tulsa, 429 F.2d 1253, 1259 (10th 
Cir. 1970); Brewer v. School Board of Norfolk, 397 F.2d 
37, 42 (4th Cir. 1968); United States v. Board of Public 
Instruction, 395 F.2d 66, 69 (5th Cir. 1968); Kelley v. Alt- 
heimer, Arkansas Public School Dist. No. 22, 378 F.2d 483, 
496-97 (8th Cir. 1967); Johnson v. San Francisco Unified School 
District, 339 F.Supp. 1315, 1326, 1341 (N.D. Cal. 1971); 
United States v. Board of School Commissioners of Indianapolis, 
332 F.Supp. 655 (S.D. Ind. 1971) a fd  474 F.2d 81 
(7th Cir. 1973); Spangler v. Pasadena City Board of 
Education, 311 F.Supp. 501, 522 (C.D. Cal. 1970);
United States v. School District 151, 286 F.Supp. 786, 798 
(N.D. 111.), aff’d, 404 F.2d 1125 (7th Cir. 1968); Lee v. Macon 
County Board of Education, 267 F.Supp. 458, 472 (M.D. Ala.), 
aff’d per curiam sub nom., Wallace v. United States, 389 U.S. 
215 (1967).

Record evidence pertaining to Detroit Board of Education 
building construction practices and their results include:

“Q. Doctor Foster, I show you a document in evi­
dence, Plaintiff’s Exhibit 70. I direct your attention to 
page 15 of the exhibit. The exhibit is School Planning 
Handbook, Bulletin 412, revised, January, 1970, Michigan 
Department of Education. Directing your attention to 
Chapter 2, the School Site, and the last full paragraph in 
the left-hand column on page 15, Doctor, would you read 
that paragraph?

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 37



147a

“A. ‘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.’

“Q. Doctor, would you step down to the map, please? 
Do you have a copy, Doctor, of Plaintiff’s Exhibit 79?

“A. Yes, I do.
“Q. Doctor, would you examine Plaintiff’s Exhibit 153, 

which shows new school construction, 1960 to 1970? Per­
haps you had better step back here. Doctor, the black 
squares on here represent schools opening 80 to 100 per 
cent black in pupil enrollment. Would you direct your 
attention to the Drew Junior High School on the map 
and examine the exhibit and tell me when Drew was 
opened?

“A. According to the exhibit, the Drew Junior High 
School was opened in 1970.

“Q. And what was it opened as in terms of its en­
rollment, Doctor?

“A. 1,587 students.
“Q. And its percent black?
“A. 95 per cent black.
“Q. And the Eileen Primary School, Doctor, can you 

locate it on the map?
“A. The Eileen Primary is in the Cooley High School 

zone, I believe.
“Q. And when did it open, Doctor?
“A. 1970.
“Q. And what was its enrollment and its pupil popula­

tion in terms of black?
“A. 333 students. The per cent black was 99.1.
“Q. Would you examine the map and locate the E.

M. Turner Primary?
“A. Yes.
“Q. What year was that opened, Doctor?
“A. The Turner Primary was opened in 1969.
“Q. And its enrollment of pupil population?
“A. 362 pupils, 97.5 percent black.

Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



148a

“Q. Can you find the Stewart School on there, Doc­
tor?

“A. The Stewart School is in the same general area 
as Turner, a little to the south.

“Q. What year was it opened?
“A. 1970.
“Q. Its population and percent black?
“A. 766 enrollment, 98.8 percent black.
“Q. Marxhausen Primary, Doctor, can you locate that 

on the map?
“A. Marxhausen is in the Finney zone.
“Q. Is that near or far away from the A. L. Holmes 

School, Doctor?
“A. As I remember, rather close to the Holmes School.
“Q. Can you locate the Holmes School with reference 

to that?
“A. The Holmes School is the next one to the north­

west.
“Q. And what was its pupil population when it 

opened?
“A. Marxhausen was opened in 1970 with a pupil 

population of 302, 92.4 percent black.
“Q. Would you locate Mack Primary, Doctor?
“A. Mack Primary is also in the Finney zone.
“Q. And when did it open?
“A. Mack opened in 1970 with an enrollment of 173, 

98.8 percent black.
“Q. Could you locate the Angell Primary area, Doc­

tor?
“A. The Angell area is in the Northwestern attendance 

zone.
“Q. And what was its enrollment and percent black?
“A. Angell was 1,282 students when it opened in 

1970. The percent black was 99.9
“Q. Is there an asterisk by that particular school, 

Doctor?
“A. On the exhibit?
“Q. Yes.
“A. Yes, there is.

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149a

“Q. Would you refer to the cover and tell us what 
that asterisk indicates?

“A. It says, ‘The racial count data included in ex­
isting school with the same name.’

“Q. Can you locate the Stark School, Doctor?
“A. The Stark School is in the Southeastern zone. 
“Q. And what was its enrollment?
“A. The enrollment was 822 when it opened in 1969. 
“Q. And the percent black?
“A. 98.4 percent black.
“Q. Can you locate the new King Senior High School, 

Doctor?
“A. The new King Senior High School?
“Q. Yes.
“A. Here.
“Q. When did it open?
“A. It opened in 1968.
“Q. What was its enrollment?
“A. 1,897 pupils.
“Q. And its percent black?
“A. 98.8 percent black.
“Q. Can you locate the Field Annex, Doctor?
“A. Just to the northeast of King, the Field Annex. 
“Q. And what was its enrollment?
“A. 461.
“Q. Its per cent black?
“A. 90.5 per cent black.
“Q. Can you locate the Glazer School, Doctor Foster? 
“A. The Glazer School is in the Central zone.
“Q. And when did it open?
“A. In 1967.
“Q. And what was its enrollment, Doctor?
“A. 850 students.
“Q. What was its per cent black?
“A. 100 per cent black.”

Similar testimony was given with respect to the Stevenson, 
Cortez, Beaubien, Sander, St. Clair Annex, Murray, Kettering, 
Krolik, Joy, Tendler, Belleville, McGraw, Knudsen, Keidan,

40 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



150a

Jamieson, Bntzel, Woodward, Tendler and Norvell Schools. 
White schools built to accommodate white residential areas in­
cluded Fox, Lessenger, Murphy, Taft, Fleming, Earhart, 
Reeves, Brooks and McKenny Annex.

“Q. Thank you, Doctor.
“Doctor Foster, from your examination of the pattern 

of construction in this school system, 1960 to 1970, do you 
have an opinion as to the effect of that pattern of con­
struction on segregation in the Detroit School System?

“A. My opinion is that construction practices were 
followed in such a way as to increase segregation. I 
say this because of the large number of schools that were 
opened that were either all black or all white or with 
a disproportionate number of one race or the other upon 
opening.

» # *
“Q. (By Mr. Lucas) Does the location of a school 

in a particular place have a long term effect on a school 
system?

“A. In terms of the nature of the pupils assigned to 
the school, do you mean?

“Q. Yes, sir.
“A. Yes, it does.
“Q. Are there alternatives in schoolhouse construction 

which can or should be considered by a school district 
in terms of affecting the racial composition of student 
bodies?

“A. In terms of site selection there are, yes.
“Q. What are some of the alternatives which can or 

should be utilized, in your opinion, Doctor?
“A. It is customary in this day and age to consider 

the problem of integration or segregation very carefully 
in selecting sites for school buildings and, well, this was 
pointed out, I believe, in the bit I read from the Michigan 
State Department.

“Q. What effect in terms of perception of the com­
munity does it have when a school is opened with an 
overwhelming enrollment of one race or the other?

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151a

“A. Generally the community perceives, in my opin­
ion, that the school has been thought of as being, going 
to be an all white school or all black school and in either 
case generally that it is racially isolated.”

(B) The constitutional violations found to have been committed 
by the State of Michigan.

(1) School districts in the State of Michigan are instru­
mentalities of the State and subordinate to its State Board of 
Education and legislature. (See §V (A), pp. 56-62, infra.) 
Hence, the segregative actions and inactions of the Detroit 
Board of Education previously outlined are the actions of an 
agency of the State of Michigan.

(2) In 1970 the Detroit School Board undertook implemen­
tation of its April 7 desegregation plan applicable to its high 
schools. On meeting considerable resistance thereto, it none­
theless proceeded. At that point the State Legislature inter­
vened by Act 48 of the Public Acts of 1970 specifically over­
ruling the Detroit Board of Education’s desegregation plan. 
While this statute has since been invalidated by judgment of 
this court, 433 F.2d 897, its contribution to preventing desegre­
gation and to continuing and increasing segregation of the De­
troit school system cannot be overlooked.

(3) Under Michigan law, M.S.A. § 15.1961, school build­
ing construction plans must be approved by the State Board of 
Education. Prior to 1962 the State Board also had specific 
statutory authority to supervise school site selection. The 
proofs concerning the effect of Detroit’s school construction 
program are therefore largely applicable to show State re­
sponsibility for the segregative results.

(4) During the critical years covered by this record the 
School District of Detroit was denied any allocation of State 
funds for pupil transportation, although such funds were made 
generally available for students who lived over a mile and 
a half from their assigned schools in rural Michigan.

42 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



152a

(5) Finally, the cross-district transportation of black high 
school students from the Carver School, located in Ferndale 
school district, to a black high school in Detroit could not 
have taken place without the approval, tacit or express, of the 
State Board of Education. (See supra pp. 28-30).

The District Judge’s findings pertaining to constitutional 
violations by the State of Michigan are as follows:

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

“The State, exercising what Michigan courts have held 
to be is ‘plenary power’ which includes power ‘to use a 
statutory scheme, to create, alter, reorganize or even 
dissolve a school district, despite any desire of the school 
district, its board, or the inhabitants thereof,’ acted to 
reorganize 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 accep­
tance’), which had as their purpose and effect the main­
tenance of segregation.

Nos. 72-1809 -14 Bradley, e t  al. v. Milliken, e t  al. 43



153a

“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 per­
petuated racial segregation in these schools.” 338 F. 
Supp. at 589.

The District Judge arrived at the following legal conclusions:

“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, 
D.C., 313 F.Supp. 380; Art. VIII, §§ 1 and 2, Mich. Con­
stitution; Daszkiewicz v. Detroit Bd. of Ed. of City of 
Detroit, 301 Mich. 212, 3 N.W.2d 71.

“12. That a state’s form of government may delegate 
the power of daily administration of public schools to 
officials 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 con­
stitution. In such instances the constitutional obligation 
toward the individual school children is a shared one. 
Bradley v. Sch. Bd. of City of Richmond, D.C., 51 F.R.D. 
139, 143.

“13. Leadership and general supervision over all pub­
lic education is vested in the State Board of Education. 
Art. VIII, § 3, Mich. Constitution of 1963. The duties 
of the State Board and superintendent include, but are 
not limited to, specifying the number of hours necessary 
to constitute a school day; approval until 1962 of school 
sites; approval of school construction plans; accreditation 
of schools; approval of loans based on state aid funds; 
review of suspensions and expulsions of individual stu­
dents for misconduct [Op.Atty.Gen., July 7, 1970, No. 
4705]; authority over transportation routes and disburse­

44 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



154a

ment of transportation funds; teacher certification and 
the like. M.S.A. 15.1023(1), M.C.L.A. § 388.1001. State 
law provides review procedures from actions of local 
or intermediate districts (see M.S.A. 15.3442, M.C.L.A. 
§ 340.442), with authority in the State Board to ratify, 
reject, amend or modify the actions of these inferior state 
agencies. See M.S.A. 15.3467; 15.1919(61); 15.1919(68 
b); 15.2299(1); 15.1961; 15.3402, M.C.L.A. §§340.467, 
388.621, 388.628(a), 388.681, 388.851, 340.402; Bridge- 
hampton School District No. 2 Fractional of Carsonville, 
Mich. v. Supt. of Public Instruction, 323 Mich. 615, 36
N.W.2d 166. In general, the state superintendent is 
given the duty ‘[t]o do all things necessary to promote 
the welfare of the public schools and public educational 
instructions and provide proper educational facilities for 
the youth of the state.’ M.S.A. 15.3252, M.C.L.A. 
§340.252. See also M.S.A. 15.2299(57), M.C.L.A. 
§ 388.717, providing in certain instances for reorganiza­
tion of school districts.

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

‘No person shall be denied the equal protection 
of the laws; nor shall any person be denied the en­
joyment of his civil or political rights or be discrimi­
nated against in the exercise thereof because of re­
ligion, race, color or national origin. The legislature 
shall implement this section by appropriate legisla­
tion.’ ” 338 F.Supp. at 593-94

Some of the evidence in this record supporting the District 
Judge’s findings of State acts which discriminatorily affected 
the Detroit Board of Education and contributed to pupil 
segregation follows. The State statutory scheme of support of 
transportation for school children directly discriminated against 
Detroit. Dr. John W. Porter, the State Superintendent of

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 45



155a

Public Instruction in Michigan, testified as to the State trans­
portation aid formula:

“Q. (By Mr. Lucas) Dr. Porter, does the State pay 
the cost of pupil transportation in the State of Michigan?

“A. The State pays roughly 75 percent of the cost. 
Last year the appropriation was $29 million.

“Q. Do you know what percent of the school children 
in the State of Michigan are transported to the school 
at public expense?

“A. Yes, I do. 40 percent of all students in Michigan 
are transported. That equates out to about 833,000 stu­
dents last year.

“Q. Dr. Porter, is there some formula in terms of 
distance which makes a child eligible for transportation 
that would be aided by the state?

“A. Yes. It is a very complicated formula that 197 
computations, and we are in the process right now of 
reducing this —

“Q. (Interposing) You mean the financial formula is 
complicated. But, in terms of distance from his home 
to the school —

“A. A mile and a half outside the city limits. Until 
this year the legislature amended the Act based upon the 
recommendations of the State Board of Education to allow 
for in-city transportation which we had never had before. 
The legislature did not appropriate funds for that. So, 
now the funds that are now used are basically for rural 
areas and suburban areas where the students live a mile 
and a half from the school.

“Q. When you say ‘city,’ is there some limitation? 
For instance, would Grosse Pointe, Harper Woods, areas 
like that that surround the City of Detroit, are they 
eligible for transportation?

“A. In the in-city. But, if the students come across 
the city boundary lines they live more than a mile and 
a half, which is quite prevalent throughout the state, 
then they are eligible for the funds.

46 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



156a

“Q. Well, I think my question may have been con­
fusing. Is there some type of city — is it just anyplace 
incorporated as a city that is differentiated from the rural 
areas, or certain cities eligible for this state aid at the 
present time and receive the funds —

“THE COURT: I think what Mr. Lucas is trying to
get at is whether under the old practice whether any 
city has ceased state aid for transportation within the 
city.

“A. Yes, we have a number of instances where the city 
would be receiving aid for transportation, because the 
law says that if the bus in order to get the students to 
the school crosses outside of the city boundary, the city 
is then eligible for aid, and we, and we have a number 
of instances where that exists.

“THE COURT: In other words, where the student
originates his ride outside the city limits transportation is 
assisted?

“A. That’s right, or where the student lives in the 
city but the bus has to go outside of the city and come 
back he is also eligible. This, however, does not negate 
local city officials, school board officials from providing 
transportation. There is no prohibition against that.

“Q. (By Mr. Lucas) You said the legislature changed
the law but didn’t provide the money. Now, they are 
eligible for state aid but it is unfunded now, is that what 
you are saying?

“A. The law was changed last year to permit in-city 
bus transportation but in changing the law the legislature 
said our department had to disburse the funds to the 
eligible existing areas which meant that since they did 
not increase the amount of funds appropriated we could 
not provide for in-city transportation.

“Q. If a child lives in the city and lives more than a 
mile and a half from the school to which he is assigned 
he may not receive the state aid because it is unfunded 
at the present time?

“A. That is correct.

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157a

“Q. But if he lives the same distance away and lived 
outside the City of Detroit, for example, then he could 
receive state aide?

“A. That is correct, or any other area.”

The clearest example of direct State participation in en­
couraging the segregated condition of Detroit public schools, 
however, is that of school construction in Detroit and the 
surrounding suburban areas. Until 1962 the State Board of 
Education had direct statutory control over site planning 
for new school construction. During that time, as was pointed 
out above, the State approved school construction which 
fostered segregation throughout the Detroit Metropolitan area 
(See supra pp. 35-42). Since 1962 the State Board has con­
tinued to be involved in approval of school construction plans.

IV. Conclusion as to Constitutional Violations

The discriminatory practices on the part of the Detroit 
School Board and the State of Michigan revealed by this record 
are significant, pervasive and causally related to the substan­
tial amount of segregation found in the Detroit school system 
by the District Judge.

There is, of course, a significant distinction between this 
record and those school segregation cases which have flooded 
the courts since Brown v. Topeka, supra. This distinction is 
that Michigan has never enforced segregation by State laws 
which provided for separate black and white school systems, 
as was the pattern prior to 1954 in many other States. As 
a consequence, there always have been some instances of 
actual school integration in Detroit and still more instances 
of token school integration.

Defendants seek to insulate themselves from remedial action 
by federal courts by pointing to the long standing public policy 
of Michigan, as expressed in its statutes, of integration of 
public education. However, this court is not blind to the 
fact that governments can act only through the conduct of

48 Bradley,  et  al. v. Millikcn. et al. Nos. 72-1809 - 14



158a

their officials and employees and that unconstitutional actions 
of individuals can be redressed. See, e.g., Clemons v. Board 
of Education, 228 F.2d 853 (6th Cir.), cert, denied, 350 U.S. 
1006 (1956).

The record in this case amply supports the findings of the 
District Court of unconstitutional actions by public officials 
at both the local and State level.

Historically de jure segregation has come about through 
statutory command explicitly establishing dual school systems. 
Michigan’s declared public policy is urged as a controlling 
distinction. No matter how important this distinction may 
be, it does not in our judgment negate the de jure segregation 
findings entered in this case by the District Judge. As said 
in United States v. The Board of School Commissioners of 
the City of Indianapolis, 474 F.2d 81, 83 (7th Cir. 1973): 
“[T]he actions of the Board of School Commissioners and its 
duly-appointed representatives and agents may be sufficient 
to constitute de jure segregation without being based on state 
law, or even if they are in derogation of state law forbidding 
segregation.”

The record contains substantial evidence to support the find­
ing of the District Court that the segregation of the Detroit 
public schools, however rooted in private residential segrega­
tion, also was validated and augmented by the Detroit Board 
of Education and Michigan State Board action of pervasive in­
fluence through the system. Even if the segregation practices 
were a bit more subtle than the compulsory segregation statutes 
of Southern States, they were nonetheless effective.

It is our view that the findings of fact pertaining to actions 
of the Detroit Board of Education and the State of Michigan 
which caused or contributed to Detroit school segregation 
are not clearly erroneous and that the District Court was 
therefore authorized and required to take effective measures 
to desegregate the Detroit Public School System. Brown v. 
Board of Education of Topeka [I], 347 U.S. 483 (1954); Brown 
v. Board of Education of Topeka [II], 349 U.S. 294 (1955);

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159a

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 
1 (1971); Davis v. Board of Commissioners, 402 U.S. 33 
(1971).

This record contains a substantial volume of testimony con­
cerning local and State action and policies which helped 
produce residential segregation in Detroit and in the metro­
politan area of Detroit. In affirming the District Judge’s 
findings of constitutional violations by the Detroit Board of 
Education and by the State defendants resulting in segregated 
schools in Detroit, we have not relied at all upon testimony 
pertaining to segregated housing except as school construction 
programs helped cause or maintain such segregation.

