Memorandum in Opposition to Stay Applications

    UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al
Plaintiffs-Appellees,

v.
WILLIAM G. MILLIKEN, et al

Defendants-Appellants,
and
DETROIT FEDERATION OF TEACHERS, 
LOCAL 231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO

Defendant-Intervenor,
and
DENISE MAGDOWSKI, et al

Defendants-Intervenor,
et al.

U.S. Court of Appeals 
No.
U.S. District Court 
No. 35257

/

. MEMORANDUM IN OPPOSITION 
TO STAY APPLICATIONS

In September, 1971, the Court below found a violation 
of the constitutional rights of Plaintiffs. The State Defendants 
in July of 1972 seek, as did Sec. 12 of Act 48, to once again 
delay, impede and frustrate steps which would produce desegregation 
Bradley v. Milliken, 453 F.2d 897 (6th Cir. 1970). The situation
is now opposite to that at the time of the first appeal to this



Court in 1970: Then, at page 23 of their brief, State Defendants
acknowledged the body of law with respect to delay in desegration 

—cases, citing Green and Alexander, distinguishing the case at that 
time by reference to the first District Court opinion where the 
Court noted that it had made no finding of segregation. However, 
the Court, as of September 1971, has found state-imposed segre­
gation.

The State Defendants are before this Court seeking a 
stay while at the same time opposing the Detroit Board's motion 
for an expedited appeal. What they seek in reality is to maintain 
segregation. The line of resistance from Sec. 12 of Act 48 to 
this date remains unbroken. The granting of a stay now becomes 
in effect insofar as Plaintiffs' constitutional rights for 
the 1972-73 school year are concerned a determination on the merits 
by this Court, without the record, the exhibits, or the two-year, 
patient, exploration of the facts and the law by the District Court. 
Constitutional rights are present rights and must be given present 
effect, Watson v. City of Memphis, 373 U.S. 526, 532-533 (1963); 
Carter v. West Feliciano Parish School Board, 396 U.S. 226 (1969), 
290 (1970).

The application of State Defendants to this Court 
illustrates the difficulty of granting a stay based upon moving

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papers. The issue which is presented is whether the Defendants' 
self-serving, and in this case mis-statements, of both the record 
and what is likely to happen before an appeal could be heard can 
or should outweigh the express findings of the District Judge.
See Swann v. Charlotte v. Charlotte-Mecklenberg Bd. of Education, 
402 U.S. 1,28(1971); Wright v. Council of City of Emporia,
U.S. ______ (June 22, 1972) slip. op. at 14-15, 19; Brown II, 349
U.S. 294, 299 (1955).

The District Court's order does not contemplate the merger 
of any school district in September, 1972. It does not reassign 
780,000 pupils. The panel at this time, as the Defendants well know

1. There are several procedural defects which Plaintiffs do 
not intend to v/aive but which they do not wish to urge as a 
complete bar to this Court's consideration. They include:
(1) The June 14, 1972 order of the District Court is not an 
appealable order. However, several defendants, apparently 
conceding that a serious question does exist, have pending before 
the District Court Rule 54(b) motions seeking to have the 
court make a determination under that rule and make otherwise 
non-appealable orders, final. Plaintiffs have filed a memorandum 
with the court below supporting those motions in the belief 
that they are well taken and the pending appeals would be 
legitimized and thereby permit expidited consideration by this 
Court. (2) The moving State Defendants have deliberately 
bypassed the District Court and seek a stay in this Court 
on a basis of Sec. 803 of the Higher Education Act. This 
act was signed into law before the argument on the motion to 
stay the June 14, 1972 order. Despite nationwide publicity 
the attorney general filed no supplemental memo and at oral 
argument made no mention of that statute. One of the effects 
of that choice is to avoid the factual determination which 
could have been made by the court familiar with the facts which 
might well determine the applicability of Sec. 803 of the 
Act to this case.

3



does not expect to recommend to the District Court more than 4 
or 5 clusters, grades 1-6 for 1972 implementation. The District 
Court's order does not adopt a new school construction standard 
but does require the Defendants to follow the standards established 
by the State Board of Education and the Michigan Civil Rights 
Commission in 1966 pending further orders of the Court. The 
faculty reassignments under the order await recommendations by 
the panel and the State Superintendent of Schools. In any 
event many reassignments would automatically occur as a result 

pairings of schools. See Findings of Fact & Conclusions 
of Law in Support of Ruling on Desegregation Area and Develop­
ment of Plan, Finding 54 at p. 20. The District Court refers 
to the "State" and the "State of Michigan" in its rulings, as 
does every court when referring to state action whether it be 
Brown v. Board of Education or Gideon y, Wainwriqht. Such 
reference does not make out an 11th Amendment issue. The 
District Court does not hold any statute unconstitutional, but 
rather requires the Defendants to act affirmatively to carry 
out pupil and faculty reassignment in order to begin the 
elimination of state-imposed segregation. See Brown v. Board 
of Education 349 u.S. 294, 300-301 (1955). The District Court 
in devising relief must shape that relief in accordance with 

the factual circumstances existing at this time. See, e.g.,
United States v. Aluminum Co. of America, 91 F.Supp. 333, 339 
(S.D.N.Y. 1950); United States v. Union P.R. Co., 226 U.S. 470,

