Memo for the US as Amicus Curiae

    Nos. 73-434, 73-435, 73-436

Jn  tftt Supreme (fourt of the tB nM  States
October Term, 1973

W illiam G. M illiken, et al., petitioners

v.
R onald G. B radley, et al.

A llen P ark P ublic Schools, et al., petitioners

v.
R onald G. B radley, et al.

T he Grosse P ointe P ublic School System,
PETITIONER

V.

Ronald G. B radley, et al.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

ROBERT H. BORK,
Solicitor General,

J. STANLEY POTTINGER,
Assistant Attorney General,

Department of Justice, 
Washington, D.C. 20580.





I N D E X

Page

Interest of the United States_________________ *__________ 1
I. Introductory statement_________________________    2

II. The remedy for unconstitutional school segregation 
may extend beyond the boundaries of a single dis­
trict only if, and to the extent that, the violation 
has directly altered or substantially affected the 
racial composition of schools in more than one
district___________________________________________  11

III. The record in this case does not support the broad 
metropolitan-wide remedy contemplated by the
court of appeals_________________________________   15

Conclusion______________________________________________  27

CITATIONS
Cases: ... . .. .

Alexander v. Holmes County Board of Education, 396
U.S. 19___________________________________________ 2

Bradley v. Milliken, 433 F. 2d 897___________________ 3, 4
Bradley v. Milliken. 468 F. 2d 902, certiorari denied,

409 U.S. 844_____________________________________  3, 5
Bradley v. School Board of the City of Richmond, Vir­

ginia, 338 F. Supp. 67, reversed, 462 F. 2d 1058, 
affirmed sub. nom. School Board of the City of Rich- 
Richmond v. State Board of Education, 412 U.S. 92_ 2,

7, 12, 14
Brown v. Board of Education, 347 U.S. 483__________  2
Cooper v. Aaron, 358 U.S. 1_________________________  2
Goss v. Board of Education, 373 U.S. 683____________  2
Green v. County School Board of New Kent County,

391 U.S. 430_____________________________________  2
Haney v. County Board of Education of Sevier County,

429 F. 2d 364_____________________________________ 14
Keyes v. School District No. 1, Denver, Colorado,

413 U.S. 189_____________________________________  2, 18
(i)

532-849— 74- ■1



II

Cases— Continued page
Norwood v. Harrison, 413 U.S. 455_________________  2
San Antonio Independent School District v. Rodriguez,

411 U.S. 1________________________________________  5
Spencer v. Kugler, 404 U.S. 1027, affirming 326 F.

Supp. 1235________________________________________  11
Swann v. Boaid of Education, 402 U.S. 1_______ 2, 11, 15, 23
United States v. Missouri, 363 F. Supp. 739__________ 14
United States v. Scotland Neck Boaid of Education,

407 U.S. 484______________________________________  14
United States v. Texas, 321 F. Supp. 1043, affirmed 

447 F. 2d 441, certiorari denied sub. nom. Edgar v.
United States, 404 U.S. 1016______________________ 14

Wright v. Council of City of Emporia, 407 U.S. 451—  2, 14
Statutes:

P.L. 92-318, Section 803, 86 Stat. 235, 372___ 1_____  2
28 U.S.C. 1292(b)_____________________________   8
28 U.S.C. 2403______________________________________  2
42 U.S.C. 2000c-6___________________________________ 2
42 U.S.C. 2000d_____________________________________ 2
42 U.S.C. 2000h-2___________________________________ 2



Jit the j&tpreme d|mtrt of the United States
October Term, 1973

No. 73-434

W illiam G. M illiken, et al., petitioners

v.
R onald G. B radley, et al.

No. 73-435

Allen P ark P ublic Schools, et al., petitioners

v.
R onald G. B radley, et al.

No. 73^36

T he Grosse P ointe P ublic School System,
petitioner

v.
Ronald G. B radley, et al.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR TIIE SIXTH CIRCUIT

MEMORANDUM EOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

The United States has substantial responsibility un­
der 42 U.S.C. 2000c-6, 2000d, and 2000h-2, with respect

(i)



2

to school desegregation. This Court’s resolution of the 
issues presented in this case will affect that enforce­
ment responsibility. The United States participated as 
an intervenor in this case in the court of appeals1 and 
has participated as amicus curiae or as a party in 
most of this Court’s previous school desegregation 
cases, including Brown v. Board of Education, 347 
U.S. 483; 349 U.S. 294; Cooper v. Aaron, 358 U.S. 1; 
Goss v. Board of Education, 373 U.S. 683; Green v. 
County School Board of New Kent County, 391 U.S. 
430; Alexander v. Holmes County Board of Education, 
396 U.S. 19; Swann v. Board of Education, 402 U.S. 
1; Wright v. Council of City of Emporia, 407 U.S. 
451; School Board of the City of Richmond v. State 
Board of Education, 412 U.S. 92; Keyes v. School Dis­
trict No. 1, Denver, Colorado, 413 U.S. 189; and Nor­
wood v. Harrison, 413 U.S. 455.