V. The District Court’s Ruling that no Detroit 
Only Desegregation Plan is Possible

Subsequent to the entry of its findings of constitutional 
violations on the part of the Detroit Board of Education and 
the State of Michigan resulting in system-wide segregation of 
Detroit public schools, the District Court requested plans for 
Detroit only desegregation. His findings of fact pertaining 
to these plans warrant repetition:

“FINDINGS OF FACT AND CONCLUSIONS OF LAW
ON

DETROIT-ONLY PLANS OF DESEGREGATION
“In accordance with orders of the court defendant 

Detroit Board of Education submitted two plans, limited 
to the corporate limits of the city, for desegregation 
of the public schools of the City of Detroit, which we 
will refer to as Plan A and Plan C; plaintiffs submitted 
a similarly limited plan, which will be referred to as the 
Foster Plan. Hearings were had on said plans on March 
14, 15, 16, 17 and 21, 1972. In considering these plans 
the court does not limit itself to the proofs offered at the 
hearing just concluded; it considers as part of the evidence 
bearing on the issue (i.e., City-Only Plans) all proofs sub­
mitted in the case to this point, and it specifically incor­

50 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



160a

porates herein by reference the Findings and Conclusions 
contained in its “Ruling on Issue of Segregation,” 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 au­
thorized for implementation as an interim plan pending 
hearing and determination on the issue of segregation.

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

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

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

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

desegregation effort.
“2. We find that this plan covers only a portion of 

the grades and would leave the base schools no less 
racially identifiable.

“PLAINTIFFS’ 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.

Nos. 72-1809 - 14 Bradley,  e t  al. v. Milliken, e t  al. 51



161a

“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 
racially identifiable as Black.

“3. The plan would require the development of trans­
portation on a vast scale which, according to the evidence, 
could not be furnished, ready for operation, by the 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 train­
ing of a great number of drivers, the procurement of space 
for storage and maintenance, the recruitment of main­
tenance and the not negligible task of designing a trans­
portation system to service the schools. -

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

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

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

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

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

“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.

52 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



162a

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

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

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

“5. The conclusion, under the evidence in this case, 
is inescapable that relief of segregation in the public 
schools of the City of Detroit cannot be accomplished 
within the corporate geographical limits of the city. The 
State, however, cannot escape its constitutional duty to 
desegregate the public schools of the City of Detroit by 
pleading local authority.

*  #

“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 today few would doubt that they could not with-

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163a

stand constitutional challenge. In seeking for solutions 
to the problem of school segregation, other federal courts 
have not “treated as immune from intervention the ad­
ministrative structure of a state’s educational system, to 
the extent that it affects the capacity to desegregate. Geo­
graphically or administratively independent units have 
been compelled to merge or to initiate or continue co­
operative operation as a single system for school de­
segregation purposes.”1

“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 obvious; that 
it has the authority, nay more, the duty to (under the 
circumstances of this case) do so appears plainly an­
ticipated by Brown II,2 seventeen years ago. While 
other school cases have not had to deal with our exact 
situation,3 the logic of their application of the command 
of Brown II supports our view of our duty.

“FOOTNOTES

54 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14

"l Bradley v. Richmond, supra [slip opinion p. 68].
“ 2 Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, pp. 300-301.
“ 3 Haney v. County Board of Education of Sevier County, 

410 F.2d 920 (8th Cir. 1969); Bradley v. School Board of the 
City of Richmond, supra, slip opinion pp. 664-65; Hall v  St. 
Helena Parish School Board, 197 F.Supp. 649 (E.D. La. 1961), 
aff’d. 287 F.2d 376 (5th Cir. 1961) and 368 U.S. 515 (1962); Lee 
v Macon County Bd. of Educ., 448 F.2d 746, 752 (5th Cir. 1971), 
Gomillion v. Lightfoot, 364 U.S. 339 (1960); Turner v. L ittleton- 
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).”

The District Judge’s finding that no Detroit only plan 
can achieve desegregation of the Detroit public school system 
points up another substantial distinction between this case 
and the classical school segregation case. This record presents 
a wholly new fact pattern in a school segregation case so far 
as this Circuit is concerned. This court never before has been 
confronted by a finding that any less comprehensive a solution



164a

than a metropolitan area plan would result in an all black school 
system immediately surrounded by practically all white subur­
ban school systems, with an overwhelmingly white majority 
population in the total metropolitan area.

Relevant to and supportive of the District Judge’s findings 
are these school census figures showing trends toward segre­
gation in the Detroit schools during the last decade:

1960 100 of 251 schools were 90% or more white
71 of 251 schools were 90% or more black 
68% of all schools were 90% or more one race.

1970 69 of 282 schools were 90% or more white
133 of 282 schools were 90% or more black 
71.6% of all schools were 90% or more one race.

1960-61 65.8% of the total number of black students in
regular schools were in 90% or more black schools.

1970-71 74.9% of the total number of black students in
regular schools were in 90% or more black schools.

This record reflects a present and expanding pattern of 
all black schools in Detroit (resulting in part from State ac­
tion) separated only by school district boundaries from near­
by all white schools. We cannot see how such segregation 
can be any less harmful to the minority students than if the 
same result were accomplished within one school district.

The boundaries of the Detroit School district are identical to 
the geographical boundaries of the City of Detroit. This means 
that the Detroit school district, like the City, contains with­
in its boundaries two entirely separate cities (and school 
districts), Hamtramck and Highland Park, and surrounds a 
third City (and school district), Dearborn, on three sides. 
Immediately adjacent to the boundaries of the Detroit school 
district are seventeen school districts. An overwhelming ma­
jority of these districts, other than Detroit, Highland Park,

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River Rouge and Hamtramck, are entirely white or contain 
only a token number of black students.

Like the District Judge, we see no validity to an argument 
which asserts that the constitutional right to equality before the 
law is hemmed in by the boundaries of a school district.

A. Status of School Districts under Michigan Law

This conclusion is supported by the status of school districts 
under Michigan law and by the historical control exercised 
over local school districts by the legislature of Michigan and 
by State agencies and officials, which we now discuss.

As held by the District Court, it is well established under the 
Constitution and laws of Michigan that the public school 
system is a State function and that local school districts are 
instrumentalities of the State created for administrative con­
venience.

The Northwest Ordinance of 1787 governing the Territory 
of Michigan provided:

“Religion, morality and knowledge, being necessary to 
good government and the happiness of mankind, schools 
and the means of education shall forever be encouraged.” 
Art. III.

With this genesis, Michigan’s four Constitutions have clearly 
established that the public school system in that State is solely 
a State function. The Constitution of 1835 in Article X, 
Section 3, provided, in part: “The legislature shall provide 
for a system of common schools . . .” The Constitution of 
1850, Article XIII, Section 4, provided, in part: “The legis­
lature shall . . . provide for and establish a system of primary 
schools . . .” Section 1 of the same Article provided, “. . . 
the Superintendent of Public Instruction shall have general 
supervision of public instruction . . .”

The Constitution of 1908 in Article XI, Section 2, provided 
that the Superintendent of Public Instruction “shall have

56 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



166a

general supervision of public instruction in the State.” Article 
XI, Section 9, provided, in part as follows:

“The legislature shall continue a system of primary 
schools, whereby every school district in the State shall 
provide for the education of pupils without charge for 
tuition . . .”

The Constitution of 1963, the present Constitution of the 
State of Michigan, in Article VIII, Section 2, provides, in part, 
as follows:

“The legislature shall maintain and support a system 
of free public elementary and secondary schools as defined 
by law.”

In interpereting the above educational provisions of the 
Constitution of 1850, the Michigan Supreme Court stated: 
“The school district is a State agency. Moreover, it is of 
legislative creation . . .” Attorney General v. Lowrey, 131 
Mich. 639, 644, 92 N.W. 289, 290 (1902). Again, interpreting 
the Constitution of 1850, the Supreme Court of Michigan in 
Attorney General v. Detroit Board of Education, 154 Mich. 
584, 590, 118 N.W. 606, 609 (1908), adopted lower court 
language which read:

“Education in Michigan belongs to the State. It is no 
part of the local self-government inherent in the township 
or municipality, except so far as the legislature may chose 
to make it such. The Constitution has turned the whole 
subject over to the legislature . . .”

The Supreme Court of Michigan interpreted Article XI, 
Section 9, of the Constitution of 1908 to mean:

“The legislature has entire control over the schools 
of the State subject only to the provisions above referred 
to. The division of the territory of the State into districts, 
the conduct of the school, the qualifications of teachers,

Nos. 72-1809 - 14 Bradley , e t  al. v. Milliken, et  al. 57



167a

the subjects to be taught therein are all within its con­
trol.” Child Welfare v. Kennedy School Dist., 220 Mich. 
290, 296, 189 N.W. 1002, 1004 (1922).

In the leading case concerning construction of this section 
of the Michigan Constitution of 1963, the Michigan Supreme 
Court said:

“It is the responsibility of the State board of education 
to supervise the system of free public schools set up by 
the legislature and, as a part of that responsibility, to 
promulgate regulations specifying the number of hours 
necessary to constitute a school day for elementary school 
students as well as for other classifications or groupings 
of students, to determine the curricula and, in general, 
to exercise leadership and supervision over the public 
school system.” Welling v. Livonia Board of Education, 
382 Mich. 620, 624,171 N.W.2d 545, 546 (1969). See also 
Governor v. State Treasurer, 389 Mich. 1, 13, 203 N.W.2d 
457 (1972).

Michigan has not treated its school districts as sacrosanct. 
To the contrary, Michigan always has regarded education as 
the fundamental business of the State as a whole. Local 
school districts are creatures of the State and act as instru­
mentalities of the State under State control. Cf. Senghas v. 
VAnse Creuse Public Schools, 368 Mich. 557, 118 N.W.2d 
975 (1962); McLaughlin v. Board of Education, 255 Mich. 
667, 239 N.W. 374, (1931).

The record discloses a number of examples of State control 
over local public education in Michigan.

1. Following the holding of Welling v. Livonia Board of 
Education, supra, that there was no minimum length of day 
required under the 180-day school attendance rule absent a 
State Board of Education regulation, the Michigan State 
Board of Education, acting under its Constitutional mandate 
without legislative authority, established an administrative 
rule requiring local school boards to provide a minimum

58 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



168a

number of hours per sehool year. See, School Districts Child 
Account for Distribution of State Aid, Bulletin No. 1005, 
Michigan State Department of Education (1970).

2. Public Act 289 of 1964 (MSA § 15.2299 (1) et seq., 
MCLA § 388.681 et seq.) required Michigan school districts 
to operate K-12 systems. When Public Act 289 became ef­
fective, 1,438 public school districts existed in Michigan. By 
the beginning of 1968, this figure had been reduced to 738, 
meaning that 700 school districts in Michigan have disap­
peared since 1964 through reorganization. Annual Report, 
Committee on School District Reorganization, 1968 Journal 
of the Senate 422-423 (March 1, 1968).

3. Pursuant to Act 289 of 1964, supra, the State Board of 
Education ordered the merger of the Brownstown No. 10, 
Hand, Maple Grove and Carson school districts, all in Wayne 
County. The action is best explained by the fact that Browns­
town was, at that time, the wealthiest school district in the 
State, indeed, with a property valuation of $340,000 backing 
each child, perhaps the wealthiest district in the nation, while 
the other three districts were extremely poor.

4. When the Sumpter School District was on the verge of 
bankruptcy in 1968, the State Board of Education, acting 
under Public Act 239 of 1967 (MSA § 15.2299(51) et seq., 
MCLA § 388.691 et seq.), merged the district with four 
adjoining districts, including the Airport School District. 
Significantly, though Sumpter was in Wayne County, Airport 
was in Monroe County, showing that county lines are not 
inviolate in Michigan.

5. The Nankin Mills Sehool District in Wayne County was 
beset with financial problems and had no high sehool. Again, 
pursuant to Act 239, the State Board of Education in 1969 
ordered this school district to merge with the Livonia, Garden 
City and Wayne Community schools.

6. When the Inkster School District in Wayne County was 
on the verge of financial bankruptcy, the Michigan legislature

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169a

passed Public Act 32 of 1968 (MSA § 15.1916 et seq., MCLA 
§ 388.201 et seq.) enabling the district to borrow $705,000 
but on the condition that if the district could not balance its 
budget, the State Board of Education could reorganize, merge 
or annex the district. The legislative history of Act 32 indicates 
at least two legislators voted against the bill in the House of 
Representatives because of the excessive control given to the 
State Board of Education:

“I voted No on House Bill No. 3332 because in setting 
up the machinery to bail out distressed districts, it takes 
from the local communities the control over their own 
educational system by providing for excessive arbitrary 
reorganization powers in the hands of the Board of 
Education. .

“This bill certainly sets up the State Board of Educa­
tion to be a dictator of all school districts that run into 
financial problems.” 1968 Journal of the House of Repre­
sentatives 1965.

7. Too small and too poor to operate a high school, the all­
black Carver School District in suburban Oakland County 
reached a crisis in 1960 when other surrounding white districts 
refused to accept Carver pupils on a tuition basis. The Carver 
district was merged with Oak Park.

8. The State Board of Education and Superintendent of 
Public Instruction may withhold State aid for failure to 
operate the minimum school year. MSA § 15.3575, MCLA 
§ 340.575. In 1970, funds were withheld from the City of 
Grand Rapids School District. 17 Michigan School Board 
Journal 3 (March, 1970). For Attorney General Opinions 
holding that State aid may be withheld by the State Board of 
Education from school districts for hiring uncertified teachers, 
defaulting on State loans and for other reasons, see Op. Atty. 
Gen. No. 880, 1949-1950 Report of the Attorney General 104 
(January 24, 1949, Roth); No. 2333, 1955 Report of the At­
torney General 561 (October 20, 1955, Kavanaugh); No.

60 Bradley,  e t  al. v. Milliken, et  al. Nos. 72-1809-14



170a

4097, 1961-1962 Report of the Attorney General 553 (October 
8, 1962, Kelley).

9. The State of Michigan contributes, on the average, 34% 
of the operating budgets of the 54 school districts included in 
the proposed Metropolitan Plan of Integration. In eleven of the 
54 districts, the State’s contribution exceeds 50% and in eight 
more, it exceeds 40%. State aid is appropriated from the Gen­
eral Fund, revenue raised through state-wide taxation, and 
is distributed annually to the local school districts under a 
formula devised by the legislature. See, e. g., Public Act 134 
(1971), MSA §15.1919(51), MCLA § 388.611.

Though the local school districts obtain funds from the 
assessment of local property, the ultimate authority in insur­
ing equalized property valuations throughout the State is the 
State Tax Commission. MSA § 7.631, et seq., MCLA § 209.101, 
et seq.; MSA § 7.206, MCLA § 211.148; MSA § 7.52, MCLA 
§ 211.34. The State’s duty to equalize is required by the 
Michigan Constitution, Article IX, Section 3. This “State 
equalized valuation” serves as the basis for calculating local 
revenue yields. See, Ranking of Michigan Public High School 
— School Districts by Selected Financial Data, 1970, Bulletin 
1012, Michigan State Department of Education (1971).

10. The Michigan School Code reaffirms the ultimate con­
trol of the State over public education. Local school districts 
must observe all State laws relating to schools,1 hold school a 
minimum number of days per year,1 2 employ only certified 
teachers,3 teach civics, health and physical education and 
drivers’ education,4 excuse students to attend religious instruc­

Nos. 72-1809 - 14 Bradley,  et  al. v. Milliken, e t  al. 61

1 MSA § 15.3252(c), MCLA § 340.252(c).
2 MSA § 15.3575, MCLA § 340.575.
3 MSA §§ 15.1023(10) (a ) , 15.3570, MCLA §§ 388.1010(a ) , 340.570.
4 MSA §§ 15.1951,15.3361, MCLA §§ 388.371, 340.361; MSA §§ 15.3781- 

15.3782, MCLA §§ 340.781-340.782; MSA § 9.2511(c), MCLA § 257.811 
(c ).



171a

tion classes,5 observe State requirements when teaching sex 
education,6 make annual financial and other reports to the 
Superintendent of Public Instruction,7 adopt only textbooks 
which are listed with the Superintendent of Public Instruc­
tion8 9 and must follow all rules and regulations of the State 
Department of Education.

Local school districts, unless they have the approval of 
the State Board of Education or the Superintendent of Public 
Instruction, cannot consolidate with another school district, 
annex territory,10 11 divide or attach parts of other districts,11 
borrow monies in anticipation of State aid,12 13 or construct, re­
construct or remodel school buildings or additions to them.

The power to withhold State aid, of course, effects enormous 
leverage upon any local school district, since on the average 
34 per cent of the operation budget of the 54 school districts 
included in the proposed Metropolitan Plan is paid for by the 
State.

In the instance of the City of Detroit, the State exhibited 
its understanding of its power over the local school district 
by the adoption of Act 48 of the Public Acts of 1970 which 
repealed a high school desegregation plan previously adopted 
by the Detroit Board of Education. See 433 F.2d 897.

5 MSA § 15.3732(g), MCLA § 340.732(g).

« MSA § 15.3789, MCLA § 340.789.

7 MSA §15.3612, MCLA § 340.612; MSA § §  15.3616, 15.3688, MCLA 
§§ 340.616, 340.688.

8 MSA § 15.3887(1), MCLA § 340.887(1).

9 MSA § 15.3402, MCLA § 340.402.

10 MSA § 15.3431, MCLA § 340.431.

11 MSA § 15.3447, MCLA § 340.447.

12 MSA § 15.3567(1), MCLA § 340.567(a).

13 MSA §15.1961, MCLA § 388.851, Op. Atty. Gen. No. 1837, 1952- 
1954 Report of the Attorney General 440 (Nov. 8 1954).

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B. D e Jure Acts of Segregation

Thus, the record establishes that the State has committed 
de jure acts of segregation and that the State controls the 
instrumentalities whose action is necessary to remedy the 
harmful effects of the State acts. There can be little doubt 
that a federal court has both the power and the duty to 
effect a feasible desegregation plan. Indeed, such is the 
essence of Brown II. Brown v. Board of Education, 349 U.S. 
294, 300-01 (1955). In the instant case the only feasible 
desegregation plan involves the crossing of the boundary lines 
between the Detroit School District and adjacent or nearby 
school districts for the limited purpose of providing an effective 
desegregation plan. The power to disregard such artificial 
barriers is all the more clear where, as here, the State has 
been guilty of discrimination which had the effect of creating 
and maintaining racial segregation along school district lines. 
See Section III B, pp. 42-48, supra. United States v. Scotland 
Neck Board of Education, 407 U.S. 484, 489 (1972); Wright 
v. City of Emporia, 407 U.S. 451, 463 (1972); United States v. 
State of Texas, 447 F.2d 441, 443-44 (5th Cir. 1971); Haney v. 
County Board of Education of Sevier County, 429 F.2d 364, 
368 (8th Cir. 1970). See also Davis v. Board of School Com­
missioners, 402 U.S. 33, 36-38 (1971).

There exists, however, an even more compelling basis for 
the District Court’s crossing artificial boundary lines to cure 
the State’s constitutional violations. The instant case calls 
up haunting memories of the now long overruled and dis­
credited “separate but equal doctrine” of Plessy v. Ferguson, 
163 U.S. 537 (1896). If we hold that school district bound­
aries are absolute barriers to a Detroit school desegregation 
plan, we would be opening a way to nullify Brown v. Board 
of Education which overruled Plessy, supra.

This court in considering this record finds it impossible 
to declare “clearly erroneous” the District Judge’s conclusion 
that any Detroit only desegregation plan will lead directly

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173a

to a single segregated Detroit school district overwhelmingly 
black in all of its schools, surrounded by a ring of suburbs and 
suburban school districts overwhelmingly white in composition 
in a State in which the racial composition is 87 per cent 
white and 13 per cent black.

We deal with a record which demonstrates more than 
ample support for the District Judge’s findings of unconstitu­
tional segregation by race resulting in major part from action 
and inaction of public authorities, both local and State. This 
segregation is found in the school system of the inner city 
of a metropolitan area 81% white against 19% nonwhite. Under 
this record a remedial order of a court of equity which left 
the Detroit school system overwhelmingly black.(for the fore­
seeable future) surrounded by suburban school systems over­
whelmingly white cannot correct the constitutional violations 
herein found.