-4-



477(1913); United States v. Dupont deNemours & Co., 366 U.S. 
316, 331-32 (1961); Davis v. Board of School Commissioners

- of Mobile, 402 U.S. 33, 37 (1971); cf. United States v. Board of
• 2School Commissioners of Indianapolis, 332 F.Supp. 655 (S.D. Ind. 1971).

2. The Defendants place much reliance on a very weak reed, i.e. 
the 4th Circuit's reversal in Bradley v. School Board of the
City of Richmond, ______F.2d ______ (1972). In the first instance,
the principal legal theory relied upon by the 4th Circuit in that 
reversal was precisely that relied upon by the same majority in 
two cases recently reversed by the Supreme Court. Wright v.
Council of the City of Emporia, ______U.S. ______, 4 04.5. L. W. 48 0 6 ,
June 22, 1972 and, United States v. Scotland Neck Board of 
Education, 40 U.S.L.W. 4817, June 22, 1972. Justice Stewart in 
Emporia said:

This "dominate purpose" test finds no 
precedent in our decisions. It is true that 
where an action by school authorities is motivated 
by a demonstrated discriminatory purpose, the 
existence of that purpose may add to the discri­
minatory effect of the action by intensifying the 
stigma of implied racial inferiority....The 
mandate of Brown II was to desegregate schools, 
and we have said that "[t]he measure of any 
desegregation plan is its effectiveness."
Davis v. Board of School Commissioners, 402 U.S.
33, 37. Thus, we have focused upon the effect-- 
not the purpose or motivation--of a school board's 
action in determining whether it is permissible 
method of dismantling a dual system. The existence 
of permissible purpose cannot sustain an action 
that has an impermissible effect.

In Richmond the Court of Appeals made "new" findings contrary 
to those of the District Court that desegregation was already 
complete at the time the District Court issued its ruling re­
quiring further desegregation. The Court of Appeals characterized 
this as seeking "racial balance" and reversed. Whatever the 
merits of the Court of Appeals opinion, it cannot be said that 
desegregation has already taken place in Detroit. The Court 
below is faced with the task of fashioning a remedy for the 
first time where it has found segregation. In that context 
its application of the Swann and Davis standards is entirely 
appropriate. ■

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The District Court has not ordered racial balance. It

has, as Swann permits, established bench marks and goals.

It would be difficult to find an order more faithful 
to the Court's rulings in Swann or Davis. In paragraph 11B, the 

Court said:
"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 be substantially dis­
proportionate to the overall pupil racial composition.

3. Interestingly, the Emergency School Aid Act contains several 
definitions worthy of note in response to the positions taken by 
several of the Defendants. Sec. 720 provides in paragraph six:
(6) For the purpose of Section 706 (a) (2) and Section 709 (a) (1) , 
the term "integrated school" means a school with an enrollment in 
which a substantial proportion of the children are from educationally 
advantaged backgrounds, in which the proportion of minority group 
children is at least 50 per centum of the proportion of minority 
group children enrolled in all schools of the local educational 
agencies within the Standard Metropolitan Statistical Area, and 
which has a faculty and administrative staff with substantial 
representation of minority group persons, (emphasis added).
Paragraph (7) uses the standard for defining an integrated school  ̂
as one which has a racial enrollment " which will achieve stability 
and a faculty representative of the minority group and non-minority 
group population 'bf the larger community in which it is located... 
(emphasis added).

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Order, June 14, 1972). Compare Davis v. Board of School Commis­
sioners of Mobile County, 402 U.S. 33 (1971). Several District 
Courts and Courts of Appeal have gone further and have explicitly 
prohibited the operation of schools above or below a specific 
percentage of black— where such enrollments would be substantially 
disproportionate to the overall student ratio. See Swann v. 
Charlotte-Mecklenberg Board of Education, No. 71-1811 (4th 
Cir., Feb. 16, 1972) aff'g, 328 F. Supp. 1346 (W.D.N.C. 1971);
Kelly v. Guinn, No. 71-2332 (9th Cir. Feb. 22, 1972); cf. Yarbrough v . 
Hulbert-West Memphis School Dist. No. 71-1524 (8th Cir. March 27, 
1972). ;

We would respectfully suggest at this point that the 
Court turn to Appendix 2 which is the detailed findings of fact 
and conclusions of law issued by the Court below with its June 14,

41972 order. With regret we conclude that the failure of the 
State Defendants to include it in their appendix while including 
only the relatively brief Order was entirely deliberate. The 
record of their willful failure to assist the court below and the 
careful exposition of the Court's reasoning and findings would 
do much to refute the rhetoric of these Defendants.