I

in t r o d u c t o r y  s t a t e m e n t

The issue in this case is whether the remedy for 
illegal racial segregation of the Detroit public schools 
may properly include a cross-district pupil assignment 
plan between the Detroit school district and neighbor­
ing districts, where the record does not show whether

1 The United States intervened in the court o f appeals pur­
suant to 28 U.S.C. 2403, because the constitutionality o f  an Act 
of Congress (Section 803 of P.L. 92-318, 86 Stat. 235, 372) had 
been called into question. The court of appeals found it un­
necessary to consider the applicability or constitutionality o f the 
statute in question (Pet, App. 189a), which, by its terms, ex­
pired on January 1, 1974.



3

constitutional violations affected the racial composition 
of schools outside the Detroit district and where the 
suburban districts have had no effective opportunity 
to be heard on the propriety of a metropolitan-wide 
remedy.

This case began in August 1970 when certain of the 
respondents, primarily black parents and their chil­
dren who attended schools in the Detroit public school 
system, sued city and state officials, alleging that the 
officials had pursued a policy and practice of racial 
discrimination in the operation of the Detroit public 
schools, which had resulted in a racially segregated 
school system.2 The plaintiffs sought, inter alia, an or­
der requiring the defendants to present a plan “ for the 
elimination of the racial identity of every school in the 
[Detroit] system and to maintain now and hereafter 
a unitary, nonracial school system77 (Pet. App. 15a). 
The case was twice before the court of appeals on pre­
liminary matters (433 F. 2d 897, 438 F. 2d 945), and a 
trial on the merits was held from April to July of 
1971.

In September 1971, the district court entered its 
findings of fact and conclusions of law on the issue of 
racial segregation in the Detroit schools (Pet. App. 
17a-39a). It found that the Detroit school board had 
engaged in official acts of racial discrimination that

2 The complaint also alleged that a recently-adopted Act of 
the state legislature unconstitutionally interfered with a volun­
tary plan of desegregation adopted by the Detroit Board of 
Education (Pet. App. 8a-10a). The Act was held unconstitu­
tional by the court of appeals in an earlier phase of this liti­
gation (433 F. 2d 897).



4

had contributed to racial segregation in the school 
system. The board’s use of optional attendance zones in 
areas undergoing racial transition and between schools 
of opposite predominant racial composition “ allowed 
whites to escape integration” {id. at 25a) ; the board 
transported children on a racially discriminatory 
basis {ibid.) ; it gerrymandered attendance zones and 
altered grade structures “ in a manner which has had 
the natural, probable and actual effect of continuing 
black and white pupils in racially segregated schools” 
{id. at 25a-26a); and it pursued discriminatory 
school construction policies {id. at 27a, 28a).

The court also found that official acts of state agen­
cies contributed to the racial segregation in Detroit’s 
schools. The enactment of state legislation rescinding 
a voluntary plan of desegregation that had been 
adopted by the Detroit board was designed, the court 
held, “ to impede, delay and minimize racial integra­
tion in Detroit schools”  {id. at 28a) ; 3 and state offi­
cials, as well as the Detroit board, participated in 
racially discriminatory decisions concerning school 
construction {ibid.).1 The court also concluded that 
Michigan law vests in the State Board of Education 
“ supervision over all public education”  {id. at 36a).

3 The details of the statute are set forth in the opinion of 
the court of appeals holding it unconstitutional (433 F. 2d 
897).

4 The court also noted that state law did not provide funds 
or authority for the transportation of pupils in Detroit, though 
it did provide for transportation of some pupils attending 
suburban districts. The court stated that this “ and other fi­
nancial limitations, such as those on bonding and the working 
o f the state aid formula whereby suburban districts were able 
to make far larger per pupil expenditures despite less tax



Turning to tlie question of an appropriate remedy 
for the constitutional violations, the district court ad­
dressed a pending motion by intervening defendants 
to join as additional parties defendant 85 school dis­
tricts in the three counties surrounding Detroit, on 
the ground that effective relief could not be achieved 
without their presence (see I App. 119-129).5 The 
court deferred ruling on that motion, pending the 
submission of proposed remedies by existing parties 
(Pet. App. 38a-39a). In a subsequent hearing, the 
court stated that “ perhaps only a plan which em­
braces all or some of the greater Detroit metropolitan 
area can hope to succeed”  (id. at 40a). It ordered the 
Detroit school board to submit a proposed plan for 
desegregation within its district and ordered the state 
defendants to submit a “ metropolitan plan of deseg­
regation”  (id. at 43a).6

Before ruling on the plans submitted by the state and 
city defendants, the district court granted motions by 
some of the suburban school districts to intervene in the 
proceeding, but restricted their participation essentially 
to advising the court on the propriety of a metropolitan­
wide remedy in general and on the merits of the par-

effort, have created and perpetuated systematic educational 
inequalities*’ (Pet. App. 27a). The court did not indicate 
whether any such disparities had affected the racial composition 
of the school districts. Cf. San Antonio Independent School 
District v. Rodriguez, 411 U.S. 1.

5 “A pp.” refers to the five-volume joint appendix, each 
volume o f which is separately paginated.

6 The court o f appeals held that this order was not appeal- 
able (465 F. 2d 902), and this Court denied certiorari (409 U.S. 
844).



6

ticular desegregation plan submitted to the court
(I App. 204-207).

The district court thereafter issued the three rul­
ings that were principally at issue in the court of 
appeals.