VI. The District Judge’s Order to Prepare A 
Metropolitan Area Desegregation Plan

The third major issue in this case pertains to the validity 
of the District Judge’s ruling on desegregation area and order 
for development of a plan of desegregation dated June 14, 
1972, accompanied by a statement of findings of facts and 
conclusions of law in support thereof.

At the outset it is obvious from what we have said pertain­
ing to the inadequacy of any Detroit only desegregation plan 
that this court feels that some plan for desegregation beyond 
the boundaries of the Detroit School District is both within 
the equity powers of the District Court and essential to a 
solution of this problem. We reiterate this, keeping in mind 
the admonition from Chief Justice Marshall:

“The government of the United States has been 
emphatically termed a government of laws, and not of

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174a

men. It will certainly cease to deserve this high appel­
lation, if the laws furnish no remedy for the violation 
of a vested legal right.” Marbury v. Madison, 5 U.S. 
(1 Cranch) 137, 163 (1803).

We reject the contention that school district lines are 
sacrosanct and that the jurisdiction of the District Court to 
grant equitable relief in the present case is limited to the 
geographical boundaries of Detroit. We reiterate that school 
districts and school boards are instrumentalities of the State. 
See Cooper v. Aaron, 358 U.S. 1, 16 (1958). As early as 
Brown II the Supreme Court pointed out that:

“[T]he courts may consider problems related to ad­
ministration, arising from the physical condition of the 
school plant, the school transportation system, person­
nel, revision of school districts and attendance areas into 
compact units to achieve a system of determining admis­
sion to the public schools on a nonracial basis, . . . 349
U.S. at 300-01.

The Supreme Court has held that school boundary lines 
cannot be changed or new school systems created where the 
result is a larger imbalance in racial ratios in school systems 
where all vestiges of enforced racial segregation have not been 
eliminated. United States v. Scotland Neck Board of Edu­
cation, 407 U.S. 484 (1972); Wright v. Council of the City 
of Emporia, 407 U.S. 451 (1972). This is true regardless of 
“dominant purpose.” Wright v. City of Emporia, 407 U.S. at 
462.

If school boundary lines cannot be changed for an uncon 
stitutional purpose, it follows logically that existing boundary 
lines cannot be frozen for an unconstitutional purpose.

We therefore conclude that the District Court in the present 
case is not confined to the boundary lines of Detroit in fash­
ioning equitable relief.

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Bradley v. School Board of the City of Richmond, 462 F.2d 
1058 (4th Cir. 1972), affd hy an equally divided court, —
U.S.----(May 21, 1973), is distinguishable in several respects.
In that case the District Court ordered an actual consolidation 
of three separate school districts, all of which the Court of 
Appeals for the Fourth Circuit declared to be unitary. In 
the instant case the District Court has not ordered consolida­
tion of school districts, but directed a study of plans for the 
reassignment of pupils in school districts comprising the met­
ropolitan area of Detroit. In the Richmond case the court 
found that neither the Constitution nor statutes of Virginia, 
previously or presently in effect, would have permitted the 
State Board of Education, acting alone, to have effected a 
consolidation of the three school districts into a single system 
under the control of a single school board. The Fourth Circuit 
held that compulsory consolidation of political subdivisions 
of the State of Virginia was beyond the power of a federal 
court because of the Tenth Amendment to the Constitution 
of the United States. The decisions which now are under 
review did not contemplate such a restructuring.

Furthermore, the court in the Richmond case cited provisions 
of the Constitution and statutes of Virginia in support of its 
holding that —

“The power to operate, maintain and supervise public 
schools in Virginia is, and always has been, within the 
exclusive jurisdiction of the local school boards and not 
within the jurisdiction of the State Board of Education.” 
462 F.2d at 1067

The record in the present case amply supports the finding 
that the State of Michigan has not been subject to such limi­
tations in its dealings with local school boards.

66 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



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VII. Rights of Other School Districts To Be 
Made Parties and To Be Heard

In his “Ruling on Propriety of Considering a Metropolitan 
Remedy” the District Court defined the metropolitan area 
“for the present purposes” to comprise the three counties of 
Wayne, Oakland and Macomb. In his “Findings of Fact and 
Conclusions of Law in Support of Ruling on Desegregation 
Area and Development Plans” the District Court noted that 
“the court has taken no proofs with respect to the establish­
ment of the boundaries in the counties of Wayne, Oakland 
and Macomb.” In his “Ruling on Desegregation Area and 
Order for Development of Plan of Desegregation” the District 
Court defined the desegregation area to include some 53 
school districts. Certain of these school districts have inter­
vened in this case, but have not yet been afforded an oppor­
tunity to offer proof. Some of the other school districts are 
not parties to the litigation.

In United States v. Texas Education Agency, 467 F.2d 848, 
873 (5th Cir. 1972), the Court said:

“The discriminatory acts of the school authorities in­
fect the entire school system; they are particularly obvi­
ous in the so-called pockets’. Some schools may be the 
‘result’ of state-imposed segregation even though no spe­
cific discriminatory school board action may be shown 
as to those schools. Had the school authorities not spe­
cifically segregated the minority students in certain 
schools, other schools may have developed as desegregated 
facilities. Thus, though they may not be ‘pockets of 
discrimination’, these schools are the ‘results’ of discrimi­
nation.”

Under the authorities heretofore discussed, these school 
districts are arms and instrumentalities of the State of Michi­
gan. Nevertheless, under Michigan law, they may sue and 
be sued. See M.S.A. §§ 15.3154, 15.3192.

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Rule 19, Fed. R. Civ. P. provides that a person who is 
subject to service of process shall be joined as a party to 
the action if “in his absence complete relief cannot be ac­
corded among those already parties.” Under this rule joinder 
of necessary parties is required if jurisdiction over them can 
be obtained and if joinder will not defeat federal jurisdiction 
of the case.

We hold that school districts which are to be affected by 
the decree of the District Court are “necessary parties” under 
Rule 19. As a prerequisite to the implementation of a plan 
in this case affecting any school district, the affected district 
first must be made a party to this litigation and afforded an 
opportunity to be heard.

While agreeing with the District Court in its conclusion that 
it can consider a metropolitan remedy, we express no views 
as to the desegregation area set forth in the orders of the 
District Court.

We vacate the order of March 28, 1972, entitled Ruling 
on Propriety of a Metropolitan Remedy to Accomplish De­
segregation of the Public Schools of Detroit.”

This Court recognizes that, as set forth above, the legisla­
ture of the State of Michigan has power to provide a com­
plete remedy for the unconstitutional segregation disclosed 
in this record. It, too, has responsibility for following the 
great mandates of the United States Constitution.

If, however, the legislature fails to act, or if it acts in a 
manner inconsistent with the expeditious and efficient elimina­
tion of the unconstitutional practices and conditions described 
in this opinion, the District Court shall proceed to fashion 
such a remedy, including an interim remedy if found to be 
necessary, as it shall determine to be appropriate within the 
guidelines of this opinion.

On remand, any party against whom relief is sought, in­
cluding school districts which heretofore have intervened and 
school districts which hereafter may become parties to this

68 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



178a

litigation, shall be afforded an opportunity to offer additional 
evidence, and to cross-examine available witnesses who previ­
ously have testified, on any issue raised by the pleadings, in­
cluding amendments thereto, as may be relevant and ad­
missible to such issues. The District Court may consider 
any evidence now on file and such additional competent evi­
dence as may be introduced by any party. However, the 
District Court will not be required to receive any additional 
evidence as to the matters contained in its Ruling on the 
Issue of Segregation, dated September 27, 1971, and reported 
at 338 F. Supp. 582, or its Findings of Fact and Conclusions 
of Law on the “Detroit-only” plans of desegregation, dated 
March 28, 1972. We hold that the findings of fact contained 
in these rulings are not clearly erroneous, Rule 52(a), Fed. 
R. Civ. P., but to the contrary are supported by substantial 
evidence.

Upon remand, the plaintiffs and other parties shall be per­
mitted to amend their pleadings to conform to the evidence 
(see Rule 15(b), Fed. R. Civ. P .), to add additional parties 
and to ask for any additional appropriate relief, the details 
of such amendments to be under the continuing supervision of 
the District Court.

We also vacate the District Court’s Ruling on Desegrega­
tion Area and Development Plan, dated June 14, 1972, except 
those parts of the order appointing a panel charged with the 
duty of preparing interim and final plans of desegregation. 
The panel appointed by the District Court is authorized to 
proceed with its studies and planning under the direction of 
the District Court. Pending further orders of the District 
Court or this Court, the defendants and school districts in­
volved will continue to supply administrative and staff assist­
ance to the panel upon its request. Until further order of 
the court, the reasonable costs incurred by the panel will be 
paid as provided by the District Court’s order of June 14, 1972.

The order of the District Court directing the purchase of 
school buses, dated July 11, 1972, also is vacated, subject to the

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179a

right of the District Court, in its discretion, to consider the 
entry of another order requiring the purchase of school buses 
at the appropriate time.

VIII. Equitable Relief

In this opinion we have emphasized the broad powers of 
a District Court to fashion equitable relief in school desegre­
gation cases. For the guidance of the District Court on remand, 
we now review the decisions on this subject in further depth.

1) The Fundamental Constitutional Holding:
“We conclude that in the field of public education the 

doctrine of "separate but equal has no place. Separate 
educational facilities are inherently unequal. Therefore, 
we hold that the plaintiffs and others similarly situated 
for whom the actions have been brought are, by reason 
of the segregation complained of, deprived of the equal 
protection of the laws guaranteed by the Fourteenth 
Amendment.” Brown v. Board of Education, 34/ U.S. 
483, 495 (1954).

2) The Supreme Court’s Initial Description of the Equitable 
Remedy:

‘"In fashioning and effectuating the decrees, the courts 
will be guided by equitable principles. Traditionally, 
equity has been characterized by a practical flexibility in 
shaping its remedies4 and by a facility for adjusting and 
reconciling public and private needs.5 These cases call 
for the exercise of these traditional attributes of equity 
power. At stake is the personal interest of the plaintiffs 
in admission to public schools as soon as practicable on a 
nondiscriminatory basis. To effectuate this interest may 
call for elimination of a variety of obstacles in making 
the transition to school systems operated in accordance 
with the constitutional principles set forth in our May 17, 
1954, decision. Courts of equity may properly take into

4 See A le x a n d e r  v. H illm a n ,  296 U.S. 222, 239.
5 See H e c h t  Co. v. B o w le s ,  321 U.S. 321, 329-330.

70 Bradley,  e t  a l  v. Milliken, e t  a l  Nos. 72-1809 -14



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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 con­
stitutional principles cannot be allowed to yield simply 
because of disagreement with them.

“While giving weight to these public and private con­
siderations, the courts will require that the defendants 
make a prompt and reasonable start toward full compli­
ance with our May 17, 1954, ruling. Once such a start 
has been made, the courts may find that additional time 
is necessary to carry out the ruling in an effective man­
ner. The burden rests upon the defendants to establish 
that such time is necessary in the public interest and is 
consistent with good faith compliance at the earliest 
practicable date. To that end, the courts may consider 
problems related to administration, arising from the 
physical condition of the school plant, the school trans­
portation system, personnel, revision of school districts 
and attendance areas into compact units to achieve a 
system of determining admission to the public schools on 
a nonracial basis, and revision of local laws and regula­
tions which may be necessary in solving the foregoing 
problems. They will also consider the adequacy of any 
plans the defendants may propose to meet these prob­
lems and to effectuate a transition to a racially nondis- 
criminatory school system. During this period of 
transition, the courts will retain jurisdiction of these cases.” 
Brown v. Board of Education of Topeka [II], 349 U.S. 
294, 300-01 (1955)

3) Delay Is No Longer Tolerable:
“In determining whether respondent School Board met 

that command by adopting its ‘freedom-of-choice’ plan, 
it is relevant that this first step did not come until some 
11 years after Brown I was decided and 10 years after 
Brown II directed the making of a 'prompt and reason­
able start.’ This deliberate perpetuation of the uncon­
stitutional dual system can only have compounded the

Nos. 72-1809 -14 Bradley,  e t  al. v. Milliken, e t  al. 71



181a

harm of such a system. Such delays are no longer toler­
able, for ‘the governing constitutional principles no longer 
bear the imprint of newly enunciated doctrine.’ Watson 
v. City of Memphis, supra, at 529; see Bradley v. School 
Board, supra; Rogers v. Paul, 382 U.S. 198. Moreover, 
a plan that at this late date fails to provide meaningful 
assurance of prompt and effective disestablishment of a 
dual system is also intolerable. ‘The time for mere 
“deliberate speed” has run out,’ Griffin v. County School 
Board, 377 U.S. 218, 234; ‘the context in which we must 
interpret and apply this language [of Brown /I] to plans 
for desegregation has been significantly altered.’ Goss 
v. Board of Education, 373 U.S. 683, 689. See Calhoun 
v. Latimer, 377 U.S. 263. The burden on a school board 
today is to come forward with a plan that promises 
realistically to work, and promises realistically to work 
now.” Green v. County School Board, 391 U.S. 430, 438- 
39 (1968) (Emphasis added.)

4) State Imposed Segregation Must be Completely Removed 
at Earliest Practicable Date:

“The obligation of the district courts, as it always has 
been, is to assess the effectiveness of a proposed plan 
in achieving desegregation. There is no universal answer 
to complex problems of desegregation; there is obvious­
ly no one plan that will do the job in every case. The 
matter must be assessed in light of the circumstances 
present and the options available in each instance. It 
is incumbent upon the school board to establish that its 
proposed plan promises meaningful and immediate 
progress toward disestablishing state-imposed segregation. 
It is incumbent upon the district court to weigh that 
claim in light of the facts at hand and in light of any 
alternatives which may be shown as feasible and more 
promising in their effectiveness. Where the court finds 
the board to be acting in good faith and the proposed 
plan to have real prospects for dismantling the state- 
imposed dual system ‘at the earliest practicable date,’ 
then the plan may be said to provide effective relief.

72 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



182a

Of course, the availability to the board of other more 
promising courses of action may indicate a lack of good 
faith; and at the least it places a heavy burden upon the 
board to explain its preference for an apparently less 
effective method. Moreover, whatever plan is adopted 
will require evaluation in practice, and the court should 
retain jurisdiction until it is clear that state-imposed seg­
regation has been completely removed. See No. 805, 
Raney v. Board of Education, post, at 449.” Green v. 
County School Board, 391 U.S. 430, 439 (1968) (Empha­
sis added.)

5) The Court Has The Power and The Duty to Eliminate 
Effects of Past Discrimination:

“We bear in mind that the court has not merely the 
power but the duty to render a decree which will so far 
as possible eliminate the discriminatory effects of the 
past as well as bar like discrimination in the future ” 
Louisiana v. United States, 380 U. S. 145, 154 (1965) 
(Emhasis added). Compare the remedies discussed in, 
e. g., NLRB v. Newport News Shipbuilding & Dry Dock 
Co., 308 U. S. 241 (1939); United States v. Crescent 
Amusement Co., 323 U. S. 173 (1944); Standard Oil Co. v. 
United States, 221 U. S. 1 (1911). See also Griffin v. 
County School Board, 377 U. S. 218, 232-234 (1964). 
Green v. County School Board, 391 U.S. 430, n. 4 at 438 
(1968) (relating to the remedial command of Brown II)

6) Resegregation is Impermissible:

“Like the transfer provisions held invalid in Goss v. Board 
of Education, 373 U.S. 683, 686, ‘[i]t is readily apparent 
that the transfer [provision] lends itself to perpetuation 
of segregation.’ While we there indicated that Tree- 
transfer’ plans under some circumstances might be valid, 
we explicitly stated that ‘no official transfer plan or 
provision of which racial segregation is the inevitable 
consequence may stand under the Fourteenth Amend­
ment.’ Id., at 689. So it is here; no attempt has been

Nos. 72-1809 -14 Bradley,  e t  al. v. Milliken, e t  al. 78



183a

made to justify the transfer provision as a device de­
signed to meet legitimate local problems,’ ibid.; rather 
it patently operates as a device to allow resegregation 
of the races to the extent desegregation would be 
achieved by geographically drawn zones. Respondent’s 
argument in this Court reveals its purpose. We are 
frankly told in the Brief that without the transfer option 
it is apprehended that white students will flee the school 
system altogether. ‘But it should go without saying 
that the vitality of these constitutional principles cannot 
be allowed to yield simply because of disagreement with 
them.’ Brown II, at 300.

“We do not hold that ‘free transfer’ can have no place 
in a desegregation plan. But like ‘freedom of choice,’ 
if it cannot be shown that such a plan will further rather 
than delay conversion to a unitary, nonracial, nondis- 
criminatory school system, it must be held unacceptable. 
See Green v. County School Board, supra, at 439-441.

“We conclude, therefore, that the Board ‘must be re­
quired to formulate a new plan and, in light of other 
courses which appear open to the Board, . . . fashion 
steps which promise realistically to convert promptly to 
a system without a ‘white’ school and a ‘Negro’ school, 
but just schools.” Id., at 442. Monroe v. Board of Com­
missioners, 391 U.S. 450, 459-60 (1968) (Emphasis 
added.)

7) The Remedial Tools:

In Swann v. Board of Education, 402 U.S. 1, 15 (1971), 
Chief Justice Burger, writing for a unanimous Court, said:

“If school authorities fail in their affirmative obligations 
under these holdings, judicial authority may be invoked. 
Once a right and a violation have been shown, the scope 
of a district court’s equitable powers to remedy past 
wrongs is broad, for breadth and flexibility are inherent 
in equitable remedies.

74 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



184a

‘The essence of equity jurisdiction has been the 
power of the Chancellor to do equity and to mould 
each decree to the necessities of the particular case. 
Flexibility rather than rigidity has distinguished it. 
The qualities of mercy and practicality have made 
equity the instrument for nice adjustment and recon­
ciliation between the public interest and private 
needs as well as between competing private claims.’ 
Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944), 
cited in Brown II, supra, at 300.”

a) The Flexible Ratio:
“As the voluminous record in this case shows, the 

predicate for the District Court’s use of the 71%-29% 
ratio was twofold: first, its express finding, approved by 
the Court of Appeals and not challenged here, that a 
dual school system had been maintained by the school 
authorities at least until 1969; second, its finding, also 
approved by the Court of Appeals, that the school board 
had totally defaulted in its acknowledged duty to come 
forward with an acceptable plan of its own, notwithstand­
ing the patient efforts of the District Judge who, on 
at least three occasions, urged the board to submit plans. 
As the statement of facts shows, these findings are 
abundantly supported by the record. It was because of 
this total failure of the school board that the District 
Court was obliged to turn to other qualified sources, and 
Dr. Finger was designated to assist the District Court to 
do what the board should have done.

“We see therefore that the use made of mathematical 
ratios was no more than a starting point in the process 
of shaping a remedy, rather than an inflexible require­
ment. From that starting point the District Court pro­
ceeded to frame a decree that was within its discre­
tionary powers, as an equitable remedy for the particu­
lar circumstances. As we said in Green, a school authori­
ty’s remedial plan or a district court’s remedial decree is 
to be judged by its effectiveness. Awareness of the racial

Nos. 72-1809 - 14 Bradley, et  al. v. Milliken, e t  al. 75



185a

composition of the whole school system is likely to be 
a useful starting point in shaping a remedy to correct 
past constitutional violations. In sum, the very limited 
use made of mathematical ratios was within the equitable 
remedial discretion of the District Court.” Swann v. 
Board of Education, 402 U.S. 1, 24-25 (1971).

b) Noncontiguous School Zoning:

“The maps submitted in these cases graphically dem­
onstrate that one of the principal tools employed by 
school planners and by courts to break up the dual school 
system has been a frank — and sometimes drastic — 
gerrymandering of school districts and attendance zones. 
An additional step was pairing, ‘clustering,’ or ‘grouping’ 
of schools with attendance assignments made deliberate­
ly to accomplish the transfer of Negro students out of 
formerly segregated Negro schools and transfer of white 
students to formerly all-Negro schools. More often than 
not, these zones are neither compact nor contiguous; 
indeed they may be on opposite ends of the city. As an 
interim corrective measure, this cannot be said to be 
beyond the broad remedial powers of a court.