4. In particular p.2, (the objective was "to achieve the greatest 
possible degree of actual desegregation, taking into account the 
practicalities of the situation."); beginning with page 4, para­
graphs 6, 7, 9, 11, 13, 17, 22, 27, 32, 41, 44, 50, 55, (faculty) 
56, 61, 65, 66 (Swann and housing evidence)/67, 70 (refusing to 
decide between competing "governance" proposals)r 72--79, 80 (de­
clining to merge districts at this time), 81 (requesting once again 
recommendations from state authorities) and 83.

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PROPRIETY OF REQUIRING STATE DEFENDANTS TO 
PROVIDE FUNDS FOR PURCHASE OF TRANSPORTATION 
EQUIPMENT AND RELIEF EXTENDING BEYOND THE 
GEOGRAPHIC LIMITS OF THE DETROIT SCHOOL DISTRICT

The Ruling on Issue of Segregation, Ruling on Pro­
priety of Considering a Metropolitan Remedy to Accomplish 
Desegregation of the Public Schools of the City of Detroit, .
Findings of Fact and Conclusions of Law on Detroit-only PIans 
of Desegregation, and Findings of Fact and Conclusions of Law 
in Support of Ruling on Desegregation Area and Development 
of Plan set forth in detail the factual foundation and legal 
bases for the District Court's determination to order State 
Defendants to pay for the acquisition of any necessary trans­
portation equipment and to go beyond the geographic limits 
of the City of Detroit to achieve prompt and maximum actual 
desegregation, taking into account the practicalities of the 
situation. We will here only highlight these rulings.

Under the Constitution of the United States, the 
State is ultimately responsible for public education and securing 
to Plaintiff school children the equal protection of the laws.
As noted, for example, by Judges Wisdon and Wright in Hall v.
St. Helena Parish School Board, 197 F.Supp. 649, 658 (E.D.LA. 1961),

"The equal protection clause speaks to the State.
The United States Constitution recognizes no governing

-8-



unit except the federal government and the State.
A contrary position would allow the State to evade 
its constitutional responsibility by carve-outs of 
small units."

Accord, Cooper v. Aaron, 358 U.S. 1, 16-17 (1958); Haney v.
County Board of Education, 410 F.2d 920 (8th Cir. 1969); Fourteenth 
Amendment, United States Constitution. Under the Constitution 
and Laws of Michigan, as well, the responsibility for providing 
educational opportunity is ultimately that of the State, and 
leadership and general supervision over all public education is 
vested in the State Board of Education, Art. VIII, 1-3, Michigan 
Constitution of 1963. (The extensive duties of the State Board 
and State Superintendent of Public Instruction are summarized in 
Conclusion 13, pp. 25 and 26, Ruling on Issue of Segregation).

Yet State Defendants, and intervening school districts,
attempt to use this independent state law ground for ultimate
state responsibility somehow magically to insulate themselves, as
subordinate instrumentalities of the state limited by state law,

5from taking steps necessary to remedy the constitutional viola­
tions found. Such sophistry has had no foundation in constitutional 
adjudication since at least Ex Parte Young, j-k’V 7(S. . ?-~3 .
Defendants have consistently mistaken the application of the 
Fourteenth and Eleventh Amendments and the Supremacy Clause to 
the responsibility of state administrative and executive officials 
at all levels of government; at a minimum, when they are parties 
to a litigation, theymust obey the commands of the Constitution,

5. These steps includo£>ayraent for buses and exchange of
pupils, teachers, and equipment incident to the restructuring of 
schools to accomplish desegregation.

-9-



as interpreted by judicial decrees enjoining them. Wherqas here, 
a pattern and practice of constitutional violation is established,

6

6. Inferentially, this raises the issue whether this Court
should consider the Writs of Prohibition and/or Mandamus ' filed by 
three school districts which are within the desegregation area but 
are not yet technically parties to this litigation. At the outset, 
we note two procedural defects which are dispositive of their petitions. 
First, the Writ of Prohibition and/or Mandamus is really a procedure 
for seeking appellate review which is available in certain extra­
ordinary circumstances,available when no other avenue of appeal is 
available. The three petitioners here, however, have a fully 
adequate avenue of appeal: under Rule 24, F.R.Civ.P., they may
intervene below for purposes of appeal. See Robinson v. Shelby 
County, 339 F.Supp. 837(W.D.Tenn. 1971); U.S. v. Tulsa Bd. of Educ.,

F.2d_____(10th Cir., 1971); Moore's. Federal Practice, S 24:13
/l/ By so doing, petitioners will be able by normal procedures to 
secure the review they now seek by an extraordinary procedure. Second, 
as a practical matter, they seek review of matters which will not have 
any great effect on their material interests in the near term: they
have been asked to provide only planning assistance and the panel 
has omitted these districts from its recommendations for inclusion in 
an interim plan of pupil desegregation for Fall, 1972.

