Draft Order to submit a Plan of Unitary School Operation

    va.x).£^/-
ORDER TO SUBMIT A PLAN OF UNITARY SCHOOL OPERATION

Political subdivisions of states — * counties, cities, school districts, 

or whatever —  never were and never have been considered as sovereign 

entities under our federal system of government. Rather they have been 

traditionally regarded as subordinate governmental instrumentalities 

created by the State to assist in the carrying out of State governmental 

functions. Reynolds v. Sims. 377 U.S. 533} 575 (196^). Public education 

in the State of Michigan is no exception. Sections 1 and 2 of Article 8 

of the Michigan Constitution, as consistently interpreted by the highest 

Court of the State, confer on the State plenary power over the system of 

common public schooling. Under State law education is not a matter of 

local concern but belongs to the State at large; it is part of local self- 

government only insofar as the State creates and delegates responsibility, 

as a matter of administrative convenience, to state agencies, subordinate 

local governmental instrumentalities and their officials. The State 

retains complete power to create, alter, regulate, direct, and control 

the education system of the State, including the division of territory of 

the State into local governmental and administrative units and the delegation 

of authority and responsibility thereto. See, e.g., Daszlewicz v. 3d. of Ed, 

of City of Detroit. 3 N.W. 2d 71 (Mich. 19^2); -Jones v. Grand Ledge Public 

Schools, 8*f N.W.2d 327 (Mich. 1957); Inlay Township Primary School District 

No. 5 v. State 3d. of Ed.. 102 N.W.2d 720 (Mich. I960).

To that end general leadership and supervision over the public school 

system has been vested in the State Board of Education (of which the 

Governor is a member) and a principle executive officer, the Superintendent 

of Public Instruction. Mich. Const. Art. 8, ss. 2,3* Intermediate school 

districts (including the Wayne County Intermediate School District) and 

local school districts (including the first class school district and its 

Board of Education of the City of Detroit) have been created by State act 

and delegated specified powers to assist the State in carrying out its 

function of public education for the children. All such instrumentalities 

of school government exist wholly, independent of (but of course closely



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cooperate with many) general municipal, city, and county governments 

Education has been made compulsory for all children with a few narrow 

exceptions; and historically school authorities have assigned the children, 

who choose to meet that obligation in the public system of common schools, 

to a particular public school facility.

"The equal protection clause speaks to the state." Hall v, St. Helena 

Parish School Bd.. 197 F.Supp. 649, 658 (E.D.La. 1961) (3 Judge Court, per 

Wisdom, Christenberry and Wright), aff'd . All the delegees

(State Board of Education, State Superintendent of Public Instruction, 

intermediate and local school districts) of State authority over public 

education, and all their agents and employees, are agents of the State; 

their actions, undertaken in an official capacity or otherwise relative to 

public schooling, are those of the State for purposes of the 14th amendment 

and are subservient thereto. Ex Parte Young ; Sooner v.

Aaron. 358 U.S, 1 , 16-17 (1958); Haney v. Sevier County School Bd.. 410 F.2d 

920 (8th Cir. 1969)* The 14th amendment imposes on the State, and all its 

public school and other authorities, the affirmative obligation to avoid 

racial discrimination and actions which will have the effect of disadvantaging 

members of the black race as such. In the field of public education, where 

the State, as here, offers an education to some, it is now under an affirmative 

obligation to make that educational opportunity available to all on substan­

tially equal terms and eschew the separation of black and white children and 

faculty in "Negro" and "White" schools. Brown v. Board of Education. 347 U.S. 

433 (1954); Green v. County School 3d.. 391 U.S. l t f l (1968).

With respect to plaintiff class in this cause, the State and all its 

agents have not fulfilled that obligation. As set forth more fully in the 

preliminary findings of fact and conclusions of law here attached, the State 

has long deprived black children in the City of Detroit that equal educational 

opportunity and acted to contain black children and faculty in racially 

identifiable and separate schools from white children and faculty. Such 

violations of plaintiffs* constitutional rights have included the following:

1/ Territorial jurisdictions of such school government instrumentalities need 
not be and often are not coterminus with municipal, county, city, or other 
special districts. Although the first class school district of the City 
of Detroit now corresponds to the boundaries of the City of Detroit, such 
has not always been the case.