(1) On March 24, 1972, in its ruling on the pro­
priety of considering a metropolitan-wide remedy 
(Pet. App. 48a-52a), the district court addressed the 
question whether it could “  consider relief in the form 
of a metropolitan plan, encompassing not only the 
City of Detroit, but the larger Detroit metropolitan 
area”  (id. at 49a). It rejected both the state defend­
ants’ argument that no state action caused the seg­
regation of the Detroit schools, and the suburban 
districts ’ contention that interdistrict relief is inappro­
priate unless the suburban districts have themselves 
committed violations. The court concluded (id. at 
51a) :

[I ]t  is proper for the court to consider 
metropolitan plans directed toward the de­
segregation of the Detroit public schools as an 
alternative to the present intra-city desegrega­
tion 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 metro­
politan remedy for desegregation.

(2) On March 28, 1972, the court issued its findings 
and conclusions on the three “ Detroit-only”  plans 
submitted by the city board and the plaintiffs (id. at 
53a-58a). It found that the best of the three plans 
“ would make the Detroit system more identifiably 
Black * * * thereby increasing the flights of Whites



7

from the city and the system” (id. at 55a). From this 
the court concluded that the plan “would not accom­
plish desegregation” and that desegregation “ cannot 
be accomplished within the corporate geographical 
limits of the city” (id. at 56a). It accordingly held 
that it “ must look beyond the limits of the Detroit 
school district for a solution to the problem of seg­
regation” (id. at 57a). Relying on Bradley v. School 
Board of the City of Richmond, Virginia, 338 F. Supp. 
67 (E.I). Va.),reversed,462F .2d 1058 (C.A.4), affirmed 
by an equally divided Court, 412 U.S. 92, the court held 
that “ [sjchool district lines are simply matters of politi­
cal convenience and may not be used to deny constitu­
tional rights” (Pet. App. 57a).

(3) On June 14, 1972, the district court issued a rul­
ing on the desegregation area (id. at 97a-105a) and 
related findings and conclusions (id. at 59a-96a). The 
court acknowledged at the outset that it had “ taken no 
proofs with respect to the establishment of the bound­
aries of the 86 public school districts in the counties 
[in the Detroit area], 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” (id. at 60a). Nevertheless, it designated 
53 of the suburban school districts plus Detroit as the 
“ desegregation area” (id. at 101a) and appointed a 
panel to prepare and submit “ an effective desegrega­
tion plan” for the Detroit schools that would encom­
pass the entire desegregation area (id. at 99a). The 
plan was to be based on 15 clusters, each containing 
part of the Detroit system and two or more suburban 
districts (Y  App. 111-115), and Avas to “achieve the

532- 849— 74— 2



8

greatest degree of actual desegregation to the end that, 
upon implementation, no school, grade or classroom 
[be] substantially disproportionate to the overall pupil 
racial composition” (Pet. App. 101a-102a).

A divided court of appeals, sitting en banc, affirmed 
in part, vacated in part, and remanded for further 
proceedings (Pet. App. 110a-240a).7 The court held, 
first, that the record supports the district court’s 
findings on the constitutional violations committed 
by the Detroit board (id. at 118a-151a) and by the 
state defendants (id. at 151a-157a).8 It stated that

7 The district court had certified most of the foregoing rul­
ings for interlocutory review pursuant to 28 IT.S.C. 1292(b) 
(I  App. 265-266), and a panel of the court of appeals had 
granted leave to appeal (Pet. App. 108a-109a). The case was 
initially decided on the merits by a panel, but the panel’s 
opinion and judgment were vacated when the court determined 
to rehear the case en banc (see Pet. App. llla -112a).

s With respect to the State’s violations, the court o f appeals 
held: (1) that, since the city board is an instrumentality of 
the State and subordinate to the state board, the segregative 
actions o f the Detroit board “ are the actions of an agency of 
the State” (Pet. App. 151a) ; (2) that the state legislation 
rescinding Detroit’s voluntary desegregation plan (see p. 4, 
supra) contributed to increasing segregation in the Detroit 

bools (ibid.) ; (3) that under state law prior to 1962 the state 
iard had authority over school construction plans and must 

„ ere fore be held responsible “ for the segregative results” (ibid.) ; 
(4) that the “ State statutory scheme of support o f transportation 
for school children directly discriminated against Detroit”  (id. 
at 154a) by not providing transportation funds to Detroit on the 
same basis as funds were provided to suburban districts (id. at 
151a) ; and (5) that the transportation of black students from one 
suburban district to a black school in Detroit must have had the 
“ approval, tacit or express, o f the State Board of Education”  (id. 
at 152a).



9

the acts of racial discrimination shown in the record 
are “ causal! v related to the substantial amount of 
segregation found in the Detroit school system” (id. 
at 157a), and that “ the District Court was therefore 
authorized and required to take effective measures to 
desegregate the Detroit Public School System” (id. 
at 158a).

The court of appeals also agreed with the district 
court that “ any less comprehensive a solution than 
a metropolitan area plan would result in an all black 
school system immediately surrounded by practically 
all white suburban school systems, with an over­
whelmingly white majority population in the total 
metropolitan area” (id. at 163a-164a). It stated that it 
could “not see how such segregation can be any less 
harmful to the minority students than if the same re­
sult were accomplished within one school district” 
(id. at 164a).