Eventually, however, the issue may arise whether, and in 
what sense, petitioners are now, or may be, bound by present or 
future orders of the Court. At a minimum, state defendants can be 
ordered to take all actions upon these petitioners necessary to
insure their compliance. U.S. v. T.E.A. F.2d_____(5th Cir. 1972),
stay denied, per J. Black, Edgar v. U.S.,' 404 U.S. 1206(1971), cert 
den., 30 L.Ed.2d 663(1971). Thereafter, if the sanctions enforced 
by the State Defendants upon the orders of the Court prove insufficient, 
the non-party school districts may be immediately joined in the 
interests of justice where necessary to accomplish relief. Rule 21, 
F.R.Civ.P.

Moreover, it is interesting to note that petitioners raise 
no issues not raised by their responsible "parent" state defendants 
and by intervening school districts. The reason is obvious: their
legal interests, as argued to this Court, are identical -- they seek 
to avoid desegregation. These petitioners are, like all local school 
districts, subordinate governmental instrumentalities within the 
state-wide system of public education and agents of the state; for 
purposes of Rule 65/d) petitioners school districts may already be 
bound as "agents /of the parties to the action/ and . . . persons in
in active concert or participation with them who /have/ receive/d/ 
actual notice of the order. . ." Rule 65(d), F.R.Civ.P. Finally, the
vast majority of school districts in the desegregation area are already 
parties to this action. By following the procedural requirements of 
Rule 23, the non-party districts may be bound by the proper certification 
of a defendant class including all school districts. Cf. Kelly v. Nash­
ville Metropolitan County Bd. of Educ., ___F. 2d___(6th Cir, May 30, T5"72)

-ie-



the affirmative obligation under the Fourteenth Amendment is
imposed on all state actors, be they governors, state superintendents
or local officials; and this is so regardless of what particular
person or office first caused the violation. Cooper v. Aaron, 358
U.S. 1(1958); Griffin v. County School Board of Prince Edward County,
337 U.S. 218(1953); Godwin v. Johnston County Board of Education, 301
F.Supp. 1337; Lee v. Macon County Bd. of Educ., 267 F.Supp. 458(M.D.Ala)
aff1d sub nom Wallace v. U.S., 389 U.S. 315; Franklin v. Quitmar County
Board, 288 F.Supp. 509; Smith v. North Carolina State Board of Education

7___F.2d___ No. 15,072 (4th Cir. June 14, 1971).

752
See also Lee v. Macon County Bd. of Ed., 231 F. Supp. 743,

"the evidence in the case reflected that the Macon County 
School Board and the individual members thereof, and the 
Macon County Superintendent of Education, have throughout 
this troublesome litigation fully and completely 
attempted to discharge their obligations as public 
officials and their oaths of office. It is no answer how­
ever that these Macon County officials may have been 
blameless with respect to the situation that has been 
created in the school system in Macon County, Alabama.
The Fourteenth Amendment and the prior orders of this"
Court were directed aqainst actions of the State of
Alabama, The Fourteenth Amendment and the orior orders
of this Court were directed against actions of the State 
of Alabama; not only the action of County school officia'ls, 
but the actions of all other officials whose conduct bears 
on this case is state action. In this connection see
Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3L.Ed. 2d 5, 
1958, where the Supreme Court of the United States, among 
other things, discussed the contention advanced by the 
Little Rock, Arkansas school officials that they were 
to be excused from carrying out the prior orders of the 
Court by reason of conditions and tensions and disorder 
caused by the actions of the governor and the state 
legislature."

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Similarly, this Court has, in an earlier interlocutory 
appeal in this cause, reversed the lower court's dismissal of the 
Defendants Governor and Attorney General pending a full hearing on 
the merits. Bradley v. Milliken, 433 F.2d 897(1971). '

. The Eighth Circuit applied the rule in reversing the
failure of the lower court to devise an appropriate form of 8
consolidation of school districts to accomplish desegregation
without limitations to state law:

Appellees' assertion that the District Court for 
the District of Arkansas is bound to adhere to 
Arkansas law, unless the state law violates some 
provision of the Constitution, is not constitutionally 
sound where the operation of the state law in 
question fails to provide the constitutional guarantee 
of a non-racial unitary school system. The remedial 
power of the federal courts under the Fourteenth 
amendment is not limited by state law.

