Memorandum in Support of Plaintiffs' Motion for an Order Requiring Defendants to Cooperate and Pay Reasonable Costs of Plaintiffs' Desegregation Plan

    : --UNITED STATES DISTRICT COURT 
'' EASTERN DISTRICT OF MICHIGAN 

.. SOUTHERN DIVISION

Civil Action No. 

35257

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR AN 
ORDER REQUIRING STATE DEFENDANTS TO COOPERATE FULLY 
AND OPENLY AND FOR STATE DEFENDANTS TO PAY FOR THE 
REASONABLE COSTS OF A PLAN OF METROPOLITAN DESEGRE- 
CATION PREPARED BY PLAINTIFFS.

Since October 4, 1971, state defendants have been aware that it 

is their obligation to come forward with a metropolitan plan of desegre­

gation which attempts to "achieve the greatest possible degree of actual 

desegregation taking into account the practicalities of the situation."

‘Proceedings held in Bradley v. Milliken, October 4, 1971, Tr« 6, 

quoting from Davis v. Bd. of School Commissioners of Mobile County, . 

402 U.S. 33, 37(1971). On November 5, 1971, the Court reiterated its 

command that state defendants come forward with a metropolitan plan of 

desegregation." Bradley v. Milliken, Order of Nov* 5, 1971. From the

RONALD BRADLEY, et al,

Plaintiffs,

-vs-

WILLIAM G. MILLIKEN, et al, 

Defendants,

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

Defendart - 
Intervenor

and

DENISE MAGDOWSKI, et al,

Defendant- 
Intervenor



beginning of the State's response to such obligation, there has been a 

continued pattern of default:

(1) Defendant Porter waited until early December before instructing

any person to prepare concepts for a plan. Porter Deposition, 3/23/72, 

pp. 4-5. .
(2) No state defendant instructed those whom they charged with 

preparing plans to develop a plan achieving the maximum actual desegrega­

tion possible. Cf. II Hearings re Metropolitan Plans Tr. 235.̂

(3) Instead of working on such plans, Defendant Porter instructed his 

charges to consider 2 concepts alternative to maximum actual desegregation 

(eventually the Magnet Plan and the One-Way busing Plan); a governance 

structure (eventually the Metropolitan District Reorganization Plan);

and an undefined, unbounded and, therefore, meaningless basis for fixing 

racial proportions in schools (eventually the Racial Proportion Plan.)

Porter Deposition, 3/23/72 , pp. 4-7, 11, 13-15, 19-20,;. Thereafter, a 

non-plan (eventually the Eq.ual Educational Opportunity and Quality 

Integration Plan) and a part-time desegregation concept (eventually the 

Neighborhood School Eased Plan) were also considered.

(4) On February 3, 1972, the State Board of Education submitted all 

six concepts "without recommendation," with three board members apparently 

agreeing that some "recommendation" should have been made and one board 

member (Kelly) acknowledging that the Board had failed not only to respond 

to the Court's order but also to exercise its general responsibility to  ̂

exercise leadership (M-9).*

(5) The only "plan" with any.promise of actual desegregation (the 

Metropolitan School District Reorganization Plan) discussed concepts for

* The six "plans11 were admitted into evidence by this Court. II Hearings re 
Metropolitan Plans Tr. 233. The "plans" are replete with self-serving 
statements apparently taken from defendant Kelly's briefs about the lack of 
the State Board's authority under State law. These statements are arguments 
designed in many particulars to relitigate the law already established in 
this case, Ruling on Issue of Segregation pp. 25-28. These arguments are 
not evidentiary as to what state law is. See’ll Hearings re Metropolitan 
Plans Tr. 253-254 (objection to "expert testimony on state law sustained). 
Plaintiffs did not object to the submission of the plans, however because 
such statements are evidence of the State Board's purpose and intent in

continued . . .

2



> / . '

actual pupil assignment in less than one full page, even vhile admitting t

the State Board vaa in the best position to W »  Pl*» for EpeCifiC ■ 

pupil assignment," established a "perimeter" which, on the basis of

the present record, is without foundation. (M-5 , P- * > < * •  P- 557-038)

(6) Defendant Porter summarized the State Board's actions and 

inactions by admitting "it didn't make a decision, period;" Porter

Deposition, 3/23/72, p. 83. .. - A

(7) This default was only compounded hy presenting a single

witness to explain the plans who simply did not know the basis for the 

"plans", of. II Hearings re Metropolitan Plans TrV 320-321/but who 

admitted that the State Board had the resources and the knowledge to 

develop, and make decisions among, the considerations inherent in actual 

pupil desegregation. H I  Hearings re Metropolitan Plans Tr. 337-356.

(8) State Defendants Milliken and Kelly who were also under the 

obligation to come forward with a metropolitan plan of desegregation, by 

the express order of this Court, instead merely filed "objections" to 

the "plans" submitted by the State Board "without recommendation."

In such circumstances this Court’s characterization of the State 

Board’s conduct is appropriate to describe all State Defendants.

"The State Eoard's position is that it does not recommend 
nor defend any of these plans and from the testimony of this 
witness and, in the absence of others here . . .  it /does not,/ 
apuear that it proposes to disclose, other than what appears 
in*the submissions, any educational justification for any of 
them." II Hearings re Metropolitan Plans, Tr.,320.