The court of appeals accordingly concluded that 
“ the only feasible desegregation plan involves the 
crossing of the boundary lines between the Detroit 
School District and adjacent or nearby school dis­
tricts for the limited purpose of providing an effective 
desegregation plan” (id. at 172a). It reasoned that 
such a plan would be appropriate because of the 
State’s violations, and could be implemented because 
of the State’s authority to control local school dis­
tricts. “ [T]he State has committed de jure acts of 
segregation and * * * the State controls the instru­
mentalities whose action is necessary to remedy the 
harmful effects of the State acts” (ibid.). An inter-



10

district remedy is thus “within the equity powers of 
the District Court” {id. at 173a).9

The court of appeals expressed no views on the pro­
priety of the district court’s “desegregation area.”  It 
held that all suburban school districts that might be 
affected by any metropolitan-wide remedy should be 
made parties to the case on remand and be given an 
opportunity to be heard with respect to the scope and 
implementation of such a remedy {id. at 177a). Under 
the terms of the remand, however, the district court 
need not receive further evidence on the issue of segre­
gation in the Detroit schools or on the propriety of a 
Detroit-only remedy {id. at 178a).

It is our view that the remedy for unconstitutional 
segregation of the public schools in a school district 
can properly extend beyond the boundaries of the dis­
trict only where the violation has directly altered or 
substantially affected the racial composition of schools 
outside the district and only to the extent necessary to 
eliminate the segregative effects of the violation. 
Where the schools of only one district have been af­
fected, there is no constitutional requirement that the 
relief include a balancing of the racial composition of 
that district’s schools with those of surrounding 
districts.

The record does not support the ruling of the court
9 The court sought to distinguish Bradley v. School Board of 

the City of Richmond, Virginia, 462 F. 2d 1058 (C.A. 4), affirmed 
by an equally divided Court, 412 U S . 92, on the grounds that the 
district court in that case had ordered an actual consolidation of 
three school districts and that Virginia’s constitution and statutes, 
unlike Michigan’s gave the local boards exclusive power to operate 
the public schools (Pet. App. 175a).



11

of appeals that a metropolitan-wide remedy is appro­
priate to cure the violations found in this case, vir­
tually all of which affected only the schools in the De­
troit system. The case should be remanded to permit 
all the parties, many of whom have not yet been heard 
in the district court, to present evidence and argument 
on the existence of any constitutional violations that 
have directly altered or substantially affected the racial 
composition of schools outside Detroit, and on the ap­
propriate remedy for any such violation.

II
THE REMEDY FOR UNCONSTITUTIONAL SCHOOL SEGREGA­

TION MAY EXTEND BEYOND THE BOUNDARIES OF A 
SINGLE DISTRICT ONLY IF, AND TO THE EXTENT THAT, 
THE VIOLATION HAS DIRECTLY ALTERED OR SUBSTAN­
TIALLY AFFECTED THE RACIAL COMPOSITION OF SCHOOLS 
IN MORE THAN ONE DISTRICT

This Court held in Swann v. Board of Education, 
402 U.S. 1, Id, that the task in fashioning school de­
segregation relief “ is to correct * * * the condition 
that offends the Constitution.” It follows that “ the 
nature of the violation determines the scope of the 
remedy”  (ibicl.).

The mere co-existence, within a State, of adjacent 
school districts having disparate racial compositions 
is not itself a constitutional violation. Spencer v. 
Kugler, 404 U.S. 1027, affirming 326 F. Supp. 1235 
(D. N.J.).10 As Solicitor General Griswold explained

10 In Spencer this Court affirmed the district court’s decision 
that, at least in States not recently operating dual school sys­
tems, extreme racial imbalance, without more, does not author­
ize—let alone require—the court to revise neutrally established 
school district lines.



12

last Term in the Memorandum for the United States 
as Amicus Curiae in School Board of the City of Rich­
mond, Virginia v. State Board of Education (No. 72- 
549), supra, at pp. 13-15 (footnote omitted) :

In determining that one school system for the 
entire region should be created, the district 
court relied upon (Pet. App. 187a) this Court’s 
statement in Swann, supra, 402 U.S. at 26, that 
for remedial purposes, there is “a presumption 
against schools that are substantially dispropor­
tionate in their racial composition.”  But dis­
proportionate in relation to what? Surely not 
to some absolute standard, for the Constitution 
does not establish any fixed ratio of black stu­
dents to white students that must be achieved. 
Instead, whether a particular school is racially 
imbalanced or identifiable can be determined 
only by comparing it with “ the racial composi­
tion of the whole school system.” Swann v. 
Board of Education, supra, 402 U.S. at 25; see 
also id. at 24.

Thus, the question whether, for example, an 
elementary school having a student body 70 per­
cent black and 30 percent white is racially im­
balanced or has a substantially disproportion­
ate racial composition is in itself unanswerable. 
Some frame of reference is needed and, as 
Swann indicates, the proper comparison (to the 
extent that racial balance is relevant) is with 
the racial composition of the population in the 
school system operating the particular school 
since the purpose is to ensure complete elimina­
tion of the dual system by having one set of 
schools for both blacks and whites. And under 
Swann there would be no presumption against 
schools, such as the one in the example above, if



13

these schools reflected the black-white ratio of 
the entire school system. 402 II. S. at 25-26.