1 , a variety of financing and resource allocation practices (including 

general state aid, expenditures per pupil, and reimbursement for trans­

portation); 2, teacher hiring and assignment; and 3. student assignment.

More particularly, the State’s imposition of segregation in the public 

schools through student assignment practices has included the creation 

and maintenance of school attendance boundaries which have had the natural 

and probable effect of containing black children in separate schools. 

Included among these unconstitutional school attendance boundaries are 

those that are coincident with boundaries of the local school districts.

The creation and maintenance of those attendance boundaries has had the 

same natural and probable effect as well. Both state and local defendants 

were aware of this problem and had the power to right the wrong thereby 

perpetuated; but despite some tentative efforts, they have failed to 

eradicate the wrong

In such circumstances there can be no question that the pervasive 

segregation in the public schools within the City of Detroit and throughout 

the metropolitan area is state-imposed. And where, as here, the right of 

black children and its violation by the defendants has been shown,

"the scope of /this Court »s/ equitable powers to remedy 
past wrongs is broad," Swann. Davis v, Pontiac School Bd,,
(6th Cir, FN1),

and includes all aspects of pupil assignment, transportation, personnel, 

resource allocation, revision of school attendance areas, and reorganization 

of school districts. Brown II, 3k9 U.S. 2 %  (1955); Swann: Haney. It is 

the obligation of this Court to insure that plaintiffs in this cause get 

the kind of education that is given in the State’s public schools pursuant 

to the commands of the United States Constitution, G-rlffin y« Prince Bdward 

County, 377 U,S. 218 (196A). It is the obligation of defendents to come

2/ The Court does not mean to suggest that any of the particular individuals 
now before the court as party defendant has acted with malevolent intent. 
But the state-imposed segregation persists, alleviated only by a few 
symbolic efforts and political compromises which served only to perpetuate 
segregation in the schools. By now it should be patent, however, that the 
rights of black school children to full equality in public education does 
not depend on the will of the dominant white majority and its hostility 
in deed to vindication of these rights. Brown II. Cooper. Monroe»
The natural and probable effect of actions by persons acting under color 
of state authority has been to segregate the schools on a racial basis; 
only one purpose can be attributed under the Constitution to that pervasive 
pattern, Cf, Pontiac and Hew York v« Heberts. 171 U.3. 658, 681 (1898) 
(Harlan, dissenting),



forward with a plan that promises realistically to work now until it is

clear that state-imposed segregation in the public schools has been

completely removed. Green; Alexander; Swann. The goal of such plan shall
(0be^the elimination of racial identifiability from the schools in pupil

and teacher assignment so that no school is substantially disproportionate 

in its student and faculty racial mix relative to their respective racial
(2)+ke, ailcccCtVDvn o f

mixes in the immediate area andj_objectively measurable resources and

expenditures per pupil aiss -~Bllaeg|fettd on a substantially equal basis per

pupil in each schoolf. There is no constitutional requirement of any >

particular racial balance in each school; but in the elimination of the

vestiges of state-imposed segregation, there is a heavy presumption against
L\toWrtej

the persistence of schools substantially disproportionate, |ln Their relevant

student and faculty racial mixes. Defendants bear a heavy burden to justify 

the existence of such public schools anywhere in the City of Detroit and 

the immediate metropolitan area. The existence of present school attendance 

boundaries, including those coincident with school district boundaries, 

serve as no justification; indeed, they are a primary means used by the 

State to impose segregation.

Although defendants have wide discretion in formulating a plan of 

school operation consistent \7ith the lifth amendment affirmative obligation,

some further guidelines from this Court may be helpful. The assignment of
s^'dv.vd'i^lstudents and faculty (and jequalization of facilities and resources for schools

to which children in plaintiff class may be assigned) may not be obstructed 

by those local governmental instrumentalities and boundaries which, now 

happen to exist. Although such instrumentalities may serve an important 

interest of the State in both bringing school government closer to the people 

and enabling the State to carry out its function of education, their existence

in the -present form is not compelling and, in view of the variety of alter­

natives available which would both permit the State to promote those interests 

and at the same time eliminate school segregation, is not an adequate justi­

fication for the continuation of segregation in the public schools. As 

students, faculty, and resources must be assigned and allocated to eliminate 

the last vestiges of state-imposed segregation, the existing jurisdictional



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boundaries of local school government (including the decentralized regions) 

will have to be crossed or in the alternative altered.