“Absent a constitutional violation there would be no 
basis for judicially ordering assignment of students on a 
racial basis. All things being equal, with no history of 
discrimination, it might well be desirable to assign pupils 
to schools nearest their homes. But all things are not 
equal in a system that has been deliberately constructed 
and maintained to enforce racial segregation. The reme­
dy for such segregation may be administratively awkward, 
inconvenient, and even bizarre in some situations and 
may impose burdens on some; but all awkwardness and 
inconvenience cannot be avoided in the interim period 
when remedial adjustments are being made to eliminate 
the dual school systems.

“No fixed or even substantially fixed guidelines can 
be established as to how far a court can go, but it must

76 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



186a

be recognized that there are limits. The objective is 
to dismantle the dual school system. ‘Racially neutral’ 
assignment plans proposed by school authorities to a dis­
trict court may be inadequate; such plans may fail to 
counteract the continuing effects of past school segrega­
tion resulting from discriminatory location of school sites 
or distortion of school size in order to achieve or main­
tain an artificial racial separation. When school authori­
ties present a district court with a ‘loaded game board/ 
affirmative action in the form of remedial altering of 
attendance zones is proper to achieve truly non-discrim- 
inatory assignments. In short, an assignment plan is not 
acceptable simply because it appears to be neutral.

“In this area, we must of necessity rely to a large ex­
tent, as this Court has for more than 16 years, on the 
informed judgment of the district courts in the first in­
stance and on courts of appeals.

“We hold that the pairing and grouping of noncontigu­
ous school zones is a permissible tool and such action is 
to be considered in light of the objectives sought. Judicial 
steps in shaping such zones going beyond combinations 
of contiguous areas should be examined in light of what 
is said in subdivisions (1), (2), and (3) of this opinion 
concerning the objectives to be sought. Maps do not 
tell the whole story since noncontiguous school zones 
may be more accessible to each other in terms of the 
critical travel time, because of traffic patterns and good 
highways, than schools geographically closer together. 
Conditions in different localities will vary so widely that 
no rigid rules can be laid down to govern all situations.” 
Swann v. Board of Education, supra, at 27-29. (Empha­
sis added.)

c) Transportation of Students:
“The scope of permissible transportation of students as 

an implement of a remedial decree has never been de­
fined by this Court and by the very nature of the problem 
it cannot be defined with precision. No rigid guidelines

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, e t  al. 77



187a

as to student transportation can be given for application 
to the infinite variety of problems presented in thousands 
of situations. Bus transportation has been an integral 
part of the public education system for years, and was 
perhaps the single most important factor in the transi­
tion from the one-room schoolhouse to the consolidated 
school. Eighteen million of the Nations public school 
children, approximately 39%, were transported to their 
schools by bus in 1969-1970 in all parts of the country.

“The importance of bus transportation as a normal and 
accepted tool of educational policy is readily discernible 
in this and the companion case, Davis, supra. The Char­
lotte school authorities did not purport to assign students 
on the basis of geographically drawn zones until 1965 
and then they allowed almost unlimited transfer privi­
leges. The District Court’s conclusion that assignment 
of children to the school nearest their home serving their 
grade would not produce an effective dismantling of the 
dual system is supported by the record.

“Thus the remedial techniques used in the District 
Court’s order were within that court’s power to pro­
vide equitable relief; implementation of the decree is 
well within the capacity of the school authority.

“The decree provided that the buses used to implement 
the plan would operate on direct routes. Students would 
be picked up at schools near their homes and trans­
ported to the schools they were to attend. The trips 
for elementary school pupils average about seven miles 
and the District Court found that they would take ‘not 
over 35 minutes at the most.’ This system compares 
favorably with the transportation plan previously operated 
in Charlotte under which each day 23,600 students on 
all grade levels were transported an average of 15 miles 
one way for an average trip requiring over an hour. In 
these circumstances, we find no basis for holding that the 
local school authorities may not be required to employ 
bus transportation as one tool of school desegregation.

Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



188a

Desegregation plans cannot be limited to the walk-in 
school.

“An objection to transportation of students may have 
validity when the time or distance of travel is so great 
as to either risk the health of the children or significantly 
impinge on the educational process. District courts must 
weigh the soundness of any transportation plan in light 
of what is said in subdivisions (1), (2), and (3) above. 
It hardly needs stating that the limits on time of travel 
will vary with many factors, but probably with none 
more than the age of the students. The reconciliation of 
competing values in a desegregation case is, of course, a 
difficult task with many sensitive facets but fundamentally 
no more so than remedial measures courts of equity have 
traditionally employed.” Swann v. Board of Education, 
supra, at 29-31. (Emphasis added.)

In North Carolina v. Swann, 402 U.S. 43, 46 (1971), the Chief 
Justice said: “As noted in Swann, supra, at 29, bus transporta­
tion has long been an integral part of all educational sys­
tems, and it is unlikely that a truly effective remedy could 
be devised without continued reliance on it.”

d) Equity Power to Require Payment of Tax Funds for 
Integrated Schools:

In the exercise of its equity powers, a District Court may 
order that public funds be expended, particularly when such 
an expenditure is necessary to meet the minimum requirements 
mandated by the Constitution. Griffin v. County School Board 
of Prince Edward County, 377 U.S. 218, 233 (1964); Eaton v. 
New Hanover County Board of Education, 459 F.2d 684 (4th 
Cir. 1972); Brewer v. School Board of City of Norfolk, 456 
F.2d 943, 947, 948 (4th Cir.), cert, denied, 406 U.S. 933 
(1972); Plaquemines Parish School Board v. United States, 
415 F.2d 817 (5th Cir. 1969).

This opinion heretofore has emphasized that the Legisla­
ture of Michigan has an opportunity to determine the or­

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 79



189a

ganizational and governmental structure of an enlarged de­
segregation area to remedy the unconstitutional segregation 
results set forth in this opinion. In the event the Legislature 
fails to act effectively and expeditiously, the foregoing and other 
cases cited in this opinion outline the broad scope of equitable 
relief that may be fashioned by the District Court in this case 
on remand after all school districts to be affected are afforded 
an opportunity to be heard as hereinabove provided.

IX. Other Issues.

Numerous other issues are presented which do not require 
discussion.

We do not consider it necessary to construe the “Broom­
field Amendment,” Pub. L. No. 92-318, 86 Stat. 235, § 803, 
known as the Education Amendments of 1972, since no final 
desegregation order has been entered.

Deal v. Cincinnati Board of Education, 419 F.2d 1387, 1392 
(6th Cir. 1969), cert, denied, 402 U.S. 962 (1971) is not con­
trolling. There the District Court made findings of fact that 
there had been no unconstitutional conduct on the part of 
the Cincinnati Board of Education. This court held that 
these findings of fact were not clearly erroneous. Rule 52(a), 
Fed. R. Civ. P.

All other contentions presented by the parties contrary 
to the conclusions reached in this opinion have been considered 
and are found to be without merit.

X. Conclusion

1. The Ruling of the District Court on the Issue of Segre­
gation, dated September 27, 1971, and reported at 338 F.Supp. 
582, is affirmed.

2. The findings of fact and conclusions of law on “Detroit- 
only” plans of desegregation, dated March 28, 1972, are af­
firmed.

80 Bradley,  e t  al. v. Milliken, e t  a t  Nos. 72-1809 -14



190a

3. The Ruling on Propriety of a Metropolitan Remedy to 
Accomplish Desegregation of the Public Schools of the City 
of Detroit, dated March 24, 1972, is affirmed in part, but 
vacated for the reasons set forth above.

4. The Ruling on Desegregation Area and Development 
of Plan, dated June 14, 1972, is vacated except as hereinabove 
prescribed.

5. The order dated July 11, 1972, directing the purchase 
of school buses is vacated.

The case is remanded to the District Court for further 
proceedings not inconsistent with this opinion.

No costs are taxed. Each party will bear his own costs.

Edwards, Celebrezze, Peck, McCree, and Lively, JJ.,

Nos. 72-1809 -14 Bradley, e t  al. v. Milliken, e t  al. 81

concur.



191a

W e ic k , Circuit Judge, dissenting: Eighty-seven years before 
the landmark decision of the Supreme Court in Brown v. 
Board of Education, 347 U.S. 483 (1954) was announced, the 
legislature of the State of Michigan, in Public Acts of Michigan, 
1867, Act 34 § 28, had abolished segregation in the public 
school system which had prohibited Negro children from 
attending the same public schools as white children. This 
statute in relevant parts reads as follows:

“All residents of any district shall have an equal right 
to attend any school therein. . . . ”

The Supreme Court of Michigan, in an opinion written for 
the court by Chief Justice Cooley, construed the statute in 
1869 and held it applicable to Detroit and that Detroit con­
stituted one school district. In granting a writ of mandamus 
requiring the school board to admit a Negro child who had 
been denied admission, Chief Justice Cooley said:

“It cannot be seriously urged that with this provision in 
force, the school board of any district which is subject to 
it may make regulations which would exclude any resident 
of the district from any of its schools, because of race or 
color, or religious belief, or personal peculiarities. It is too 
plain for argument that an equal right to all of the schools, 
irrespective of such distinctions, was meant to be estab­
lished.” People, ex rel. Workman v. Board of Education 
of Detroit, 18 Mich. 399, 409 (1869).

The issues in this case do not concern the right of any 
Negro child in Detroit to attend any school he desires in 
that City. They do involve the authority of a district judge to 
adopt a so-called metropolitan plan designed to integrate the 
Negro school children living in Detroit with white children 
living in three adjoining counties and attending public schools 
in fifty-two additional school districts, eighteen of which dis­
tricts have never been made parties to this lawsuit. Condi­
tions were imposed on the districts allowed to intervene which 
rendered their intervention ineffective.

82 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



192a

The District Judge followed the pattern of Judge Merhige 
in the Richmond case whose decision was reversed by the 
Fourth Circuit in Bradley v. School Board of the City of Rich­
mond, 462 F.2d 1068 ( 4th Cir. 1972), aff’d by equally divided 
Court, —  U.S. —  (Nos. 72-549, 72-550, May 21, 1973), 41 
U.S.L.W. 4685. The fact that Richmond involved dismantling 
of a dual system was regarded as unimportant by the District 
Judge.

In an unprecedented opinion, a panel of this Court and now 
a majority of the en banc Court have upheld findings of the 
District Court that segregation exists in Detroit and that it 
cannot be dismantled with a Detroit-only plan of desegregation 
and the District Court may consider and adopt a metropolitan 
plan.1

Just to start such a plan involves the expenditure of about 
$3,000,000 for the purchase of 295 buses and untold millions 
of dollars to operate them and for other expenses. It will in­
volve about 780,000 children and, if ordered by the court, will 
force the busing of black children, against their will and with­
out the consent of their parents, from the inner city of Detroit 
to one or more of the fifty-three different school districts in 
four counties, and the white children of these districts will be 
forcibly bused to the inner city. None of these children have 
committed any offense for which they should be so punished. 
It will disrupt the lives of these children and their parents. The 
metropolitan plan was ill conceived and is a legal monstrosity. 
However, such a plan will achieve a racial balance or quota in 
the desegregation area, which is what plaintiffs are seeking.

The District Court made no findings that any of the fifty- 
two school districts outside of Detroit had practiced desegrega­

Nos. 72-1809 - 14 Bradley,  e t  al. v. Milliken, e t  al. 83

1 W hile the present undefined desegregation area consists of three 
additional counties and 53 school districts, this could, of course, be 
expanded so as to include as many as the District Judge may order. 
The plan seeks to achieve a racial balance or quota in each public 
school in the system  of 75% w hite and 25% black in a state which 
is 87% w hite and 13% black. The Plan violates Public Acts of 
Michigan, 1867, Act 34 § 28, by ordering children living in one district 
to attend school in another district.



193a

tion tactics against Negro children in their districts or in any 
other district, or that they were in any wise responsible for the 
concentration of Negroes or their segregation in Detroit.

These fifty-two school districts have been created by the 
legislature as separate and independent corporate units with 
power to sue and be sued. They are governed by locally- 
elected Boards of Education. In each district, the real estate 
of the people living therein is taxed for the support of their 
public schools.

The school districts were established by neutral legislation 
when the cities were incorporated. There was not an iota of 
evidence in the record that the boundaries of the Detroit 
school district, or any other school district in Michigan, were 
established for the purpose of creating, maintaining or per­
petuating segregation of the races. No such claim was ever 
made by the plaintiffs.

In 1910, long after the districts were created, the black 
population of Detroit was only 1.2% of the total population of 
the City. By 1970 it had increased to 43.9% of the total popula­
tion of 1,511,000. It is obvious that the great influx of blacks, 
as well as whites, to Detroit was influenced by the favorable 
industrial climate existing in Michigan and the ability of its 
industry, principally automotive, to provide jobs.

In the school year 1970-1971, there was 285,512 students in 
the public school system in Detroit of which 168,200 or 63.8% 
were black and 117,312 or 37.2% where white. The School 
Board of Detroit ought not to be blamed for the heavy con­
centration of blacks in the inner City, for housing conditions, 
or for discrimination by public or private agencies or in­
dividuals and ought not be be saddled with the duty to dis­
mantle the concentration. These same conditions exist in other 
cities throughout the country regardless of the type of 
school system in effect — whether de jure or de facto. Nor 
should the adjoining three counties and the fifty-two school 
districts be penalized because they are located near Detroit.

In his book Negroes in Cities, Dr. Karl Taeuber states

84 Bradley,  e t  ah v. Milliken, e t  ah Nos. 72-1809 - 14



194a

that residential segregation exists “regardless of the character 
of local laws and policies and regardless of other forms of 
discrimination”. He said substantially the same thing in his 
article “Residential Segregation” in the August, 1965 issue of 
Scientific American.

In Bradley v. School Board of City of Richmond, 462 F.2d 
1058 (4th Cir. 1972), aff’d by equally divided Court, —  U.S. 
—  (Nos. 72-549, 72-550, May 21, 1973), 41 U.S.L.W. 4685, 
the Court said:

“The root causes of the concentration of blacks in the 
inner city are simply not known. . . .”

And:
“Whatever the basic causes, it has not been school 

assignments and school assignments cannot reverse that 
trend.”

The District Court was motivated in its decision by social 
considerations. In a pretrial conference on October 4, 1971 the 
District Court stated:

“We need not recite the many serious problems such a 
plan entails, suffice it to say that a plan of such dimensions 
can hardly be conceived in a day, to say nothing of the 
time it will require for implementation. A large metro­
politan area such as we have in our case can not be 
made the subject of instant integration. We must bear in 
mind that the task we are called upon to perform is a 
social one, which society has been unable to accomplish. 
In reality, our courts are called upon, in these school cases, 
to attain a social goal, through the educational system, by 
using law as a lever.” App. IV, pp. 454, 455.

This is incredible!

It is submitted that the courts are not called upon to in­
tegrate the school system, using law as a lever. Nor should 
judges assume to act as legislators, for which they are neither

Nos. 72-1809 -14 Bradley, e t  al. v. Milliken, e t  al. 85



195a

fitted nor qualified. It is enough for judges to perform their 
judicial function and to abide by the separation of powers 
doctrine provided by our Constitution.

The thesis of the panel which wrote the original opinion in 
this appeal is best stated in its own words in its slip opinion:

“This court in considering this record finds it impossible 
to declare ‘clearly erroneous’ the District Judge’s con­
clusion that any Detroit only desegregation plan will lead 
directly to a single segregated Detroit school district over­
whelmingly black in all of its schools, surrounded by a 
ring of suburbs and suburban school districts overwhelm­
ingly white in composition in a State in which the racial 
composition is 87 per cent white and 13 per cent black. 
Big city school systems for blacks surrounded by suburban 
school systems for whites cannot represent equal protec­
tion of the law.” Slip Opin. p. 65.

The majority opinion adopts all of the paragraph except the 
last sentence which reads as follows:

“Big city school systems for blacks surrounded by 
suburban school systems for whites cannot represent equal 
protection under the law.”

In my opinion, the retained part of the paragraph expresses 
the same thought as the sentence which has been deleted.

No decision of the Supreme Court or any other court con­
struing the Constitution supports this thesis and it is not our 
province to rewrite the Constitution.

The majority opinion sharply conflicts with Spencer v. Kug- 
ler, 326 F.Supp. 1235 (D. N.J. 1972), affirmed, 404 U.S. 1027 
(1972). In Spencer the black students sued the Attorney 
General of the State of New Jersey, the Commissioner of Edu­
cation and the State Board of Education alleging that they 
failed to achieve a racial balance among several districts of a 
state system of public schools. New Jersey, like Michigan, 
did not operate a dual system and the alleged imbalance was 
characterized as de facto segregation.

86 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



196a

The three-judge Court which heard the case stated:
“In none of the schools of which the plaintiffs complain 
is any black pupil ‘segregated’ from any white pupil. 
Indeed, complaint is made that the blacks who reside in 
the school district served predominate over the whites, 
thus affording an example of complete desegregation 
which was the expressed object of the court in the Brown 
case. At page 487 of the Opinion at page 688 of 74 S.Ct. 
in Brown it is stated that:

‘In each of the cases [from Kansas, South Carolina, 
Virginia and Delaware] minors of the Negro race, 
through their legal representatives, seek the aid of 
the courts in obtaining admission to the public 
schools of their community on a nonsegregated basis. 
In each instance, they had been denied admission to 
schools attended by white children under laws re­
quiring or permitting segregation according to race.’

Such is not the basis upon which each of the plaintiffs in 
the present case seeks relief in this cause. On the con­
trary plaintiffs would have a substantial portion of the 
pupils now in attendance in their respective schools or­
dered by the court removed from these schools and as­
signed to a school in another district. Alternatively 
plaintiffs would have the court abolish the respective 
districts in which their schools are located and assign 
them to other districts in which the disproportion between 
white and black students is reduced in one direction or 
the other. If, as plaintiffs contend, the proportionate black 
attendance in their respective schools adversely affects 
the degree of excellence of education which they can 
receive there must be a point at which any excess of 
blacks over whites is likely to impair the quality of the 
education available in that school for the black pupils. No­
where in the Appendix filed by the plaintiffs or in the facts 
involved in any of the judicial precedents which they cite 
are we informed of the specific racial proportions which

Nos. 72-1809 -14 Bradley, e t  al. v. Milliken, e t  al. 87



197a

are likely to assure maximum excellence of the educational 
advantages available for the whites. Assuming further 
that efforts to achieve the ideal interracial proportion 
necessarily include the alteration of the population factor 
determinative of the redistricting, there can be no assur­
ance that the population factor will remain static. If so, 
it would be necessary to successively reassign pupils to 
another district as the rate of births and graduations alters 
the racial proportions creating the demand for the educa­
tional facilities as it changes from term to term. In sum, 
the difficulty complained of does not amount to uncon­
stitutional segregation.” (Id. at 1239-1240).

Speaking of school district boundaries, the Court stated:
“It is clear that these legislative enactments prescribe 
school district boundaries in conformity with municipal 
boundaries. This designation of school district zones is 
therefore based on the geographic limitations of the 
various municipalities throughout the State. Nowhere in 
the drawing of school district lines are considerations of 
race, creed, color or national origin made. The setting of 
municipalities as local school districts is a reasonable 
standard especially in light of the municipal taxing author­
ity. The system as provided by the various legislative en­
actments is unitary in nature and intent and any pur­
ported racial imbalance within a local school district 
results from an imbalance in the population of that mu­
nicipality-school district. Racially balanced municipalities 
are beyond the pale of either judicial or legislative inter­
vention.” (Id. at 1240).