Why then would there be a presumption 
against the school system itself with the same 
70:30 ratio of blacks to whites, as the district 
court concluded here with respect to the school 
system of the City of Richmond? (Pet. App. 
186a-188a.) Stated differently, on what basis 
could the district court conclude that its remedy 
should reach outside the school system of the 
City of Richmond? Apparently, the court be­
lieved that it must look beyond the Richmond 
system in fashioning relief because the City 
school system is racially disproportionate or 
imbalanced in relation to the adjacent County 
school systems, thereby resulting in racial iclen- 
tifiability of the three systems (e.g., Pet. App. 
185a-187a, 230a, 237a-238a). But the court had 
to look beyond the Richmond system and com­
pare it with the surrounding Counties in the 
first place in order to determine whether the 
Richmond system is racially imbalanced in com­
parison with the adjacent systems. This is not 
only circular as a reason for fashioning relief 
beyond the Richmond system, but also heedless 
of the extent of the constitutional violation be­
ing remedied.

Thus, in our view, an interdistrict remedy, requiring 
he restructuring of state or local government entities, 

is appropriate only in the unusual circumstance where 
it is necessary to undo the interdistrict effect of a con­
stitutional violation. Specifically, if it were shown that 
the racially discriminatory acts of the State, or of sev­
eral local school districts, or of a single local district, 
have been a direct or substantial cause of interdistrict



14

school segregation, then a remedy designed to eliminate 
the segregation so caused would be appropriate.

One example of circumstances warranting interdis­
trict relief is where one or more school systems have 
been created and maintained for members of one race. 
See, e.g., United States v. Texas, 321 F. Supp. 1043 
(E.D. Texas), affirmed, 447 F. 2d 441 (C.A. 5), cer­
tiorari denied sub nom. Edgar v. United States, 404 
U.S. 1016; Haney v. County Board of Education of 
Sevier County, 429 F. 2d 364 (C.A. 8). Similarly, 
where the boundaries separating districts have been 
drawn on account of race, an interdistrict remedy is 
appropriate. See, e.g., United States v. Missouri, 363 
F. Supp. 739 (E.D. Mo.).11 Some form of interdistrict 
relief may also be appropriate where pupils have been 
transferred across district lines on a racially discrim­
inatory basis.

In each instance of an interdistrict violation, the 
remedy should, in accordance with traditional prin­
ciples of equity and the law of remedies, be tailored to fit 
the violation, particularly in view of the deference 
owed to existing governmental structures. See, e.g., 
Bradley v. School Board of the City of Richmond, Vir­
ginia, supra, 462 F. 2d at 1067-1069; cf. Wright v. Coun­
cil of City of Emporia, supra, 407 U.S. at 478 (Burger, 
C.J., dissenting). Any modification of those structures

11 Cf. Wright v. Council o f City o f Emporia, 407 U.S. 451; 
United States v. Scotland Neck Board of Education, 407 U.S. 
484. In those cases, this Court held that an “ attempt by state 
or local officials to carve out a new school district from an ex­
isting district that is in the process of dismantling a dual 
school system” may be enjoined by the district court if  it 
would impede the dismantling o f the dual system (id. at 489).



15

should be narrowly framed to eliminate the interdistrict 
segregation that has been caused by the particular viola­
tion, so as to avoid unnecessary judicial interference 
with state prerogatives concerning the organization of 
local governments. Thus, a single instance of dis­
criminatory cross-district transfers between only two 
school districts (see pp. 19-20, infra) would not warrant 
the kind of metropolitan-wide interdistrict remedy in­
volving 54 districts that the courts below contemplate 
here. The appropriate relief should be limited to cor­
recting the segregative conditions caused by the trans­
fers.12

I l l

THE RECORD IN THIS CASE DOES NOT SUPPORT THE BROAD
METROPOLITAN-WIDE REMEDY CONTEMPLATED BY THE
COURT OF APPEALS

This Court does not have before it a final order 
adopting a particular plan of desegregation. It is re­
viewing, instead, a general determination that the seg­
regation of the Detroit public schools shown on this 
record warrants an interdistrict remedy potentially 
embracing much or all of the 86-district metropolitan

12 Moreover, even a finding o f some interdistrict violations 
would not mean that extensive interdistrict bussing should be 
required as a remedy regardless of its disruptive effects or other 
costs. This Court specifically stated in Swann that “ [a]n objec­
tion to transportation o f students may have validity when the 
time or distance o f travel is so great as to either risk the health 
of the children or significantly impinge on the educational pro­
cess”  (402 TT.S. at 30-31), and it indicated that in remedying 
school segregation the courts should engage in the process of 
informed “ reconciliation of competing values” that “ courts of 
equity have traditionally employed” (402 U.S. at 31).



16

area. In our view, the record does not support such a 
remedy, because it does not show that the constitu­
tional violations have directly altered or substantially 
affected the racial composition of schools in districts out­
side of Detroit.

Neither the district court nor the court of appeals 
predicated its conclusion concerning the propriety of 
a metropolitan-wide remedy on the existence of any 
violation caused by or affecting more than one district. 
There is, first of all, no finding that any school district 
other than Detroit has engaged in racial discrimina­
tion: the district court specified that it had taken no 
evidence on whether the suburban districts “have com­
mitted acts of de jure segregation7’ (Pet. App. 60a). 
Nor is there any proof that state or local officials 
gerrymandered district lines for purposes of racial 
discrimination. On this point, too, the district court 
took no evidence (ibid.).