Defendants may wish to maintain existing jurisdictions and merely

operate the schools to which plaintiffs and their faculty are assigned under

cooperative contracts as a unitary school system. Or the defendants may

wish to alter and reorganize the present system and territories of delegating

responsibility for the State function of education to form new local govern-
3/mental instrumentalities,*" For example, if the State deems decentralization 

(local instrumentalities serving 200,000 persons) an important interest, 

pie-shaped school districts emanating from the center city may be created.

If the State deems community control (school government importantly 

influenced by the children, parents and staff in attendance at a particular 

school) important, substantial power may be given to the individual school.

If the State deems choice among schools or curriculum important, the State 

may permit such choice, but only within constraints that guarantee no 

school will have a racial mix substantially disproportionate from that of 

the system. The division of power, authority and responsibility among 

such instrumentalities, or between such instrumentalities and the State 

and any systemwide school government (a successor to the Wayne County 

Intermediate School District or a tri-county school district), is properly 

within the discretion of defendants. But in no event may such governance 

or choice arrangements serve as any barrier to or justification for segregation 

and inequality in the schools. Any suggestions here made as to possible 

governance arrangements are merely thoughts on the possible; the political 

and administrative structure the State chooses to implement to assist in 

carrying out the education function are matters properly left to the State

1/ The State’s power and ability to alter governmental structures is clearly 
shown by the "decentralization" of the Detroit public schools. That 
decentralization created 8 regional school boards with specified powers 
under the umbrella of the City-wide school district. Those eight regional 
boundaries, of course, may not serve as barriers to desegregation; neither 
may the actions of the regional boards. As set forth more fully In the 
attached findings of fact and conclusions of law, the regional boards, 
boundaries, and authority as implemented have served not only to perpetuate 
previously existing school segregation but also to affirmatively segregate 
the school system further. Depending on the general plan submitted, 
defendants may wish to reconsider the existing jurisdiction of the regional 
boards and decentralization in general; In any event, defendants must 
propose a plan which effectively eliminates any actual or potential ob­
structions the present regionalization may have to the elimination of the 
state-imposed segregation.



within the broad confines of the Federal Constitution.-*^

The job of righting past wrongs is difficult; but it is commanded by 

Constitution and truly is long overdue. With the assistance of defendants, 

careful planning, and the understanding and will of a basically good 

people, the transition to a unitary school system may proceed immediately 

with as few hardships as accompany any major change. The 14th amendment 

will countenance no less than full equality for all peoples in the public 

schools of this State now and hereafter. To that task defendants must now 

firmly and with single-minded purpose direct their attention and effort.

j j /  Under present State law procedures exist for the State Board of Education 
to evaluate intermediate and local school district organization and 
operation and for school districts (local or intermediate) to merge, 
reorganize, consolidate, or annex. See, e.g., M.C.L. ss. 3/j.0.442,
340.291, 340.401, 340*431* Such procedures may serve as possible guide­
lines for any reorganization and evaluation contemplated or necessary 
in the svibmission of a plan. Insofar as any of the procedures under state 
lav; envision some consent by a majority of the electors in any particular 
area, such electoral consent is not necessary and cannot stand in the way 
of the full vindication of plaintiff’s rights in this cause. Swann. 
Cooper. Monroe. Haney at 923*

5/ To assist in that task plaintiffs may wish to retain experts at defendants* 
expensee t0/ examine any plan submitted by defendants and/or draw up a 
separate proposal. The Court will oversee any arrangement and expenses 
to insure that they are reasonable. We must all bear in mind, however, 
that cost at this stage in the proceeding is a small matter compared 

with the deprivation of £«MB4-**-rights in the past and the need to prepare 
adequately and fully for the future so that such wrongs do not ag&in 
occur.