Haney v. County Board of Education of Sevier County, 429 F.2d 364,
368(8th Cir. 1970). Accord Griffin v. Prince Edward County, 377
U.S. 218 (1964); North Carolina Board of Education v. Swary, 402 U.S.
43(1971); Stout v. Jefferson County Board of Education, No. 29886
(5th Cir. July 1971); J.S. v. Greenwood Municipal Separate School

8. As noted, supra, no such consolidation remedy has been yet 
ordered in this cause, is not contemplated for the fall and will not 
be ordered unless it proves necessary to accomplish desegregation.
As of July 14, 1972 the panel decided "not to recommend consolida­
tion or any other change in the present structure of the 53 school 
systems in the plan." Detroit Free Press, p. 1, Saturday, July 15, 
1972. See Ruling on Propriety of Considering a Metropolitan Remedy 
to Accomplish Desegregation of the Public Schools of the City of 
Detroit, at 3; and Findings of Facts and Conclusions of Lav; in Support 
of Ruling on Desegregation Area at 24-27; Ruling on Desegregation area 
and Order for Development of Plan of Desegregation at 8-9.

-12



District 406 F.2d 1086, 1094(5th Cir. 1969) and Adkins v. School
Board of Newport News, 148 F.Supp. 430, 446-7(E.D .Va. 1957), aff'd

246 F.2d 325, cert. den. 355 U.S. 855(1957).
In fact, that very proposition was enunciated by the

Supreme Court in Brown II when it recognized that single judge
district courts in remedying state-imposed school segregation "may
consider problems related to administration, arising from the
physical condition of the school plant, the school transportation- g
systems, personnel, revision of school districts and attendance 
areas into compact units to achieve a system of determining ad­
mission to the public schools on a non-racial basis, and revision 
of local laws and regulations which may be necessary in solving the 
foregoing problems." 349 U.S. 294, 300-301(1955). See Ruling on 
Propriety of Considering a Metropolitan Remedy to Accomplish 
Desegregation of the Public Schools of the City of Detroit at p. 3.

9. Whatever the meaning of a memorandum affirmance of a three 
judge court by the Supreme Court, State Defendants' citation of 
Spencer v. Kugler is as inapplicable to the factual situation of 
this case in this Court as it was below. In Spencer plaintiffs 
sought to declare invalid a New Jersey law making school district 
lines coterminus with municipality lines upon a showing of mere 
racial imbalance, without making any allegations that discrimina­
tory "state action" in any form, in any place, at any governmental 
level contributed to such segregation. The 3-Judge District Court 
dismissed the complaint. 326 F. Supp. 1235(D.N.J. 1971), 
aff'd mem., 404 U.S. (1972). .The complaint in this case is 
totally oposite that in Spencer. Discriminatory State action was 
alleged, proved and found in overwhelming detail; since that 
finding the District Court has conducted lengthy hearings, and 
ordered that preparatory steps be taken to the end
that an effective remedy for the state-imposed segregation could 
be accomplished.

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In Board of Education v. Swann, 402 U.S. 43, 45(1971)

the Court said:
"/S/tate policy must give way when it operates to 
hinder vindication of federal constitutional guaran­
tees . " '
And in Reynolds v. Sims, 377 U.S. 533, 575(1964) the

Supreme Court said:
" Political subdivisions of States--Counties,
Cities, or whatever— never were and never have been 
considered as sovereign entities. Rather they have 
been traditionally regarded as subordinate governmental 
instrumentalities created by the State to assist in 
the carrying out of state-governmental functions."

Again in Haney, supra, "Political subdivisions of the State are
mere lines of convenience for exercising divided governmental
responsibilities. They cannot serve to deny federal rights."
See also Jenkins v. Township of Morris School District, 279 F2d
617, 628 (S.Ct.N.J. 1971); Lee v. Macon County Board of Education,
448 F.2d 746, 752 (5th Cir. 1971); United States v. State of Texas,
447 F.2d 441, 443-44(5th Cir. 1971) affirming orders reported at
321 F.Supp. 1043 and 330 F.Supp. 235.

The only "massive" thing in this case is the magnitude and
scope of the constitutional violation found by the Court below and
the substantial evidence introduced in support thereof. In its
Ruling on Segregation (see Appendix Fj ) , the District Court
summarized the causes of segregation in the Detroit public schools,
including the substantial contribution by state and local defendants,
and other state actions contributing to such segregation. (We have

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attached as App. C  the Proposed findings submitted by plaintiffs 
which,except for faculty findings,were adopted and summarized by 
the District Court in his September 29, 1971 Ruling on Issue of 
Segregation.) In its Findings of Facts and Conclusions'of Law 
on Detroit-Only Plans of Desegregation, the District Court found 
that any plan of desegregation limited to the Detroit public
schools would be less effective than other available alternatives.