The district court found—and the court of appeals 
upheld the findings—that the Detroit school board 
had committed unlawful acts of discrimination caus­
ing substantial racial segregation in the Detroit 
schools and that the state defendants had also com­
mitted violations contributing to the segregation in 
those schools (id. at 118a-157a; see id. at 24a-28a, 33a- 
38a). But the record thus far does not establish any 
basis for concluding that the state or city violations 
have directly altered or substantially affected the racial 
composition of schools outside Detroit.

The district court, in its September 27, 1971, rul­
ing on the issue of segregation, considered “ the pres­
ent racial complexion of the City of Detroit and its



17

public school system’ 7 in light of “ what has happened 
in the last half century”  in the Detroit metropolitan 
area (Pet. App. 19a). In the course of that general 
historical review, the court stated (id. at 23a) : “ Gov­
ernmental 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 residential segrega­
tion throughout the Detroit metropolitan area.” While 
the court also noted that “ there is an interaction be­
tween residential patterns and racial composition of 
the schools”  (id. at 24a), its findings of constitutiona] 
violations and racial segregation in the schools were 
limited to “ the Detroit school system” (ibid.).13 It 
did not find that any suburban school segregation was 
caused by any state or local acts of de jure racial 
discrimination.

Similarly, the court of appeals concluded that the 
discriminatory practices of the state and city defend­
ants are “ causally related to the substantial amount 
of segregation found in the Detroit school system”  
(id. at 157a; emphasis added) and that the district 
court was required “ to desegregate the Detroit Public 
School System”  (id. at 158a; emphasis added).14 The 13 14

13 The district court’s conclusions were that u[t]he public 
schools operated by defendant Board are * * * segregated on 
a racial basis” (Pet. App. 26a; emphasis added) and that the 
State and the Detroit board “have committed acts which have 
been causal factors in the segregated condition of the public 
schools of the City of Detroit”  (id. at 33a; emphasis added).

14 The decision of the court of appeals dealt at some length 
with the question of violations within the city o f Detroit (see 
Pet. App. 118a-151a). Although one of the petitioners appears



18

court of appeals also stated, however, that “ the State 
has been guilty of discrimination which had the effect 
of creating and maintaining racial segregation along 
school district lines”  (id. at 172a). That statement ap­
pears in the section of the court’s opinion relating to 
the propriety of an interdistrict remedy in circum­
stances where a Detroit-only remedy would lead to an 
overwhelmingly black city school system. The state­
ment is followed by a reference to an earlier section 
of the opinion concerning the violations committed by 
the State (id. at 151a-157a). The earlier section itself, 
however, cites only one instance of a possible inter­
district violation.

As we indicated above (p. 8, n. 8, supra), the
court of appeals found that the State committed five 
constitutional violations. With respect to four of those 
violations, there is nothing to indicate that any of them 
affected the racial character of schools outside the 
Detroit system. First, the court held that the State 
was derivatively responsible for the Detroit board’s 
violations (Pet. App. 151a), but, so far as this record 
shows, those violations themselves affected only the 
schools within the Detroit district. Second, the State’s 
legislative interference with Detroit’s voluntary de­
segregation plan contributed, in the court’s words, 
only to “ segregation of the Detroit school system”

now to challenge the affirmance by the court of appeals o f the 
findings concerning intra-Detroit violations (see Brief for Pe­
titioner in 73-436, pp. 15-18), the correctness o f that aspect of 
the decision was not questioned in any of the petitions. In any 
event, this aspect of the decisions below appears consistent with 
this Court’s decision last Term in Keyes v. School District No.
1, Denver, Colorado, 413 U.S*



19

{ibid.). Third, the court held that the State’s author­
ity to supervise school site selection and to approve 
building construction plans means that the State is 
responsible for “ the segregative results” of “ Detroit’s 
school construction program” {ibid.) ; again, there is 
no basis for concluding that Detroit’s construction 
program affected suburban districts.15 Fourth, there 
is no indication in the record or in the opinions below 
how, if at all, the availability of state-financed trans­
portation for some Michigan students outside Detroit 
but not within Detroit {ibid.) might have affected the 
racial character of any of the State’s school districts.

The fifth violation that the court of appeals attrib­
uted to the State is the only one that can be said, on 
the present record, to have had some interdistrict ra­
cial impact. In one instance, the suburban Carver 
school district arranged by contract to have its black 
high school students educated in a predominantly 
black Detroit high school, because “ no white sub­
urban district (or white school in the city) would 
take the children”  (Pet. App. 137a). The court of 
appeals stated that this cross-district transportation 
“ could not have taken place without the approval, 
tacit or express, of the State Board of Education” 
{id. at 152a). Of course, such an arrangement be­
tween the Carver and Detroit school boards was state

15 The court of appeals asserted that, “ as was pointed out 
above, the State approved school construction which fostered 
segregation throughout the Detroit metropolitan area” (Pet. 
App. 157a). But its only reference is to an earlier section of 
the opinion that relates to the segregative impact in Detroit o f 
the school construction program in that district ( id. at 144a- 
151a).



20

action which may have amounted to unconstitutional 
racial segregation,16 regardless of whether the State 
Board participated in it. But the appropriate remedy 
would he one tailored to fit that possible violation— 
also regardless of State Board participation—since 
such participation would not change the nature or 
consequences of the violation. An isolated instance of 
cross-district transfers on account of race between 
only two school districts (and possibly involving re­
fusals for racial reasons by schools in one or a small 
number of other districts to accept the transferred stu­
dents) cannot, as a matter of equity, support a metro­
politan-wide interdistrict remedy involving 54 or more 
school systems.