Spencer is on “all fours” with our case.
The majority opinion conflicts with prior decisions of this 

Court with the unfortunate result that acts which do not 
violate the Constitution in Cincinnati, are held to be uncon­
stitutional in Detroit.

The two decisions with which the majority opinion is in

88 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



198a

irreconcilable conflict are Deal v. Cincinnati Board of Educa­
tion, 419 F.2d 1387 (6th Cir. 1969), cert, denied, 402 U.S. 
962 (1971); Deal v. Cincinnati Board of Education, 369 F.2d 
55 (6th Cir. 1966), cert, denied, 389 U.S. 847 (1967), affirming, 
244 F.Supp. 572. Twice the Supreme Court was afforded the 
opportunity to review Deal and as late as 1971 it refused to 
do so, with only one Justice dissenting.

More than eighty-two years ago Ohio, like Michigan, by 
statute had abolished segregation in the public schools in the 
State. The neighborhood school system, however, was provided 
by statute so that schools would be constructed at such places 
as will be convenient for the attendance of the largest number 
of children. Ohio Rev. Code § 3313.48. It was not then be­
lieved that neighborhood schools were obnoxious. Nevertheless, 
in Cincinnati the races were imbalanced in the public school 
system.

Some schools were attended entirely by Negroes and others 
entirely by whites, while others were attended in varying pro­
portions by both white and Negroes. Some Negro schools 
were racially identified. The segregation was allegedly caused 
by gerrymandered school-zone lines, by housing discrimination 
by public and private agencies, by discrimination in job op­
portunities, and school construction.

We held in Deal I that the Board of Education had no 
constitutional duty to eliminate racial imbalance not caused or 
created by it, and upheld the neighborhood plan adopted by 
the State Legislature.

The District Judge had excluded evidence of discrimination 
in the public and private housing markets. We held this ruling 
was correct on the ground that the discrimination, if it existed, 
was caused by persons not parties to that case and the Board 
of Education had no power to rectify that situation. We said: 
“[If] appellants have any valid claim for infringing their 
rights by public-housing or urban-renewal officials, they may 
obtain appropriate relief against them under the Fourteenth 
Amendment. With respect to private actions amounting to dis­

Nos. 72-1809 - 14 Bradley,  e t  al. v. Milliken, e t  al. 89



199a

criminatory practices, while there is no federal constitutional 
right available to appellants, they may seek relief from the 
state Civil Rights Commission, or in the state courts, if relief 
is denied under the provisions of the Ohio Fair Housing Law.2 
Deal I, 369 F.2d at 60 fn. 4.

The majority opinion also conflicts with Bradley v. School 
Board of Richmond, supra, and Swann v. Board of Education, 
402 U.S. 1 (1971).

Swann stated that: “[The] objective is to dismantle the dual 
school system.” Id. at 28. Here there has been no dual school 
system to dismantle. Although not racially balanced, Detroit 
for many years had achieved a unitary school system in which 
no student was precluded from attending any school in the 
district. Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969). There are limits as to how far a district court 
can go. Swann at 28.

Swann also stated:
“If we were to read the holding of the District Court to 

require, as a matter of substantive constitutional right, any 
particular degree of racial balance or mixing, that ap­
proach would be disapproved and we would be obliged to 
reverse.” 402 U.S. at p. 24.

The metropolitan plan violates this principle which was 
applicable only to dual systems. It is even worse when the 
District Court applies broader orders to a unitary system than 
have ever been applied to dismantling of a dual system.

Swann, is violated by overloading the school system with 
excess “baggage.” Id. at 22.

90 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809- 14

2 The Supreme Court in J o n es  v. M a y e r  Co.,  392 U.S. 409 (1968), 
has since held that Section 1982 of 42 U.S.C. applies to all discrim ina­
tion in the sale or rental of property.

The majority distinguishes D e a l  I on the ground that the District 
Court made findings of fact that there had been no unconstitutional 
conduct on the part of the Cincinnati Board of Education. In B r a d ­
ley ,  the District Judge had found similar facts to constitute a v iola­
tion of the Constitution. Both District Court decisions, although in ­
consistent, have now been affirmed.



200a

THE DETROIT ONLY PLAN

The finding of the District Court that a Detroit only plan 
could not accomplish desegregation is not supported by the 
evidence and are clearly erroneous. The percentage of black 
and white children in the public schools in 1970-1971 was 
63.8% and 37.2% respectively. The racial composition of the 
state is 87% white and 13% black.

In Wright v. Council of City of Emporia, 407 U.S. 451 
(1972), the Supreme Court approved a pairing plan for the 
City and County which had a racial composition of 34% white 
and 66% black. The existing ratios in Detroit are practically 
the same.

But the District Court in our case was concerned about its 
own forecast of population trends that the percentage of black 
students would increase from 63.8% in 1970 to 72% in 1980, and 
in 1992 would be all black. This forecast is wholly speculative.

Such an unsupported and speculative forecast cannot be 
made the basis for a metropolitan cross-district order. Even if 
true, which it is not, the Board of Education is not responsible 
for the population remaining static, or for the mobility of the 
races. This was made clear in Spencer, supra, id. at 1239, 1240, 
and also in Swann, supra, id. at 31, 32. Nor is the Board re­
quired from time to time to adopt plans to meet shifting 
population trends. Spencer, supra; Swann, supra.

Significantly, all that the plaintiffs are complaining about is 
the operation of the Detroit school system and the failure of 
the State defendants to properly supervise, control or finance 
it. Plaintiffs cannot complain about school district lines be­
cause those lines were neutrally drawn with the incorporation 
of the cities long before the Negroes had migrated north in 
large numbers. If school-zone lines in Detroit have not been 
properly drawn or if there are imbalances of black and white 
students, or imbalances on faculty or staffs in the Detroit 
schools, or if school buildings have been improperly located, or 
if plaintiffs have been discriminated against in any other

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 91



201a

respect, these inequities can all be remedied in the Detroit 
school system without forcibly moving Negroes and whites 
against their will across district lines into other counties and 
districts. An order requiring the adoption of a metropolitan 
plan under the facts of this case, merely to dismantle the con­
centration of blacks in the inner city, violates constitutional 
rights of both races and constitutes a flagrant abuse of judicial 
power.3 Swann recognized a limitation on the power of Dis­
trict Judges. Id. at 28. Chief Justice Vinson, in writing the 
opinion for the court in Oyama v. California, 332 U.S. 633, 646 
(1948), stated:

“But assuming, for the purposes of argument only, that 
the basic prohibition is constiutional, it does not follow 
that there is no constitutional limit to the means which 
may be used to enforce it.”

Thus, the District Court may not enter orders in school 
desegregation cases which impinge upon and violate the con­
stitution rights of other persons.

Many Negroes as well as whites are opposed to integration 
of the races in the public school system by enforced busing.4 
A busing order directed at “benefiting” black students in 
Detroit (by distributiing the black student population through­
out the entire metropolitan area) produces a head-on clash of 
constitutional principles. Blacks are given an (alleged) benefit 
when other citizens “similarly situated”, i.e., other minority- 
group students and even inner-city white students, are not 
given such benefits but are discriminated against. This result, 
of course, is a classic denial of the equal protection of the

92 Bradley , e t  al. v. Milliken, e t  al. Nos. 72-1809 -14

3 Indeed, there is no finding by the District Court of any pattern  
of purposeful segregation by the School Board or finding of any 
causal relationship betw een any alleged segregative acts of the 
Board of Education and the concentration of blacks in the inner 
city.

4  At the National Black Political Convention held in Gary, Indiana 
(March, 1972), mandatory busing and school integration w ere con­
demned as racist and as preserving a black m inority structure.



202a

laws. Barbier v. Connolly, 113 U.S. 27, 32 (1885); Truax v. 
Corrigan, 257 U.S. 312, 333 (1921).

In a very recent thought-provoking article, appended hereto 
as Appendix A and entitled “Reverse Discrimination”, Dr. 
Morton Teicher, Dean of the School of Social Science of the 
University of North Carolina, discussed the problems of de­
prived groups and remedies for past discrimination including 
quota systems. Since opinions of sociologists were relied upon 
in Brown I, it is important that they not be overlooked here. 
See also the discussion entitled “Busing: A Review of ‘The 
Evidence’”, The Public Interest No. 30 Winter 1973; “The 
Evidence on Busing,” The Public Interest No. 28 Summer 
1972; Ross, “Why Quotas Won't Work,” Readers Digest, Feb. 
1973, p. 51.

The District Court’s metropolitan cross-district order, an 
order purportedly directed at furthering the purposes of the 
equal protection clause, itself clashes with this constitutional 
principle.

The metropolitan busing remedy ordered by the Court is, 
however, unconstitutional on a more fundamental level. It 
invalidly assumes that the equal protection clause of the 
Fourteenth Amendment protects groups and not individuals. 
The entire thrust of the District Court’s order is that the 
rights of blacks as a group must be redressed and that, in the 
process, the rights of individual black children (and non-black 
children) may be disregarded.

Consider the burden on the individual students who are 
bused in order to achieve a “racial balance” throughout the 
entire Detroit Metropolitan Area. Individual black and white 
students who formerly walked to a nearby school would be 
forced to travel substantial distances to other schools. These 
are not individuals who are burdened because their parents 
have chosen to reside far from the nearest school in the district 
or because they have special educational needs attended to in 
but a single school in the district. These are individual chil­

Nos. 72-1809 - 14 Bradley,  e t  a l  v. Milliken, e t  a l  93



203a

dren who are burdened with being bused solely because they 
are black or white, as the case may be.

Parenthetically, it should be noted that if there were any 
question that busing involves a substantial burden on the 
individual who cannot attend his neighborhood school, that 
question has been dispelled by the urgings of desegregation- 
case plaintiffs that black children can not be “unequally bur­
dened” by being the only students bused, the white students 
being permitted to attend their neighborhood schools, See e.g., 
Haney v. County Bd. of Education of Sevier Co., 429 F.2d 
364, 371-372 (8th Cir. 1970); Brice v. Landis, 314 F.Supp. 974, 
978-979 (N.D. Calif. 1969).

Yet in proposing a remedy for black students as a group 
based on a head count, the District Court entirely disregards 
these individual black and white students and their right not be 
burdened solely on account of their race.

The equal protection clause of the Fourteenth Amendment 
states:

“. . . nor shall any state . . . deny to any person within 
its jurisdiction the equal protection of the laws. (Em­
phasis added.)

The Supreme Court has recognized the individual nature of 
the equal protection clause on a number of occasions.5 In

94 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14

5 Of course, m erely because equal protection is an individual right 
does not mean, as im plied in U n i t e d  S t a t e s  v. Jef ferson  Co. Bd.  
of Educat ion ,  372 F.2d 836 (5th Cir. 1966), that a class action w ill 
not be available under Rule 23 (a) for redress of discrimination. 
A class action lies where a number of persons have similar ind i­
vidual rights infringed.

On the other hand, it does not follow  that sim ply because a class 
action is available to redress discrim ination individual rights can 
be obliterated by superimposing the “rights” of the class.

The individual plaintiffs, who charge in their Complaint the m ain­
tenance of a desegregated school system  in Detroit, w ere all Negroes 
except one. Nevertheless, the D istrict Court in determ ining the 
class held “that the plaintiffs in their action represent all school 
children in the City of Detroit, Michigan, and all Detroit resident



204a

Shelley v. Kraemer, 334 U.S. 1, 22 (1948), the Court was ex­
plicit:

“The rights created by the first section of the Fourteenth 
Amendment [the equal protection clause] are, by its 
terms, guaranteed to the individual. The rights estab­
lished are personal rights. [Court’s n.29.] McCabe v. 
Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 161-162 
(1914); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 
(1938); Oyama v. California, 332 U.S. 633 (1948).”

It simply defies logic to have a “constitutionally required” 
remedy for a group of individuals which, in turn, uncon­
stitutionally denies equal protection to the individuals in the 
group as well as individuals in other groups, and which remedy 
unconstitutionally imposes burdens on students within and 
without the group solely because of their race. Yet this is pre­
cisely what the District Court has held. The Court states (cor­
rectly) that discrimination against the black race in Detroit 
must be remedied, but then orders massive interdistrict busing 
of students to achieve racial balances, denying individual 
blacks (and non-blacks) their right not to be substantially 
burdened solely on account of their race.

But the fundamental error of the District Court order was 
in treating the Michigan school system as a dual system when 
it was not, and in proposing the dismantling of concentration 
of blacks in Detroit and distributing them in fifty-two other 
school districts in three other counties. Virtually all of the 
cases relied upon by the plaintiffs to support the District 
Court’s rulings involved dual school systems.

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 95

parents who have children of school age, . . . .” Thus w hite and 
black children and their parents, who are not situated sim ilarly with  
the plaintiffs and may violently disagree w ith plaintiffs’ position, are 
arbitrarily placed in the same class. It w ill also be noted that 
the Complaint sought only the desegregation of the Detroit schools 
and made no claim against other counties and other school districts.



205a

DUE PROCESS VIOLATIONS OF FIFTH AND 
FOURTEENTH AMENDMENTS TO THE 

CONSTITUTION

Although, as stated by the majority, this is the fourth time 
that the case has been before us, the District Court has not 
as yet adopted any specific plan for desegregation; instead 
the District Court has entered a number of interlocutory or­
ders some of which are now before us for review under 28 
U.S.C. § 1292(b). These include rulings on the issue of Seg­
regation, findings of fact and conclusions of law on Detroit 
Only Plan of Desegregation, propriety of a Metropolitan 
remedy to desegregate Detroit Schools, Desegregation Area, 
and Order directing Michigan State officials to purchase 295 
school buses.

This procedure is unprecedented. Usually school desegre­
gation cases are reviewed on appeal only after a plan of de­
segregation has been adopted. It appears to us that the 
District Court has placed the cart before the horse. It has 
entered a number of far-reaching piecemeal interlocutory or­
ders from which no appeal could be taken without the court’s 
permission, and which would bring about a fait accompli of 
a metropolitan plan without affording the defendants their 
right of appeal. This was in the absence of necessary and 
indispensable parties and to the prejudice of intervening school 
districts which had been denied effective participation in the 
proceedings.

The Complaint, which has never been amended, sought 
only the desegregation of the Detroit school system. There was 
no allegation that any other school district would be affected. 
As soon as it was determined that other school districts might 
be adversely affected, the District Court should have required 
the plaintiffs to make them parties defendant with a full 
opportunity to be heard on the merits of the case. These school 
districts were necessary and indispensable parties. This is the 
correct procedure, and was followed in Bradley v. School 
Board of the City of Richmond, 338 F.Supp. 67 (E.D. Va.

96 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



206a

1971) , reversed on other grounds, 462 F.2d 1058 (4th Cir.
1972) , aff’d by equally divided Court, —  U.S. —  (Nos. 72- 
549, 72-550, May 21, 1973), 41 U.S.L.W. 4685.

All school districts whose borders were being invaded were 
entitled, as a matter of right and not of mere grace, to 
be made parties defendant in the case and to be accorded 
the same rights as any other defendants. They were entitled 
to be heard on all issues in the case which affected them, 
and were entitled to participate effectively in the proceedings. 
They were entitled to be heard on the issues of segregation, the 
“Detroit-Only plan” and the “Metropolitan plan”. They had 
the right to offer evidence and endeavor to prove that there 
was no causal connection between any act or omission of the 
Detroit Board of Education (or of the State) and the concen­
tration of blacks in the inner City, and that whatever consti­
tutional violations of the rights of the plaintiffs may have oc­
curred, such violations could be remedied within the Detroit 
school district without invading other districts which were 
not in any manner responsible for conditions in Detroit. These 
rights were denied to the intervenors.

While the orders of the District Court on these three issues 
were interlocutory, the judgment entered by the majority is 
final and the issues may not be relitigated on remand. Thus 
judgment has been entered against the absent school districts 
as well as those allowed to intervene, in violation of their 
due process rights to a fair and impartial trial. The orders 
affirmed are far reaching; they will require the expenditure of 
untold millions, and will disrupt the lives of hundreds of 
thousands of children and their parents.

However, in its opinion the majority did provide for amend­
ment of pleadings on remand, making new party defendants, 
for intervention, and for offering additional testimony. These 
provisions are wholly illusory with respect to the issues of 
segregation, the “Detroit-Only plan” and the “Metropolitan 
plan”, as the opinion expressly excludes these issues from 
reconsideration upon the remand. The only remedy available

Nos. 72-1809 - 14 Bradley,  e t  al. v. Milliken, e t  al. 97



207a

to the intervening school districts is to petition the Supreme 
Court for certiorari. The eighteen school districts, as well 
as any additional school districts which the District Court 
may add to the desegregation area upon the remand, are with­
out any remedy. Since they have never been made parties, 
they may not petition the Supreme Court for a writ of certi­
orari. They have surely been deprived of their property rights, 
not only without due process of law, but without any process 
of law.

The majority opinion, with its disapproval of the “Detroit- 
Only” plan and its order to the District Court to consider 
and adopt a so-called “Metropolitan” plan invading the borders 
of three counties and the boundaries of fifty-two school dis­
tricts, completely destroys local control of the public school 
system along with all of its advantages. Local control is a 
traditional concept of the American public school system. Its 
merit and value were recognized by the Supreme Court in two 
very recent decisions. San Antonio Independent School Dist. 
v. Rodriguez, —  U.S. —  (No. 71-1332, 41 U.S.L.W. 4407, 
decided March 21, 1973); and Wright v. Council of the City 
of Emporia, 407 U.S. 451 (1972).

In San Antonio Independent School District, supra, Mr. Jus­
tice Powell, wrote the opinion for the Court, cited and quoted 
from opinions of Chief Justice Burger and Justice Potter Stew­
art in Wright, stating:

“The Texas system of school finance is responsive to 
these two forces. While assuring a basic education for 
every child in the State, it permits and encourages a large 
measure of participation in and control of each district’s 
schools at the local level. In an era that has witnessed 
a consistent trend toward centralization of the func­
tions of government, local sharing of responsibility for 
public education has survived. The merit of local con­
trol was recognized last Term in both the majority and 
dissenting opinions in Wright v. Council of the City of 
Emporia, 407 U.S. 451 (1972). Mr Justice Stewart stated 
there that ‘[djirect control over decisions vitally affecting

98 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



208a

the education of one’s children is a need that is strongly 
felt in our society.’ Id., at 469. The Chief Justice, in his 
dissent, agreed that ‘[l]ocal control is not only vital 
to continued public support of the schools, but it is of 
overriding importance from an educational standpoint as 
well.’ Id., at 478.

“The persistence of attachment to government at the 
lowest level where education is concerned reflects the 
depth of commitment of its supporters. In part, local 
control means, as Professor Coleman suggests, the free­
dom to devote more money to the education of one’s 
children. Equally important, however, is the opportunity 
it offers for participation in the decision-making process 
that determines how those local tax dollars will be spent. 
Each locality is free to tailor local programs to local needs. 
Pluralism also affords some opportunity for experimenta­
tion, innovation, and a healthy competition for educa­
tional excellence. An analogy to the Nation-State rela­
tionship in our federal system seems uniquely appropriate. 
Mr. Justice Brandeis identified as one of the peculiar 
strengths of our form of government each State’s free­
dom to ‘serve as a laboratory . . . and try novel social 
and economic experiments.’ No area of social concern 
stands to profit more from a multiplicity of viewpoints and 
from a diversity of approaches than does public educa­
tion.” (41 U.S.L.W. at 4422)

As we have pointed out, the facts of the present case furnish 
no basis whatsoever for the Court to destroy local control of 
our public school system.