10
In view of the "practicalities of the situation," the Court was 
forced by the record to contend with the historical pattern of 
school segregation, containment of blacks in separate schools, 
and racial separation throughout Metropolitan Detroit which 
resulted from the interaction of school construction, site 
selection, plant utilization, and student assignment practices 
and housing discrimination and segregation effected by discrimina­
tory action at all levels within and without the Detroit School 
District. See, e.g. , Ruling on Issue of Segregation at ?\vpO. h 
and Findings of Fact and Conclusions of Law in Support of Ruling

10. And in reviewing factual determination in this regard, 
ppellate ourts must, even upon a full review on the merits, rely 

primarily on the decisions of the District Judge. Wright v. 
Emporia, slip op at 14; Brown II, 349 U.S. at 299. This can only 
be more true on a stay application, where moving parties bear a 
particularly heavy burden.

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11
on Desegregation Area and Development of Plan at ^

11. "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 vzith those of private organizations, such 
as loaning institutions and real estate associations and brokerage 
firms, to establish and to maintain the pattern of
dential segregation through the Detroit metropolitan area. We also 
noted that this deliberate setting of residential patterns had a-n 
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 Segregation at 3-10) Just as evident is the fact 
that suburban 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 discrimina­
tion 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 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."

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 children. 
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, 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 substantial. 
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."

resi-

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Although defendants argue that such "housing proof" is 
inadmissible, the Supreme Court expressly authorized District 
Courts to consider this proof - it constitutes the "loaded game 
board" which renders the desegregation process more difficult than 
it might have been in 1954 ". . . by changes . . . in the structure
and patterns of communities, the growth of student population, move­
ment of families, and other changes, some of which had a marked ■ 
impact on school planning . . ." Swann, 39 U.S.L.W. 4431, 4441 .

The construction of new schools and the closing 
of old ones is one of the most important functions of 
local school authorities and also one of the most com­
plex. They must decide questions of location and capacity 
in light of population growth, finances, land values,

11

11. The record below, summarized by the District Court, shows the
deep involvement of both the Detroit and State school authorities 
in establishing and reinforcing patterns of housing and school 
segregation. See the detailed analysis in App. . Moreover th-
record, without housing evidence, clearly supports the finding
of action and inaction on the part of all defendants which 
constituted the causal factors in the school segregation. Indeed, 
the vast majority of the trial below concerned matters Ouher than 
housing proof. However, as the Courts have noted, the proof of 
housing segregation is often introduced by plaintiffs for the 
precise prupose of showing the role of school authorities. ^Other 
wise housing segregation is the school authorities' first line of 
defense to a charge of school segregation. It matters not 
whether the city is North or South, East or West.
12. Cf. Wright v. Council of City of Emporia, ___ U.S. ___, slip
op at 11, 13.

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site availability, through an almost endless list of factors to 
be considered. The result of this will be a decision which, 
when combined with one technique or another of student assign 
ment, will determine the racial composition of the student body 
in each school in the system. Over the long run, the conse 
quences of the choices will be far reaching. People gravitate 
toward school facilities, just as schools are located m  
response to the needs of people. The location of schools ma_V 
thus influence the patterns of residential development of a_ 
metropolitan area and have important impact on composition of— 
inner city neighborhoods.

In the past, choices in this respect have been used as a 
potent weapon for creating or maintaining a state segregated 
school system. In addition to the classic pattern of building 
schools specifically intended for Negro or white students, 
school authorities have sometimes, since Brown, closed schoo s 
which appeared likely to become racially mixed through changes 
in neighborhood residential patterns. This was sometimes 
accompanied by building new schools in the areas of white  ̂
suburban expansion farthest from Negro population centers m  
order to maintain the separation of the races with a minimum  ̂
departure from the formal principles of "neighborhood zoning.
Such a policy does more than simply influence the short-run 
composition of the student body of a new school. It may^well  ̂
promote segregated residential patterns which, when combined with 
"neighborhood zoning," further lock the school system into 
the mold of separation of the races. Upon a proper showing^ 
a district court may consider this in fashioning a remedy.
Swann, Supra (emphasis supplied).

Based upon exactly such evidence, the Court below 
determined that Detroit-only plans which attempted actual desegrega­
tion would clearly make the entire Detroit Public School System 
racially identifiable as Black. It would make a segregated school 
system more segregated, with a decreasing white enrollment in the

13. "In ascertaining the existence of legally imposed school 
segregation, the existence of a pattern of school construction 
and abandonment is thus a factor of great weight." Swann, supra.

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face of a pupil population already almost 70% black; the Court 
concluded that Detroit-only plans "would not accomplish desegrega­
tion." All surrounded by white schools in suburban areas where 
400,000 pupil spaces have been built in the period 1950 through 
1969. Findings of Fact and Conclusions of Law on Detroit-Only 
Plans of Desegregation. In light of these findings and concludions, 
the Court below determined that it was proper and required to con­
sider, develop, and take all steps necessary to effect a plan of 
desegregation for the Detroit Public Schools which would not be 
simply a black set of schools in the Detroit community surrounded 
by a set of white schools —  all stemming from the original determin­
ation of a pattern of "state action resulting in segregation."