Indeed, neither the district court nor the court of 
appeals predicated its holding on the existence of a 
violation affecting the racial composition of the sub­
urban districts. The district court determined that a 
metropolitan-wide remedy would be appropriate to 
desegregate the Detroit schools, because it concluded 
that any effective plan limited to Detroit “  would ac­
centuate the racial identifiability of the district as a 
Black school system, and would not accomplish deseg­
regation’ ’ (Pet. App. 56a). The court of appeals 
reached the same conclusion: “  [A]ny Detroit only 
desegregation plan will lead directly to a single seg­
regated Detroit school district overwhelmingly black 
in all of its schools”  (id. at 172a-173a). Such a rem­
edy “  cannot correct the constitutional violations here­
in found”  (id. at 173a).

The prediction that massive “ white flight”  will re­
sult from an effective intra-Detroit desegregation

1G See Pet. App. 96a, 137a-139a; I I  App. 109-111, 131.



21

plan is inherently speculative, and in any event does 
not change the nature of the violation to he remedied. 
For that reason, such a prediction does not in itself 
warrant interdistrict relief. On this aspect of the case, 
also, we adhere to the following views stated last 
Term by Solicitor General Griswold in response to 
a similar prediction by the district court in the Rich­
mond case (Memorandum for the United States as 
Amicus Curiae, supra, pp. 17-20; footnotes omitted or 
renumbered) :

The district court also believed that the school 
system of the City of Richmond could not be­
come a unitary system within its boundaries 
because a “ viable racial mix”  would not be pos­
sible in light of the racial composition of Rich­
mond’s population (Pet. App. 207a, 420a, 519a; 
see, e.g.y id. at 201a, 230a, 237a-238a, 436a-442a, 
444a). The court pointed to evidence that the 
current proportion of blacks to whites in the 
Richmond school system has resulted in whites 
leaving Richmond’s public schools and that un­
less the trend were reversed, the City’s schools 
might become all black.

The duty of the district court in this case 
was to ensure that the Richmond school system 
converted to a unitary system. And as we have 
discussed, see pp. 11-17, supra, as long as the 
school authorities operate just schools instead 
of one set of schools for blacks and another for 
whites, it matters not at all whether the system 
has more black students than white students or 
vice-versa. The schools of Vermont are not seg­
regated even though most of them are all white. 
Under the district court’s theory and its con­
solidation order, which would reverse the racial



22

composition of the Richmond schools from ma­
jority black to majority white, the apparent 
goal is to have a school system with substan­
tially more white children than black children. 
But the Fourteenth Amendment does not prefer 
predominantly white school systems over pre­
dominantly black school systems and it does not 
sanction the district court’s transforming its 
preference in this regard into a constitutional 
command.

We of course agree that the federal courts 
have wide discretion to bring about unitary 
school systems. But as Chief Justice Marshall 
stated long ago, to say that the matter is within 
a court’s discretion means that it is addressed 
not to the court’s “ inclination, but to its judg­
ment ; and its judgment is to be guided by sound 
legal principles.” 17 The purpose of a court- 
ordered remedy in these cases is to cure the vio­
lation, to correct “ the condition that offends the 
Constitution.” Swann v. Board of Education, 
supra, 402 U.S. at 16. Yet here the district court, 
instead of ordering relief within the bounds of 
Richmond’s constitutional violation, went far 
beyond in the hope of forestalling the result of 
a possible migration of whites from the City, a 
result not in itself unconstitutional but thought 
by the district court to be undesirable.

I f  a certain desegregation plan would become 
ineffective shortly after implementation this is 
certainly something the district court should 
consider. Surely it would have been proper in 
this case for the district court to seek a remedy 
within the Richmond system that promised

17 United States v. Burr, 25 Fed. Cas. 30, 35 (No. 
14,692d, 1807).



23

maximum stability. But the desire to preserve 
the existing racial character of the City of Rich­
mond or of its school system is not of constitu­
tional dimensions and does not warrant includ­
ing within the scope of relief other school 
systems that are uninvolved in Richmond’s vio­
lation. Petitioners may prefer a consolidated 
school system with a large, stable white enroll­
ment ; the Constitution does not.

Indeed, even in the context of relief within a single 
district, this Court clearly indicated in Swann (402 
U.S. at 31-32) that the proper remedy in school de­
segregation cases does not include pursuit of demo­
graphic changes. When the violations found have been 
cured, “ [t]he [school] systems would then be ‘unitary’ 
* * (402 U.S. at 31), and “ in the absence of a
showing that either the school authorities or some 
other agency of the State has deliberately attempted 
to fix or alter demographic patterns to affect the 
racial composition of the schools, further intervention 
by a district court should not be necessary” (402 U.S. 
at 32). Obviously, there is even less reason to extend 
the remedy across district lines on the basis of demo­
graphic differences (in the absence of interdistrict 
violation).