Unreasonable and intolerable conditions, however, were im­
posed by the Court on the intervention by the school districts.6 * 1

Nos. 72-1809 -14 Bradley, e t  al. v. Milliken, e t  al. 99

6 “The interventions granted this day shall be subject to the 
follow ing conditions:

1. No intervenor w ill be perm itted to assert any claim or defense 
previously adjudicated by the court.

2. No intervenor shall reopen any question or issue which has 
previously been decided by the court.

3. The participation of the intervenors considered this day shall



209a

The school districts filed objections to the conditions which 
were never ruled on by the Court. These conditions alone 
constituted a denial of due process to the intervenors who were 
precluded from raising questions necessary for their own pro­
tection and who were denied the right to be heard fully on 
the merits of the case.

The type of intervention permitted by the District Court 
is graphically illustrated in the brief filed by counsel for the 
intervenors in which he complains about the following incidents 
with citation of supporting record references:

“Seven days after allowing appellants to intervene, as 
a matter of right but subject to oppressive conditions, 
[27] the trial court required the filing of written briefs 
on the legal propriety of a metropolitan plan of desegre-

100 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14

be subordinated to that of the original parties and previous in ­
tervenors.

4. The new  intervenors shall not in itiate discovery proceedings 
except by perm ission of the court upon application in writing, ac­
companied by a showing that no present party plans to or is w illing  
to undertake the particular discovery sought and that the particular 
matter to be discovered is relevant to the current stage of the pro-
Q 0 0 C J j j q g g >

5. No new intervenor shall be perm itted to seek a delay of any
proceeding in this cause; and he shall be bound by the brief and 
hearing schedule established by the court’s Notice to Counsel, issued  
March 6, 1972. . , .

6. N ew  intervenors w ill not file counterclaim s or cross-com plaints;
nor w ill they be perm itted to seek the joinder of additional parties 
or the dismissal of present parties, except upon a showing that such  
action w ill not result in delay. . . .

7. N ew  intervenors are granted intervention for tw o principal 
purposes: (a) To advise the court, by brief, of the legal propriety 
or impropriety of considering a m etropolitan plan; (b) to review  
any plan or plans for the desegregation of the so-called  larger 
Detroit Metropolitan area, and subm itting objections, modifications or 
alternatives to it or them, and in accordance w ith  the requirem ents 
of the United States Constitution and the prior orders of this court.

8. N ew  intervenors shall present evidence, if  any they have, 
through witnesses to a number to be set, and lim ited, if necessary, 
by the court, follow ing conference.

9. With regard to the exam ination of w itnesses, all new  inter­
venors shall among them selves select one attorney per w itness to 
act for them, unless one or more of the new  intervenors show cause 
otherwise. These conditions of intervention shall rem ain subject 
to change or modification by the court in the interest of tim ely  
disposition of the case.

DATE: March 15, 1972.” App. at 408-410.



210a

gation. (A. Ia397) The court did not require or permit 
oral argument. Less than 36 hours later the court issued 
its ‘Ruling on Propriety of Considering a Metropolitan 
Remedy to Accomplish Desegregation of the Public 
Schools of the City of Detroit’ (A. Ia439) rejecting the 
contentions of Intervenor School Districts. Testimony 
regarding metropolitan plans commenced four days later 
(a weekend and Motion day falling between) at 10:10 
A.M. Prior to the noon recess, just two hours after In­
tervenor School District counsel had first appeared in 
the District Court and before completion of testimony 
of a single witness, the District Judge announced that 
counsel could stop by his office and pick up his ‘Findings 
of Fact and Conclusions of Law on Detroit-only Plans 
of Desegregation’ (A. Ia456) wherein the court announced 
its intention to seek a more desirable racial mix by means 
of a Metropolitan Plan.

Thus, without any opportunity for oral argument, with­
out opportunity to examine or cross-examine one witness, 
without opportunity to present one shred of evidence, 
and indeed, without opportunity to obtain copies of previ­
ous pleadings and testimony (let alone read same), the 
Intervenor School Districts had been effectively fore­
closed from protecting their interests. [28].”

He further complains about the fact that the Court per­
mitted him to take the deposition of Dr. David Armor, a soci­
ologist of Harvard University, and then refused to receive it 
in evidence.

Dr. Armor was a well-qualified expert. He had previously 
written an article entitled “The Evidence on Busing” pub­
lished in The Public Interest No. 28, Summer 1972, which ex­
ploded some of the existing theories on educational achieve­
ment resulting from busing.

In a subsequent article by Dr. Thomas F. Pettigrew and 
associates, they responded to Dr. Armor’s article on busing and 
quoted from Judge Roth’s ruling excluding his deposition as 
follows:

Nos. 72-1809 - 14 Bradley , et  al. v. Milliken, e t  al. 101



211a

“This fundamental fact was dramatically demonstrated 
by the judicial reaction to Armor s deposition in the De­
troit school case, a deposition based on an earlier draft 
of ‘The Evidence on Busing/ On June 12, 1972, U.S. 
District Court Judge Stephen H. Roth ruled the deposition 
inadmissible as evidence on the grounds of irrelevancy. 
The deposition, in Judge Roth’s view, represented a new 
rationale for a return to the discredited “separate but 
equal policy . . . .’ ”7 The Public Interest No. 30, Winter 
1973.

In an article entitled “The Double Double Standard” ap­
pearing in the same issue at page 119, Dr. Armor replied to 
the Pettigrew article stating among other things:

“The double standard here is obvious. One willingly 
applies social science findings to public policy if they are 
in accordance with one’s values, but declares them irrele­
vant if they contradict one’s values. . . .” Id. at 130.

The Supreme Court in Brown I relied heavily on testimony 
of sociologists as to the adverse effect of segregation on the 
educational achievement of Negro children. It is inconceiva­
ble that the District Court would hold contrary testimony of 
a sociologist irrelevant and exclude it. This was prejudicial 
error. In a court of justice not merely one side but both 
sides are entitled to offer evidence.

The District Court quashed a subpoena duces tecum is­
sued by the intervenors for Charles Wells, an employee of 
the Detroit Board of Education, to bring with him “all rec­
ords of the past two (2) years concerning incidents involving 
damage to property, safety of pupils or staff (whether perpe­
trated by other pupils, staff or outsiders) criminal activities, 
or fires in or on school property as regards each school in the 
Detroit public school system.”

7 Judge Roth’s language is not understandable in v iew  of the 1869 
decision of the Supreme Court of M ichigan in P e o p l e ,  e x  rel .  W o r k ­
m a n  v. B oard  of E d u c a t io n  of  D e t r o i t ,  suprai, upholding the right of 
Negro children to attend any school in their district.

102 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



212a

Although the Court had previously received the testimony of 
Freeman Flynn, offered by plaintiffs on the subject of safety, 
it denied permission to the Intervenors to offer evidence on 
the same subject by quashing the subpoena. The Court was 
not that technical in admitting into evidence Exhibit 16, al­
though it was not properly identified, stating that the Court 
decided to follow Justice of the Peace Cane’s rule: “We will 
let it in for what it is worth.” Indeed, he did, but did not 
apply Justice Cane’s rule to the deposition.

Due process required an opportunity to be heard which 
must be granted at a meaningful time and in a meaningful 
manner. Jenkins v. McKeithen, 395 U.S. 411 (1969); In Re 
Gault, 387 U.S. 1, 19-21 (1967); Armstrong v. Mango, 380 
U.S. 545, 552 (1965); In Re Oliver, 333 U.S. 257 (1948).

As well stated in Railroad Commisison of California v. Pa­
cific Gas & Electric Co., 302 U.S. 388, 393 (1938):

“The right to a fair and open hearing is one of the 
rudiments of fair play assured to every litigant by the 
Federal Constitution as a minimal requirement. Ohio Bell 
Telephone Co. v. Public Utilities Commn, 301 U.S. 292, 
304, 305.”

The intervenors were entitled to the effective assistance of 
counsel, to have a reasonable time to examine the papers in 
the case and to prepare for trial, and to offer evidence in sup­
port of their contentions before the case is decided against 
them.

One other matter is worthy of comment. The District 
Court appointed a nine-member panel to set up a metropolitan 
plan of desegregation. Three members of the panel were 
from Detroit. Only one member was appointed to represent 
the fifty-two school districts whose school population exceeds 
that of Detroit by more than two times. This is a plain ex­
ample of unfairness.

The Detroit Board of Education, although vigorously deny­
ing the commission of any purposeful segregative acts com­

Nos. 72-1809 - 14 Bradley,  e t  al. v. Milliken, e t  al. 103



213a

mitted against Negroes and contending that plaintiffs have 
not proven their case, has taken an unusual and extraordinary 
position. It supports the plaintiffs on the issue of a metro­
politan plan contending that if a constitutional violation has 
been shown, only such a drastic remedy will rectify it. It 
is obvious that the Detroit Board was motivated by its con­
cern that a 63.8%-black and a 37.2%-white quota was too heavi­
ly weighted with black pupils, and that it owed a constitu­
tional duty to dilute that quota and to distribute the black- 
pupil population of Detroit into the other three counties and 
fifty-two additional school districts, in order to effectuate a 
quota of about 25%-black and 75%-white children in each school.

It is submitted that no such constitutional duty exists and 
that the District Court erred in ordering it; Swann, supra.

THE ELEVENTH AMENDMENT TO THE 
CONSTITUTION PROSCRIBES SUITS AGAINST 

THE STATE OF MICHIGAN, AND IT HAS 
SOVEREIGN IMMUNITY

The plaintiffs have attempted to sue the State of Michigan 
by making the Governor, the Attorney General, and the Act­
ing Superintendent of Schools parties defendant. Later, when 
the District Court issued an order prior to the adoption of 
any plan for desegregation, to purchase 295 buses, it made 
the Treasurer of the State a party defendant in order to se­
quester funds in his hands.

It was the theory of the plaintiffs that under the doctrine 
of vicarious liability the state was liable for the acts and con­
duct of the Detroit Board of Education and of other political 
subdivisions, and that since the State is a party defendant it 
really was not necessary to make the Detroit School Board, 
or the school boards in the other districts, parties to the case. 
This theory has no legal support and is unsound. Each school 
district is a separate and independent corporate unit with 
power to sue and to be sued, and has separate taxpayers whose

104 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



214a

property is taxed for the support of the schools as well as for 
the payment of the district’s bond issues.

If, as plaintiffs contend, the State has been made a party 
defendant, then such an action against the State is proscribed 
by the Eleventh Amendment.

The most recent decision of the Supreme Court upholding 
sovereign immunity of a state is Krause v. State of Ohio, 
—  U.S. —  (1972).

To the same effect is Ex Parte State of New York, 256 U.S. 
490 (1921), where the court made it clear that the applica­
bility of the Eleventh Amendment “is to be determined not by 
the mere names of the titular parties but by the essential 
nature and effect of the proceeding as it appears from the 
entire record.” Id. at 500.

The general rule was stated in Dugan v. Rank, 372 U.S. 
609 (1963), as follows:

“The general rule is that a suit is against the sovereign 
if ‘the judgment sought would expend itself on the pub­
lic treasury or domain or interfere with the public ad­
ministration,’ Land v. Dollar, 330 U.S. 731, 738 (1947), or 
if the effect of the judgment would be ‘to restrain the 
Government from acting, or to compel it to act.’ Larson 
v. Domestic & Foreign Corp., supra, at 704; Ex parte New 
York, 256 U.S. 490, 502 (1921).”

The Civil Rights Act has not yet been construed as an ex­
ception to the Eleventh Amendment.

The order issued against the State defendants provided:
“1. The Defendant Detroit Board of Education shall ac­
quire by purchase, lease or other contractual arrange­
ment at least 295 buses for use in the interim desegrega­
tion plan during the 1972-73 school year. All financial ob­
ligations incurred as the result of this Order shall be the 
sole financial obligation of the State Defendants, includ­
ing the added State Defendant State Treasurer Allison 
Green, as set forth below in Paragraph 2. Said order,

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 105



215a

lease, or other contract shall be entered into by negotia­
tion and without the necessity for bids forthwith and in 
no event later than Thursday, July 13, 1972.

2. The State Defendants shall bear the cost of this 
acquisition and State Defendants, including the added 
State Defendant Green, shall take all necessary steps 
utilizing existing funds and sources of revenue, to be 
acquired State funds, legislatively authorized and funds 
directed by the State Constitution to the State School 
Aid Funds and by re-allocation of existing or new funds 
to pay for said transportation acquisition either directly 
or through the Defendant Detroit Board.” App. at 576, 
577.

This order imposed a personal liability on the State de­
fendants and would require them, if they complied with 
it, to misappropriate and misapply State funds in violation 
of state law. If they did not comply with it they could 
be punished for contempt.

In addition, the State defendants were ordered to pay the 
cost of the nine-member panel appointed by the Court to 
devise the Metropolitan Plan, (1 Ba 538). This cost was 
estimated at $22,500. All defendants were ordered to hire 
black counsellors and provide in-service training for teachers 
in the fifty-three school district desegregation area. The in­
itial cost of the in-training was about $3,000,000.

The District Court was without authority to impose a per­
sonal liability on the State defendants or to order them to 
misapply and misappropriate State funds in violation of State 
law.8

The legislature of Michigan is not likely to act on the sug­
gestion of the majority, accompanied by a veiled threat if it 
fails to so act, that it change school district boundary lines

8 The orders entered by the D istrict Court have certainly been ex ­
pended on the public treasury, have interfered w ith public adm inistra­
tion, have restrained the State from acting, and have com pelled it 
to act, which is the test for determ ining whether the action is against 
the State, under D u g a n  v. R a n k ,  supra .  Such an action is clearly  
proscribed by the Eleventh Amendm ent.

106 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809-14



216a

to benefit a few at the expense of many, and thereby violate 
the constitutional rights of many. School district lines may 
not be changed for an unconstitutional purpose. United States 
v. Scotland Neck City Board of Education, 407 U.S. 484 (1972); 
Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). 
Since an adequate remedy already exists within the Detroit 
school district to correct any constitutional violation therein, 
there is no occasion for the legislature to alter the existing 
neutral, non-discriminatory school district boundaries.

RELIEF
*

Because of prejudicial errors of constitutional magnitude 
committed by the District Court, each of the orders from which 
an appeal has been taken should be reversed and a new trial 
granted with instructions to consider and adopt a Detroit- 
only desegregation plan to remedy any constitutional viola­
tions which it may find to exist in said City.

The Governor, the Attorney General and the Treasurer of 
the State should be dismissed, as they are unnecessary parties 
to a determination of the issues of the case.

Nos. 72-1809 - 14 Bradley,  e t  al. v. Milliken, e t  al. 107



217a

APPENDIX A

108 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 -14

REVERSE DISCRIMINATION

The development of “affirmative action” programs for minori­
ty groups is posing some intractable problems. These prob­
lems arise from the existence of conflicting, fundamentally in­
compatible values. On the one hand, we social workers value 
righting the wrongs perpetrated for too long on minority 
groups. On the other hand, we value the Tight of all persons 
to be treated equally.

Distributive justice requires the dissemination of benefits 
to all without depriving any individual or group of something 
it values. This is far more in keeping with fairness and equity 
than the idea of redistributive justice, which confers benefits 
on one group at the expense of others. Redistributive justice, 
then, leads to reverse discrimination.

Redistributive justice is advocated to atone for our failure 
to live up to the belief in the capacity and the dignity of 
each human being. This failure does not negate the sound­
ness of that belief. Rather, it should spur us to correct the 
failure-not the belief. When practices fail to reflect princi­
ples, then we should change our practices, not our principles.

For social workers, the issue has come to the forefront in 
agency and university hiring practices and admissions policies 
of schools of social work. Social agencies, especially those 
serving ghetto populations, are giving preference to minority 
group members in employment. Universities, beset by pres­
sures from the U.S. Department of Health, Education, and 
Welfare, are similarly giving preference to women and minori­
ty groups. Some schools of social work have adopted quota 
systems in dealing with candidates for admission.

These practices conflict with the fundamental social work 
belief in individual human dignity and the libertarian belief 
that each person is entitled to be judged and valued as an in­
dividual. Quota systems and preferential treatment are arti­



218a

ficial restrictions on this right because they substitute irrele­
vant group characteristics such as race or religion for con­
sideration of an individual’s capacity and potential. Respect 
for the individual is a basic part of social work’s credo and 
commitment. We cannot reconcile this conviction with treating 
people only as representatives of a racial group.

When we try to eliminate discrimination and compensate 
for past wrongs by quota systems, we substitute one injustice 
for another. We deny the inherent equality of all people and 
undermine the proposition that each individual should have 
the same opportunity to achieve and to be judged according 
to his merits. We pit group against group and destroy the 
possibility of harmonious interaction. Quotas are pernicious 
instruments; they represent an unacceptable means for achiev­
ing a desirable end. “Preferential quotas are condescending, 
divisive and detrimental to the integrity of a university.”1

A quota system institutionalizes discrimination and must 
be vigorously opposed. Ultimately, it is a form of segrega­
tion. The progressive democratization of the university 
through the elimination of any criterion for admission other 
than merit has been one of the success stories of America. Now 
some of the benighted beneficiaries of that victory ally them­
selves with those antilibertarian forces that would have blocked 
their own access to education. They are ready to eradicate 
the victory of equal opportunity over discriminatory quotas, 
for which their forebears fought so hard. That victory has 
only been partially won. We cannot falter now by substituting 
a host of irrelevant and inappropriate considerations for merit. 
The test a university must apply to each candidate is merit— 
not inherited status.

Some advocates of quota systems believe that quotas will 
redress wrongs and thus produce equal opportunity, when 
actually they eliminate equal opportunity. Quotas have his­
torically been used for exclusion. They were an insidious man- i

Nos. 72-1809 -14 Bradley, e t  al. v. Milliken, e t  a t  109

i Editorial, “Discrimination by HEW,” N e w  Y o r k  T im es ,  March 2, 
1972.



219a

ifestation of institutionalized bigotry, covertly designed to ex­
clude unwanted groups. They were wrong in the past and 
they are wrong now, even though they are now designed to 
achieve inclusion, rather than exclusion. Discriminatory prac­
tices are wrong, no matter what their intent. Whether they 
are for or against particular groups, quota systems are morally
indefensible.

For social workers, the distinctions among people based 
on race, ethnic background, religion, or creed that inhere in 
quota systems are particularly abhorrent. Our regard for the 
individual and our objection to hereditary caste as a status de­
terminant should make quota systems especially impossible for 
us to accept.

For schools of social work, the argument that quotas for 
admission will produce student bodies that represent the pro­
portion of racial, ethnic, or religious groups in society is a curi­
ous expression of bigotry. Proportional representation on a 
group basis is highly discriminatory. What taxonomy shall 
be used to categorize the groups that should be represented? 
Among the characteristics that defy classification are the fol­
lowing: cultural, economic, ethnic, gender, geographic, linguis­
tic, national, occupational, racial, religious, social class, and 
tribal.

Some minority groups include the following: the aged, 
American Indians, Asian-Americans, Blacks, capitalists, Catho­
lics, Chicanos, easterners, factory workers, farmers, German- 
Americans, Hispanic Americans, Hungarian-Americans, im­
migrants, Irish-Americans, Italian-Americans, Jews, the lower 
class, migrants, nomads, northerners, Polish-Americans, the 
poor, Puerto Ricans, slum-dwellers, southerners, Swedish- 
Americans, the upper class, wasps, westerners, and youths.

Who is not a member of a minority group? Who cannot 
find a place among this woefully incomplete list of minorities?

We are all minorities. Each of us comes from a distinctive 
racial, religious, or ethnic stock. Each of us is a newcomer or 
a descendant of newcomers. Even the native Americans—the

110 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



220a

Nos. 72-1809 -14 Bradley, et al. v. Milliken, et al. I l l

Indians—came to North America from across the Bering Straits
25,000 years ago. Each of us has ties to our own roots. Each 
of us has pride in our origins. Each minority contributes to 
America—to its building, its evolution, and its maintenance.