Stay Applications in School Desegregation Cases

The rule in desegregation cases, North and South, has been 
to deny or to vacate stays and issue pendente lite injunctions to see 
to it that plans go into effect. See, e.g., Lucy v. Adams, 350 
U.S. 1(1955); Keyes v. School District Number One, 396 U.S. 1215 
(1969)(Denver); Guey Heung Lee v. Johnson, 404 U.S. 1215(1972)
(San Francisco) . See also Swann v. Charlotte Mecklenberg_Bd_.— of.
Educ., 399 U.S. 926(1970)(granting certiorari and fully reinstating 
the District Court's order pending the Supreme Court hearing)

-19-



If a stay is granted, even the limited implementation 

set for September of the District Court's order will not be 
possible. The injury to plaintiffs will be clearly compounded and 
irreparable. There are no reasons which would justify a drastic 
departure from the "desegregate now, litigate later" rule of 
Alexander v. Holmes County Board of Educ. , 396 U.S. 19 (1969) and 
Carter v. West Feliciana Parish School Board, 396 U.S. 226(1969).
See Edgar v. United States, 404 U.S. 1206(1971).

Defendants allege that there is "a substantial probability 
that the District Court's order of June 14, 1972 will be reversed 
on appeal." Grounds for this statement are that the order has gone 
"beyond Federal appellate precedents." It comes as no surprise to 
plaintiffs that the defendants once again insist they are correct 
and the District Court is wrong. In addition to the numerous 
authorities cited elsewhere in this memorandum the following cases 
are applicable to a consideration of this assertion.

Mr. Justice Black denied a stay in the order in U.S. v. 
Texas Education Agency, supra, for statewide relief in United 
States v. Edgar State Commissioners of Education, 404 U.S. 1206(1971) 

saying:
It would be very difficult for me to suspend the order 

of the District Court that in my view, does no more than 
endeavor to realize the direction of the Fourteenth Amendment 
and the decisions of this Court that racial discrimination in

-20-



the public schools must be eliminated root and branch . . . .
For me, as one Member of this Court, to grant a stay now 
would mean inordinate delay and would unjustifiably further 
postpone the termination of the dual school system that the 
order below was intended to accomplish . . . .

When the case was presented to the full Court the 
petition for certiorari was denied. Edgar, State Commissioner of 
Education, et al., v. United States, 30 L.E. 2d 663(1972).

On April 3, 1972, the Fourth Circuit in Brewer v. School 
Bd. of Norfolk, 456 F.2d 943(4th Cir. 1972)(en banc) issued a stay 
pending certiorari of an order directing the Norfolk School Board, 
which had not previously operated a pupil transportation system, to 
provide free transportation at a projected cost of $3,600,000 to 
approximately 24,000 students who were assigned to schools beyond 
walking distance under a court-ordered desegregation plan. Norfolk 
too urged that its situation was novel. It too questioned the 
power 0f the federal court to order a governmental agency to " . . .
levy and collect taxes for the purposes of providing free trans­
portation to school students. The questions presented affect the 
taxpayers and school boards of every school system in the country in 
which free transportation for every student is not now provided.
In metropolitan areas, it will have an enormous impact upon general 
public mass transit and automobile traffic problems." (Petition for
certiorari in Brewer v. Norfolk, app. >- 0, ! ) On the motion of the

i
plaintiffs, the Supreme Court vacated the stay and denied the Board's 
petition for certiorari on May 15, 1972. 40 U.S.L.W. 3544.

-21-



Stays on Planning and Acquisition of Transportation

As to the June 14 order state defendants seek a stay of a 
basic planning order. In this Circuit, pursuant to the commands 
of Carter v. West Feliciano Parish School Board, 396 U.S. 290(1970), 
such stays must be vacated. Kelley v. Metropolitan Bd. of Ed. of 
Nashville, 436 F.2d 856, 862(1970). A stay on planning serves no 
purpose except to frustrate any chance of desegregation, even 
before a plan is in the record. Rather the minimum duty in the 
desegregation process is that "some demonstrable progress be made 
now and that a schedule be adopted forthwith in order that a 
constitutional plan will be implemented . . . "  Acree v. County Bd.
of Ed. of Richmond, Ga., ___F.2d___, no. 72-12111(5th Cir. March 31,
1972) .

In footnote 2 of that opinion, the Fifth Circuit also 
noted that the acquisition of necessary transportation equipment is 
an integral part of the planning and preparation for eventual 
implementation of any interim or final desegregation plan, for 
without necessary transportation there can be no implementation. 
Thus what defendants here seek is a stay on implementation by the 
indirect method of halting those preparatory steps necessary to 
implementation. Regardless of the merits of a request for stay of 
implementation, planning and acquisition of transportation should 
therefore continue.