Nor, in our view, do the district court’s general re­
marks about housing discrimination {supra, p. 17), 
on which its present decision apparently was not 
based, provide a proper foundation for the interdistrict 
relief contemplated by the courts below. Indeed, more 
specific evidence and findings of housing and other 
collateral discrimination were relied upon last Term 
in the Richmond case, and we adhere, on this point



24

as well, to the views stated in the Memorandum for 
the United States as Amicus Curiae in that case (pp. 
23-26; footnotes renumbered).

Petitioners rely primarily on evidence of 
housing discrimination and of various kinds of 
either intrasystem or state-wide racial dis­
crimination to overcome this presumption.18 The 
housing pattern in the Richmond metropolitan 
area is similar to that found in most metro­
politan areas of this country. The inner city 
has a large black population and the surround­
ing suburbs are primarily white. While the 
causes of this housing pattern are manifold, the 
court of appeals accepted the contention “ that 
within the City of Richmond there has been 
state (also federal) action tending to perpetu­
ate apartheid of the races in ghetto patterns 
throughout the city, and that there has been 
state action within the adjoining counties also 
tending to restrict and control the housing 
location of black residents” (Pet. App. 572a).

Other acts cited as establishing an inter-sys­
tem violation are Virginia’s ‘ *massive resist­
ance”  campaign against school desegregation 
(Pet. App. 313), various types of delaying ac­
tions undertaken to resist desegregation of the 
Richmond schools (Pet. App. 189a), actions by 
state officials tending to reinforce racism (Pet. 
App. 189a), construction of racially identifiable 
schools after Brown I  (Pet. App. 287a), dis­
crimination in public employment in Henrico 
and Chesterfield Counties (Pet. App. 510a),

18 They also mention past instances of transportation of 
black students across school division lines in the State in 
order to perpetuate state-enforced segregation o f schools 
(Pet. App. 360a; cf. id. at 388a). * * *



25

lack of public transportation for poor persons 
(Pet. App. 514a), past state restrictions on in­
ter-racial contacts of various kinds,19 and state 
approval of school construction sites without 
regard to the impact on school desegregation 
(Pet. App. 206a).

Such acts are a shameful part of our history, 
and the Nation has in recent years enacted 
laws to remedy many of them. See, e.g., 42 
U.S.C. 1973 (voting), 2000e (employment), and 
3601-3619 (housing). See also the Virginia 
Fair Housing Law, enacted in 1972, Code of 
Virginia, Title 36, Chapter 5. But even if some 
or all of these acts, including participation in 
residential housing discrimination, have con­
tributed in some degree to the present racial 
composition of the public schools in the 
three school systems within the metropolitan 
Richmond area, the question remains whether 
there is a sufficiently proximate and substan­
tially causal relationship to the racial disparity 
between school systems to warrant a conclu­
sion that state-enforced racial discrimination 
in the public schools has resulted.20

Racial discrimination in such areas as hous­
ing, employment, and public expenditures are

19 See, e.g., Boynton v. Virginia, 364 U.S. 454; Loving 
v. Virginia, 388 U.S. 1; N AAGP  v. Button, 371 U.S. 415.

20 The past existence of state-imposed discrimination, 
including school segregation, might, for example, also have 
contributed in some degree to decisions by individuals to 
discriminate in their social relationships, but this does not 
in itself necessarily convert what would otherwise be pri­
vate discrimination into state action. Compare Moose 
Lodge No. 107 v. Irvis, 407 U.S. 163, and Evans v. Abney. 
396 U.S. 435, with Lombard v. Louisiana, 373 U.S. 267, 
Robinson v. Florida, 378 U.S. 153, and Burton v. Wilming­
ton Parking Authority, 365 U.S. 715.



26

serious problems that must be attacked directly 
so that they can be eliminated from our society. 
But as this Court said in Swann, supra, 402 
U.S. at 22-23:

The elimination of racial discrimination 
in public schools is a large task and one 
that should not be retarded by efforts to 
achieve broader purposes lying beyond 
the jurisdiction of school authorities. One 
vehicle can carry only a limited amount 
of baggage. It would not serve the impor­
tant objective of Brown I  to seek to use 
school desegregation cases for purposes 
beyond their scope although desegrega­
tion of schools ultimately will have im­
pact on other forms of discrimination.

We therefore conclude that the record in the present 
case does not warrant the fashioning of a metro­
politan-wide remedy. We recognize, however, that, for 
practical purposes, the record was made at a time 
when only an intra-Detroit remedy was sought (see 
Pet. App. 13a-15a) and when many of the suburban 
school districts were not parties. We submit that the 
appropriate disposition in these circumstances is to 
remand the case to the district court with instructions 
to join as parties all the school districts in the three- 
county metropolitan area. The district court should 
take evidence and make findings of fact concerning 
any constitutional violations involving the suburban 
districts and any interdistrict racially segregatory im­
pact of the Detroit violations. I f  no such violation or 
impact is shown, relief should be limited to Detroit. I f  
any such violation or impact is shown, the district 
court should, after considering the evidence and argu-



27

ment of all affected school districts, fashion appropri­
ate relief to remedy the particular violations found.

CONCLUSION

For the foregoing reasons, the judgment of the court 
of appeals should be vacated and the case should be 
remanded for further proceedings in accordance with 
the principles stated herein.

Respectfully submitted.
R obert H . B ork,

Solicitor General.
J. Stanley P ottinger, 
Assistant Attorney General.

F ebruary 1974.

U.S. GOVERNMENT PRINTING OFFICE:1974





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