Morton Teicher

Morton Teicher, Ph.D., is Dean, School of Social Work, Uni­
versity of North Carolina, Chapel Hill, North Carolina.



221a

Rent, Circuit Judge, concurring in part and dissenting in 
part:

While I cannot concur in the majority opinion in these cases 
I am in accord with certain of the conclusions announced in 
that opinion.

To narrow the scope of this dissent it should be stated at 
the outset that I am in complete agreement with the majori­
ty’s conclusion that on the record as presented and because 
of the concessions made by counsel for the School District 
of the City of Detroit during oral argument it appears without 
question that the Detroit city schools were unconstitutionally 
segregated and that an order for integration of those schools 
must be fashioned by the District Court. I am further in ac­
cord with the conclusion of the majority that the District 
Court’s order for the purchase of buses for use in effectuating 
a plan of integration covering the metropolitan Detroit area 
is premature and must be stayed until an appropriate plan 
has been approved by the District Court. I agree that each 
of the suburban school districts which may be affected by 
any proposed metropolitan plan is a necessary party to the 
litigation within the meaning of Rule 19, Federal Rules of 
Civil Procedure, as found by the majority and that the plead­
ings must be amended to join such school districts and bring 
all parties before the Court.

It is at this point that I separate from the majority and 
find myself compelled to state the reasons why I cannot join 
in the majority opinion. The majority opinion approves the 
District Court’s conclusion that a Detroit only integration plan 
would be insufficient to cure the unconstitutional segregation 
found to have been imposed in the Detroit city schools. Those 
who join in such a conclusion appear to me to have a mis­
apprehension of the record in this case.

As stated by the Court in Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1 (1971), at page 22:

“The constant theme and thrust of every holding from 
Brown I to date is that state-enforced separation of races

112 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



222a

in public schools is discrimination that violates the Equal 
Protection Clause. The remedy commanded was to dis­
mantle dual school systems.”

The “state-enforced separation of races” to which refer­
ence is made in the quoted material was not found to exist 
in the metropolitan Detroit area. While the District Judge 
made comments about the segregation of the races with ref­
erence to the situation existing within the City of Detroit 
as related to at least some of the suburban communities with­
in the counties of Wayne, Oakland and Macomb, which com­
ments have been quoted with approval and adopted by the 
majority of this Court, we cannot escape the conclusion of the 
District Judge, as stated in his formal opinion, 345 F.Supp. 914 
(E.D. Mich. 1972), at page 920, where the Court said:

“It should be noted that the court has taken no proofs 
with respect to the establishment of the boundaries of the 
86 public school districts in the counties of Wayne, Oak­
land and Macomb, nor on the issue of whether, with the 
exclusion of the city of Detroit school district, such school 
districts have committed acts of de jure segregation.”

With such a statement in the record it is beyond the com­
prehension of this writer to understand how the majority 
can approve the conclusion of the District Court which re­
quires that at least some of the 86 public school districts out­
side the City of Detroit should be embraced within a metro­
politan school district for the purpose of desegregating the 
Detroit city schools, the only district which has been found 
from the evidence to have “committed acts of de jure segre­
gation.” Without proof with regard to segregatory activities 
within the other school districts or in regard to district bound­
aries any conclusion by the District Court or by this Court that 
school district boundaries of other districts had the effect of 
maintaining or creating unconstitutionally segregated schools 
within the City of Detroit is obviously based on irrelevant, 
unsubstantial evidence or totally unsupported assumptions.

Nos. 72-1809 -14 Bradley,  e t  al. v. Milliken, e t  al. 113



223a

I am in accord with the application of the statement of the 
Court of Appeals for the Fifth Circuit (though not in the 
limitation to specific schools) in United States v. Texas Educa­
tion Agency, 467 F.2d 848 (5th Cir. 1972), en banc, where 
at page 883 the majority opinion quoted the statement in 
Swann that “the nature of the violation determines the scope 
of the remedy,” and then proceeded to conclude at page 884:

“The power of the district court will depend first upon 
a finding of the proscribed discrimination in the school 
system. Swann, 402 U.S. at 16, 91 S.Ct. 1267, 28 L.Ed. 
554. In determining the fact of discrimination vel non, 
whether imposed by statute or as a result of official action, 
the district court must identify the school or schools which 
are segregated as a result of such discrimination. This 
identification must be supported by findings of fact. The 
importance of such a determination will be seen in some 
populous school districts embracing large geographical 
areas. There may be segregated schools which are the 
result of unconstitutional statutes or of official action. 
There may be other one race schools which are the product 
of neutral, non-discriminatory forces.”

If we accept the premise that “the nature of the violation de­
termines the scope of the remedy,” as announced by the 
United States Supreme Court, then, clearly, the remedy pro­
posed by the District Court, and approved by a majority of 
this Court, goes far beyond the “nature of the violation” since 
the District Court has already stated as a conclusion that no 
evidence was taken as to any violation with regard to any 
suburban school district.

While the minority in the Texas Education Agency case 
disapproved of the suggestion of the majority that specific 
schools within a system must be found to have been segre­
gated, and treated separately, (476 F.2d 888 where the minori­
ty speaks through Judge Wisdom), yet the minority does 
not find nor even suggest that it would be appropriate to 
expand the order for relief beyond the system found to have

114 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809- 14



224a

committed acts which violated the constitutional rights of the 
plaintiffs in the action.

Through the majority’s opinion runs the thread which holds 
it together. That thread is the unwillingness apparent in 
the minds of the majority to sanction a black school district 
within a city which it concludes will be surrounded by white 
suburbs. While the majority does not now state that such 
a demographic pattern is inherently unconstitutional, never­
theless, I am persuaded that those who subscribe to the ma­
jority opinion are convinced, as stated in the slip opinion 
of the original panel, “big city school systems for blacks sur­
rounded by suburban school systems for whites cannot rep­
resent equal protection of the law.” While that statement 
has been removed from the opinion of the majority, yet the 
premise upon which the statement was obviously based must 
necessarily form the foundation for the conclusions reached 
in the majority opinion. It may be that such will become 
the law, but such a conclusion should not receive our approval 
on a record such as exists in this case.

As has been pointed out in the other opinions, the bound­
aries of the school district of the City of Detroit have been 
co-terminus with the boundaries of the City of Detroit for 
more than 100 years. Those lines were laid out at a time 
when there was a minimal black population in the metropolitan 
area of Detroit, if there was such metropolitan area at the 
time the boundary lines were established.

The District Judge and the majority make much of the 
fact that “if the boundary lines of the school districts of the 
City of Detroit and the surrounding suburbs were drawn today 
few would doubt that they could not withstand constitutional 
challenge.” This interesting statement provides a fertile field 
for speculation but certainly has no validity. A proposal to 
adopt an amendment to the Constitution of the United States 
in the same manner and with the same people voting as 
adopted the Constitution of the United States would be stricken 
immediately. I know of no one who would suggest that be­

Nos. 72-1809 -14 Bradley, e t  al. v. Milliken, e t  al. 115



225a

cause of changes in the methods of electing the membership 
of state legislatures that the Constitution of the United States 
thereby becomes unconstitutional. The quoted statement is 
to me a complete non sequitur.

I know of no authority which would permit a Court to 
announce a conclusion, based upon a violation of the Con­
stitution, absent the taking of proofs to establish such con­
stitutional violation, which proofs the District Judge stated 
he did not take in this case.

Absent proofs, which clearly were not taken, to establish 
a violation of the constitutional rights of these plaintiffs by 
the suburban school district personnel and by the State of 
Michigan in laying out suburban school district lines it would 
appear that we are in complete and absolute^ conflict with 
the prior decisions of this Court. In Deal v. Cincinnati Board 
of Education, 369 F.2d 55 (6th Cir. 1966), cert, denied 389 
U.S. 847 (1967) (Deal I), this Court rejected the contention 
that the state had an affirmative obligation to balance schools 
racially (in that case within the City of Cincinnati) “to 
counteract the variety of private pressures that now operate 
to restrict the range of choices presented to each school child.” 
369 F.2d at 59.

Deal 1 was cited with approval by this Court in Davis v. 
School District of City of Pontiac, 443 F.2d 573 (6th Cir. 1971), 
cert, denied 404 U.S. 913 (1971). The Court said at page 575:

“Appellants correctly contend that under Deal v. Cin­
cinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), cert, 
denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967), 
a school district has no affirmative obligation to achieve a 
balance of the races in the schools when the existing im­
balance is not attributable to school policies or practices 
and is the result of housing patterns and other forces over 
which the school administration had no control.”

The majority, while refusing to overrule Deal I and Davis, 
creates without evidence an obligation to achieve a balance 
of the races in schools not in a school district but in a metro­

116 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



226a

politan area, and does so while denying to the vast ma­
jority of the school districts involved in such metropolitan 
area the opportunity to offer evidence to establish that they 
had not been used for or guilty of any segregative practices. 
Many other appellate courts have agreed with Deal and Davis. 
Downs v. Board of Education of Kansas City, 336 F.2d 988, 
998 (10th Cir. 1964):

“Appellants also contend that even though the Board 
may not be pursuing a policy of intentional segregation, 
there is still segregation in fact in the school system and 
under the principles of Brown v. Board of Education, 
supra, the Board has a positive and affirmative duty to 
eliminate segregation in fact as well as segregation by 
intention. While there seems to be authority to support 
that contention, the better rule is that although the Four­
teenth Amendment prohibits segregation, it does not com­
mand integration of the races in the public schools and 
Negro children have no constitutional right to have white 
children attend school with them.”

Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 
990, 1005 ( 10th Cir. 1971), cert, granted 404 U.S. 1036 (1972):

“Our reluctance to embark on such a course stems 
not from a desire to ignore a very serious educational 
and social ill, but from the firm conviction that we are 
without power to do so. Downs v. Board of Education, 
336 F.2d at 998. Before the power of the federal courts 
may be invoked in this kind of case, a constitutional 
deprivation must be shown. Brown v. Board of Educa­
tion, 347 U.S. 483, 493-495, 74 S.Ct. 686, 98 L.Ed. 873 
(1954) held that when a state segregates children in 
public schools solely on the basis of race, the Fourteenth 
Amendment rights of the segregated children are violated. 
We never construed Brown to prohibit racially imbalanced 
schools provided they are established and maintained on 
racially neutral criteria, and neither have other circuits 
considering the issue. Deal v. Cincinnati Board of Edu­

Nos. 72-1809-14 Brad ley , e t  al. v. Milliken, e t  ah 117



227a

cation, 369 F.2d 55 (6th Cir. 1966); 419 F.2d 1387 
(1969); Springfield School Committee v. Barksdale, 348 
F.2d 261 (1st Cir. 1965); Bell v. School City of Gary, 
Indiana, 324 F.2d 209 (7th Cir. 1963).”

United States v. Board of School Commissioners of City of 
Indianapolis, Indiana, 474 F.2d 81, 83, 84 (7th Cir. 1973):

“Appellants first assert that there is no constitutional 
duty to remedy the effects of racial imbalance or to main­
tain any particular racial balance in the public schools. 
The Government does not quarrel with this assertion, and, 
indeed, insofar as it relates to purely de facto segrega­
tion, unaided hy any state action, it is the law of this 
circuit, Bell v. School City of Gary, Indiana, 324 F.2d 
209 ( 7th Cir. 1963), aff’g 213 F.Supp. 819 (N.D.Ind. 
1963).”

A similar prayer for re-districting was before the District 
Court in Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J. 1971), 
and was rejected. The Supreme Court affirmed without opin­
ion, 404 U.S. 1027 (1972) with Mr. Justice Douglas dissenting.

While the Fifth Circuit in Cisneros v. Corpus Christi In­
dependent School District, 467 F.2d 142 (5th Cir. 1972), en 
banc, sustained a finding of unconstitutional segregation re­
sulting from a neighborhood school policy which effectively 
segregated Mexican-Americans within a school district it did
so based upon competent evidence.

The majority here announces, “If school boundary lines 
cannot be changed for an unconstitutional purpose, it follows 
logically that existing boundary lines cannot be frozen for 
an unconstitutional purpose.” (Pg. 65). Again it may be 
that this will become the law. Clearly, the cases cited have 
reached this conclusion as to the attendance lines existing 
within a specific school system. I know of no case which 
permits such a conclusion as to boundary lines existing be­
tween school districts, and while the conclusion that existing 
boundary lines cannot be frozen for an unconstitutional pur­

118 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



228a

pose may flow logically from the premise announced it should 
be based upon competent evidence justifying a finding of 
fact that such boundary lines have been frozen for an un­
constitutional purpose, and the District Judge in this case 
announced that he took no evidence on that issue.

I do not understand how the majority can reach a conclu­
sion as to an appropriate remedy without evidence of any 
violation, particularly when in Deal I and Deal II a contrary 
conclusion has been reached. As stated at 369 F.2d, page 59:

“If the state or any of its agencies has not adopted im­
permissible racial criteria in its treatment of individuals 
then there is no violation of the Constitution.”

V. • . _ r • :  -  '  '  •

and again in Davis this Court framed the issues as follows:
“Accordingly, the principal question before us is 

whether there is sufficient evidence in the record to sup­
port the determination of the District Judge that appel­
lants are responsible for the existing racial imbalance in 
the Pontiac School System.” 443 F.2d at 575. (Emphasis 
supplied).

and in responding to that issue this Court said:
“Although, as the District Court stated, each decision 

considered alone might not compel the conclusion that the 
Board of Education intended to foster segregation, taken 
together, they support the conclusion that a purposeful 
pattern of racial discrimination has existed in the Pontiac 
school system for at least 15 years.” 443 F.2d at 576.

Thus, the cases in this Court, prior to this case, appear 
conclusively to have been decided on the basis of discrimina­
tory intent, and unless we specifically reverse our previous 
decisions we cannot reach the conclusion announced by the 
majority in a case where the District Court specifically stated 
that it did not take any evidence to establish any discriminatory 
intent on the part of the suburban school districts who were

Nos. 72-1809 - 14 Bradley,  e t  al. v. Milliken, e t  al. 119



229a

not parties to the action or on the part of the State in the 
structure of the suburban school districts.

Other circuits have also required the establishment of a 
discriminatory intent. Keyes v. School District No. 1, Denver, 
Colorado, 445 F.2d 990 (10th Cir. 1971), cert, granted 404 
U.S. 1036 (1972); Bell v. School City of Gary, Indiana, 324 
F.2d 209 (7th Cir. 1963), cert, denied 377 U.S. 924 (1964); 
United States v. School District 151 Cook County, 111., 404 
F.2d 1125 (7th Cir. 1968), cert, denied 402 U.S. 943 (1971); 
United States v. Board of School Commisisoners of Indianapolis, 
Indiana, 474 F.2d 81 (7th Cir. 1973); Spencer v. Kugler, 
326 F.Supp. 1235 (D.N.J. 1971), a fd . 400 U.S. 1027 (1972). 
But see: United States v. Texas Education Agency, 467 F.2d 
848 ( 5th Cir. 1972).

The evidence in regard to building of school buildings with­
in the City of Detroit and lack of state aid for transportation 
of pupils within the City of Detroit may have demonstrated 
that these factors contributed to racial segregation within 
the City of Detroit. Clearly, if the Court took no proofs with 
respect to the commission of acts causing segregation of the 
races as between the City of Detroit and the suburban school 
districts it would be inappropriate to include those school 
districts within any remedy to be adopted to eliminate segre­
gation within the City of Detroit. The cases cited by the 
District Court and by the majority of this Court are in­
applicable. In each case cited the school district involved and 
against which a remedial order was granted was found to 
have been guilty of segregative practices. In every instance, 
as we read the cases, that finding was supported by substan­
tial evidence after an adversary proceeding in which all the 
interested parties were represented. Such is not the case 
here.

It seems obvious to me that the majority and the District 
Court have become confused and are unable to distinguish 
between violation and remedy. As stated by the District 
Court no evidence was taken as to any violation in the fixing

120 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809-14



230a

of the boundaries of the suburban school systems nor as to 
any violation because of the relationship between the subur­
ban school systems and the schools of the City of Detroit.

The errors to which we have already alluded were brought 
about by the failure on the part of the District Court to re­
quire that all interested parties be brought into the case at 
the earliest appropriate moment. A review of this record 
reveals that on March 22, 1971, a group of white Detroit 
residents, who were parents of children enrolled in the De­
troit public schools, were permitted to intervene as parties 
defendant. On June 24, 1971, the District Judge alluded 
to the possibility of a metropolitan school system, App. Vol. 
IV, pgs. 259, 260, and in that connection stated: “As I have 
said to several witnesses in this case: how do you desegregate 
a black city, or a black school system.” App. Vol. IV, pg. 
260. Subsequently, and on July 17, 1971, the white parents 
filed a motion in an effort to require the joinder of the 85 
suburban school districts as parties defendant and gave the 
following reasons:

“1. That said suburban school districts are agents of 
the State of Michigan and subject to the jurisdiction and 
supervision of the State Board of Education.

“2. That said school districts are white segregated 
school districts.

“3. That questions of law and fact common to the 
defendant, School District of the City of Detroit, and 
proposed additional suburban school districts have been 
presented to this Court.

“4. In the event that this Court rules for the plain­
tiff, in the absence of joinder of the proposed school dis­
tricts, complete relief cannot be awarded the plaintiff, 
and in addition would impose an unconstitutional burden 
on the intervening defendant, in that the resulting school 
district of the City of Detroit would be and will remain 
as established by the proofs already submitted an in­
ferior school district.” App. I at 142-3.

Nos. 72-1809 -14 Bradley,  e t  al. v. Milliken, e t  al. 121



231a

The trial court did not rule upon this motion, but in the 
course of the proceedings discussed it in September, 1971, and 
concluded that the motion should not be considered at that 
time because “in considering the motion to add the listed 
school districts we pause to note that the proposed action has 
to do with relief.” App. Vol. I, pg. 215, 338 F.Supp. 582, at 
595.

Between February 9 and February 17, 1972, four parties, 
Grosse Pointe Public Schools, Allen Park Public Schools, et 
al.,1 Southfield Public Schools and the School District for the 
City of Royal Oak, made motions for leave to intervene. These 
motions were finally granted on March 15, 1972, during the 
second day of hearing on the plans for desegregation in­
volving only the Detroit school system. Intervention, ac­
cording to the District Judge, was permitted under Rule 24 
(a), “Intervention of Right,” and also under Rule 24(b), 
“Permissive Intervention.” Before permitting such interven­
tion and on March 6, 1972, the District Judge set up a time­
table for the consideration of plans already submitted, which 
timetable was as follows:

“1. Hearing on desegregation intra-city plans will pro­
ceed, beginning at 10:00 a.m., Tuesday, March 14, 1972.

“2. Recommendations for ‘conditions’ of intervention 
to be submitted not later than 10:00 a.m., March 14, 
1972.

“3. Briefs on propriety of metropolitan remedy to be 
submitted not later than March 22, 1972.

“4. Tentatively and unless the court rules otherwise, 
hearings on metropolitan remedy to commence 10:00 a.m., 
March 28, 1972.” App. I at 397.

When intervention was granted, the District Judge placed 
strict limitations upon the part which the intervenors would 
be permitted to play. The order provides:

1 The others referred to included 38 additional suburban school 
districts.

122 Bradley, e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



232a

“The interventions granted this day shall be subject to 
the following conditions:

1. No intervenor will be permitted to assert any 
claim or defense previously adjudicated by the court.

2. No intervenor shall reopen any question or 
issue which has previously been decided by the court.

3. The participation of the intervenors consid­
ered this day shall be subordinated to that of the 
original parties and previous intervenors.

4. The new intervenors shall not initiate dis­
covery proceedings except by permission of the 
court upon application in writing, accompanied by 
a showing that no present party plans to or is willing 
to undertake the particular discovery sought and that 
the particular matter to be discovered is relevant 
to the current stage of the proceedings.