-22-



And in any event —  as the District Court noted at both the

July 11, 1972 hearing, where it directed the acquisition of trans­
portation capacity and on Thursday, July 13, 1972 at the ex parte 
hearing on the state's second motion for a stay —  the equipment
ordered would be needed under a Detroit-only as well as a metropoli-

14
tan plan of desegregation. After pointing out that he had found
de jure segregation in September 1971, the Court said: .

" The renewed motion of the State for an
immediate order is hereby denied for the reason that 
any stay in the ordering, the acquisition of and pay­
ment for transportation equipment would seriously jeopardize 
and certainly delay the Court's duty to desegregate the 
public schools of the City of Detroit and because even if 
the reviewing court were to conclude that the metropolitan 
desegregation order were inappropriate the duty to desegregate 
the public schools of the City of Detroit within the City 
itself would require the transportation equipment directed to 
be acquired and that any desegregation effort, whether metro­
politan or city could not be implemented for the beginning of 
the school year in the fall of 1972 unless the transportation 
equipment is ordered now, meaning today, or certainly within 
the next few days." (Transcript, July 13, 1972, p. 7,8)
(See App. 1).

14. The State Defendants' argument that any funds expended for 
acquisition will be lost in case the court's metropolitan approach 
is reversed is patently false. In addition to the fact that the 
buses are needed for a city-only plan, they can be used, in any 
event, to assist in the historic expansion of transportation which 
is occurring in the State wholly apart from desegregation. There 
are some 10,000 school buses presently owned and operated by school 
districts in the State of Michigan.

-23-



" . . .  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-constitu­
tional principles requires that this court take all steps 
necessary and essential to require them to desegregate the 
Detroit public schools effectively 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 promotion of a legitimate and 
compelling state policy or interest. Reynolds v. Sims, 377 
U.S. 533, 575(1964); Hunter v. City of Pittsburg, 207 U.S.
161, 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- 
Meckienberg, 402 U.S. 33(1971); Brown v. Board of Education, 
347 U.S. 483(1954); Brown v. Board of Education," 34$ U.S. 292, 
300(1955); Monroe v. Board of Commissioners, 391 U.S. 450, 459 
(1968) . "

And to accomplish such desegregation, as the district Court below 

noted,

As the District Court held^

"Funds must either be raised or reallocated, where 
necessary, to remedy the deprivation of plaintiffs' constitu­
tional 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); Griffrn 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 Countv, 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), aff'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, 456 F2d 943 
(4th Cir., March 7, 1972)(slip op. at pp. 7-8) cert denied 
40 U.S.L.W. 3544. It would be a cruel mockery of constitutional 
law if a different rule were to be applied to school desegrega­
tion cases. After all schooling is this nation's biggest 
industry and the most important task of government left to the



t fhis case, were a differentStates by the Constitution. ̂  ^ Utute a gigantic hypocrisy.
rule to be applied, 1 been spent over the Y relatively

?o” his Court's attention.

to Plaintiffs one overriding consideration 
in measuring the harm to Plarntrl

must be given:- _ school children
"It 1h Cling under nondiscJimiLtory and constrtutional Uved
^ n l l S n a g t b e  tecaptured - a ^ s c

county Board ox_Educatron,
rrpr the determination of. two vears after rue ^ln that context, tuo y ^  ^  ^  tolerable. There is

constitutional vrolatron, ^  a aesegregated edu-
no harm to defendants for pupa ^  q£ state action in

. There has been m  thxs casecation. Ther 12 of Act 48.

1970 “  e f£ S C t “ " ' ^ T f ^ i T o f T l o n g  sta n d in g  p a t t e r n  and
SubSequently there w a ^  segregation the area.
practice of state P without any irreparable
district court's orders wall provrd , begin„i„gn 1 district boundaries or governance, g
changes m  sc oo ^  District Judge tool "note
of a remedy for the vio and

• caf White and black students m  th of the proportron of white ending white schools
/sought/ as practical a plan .. «  ^  schools ^  are
and black schools and substituting -

-25-



representative of the area in which the pupils live." Kelly v.

Metropolitan Board of Ed. of Nashville ,__F.2d.___(6th Cir. May
30, 1972) (Slip op. at 22) .

Defendants have in no measure met the heavy burden on 
a moving party necessary to justify a stay. What they should have 
done and can still do is accept the District Court's invitation to 
take steps under the rules to obtain an appealable order. That 
invitation has been accepted by some defendants in the form of 
Rule 54(b) motions, which plaintiffs supported below. They could 
also join the Detroit Board's request for an expedited appeal and 
for leave to appeal on the original papers. Then on the full 
record and on briefs of the parties the merits of the case can be 
heard.