Once again, apparently, the State defendants say they favor desegregation,

but act or fail to act.in a manner which has the natural, probable,

* continued . . .  „  ̂ ... , _.
submitting G "plans" which undeniably had the effect of failing to meet 
the directives of this Court. Cf. Green v. County School ^oard, o91. ' • • 
430, 439(1968).

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I-



actual and forceeable effect not only of violating their continuing 

obligations under the Fourteenth Amendment, but also the direct orders 

of this Court. Compare I Hearings re Metropolitan Plans Tr. 10-11 with 

Ruling on Issue of Segregation p. 13. In the face of this default by 

State Defendants, this Court, in its sound discretion, may exercise its 

power either to appoint its own expert at school authorities' expense to 

prepare a plan of desegregation, Swann v. Charlotte' feck^nberg_Bo^d_of 

Education, 311 F. SuPP. 265(W.D.N.C. 1970), aff.d 402 U.S. l(l97l), or 

to order state defendants to pay the reasonable costs incident to the 

preparation of a plan of desegregation by the plaintiffs. JacksonjN 

School Board of Lynchburg, Civ. No. 534 (W.D.Va. April 28, 1970 /order Sc 

opinion attached hereto/)* The point is that the Court needs to be 

adequately and promptly informed if the constitutional rights, of the 

school children are to be met. Plaintiffs respectfully suggest that, 

given sufficient resources and the full cooperation of the State, that 

they are in a better position, given the time constraints, to provide 

the necessary information by reason of their familiarity with the issues 

and the requisite experts and data.* By this statement we do not mean to 

denigrate the efforts of the defendant Detroit Board to prepare a 

metropolitan plan of desegregation. We only mean to suggest the 

Detroit Board's Plan on its face contemplates a punil assignment**

* ' In the'alternative, of course, plaintiffs will make available to the 
Court the names and availability of appropriate experts and an outline
of the requisite' data.. „. • . , - '
** There are, of course, many aspects of relief extending beyond the 
immediate geographic area of pupil assignment which may be appropriate to 
insure^new and hereafter, the vindication of plaintiffs rignts. For 
example,consider the impact of school construction:

"People gravitate toward school facilities, just as schools are 
located in response to the needs of people. The location of schools 
may thus influence the patterns of residential development of a 
metropolitan area and have important impact on composition of inner 
city neighborhoods." Swann v. Charlotte Mecklenberg, 402 U.S. 1, 
20-21(1971)(emphasis added]

Certainly in this case and on this record, it would be proper for the 
Court to require affirmative action by the State Board of education with 
respect to school construction throughout the state and in particular 
requirements in the tri-county area not included within the area of the 
plan for maximum feasible desegregation of Detroit schools. Plaintiffs will 
* , ____ provisions for inclusion
S U g g c S  o  uO o n e :  w o i  u a p p x '-’jjx  j-o w -  v,... “  x '

in any final order.
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V . ' t .. . ' •' \-’ • -:4* . ..... „ . . - —

* >*' ̂ . •V'<. •
"target area" brou.' >r than may be required, to desegregate nov and 

hereafter the Detroit Schools. Some of the other patent deficiencies 

in the Board’s proposal, whether suggested for reasons of political 

expediency, cf. II Hearings re Metropolitan Plans Tr. 211-232 (Moreshead), 

or otherwise, result in the deliberate assignment of hundreds of thousands 

of school children next year to segregated schools. It is significant 

that the Board has conceded both the feuramulative adverse effects of 

segregated education and the efficacy of implementing a. desegregation 

plan which involves all schools in the effected community. See Detroit 

Bd. Brief, March 4, 1972 p. 7 quoting Racial Isolation in the Public 

Schools.

We respectfully suggest,, therefore, that the Court, within the 

Alexander constraint of timeliness, should have before it a complete 

plan which can be implemented in September, 1972. Plaintiffs throughout 

this trial have attempted vigorously and fully to inform the- Court of 

the facts and, following the original default of the Detroit Board, prepared 

a comprehensive plan of desegregation limited to Detroit. Only by the 

preparation of an equally comprehensive plan for metropolitan desegre­

gation without "political constraints}’ or perhaps subtle refusal to 

grant plaintiffs their rights, cf. Watson v. City of Memphis, 373 U.S. - 

523, 532-533(1963), will the court be informed of all the factors 

necessary to the best possible resolution of the issues now before the 

Court. In view of the State Defendants’ default and the equities of 

this cause, we respectfully request that the Court exercise its sound 

discretion and order State Defendants.to provide the cooperation and 

costs required for the preparation of a plan of metropolitan desegregation 

by the Plaintiffs.

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Respectfully submitted,

______________ S U J L
PAUL R. niMOIID 
J. HAROLD FLANNERY 
ROBERT PRESSMAN 
Center for Law & Education 
Harvard University 
Cambridge, Massachusetts 02138

LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
Ratner, Sugarir.on & Lucas 
Commerce Title Building 
Memphis, Tennessee 38103

E. WINTHER MCCROOM 
3245 Woodburn Avenue 
Cincinnati, Ohio 45207

NATHANIEL R. JONES 
General Counsel, N.A.A.C.P.
179G Broadway
New York, New York 10019

JACK GREENBERG 
NORMAN J. CHACHEEN 
10 Columbus Circle 
New York,. New York 10019

' Certificate of Service

I, Paul R. Dimond, of counsel for plaintiffs, hereby certify that 

I have served the foregoing motion upon all counsel of record by 

mailing copies, postage prepaid, to them on March 51, 1972.

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