5. No new intervenor shall be permitted to seek 
a delay of any proceeding in this cause; and he 
shall be bound by the brief and hearing schedule 
established by the court’s Notice to Counsel, issued 
March 6, 1972.

6. New intervenors will not file counterclaims or 
cross-complaints; nor will they be permitted to seek 
the joinder of additional parties or the dismissal of 
present parties, except upon a showing that such 
action will not result in delay.

7. New intervenors are granted intervention for 
two principal purposes: (a) To advise the court, by 
brief, of the legal propriety or impropriety of con­
sidering a metropolitan plan; (b) To review any 
plan or plans for the desegregation of the so-called 
larger Detroit Metropolitan area, and submitting ob­
jections, modifications or alternatives to it or them, 
and in accordance with the requirements of the 
United States Constitution and the prior orders of 
this court.

Nos. 72-1809 - 14 Bradley, e t  al. v. Milliken, e t  al. 123



233a

8. New intervenors shall present evidence, if any 
they have, through witnesses to a number to be 
set, and limited, if necessary, by the court, follow­
ing conference.

9. With regard to the examination of witnesses, 
all new intervenors shall among themselves select one 
attorney per witness to act for them, unless one or 
more of the new intervenors show cause otherwise.

These conditions of intervention shall remain sub­
ject to change or modification by the court in the 
interest of timely disposition of the case.” App. Ia 
408-410.

We point out that the intervening school districts (42 out 
of 85) came into the case while the court was already con­
sidering the Detroit only plans, were permitted a total of 
less than one week to prepare briefs in regard to a metropoli­
tan remedy, and found themselves faced with a ruling favor­
able to the consideration of such remedy within two days 
after the date on which their briefs were due. All of this 
despite the fact that an effort had been made to bring the 
suburban school districts into the case almost eight months 
prior to the rulings in regard to the Detroit only plans and 
the metropolitan plan. The majority finds no fault with 
this timetable. It affirms the conclusions of the District Court 
in regard to the Detroit only plan and the need for a metro­
politan plan without affording to the suburban school districts 
any opportunity to be heard.

Those suburban school districts which are not yet parties 
to this action, 43 in number, have had no opportunity to be 
heard with respect to any alleged constitutional vio­
lation within their respective school districts or with 
respect to the existence of their respective school district 
boundaries. Of course, the pleadings do not assert any 
such violations but under the majority opinion a remedy 
will be imposed which will drastically affect the future school-

124 Bradley,  e t  a l  v. Milliken, e t  a l  Nos. 72-1809-14



234a

mg of their children without granting to them any oppor­
tunity to be heard with regard to any reasons which might 
support the adoption of such a remedy. The suburban school 
districts which were belatedly made parties to this action 
assert that because they have not been afforded the oppor­
tunity to offer evidence to demonstrate that they have not 
been guilty of any constitutional violation they have been 
denied the fundamental requirements of due process. The 
response of the appellee to the claimed rights of the suburban 
school districts is that there is no denial of “life, liberty or 
property” within the meaning of the Fifth Amendment. They 
also claim that the interests of the suburban school districts 
were adequately represented by “their parent state defendant.”

An examination of the record in this case will effectively dis­
pose of any claim that the interests of the suburban school 
districts were represented by the state defendants. Clearly, 
the state defendants were defending against the claims of 
the plaintiffs that the state had by its actions created racial 
segregation within the school district of the City of Detroit. 
As I examine the record it does not appear that any defendant 
felt compelled to offer evidence in defense of an unasserted 
claim that the existence of suburban school districts was with­
out other evidence a violation of the constitutional rights of the 
students in the schools of the City of Detroit. Had the state 
defendants comprehended that the District Court intended to 
impose a metropolitan school district upon the schools of 
three counties the writer is confident that they would have 
joined in the earlier motion to require the suburban school 
districts to be named as parties defendant.

As to the first argument of the appellees it is clear from 
the language of the Court in Bolling v. Sharpe, 347 U.S. 497 
(1954), that the segregation of schools is a denial of due process 
within the meaning of the Fifth Amendment. If segregation 
is a denial of the Fifth Amendment due process then clearly 
orders eliminating such segregation are a part of the due 
process rights. In that case the Court said:

Nos. 72-1809 - 14 Bradley,  e t  at. v. Milliken, e t  al. 125



235a

“Although the Court has not assumed to define ‘liberty 
with any great precision, that term is not confined to mere 
freedom from bodily restraint. Liberty under law ex­
tends to the full range of conduct which the individual 
is free to pursue, * * 347 U.S. at 499.

Even earlier, in Pierce v. Society of Sisters, 268 U.S. 510 (1925), 
the Supreme Court found a violation of the Fourteenth 
Amendment in matters relating to the liberty of parents to 
direct the upbringing and education of children under their 
control. Had we any doubt, it would have been settled in 
Wisconsin v. Yoder, 406 U.S. 205 (1972), where the Court 
permitted parents to withdraw their children from the state 
public school system and found a constitutional right in par­
ents to control the upbringing and religious training of their 
children. That the right under the Fifth Amendment ap­
plies to the states was recognized in Griswold v. Connecticut, 
381 U.S. 479 (1965), where the court noted at page 482:

“By Pierce v. Society of Sisters, supra, the right to edu­
cate one’s children as one chooses is made applicable to 
the States by the force of the First and Fourteenth 
Amendments.”

Being convinced that the interest of parents in the educa­
tion of their children represents a right protected by the Con­
stitution as to all parents and not only those parents whose 
children are required to attend segregated schools, we then 
reach the question of the application of due process to that 
right.

As pointed out by the Court in Armstrong v. Manzo, 380 
U.S. 545, 552 (1965):

“A fundamental requirement of due process is ‘the op­
portunity to be heard.’ * * * It is an opportunity which 
must be granted at a meaningful time and in a meaning­
ful manner.”

126 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



236a

and in greater detail we find the same principal in Boddie 
v. Connecticut, 401 U.S. 371, 377-8 (1971), where Mr. Justice 
Harlan, speaking for the Court, stated:

“Prior cases establish, first, that due process requires, 
at a minimum, that absent a countervailing state interest 
of overriding significance, persons forced to settle their 
claims of right and duty through the judicial process 
must be given a meaningful opportunity to be heard. 
Early in our jurisprudence, this Court voiced the doc­
trine that ‘[wjherever one is assailed in his person or his 
property, there he may defend,’ Windsor v. McVeigh, 
93 U. S. 274, 277 (1876). See Baldwin v. Hale, 1 Wall. 
223 (1864); Hooey v. Elliott, 167 U. S. 409 (1897). The 
theme that ‘due process of law signifies a right to be 
heard in one’s defence,’ Hovey v. Elliott, supra, at 417, has 
continually recurred in the years since Baldwin, Windsor, 
and Hovey. Although ‘[m]any controversies have raged 
about the cryptic and abstract words of the Due Process 
Clause,’ as Mr. Justice Jackson wrote for the Court in 
Mullane v. Central Hanover Tr. Co., 339 U. S. 306 (1950), 
‘there can be no doubt that at a minimum they require 
that deprivation of life, liberty or property by adjudi­
cation be preceded by notice and opportunity for hear­
ing appropriate to the nature of the case.’ ” Id., at 313.

Thus, each party to a lawsuit should be advised as to the 
claims asserted by the other parties to the lawsuit and have an 
opportunity to be heard in respect to all such claims.

In this case no pleading has ever been filed suggesting any 
wrongdoing on the part of any suburban school district, none 
suggesting that the suburban schools and the schools of the 
City of Detroit constituted a dual school system or even 
intimating any possibility of a need for a metropolitan school 
district to eliminate the segregated conditions alleged to have 
existed in the schools of the City of Detroit. We can 
only speculate upon the timing of the first suggestion of a 
metropolitan district but it appears that the District Judge

Nos. 72-1809 -14 Bradley,  e t  al. v. Milliken, e t  al. 127



237a

seized upon the suggestion without requiring any amend­
ments to the pleadings or the adding of any parties.

I question whether the suburban school districts have any 
interest in being heard as to the claim of segregation within 
the City of Detroit, and there can be no question as to the 
right of the trial court to place certain limitations upon the 
part which any intervening school district would be permitted 
to play. Had all of this, in regard to metropolitan school dis­
tricts, come up at the eleventh hour as suggested by the ap­
pellees one might, although it is doubtful, accept the condi­
tions imposed by the District Judge. Such was not the case 
here. The motion to require the joinder of the suburban school 
districts was made almost eight months before consideration 
was given to the Detroit only plans.

The Advisory Committee on the Rules anticipated that limi­
tations and conditions might be placed upon intervention as a 
matter of right under Rule 24(a):

“An intervention of right under the amended rule may 
be subject to appropriate conditions or restrictions respon­
sive among other things to the requirements of efficient 
conduct of the proceedings.” 3B Moore’s Federal Prac­
tice 1124.01 [10], at 24-18 (2d Ed.).

and see also Galbreath v. Metropolitan Trust Co. of California, 
134 F.2d 569, 570 (10th Cir. 1943); Chavis v. Whitcomb, 
305 F.Supp. 1359, 1363 (S.D.Ind. 1969). The situation in 
this case is pointed up by the language found at 3B Moore’s 
Federal Practice H 24.16[4], 2d Ed.

“It would be meaningless to give him an absolute right 
to intervene in order to protect his interest, if once in 
the proceeding he were barred from raising questions 
necessary to his own protection.”

What we have said in regard to intervention under Rule 
24 sets forth without the necessity of repetition those mat­
ters which should be considered by any court in determining

128 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 - 14



238a

the part which is to be played by one who is joined as a 
party under Rule 19, as well as one who intervenes as a party, 
aspects of this case which are almost completely ignored by 
the majority and the District Court.

In conclusion I am constrained to say that I do not suggest 
that a metropolitan remedy is totally beyond the realm of 
consideration in this case upon an appropriate record. My 
whole purpose in writing this opinion is to point out that the 
majority and the District Court have fallen into a state of 
confusion in failing to distinguish between violation and reme­
dy and in failing to recognize the necessity for the finding of 
violation before the trial court embarks upon that broad field 
of equity which permits a trial judge to devise a remedy which 
will adequately overcome the violation previously found to 
be in existence. I have also written because I am satisfied that 
the District Judge in failing to consider the necessity for join­
ing the suburban school districts pursuant to a motion filed 
more than a year before the disposition of the case was in 
error. The suggestion by the District Court that the subur­
ban school districts were only involved in the remedy points 
up the trap into which both the District Court and the ma­
jority of this Court have fallen in failing to recognize the 
necessity for finding a violation before a remedy may be im­
posed.

I would reverse the District Court and remand the case 
with instructions to require the joinder of the suburban school 
districts of the counties of Wayne, Oakland and Macomb 
with permission to the representatives of those districts, with 
reasonable limitations, to participate in all aspects of this law­
suit which may affect the suburban school districts, and with 
particular attention to the necessity for finding a constitutional 
violation which would justify the imposition of a metropolitan 
remedy.

Nos. 72-1809 -14 Bradley,  e t  al. v. Milliken, e t  al. 129



239a

Miller, Circuit Judge, dissenting.
It is my firm conviction that it is premature at this time 

for the Court to adjudicate any of the questions arising from 
the various orders of the district court from which this ap­
peal is taken. This is true for the reason that school districts 
and parties to be affected by a metropolitan plan or remedy 
have not been afforded an opportunity to be heard or to pre­
sent evidence upon all of the issues involved.

The majority opinion does indeed state:
On remand, any party against whom relief is sought, 

including school districts which heretofore have inter­
vened and school districts which hereafter may become 
parties to this litigation, shall be afforded an opportunity 
to offer additional evidence, and to cross-examine avail­
able witnesses who previously have testified, on any issue 
raised by the pleadings, including amendments thereto, 
as may be relevant and admissible to such issues. The 
District Court may consider any evidence now on file 
and such additional competent evidence as may be in­
troduced by any party.

The effect of this conclusion is, in my opinion, vitiated by 
the two succeeding sentences:

However, the District Court will not be required to 
receive any additional evidence as to the matters con­
tained in its Ruling on the Issue of Segregation, dated 
September 27, 1971, and reported at 338 F. Supp. 582, 
or its Findings of Fact and Conclusions of Law on the 
“Detroit-only” plans of desegregation, dated March 28, 
1972. We hold that the findings of fact contained in 
these rulings are not clearly erroneous, Rule 52(a), 
Fed. R. Civ. P., but to the contrary are supported by 
substantial evidence.

Parties to be affected and against whom ^relief is sought 
should be accorded, in compliance with basic principles of

130 Bradley,  e t  al. v. Milliken, e t  al. Nos. 72-1809 -14



240a

due process, an opportunity to be heard at a meaningful time 
and in a meaningful manner not only with respect to the 
ultimate scope of the remedy to be fashioned, but also with 
respect to important, significant and perhaps even controlling 
issues, including the issue of segregation, a “Detroit only” 
school plan and the propriety of a metropolitan remedy. If 
any one of these issues is resolved in favor of parties out­
side the Detroit School District, the nature and scope of a 
remedy embracing outlying districts would not be reached. 
Hence the outlying districts have a vital interest in each 
issue separately and should be heard on each in a true 
adversary sense. Until this is done our expression of view 
on the merits of the several questions is uncalled for and ill- 
advised. To permit these additional parties to be heard only 
in the restricted sense set forth in the majority opinion is to 
deny them basic rights guaranteed not only by Rule 19, Fed­
eral Rules of Civil Procedure, but by the Constitution itself.

I would, therefore, vacate all orders appealed from the dis­
trict court, remand the action for the joinder of all parties to be 
affected, and direct the district court to afford the parties a 
proper opportunity to be heard and to present evidence on 
the issues indicated above.

Nos. 72-1809 - 14 Bradley,  e t  a l  v. Milliken, e t  al. 131



241a

Nos. 72-1809
JAMES A .  HIGG,NS through

C L E R K
------------ 72-1814

O F F I C E  O F  T H E  C L E R K

UNITED STATES COURT OF APPEALS
F O R  T H E  S I X T H  C I R C U I T  

C I N C I N N A T I ,  O H I O  4 5 2 0 2

June 12,1973
Mr. Frank J. Kelley 
Mr. Louis R. Lucas 
Mr. George T. Roumell, Jr.
Mr. William M. Saxton 
Mr. Douglas H. West 
Mr. Richard P. Condit 
Mr. Kenneth B. McConnell 
Mr. Robert J. Lord 
Mr. Robert A. Derengoski 
Mr. Alexander B. Ritchie 
Mr. J. Harold Flannery 
Mr. Jack Greenberg 
Mr. E. Winther McCroom 
Mr. Nathaniel R. Jones 
Mr. Bruce Miller 
Mr. Ralph B. Guy, Jr.
Mr. Theodore Sachs 
Mr. William T. Downs 
Mr Theodore W. Swift 
Mr. Irwin Ellman

Re: Ronald Bradley, et al., Plaintiffs-Appellees, 
vs.
William G. Milliken, Governor of Michigan, et ah, 
Defendants-Appellants.
Case Nos. 72-1809, 72-1810, 72-1811, 72-1812, 
72-1813,72-1814

Gentlemen:
Enclosed is a copy of the Court’s opinion which was an­

nounced today in the above-entitled cases.
A judgment in conformity with the opinion has been entered 

today as required by Rule 36.

Enclosure

Yours very truly,
James A. Higgins, Clerk

/s/ GRACE KELLER 
Chief Deputy



242a

Excerpt from proceedings had in the above-entitled matter 
before Honorable Stephen J. Roth, United States District Judge, 
at Detroit, Michigan on Thursday, June 24, 1971.

*  *  *

THE COURT: I want briefs, proposed findings and 
conclusions to be filed not later than July 26th. This is in no way 
conditioned on when we finish with the proofs, but I expect by 
that time we will have finished with the proofs.

Now, there will be some housekeeping matters to take care of. 
First of all the construction injunction which is pendente lite, so 
you both might want to give some consideration to that, and I will 
welcome any suggestions any of the parties have with respect to 
what if anything need be done pending my resolution of the basic 
issue on segregation here. And what I’m thinking about is this, so 
you will share my thinking: I think that those who are involved in 
this lawsuit ought to be preparing for eventualities, and I mean 
within the limits, the maximum and the minimum, so that if the 
time comes for judicial intervention, and Mr. Reporter, that is not 
interference. It may be so classified by counsel, but the word is 
intervention — [4003] it would be well for the parties to be 
prepared if that develops because I am mindful of the time pres­
sures that I am under, and I am going to pass the pressure on. And 
that means that I don’t want the parties to be saying: “Well, we 
didn’t know you were going to hold this way.” I want everybody 
to think in terms of what may happen and time accordingly. Let 
me be more specific. I have just indicated that I denied the motion 
of the State defendants to have this action dismissed against them.

I am not going to take the time at the present time to outline 
my reasons for it. If that becomes necessary in due course I will. I 
have my reasons, and I am aware of them without taking the time 
to put them down in a formal ruling. If the Court in this case finds 
that the situation calls for some other judicial action then the 
School Board ought to be preparing themselves to meet that 
eventuality. But the State defendants too. I don’t think that the 
State defendants should hide, put their heads in the sand and 
avoid considering what may happen if certain developments 
already made plain in this case take shape.



243a

Mr. Ritchie has made some points along that line, and 1 have, 
and to repeat mine as I have said to several witnesses in this case: 
“How do you desegregate a black city, or a black school system;” 
That is why I was [4004] interested in the projections of the 
student population of the city. We end up with student population 
of Detroit of 80 to 85 percent black. How do you integrate, or, if 
I find segregation, to put it another way, how do I desegregate. 
Now, State defendants, particularly School Board as well, ought to 
be thinking in these terms indeed if that’s what develops.

I throw these out so that I am putting people on notice. I 
don’t know whether Mr. Young or Mr. Krasicky — is Mr Young in 
town?



244a

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

Nos. 72-1809 -72-1814

RONALD BRADLEY, et al.,
Plain tiffs-Appellees,

vs.
WILLIAM G. MILLIKEN, GOVERNOR OF MICHIGAN, ETC; 
BOARD OF EDUCATION OF THE CITY OF DETROIT,

Defendants-Appellants,
and

DETROIT FEDERATION OF TEACHERS LOCAL 231, AMERI­
CAN FEDERATION OF TEACHERS, AFL-CIO,

Defendan t-Interven or-Appellee,
and

ALLEN PARK PUBLIC SCHOOLS, et al.,
Defendants-In terven ors-Appellants, 
and

KERRY GREEN, et al.,
Defendants-Intervenors-Appellees.

BEFORE: PHILLIPS, Chief Judge, WEICK, EDWARDS,
CELEBREZZE, PECK, McCREE, MILLER, KENT 
and LIVELY, Circuit Judges.

JUDGMENT

APPEAL from the United States District Court for the East­
ern District of Michigan.

THIS CAUSE came on to be heard on the record from the 
United States District Court for the Eastern District of Michigan 
and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here ordered 
and adjudged by this Court that:

1. The Ruling of the District Court on the Issue of Seg­
regation, dated September 27, 1971, and reported at 338 
F.Supp. 582, is affirmed.



245a

2. The findings of fact and conclusions of law on 
“Detroit-only” plans of desegregation, dated March 28, 1972, 
are affirmed.

3. The Ruling on Propriety of a Metropolitan Remedy 
to Accomplish Desegregation of the Public Schools of the 
City of Detroit, dated March 24, 1972, is affirmed in part, 
but vacated for the reasons set forth in the majority opinion 
of the Court.

4. The Ruling on Desegregation Area and Development 
of Plan, dated June 14, 1972, is vacated except as prescribed 
in the majority opinion of the Court.

5. The order dated July 11, 1972, directing the pur­
chase of school buses is vacated.

The case is remanded to the District Court for further pro­
ceedings not inconsistent with this opinion.

No costs are taxed. Each party will bear his own costs.

Entered by order of the Court.

JAMES A. HIGGINS
Clerk

COSTS: NONE