Milliken v. Bradley Brief for Bradley Respondents

    In T he

Batpnw (ttmul uf life Hutted Bint?#
October Term , 1976 

No. 76-447

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

R onald Bradley, et al,
Respondents.

BRIEF FOR BRADLEY RESPONDENTS

Louis R. Lucas
525 Commerce Title Building
Memphis, Tennessee 38103
Robert A. Murphy 
William E. Caldwell 
Richard S. Kohn 
Lawyers’ Committee for Civil 
Rights Under Law 
Suite 520
733 15th St., N.W. 
Washington, D.C. 20005

Nathaniel R. Jones
1790 Broadway
New York, New York 10019
Thomas I. Atkins
451 Massachusetts Avenue
Boston, Massachusetts 02118
Paul R. Dimond 
O’Brien, Moran & Dimond 
210 E. Huron St.
Ann Arbor, Mich. 48108

Elliot S. Hall 
2755 Guardian Building 
500 Griswold Avenue 
Detroit, Michigan 48226

Attorneys for Bradley Respondents

W il s o n  - Ep e s  Pr in t in g  C o . .  In c . - R e 7 - 6 0 0 2  - W a s h in g t o n . D . C . 2 0 0 0 1



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES...... ................... - ....... ........... . IV

COUNTER-STATEMENT OF THE QUESTIONS 
PRESENTED ...........................  1

CONSTITUTIONAL, STATUTORY AND REGULA­
TORY PROVISIONS INVOLVED..........................  2

STATEMENT OF THE CASE.................................     2

A. Introduction .................. ................................ ..........  2

B. The Pre-Milliken Proceedings ______    4
C. The Post-Milliken Proceedings in the District

Court .............................   9
D. The Judgment of the Court of Appeals.... ........ 14

SUMMARY OF ARGUMENT .....___   17

ARGUMENT ...................        18

INTRODUCTION..._______ _______ ___________ ___ _ 18

I. RELIEF ANCILLARY TO PUPIL DESEG­
REGATION IS APPROPRIATE TO REM­
EDY THE CONTINUING HARMFUL EF­
FECTS OF THE DE JURE SEGREGATION 
VIOLATION AND OTHERWISE TO INSURE 
THE TRANSITION TO AND MAINTE­
NANCE OF A RACIALLY NONDISCRIMIN- 
ATORY DETROIT PUBLIC SCHOOL SYS­
TEM. ___________________ _________________ ____ 24

II. APART FROM THE COST IMPACT, THERE 
IS NO TENABLE CLAIM THAT CONSTITU­
TIONAL PRINCIPLES OF FEDERALISM,
THE TENTH OR THE ELEVENTH AMEND­
MENT BAR STATE DEFENDANTS’ PAR­
TICIPATION IN IMPLEMENTING THE AP­
PROPRIATE ANCILLARY RELIEF_________  30



II

TABLE OF CONTENTS—Continued
Page

III. THE ELEVENTH AMENDMENT DOES NOT
IMMUNIZE STATE DEFENDANTS FROM 
BEING REQUIRED TO IMPLEMENT JOINT­
LY WITH THE DETROIT BOARD THE PRO­
SPECTIVE ANCILLARY RELIEF, INCLUD­
ING SHARING IN THE COSTS OF IMPLE­
MENTATION. _____________ - ........... ------- -------  34

A. The Judgment Below Is Not Barred by
the Eleventh Amendment Because the Im­
pact on the State Treasury Is a Conse­
quence of Complying with Prospective In­
junctive Relief.................................... - ----------- 34

B. In the Alternative, Congress Has Specific­
ally Lifted Any Sovereign Immunity from 
this Suit Otherwise Enjoyed by the De­
fendant State Board of Education Pursu­
ant to Congress’ Enforcement Powers Un­
der Section 5 of the Fourteenth Amend­
ment; and, in Any Event, the State Has 
Specifically Waived Its Immunity to Suit 
H ere._______________ ________—------------ ---- 38

C. In the Alternative, the Judgment Below Is
Not Barred by the Claim of Sovereign Im­
munity Because Section 1 of the Four­
teenth Amendment, Both in Its Direct Im­
pact and as Enforced by Congress Through 
42 U.S.C. § 1983, 28 U.S.C. §1331 and 
Other Reconstruction Legislation, Super­
cedes the Eleventh Amendment.------ -----— 42

IV. IN THE PARTICULAR CIRCUMSTANCES
OF THIS CASE THE LOWER COURTS DID 
NOT ABUSE THEIR EQUITABLE DISCRE­
TION IN ORDERING THE STATE DEFEND­
ANTS TO IMPLEMENT ANCILLARY RE­
LIEF JOINTLY WITH THE LOCAL DE­
FENDANTS...............................................................  44



in

Page
CONCLUSION ...................      50

APPENDICES

A. The Impact of the Fourteenth Amendment
and Ensuing Reconstruction Legislation on 
State Sovereignty—................................  la

B. Constitutional, Statutory, and Regulatory
Provisions Involved ........     9a

TABLE OF CONTENTS— Continued



IV

TABLE OF AUTHORITIES
Cases Page

Adams V. Rankin County Board of Education, 485
F.2d 324 (5th Cir. 1973) _____ _____ ___________  17n

Adickes V. S.H. Kress & Co., 398 U.S. 144 (1970).. 2a, 4a 
Albermarle Paper Co. v. Moody, 422 U.S. 405

(1975) ___________________ __ _____________ 25, 45n, 49
Alexander V. Holmes County Board of Education,

396 U.S. 19 (1969)_________________________ _- 38
Bell v. Hood, 327 U.S. 678 (1946) _________ ___ ...26, San
Bigelow V. RKO Radio Pictures, 327 U.S. 251

(1945) ___________________________    25n
Blue V. Craig, 505 F.2d 830 (4th Cir. 1974)_____ 4a, 6an
Bradley V. Milliken, 484 F.2d 215 (6th Cir. 1973),

rev’d in part, 418 U.S. 717 (1974)________ 2, 3, 27, 31
Bradley V. School Board, 416 U.S. 696 (1974)......40, 41n
Brinkman V. Gilligan, 518 F.2d 853 (6th C'ir.

1975), cert, denied, 423 U.S. 1000 (1976)_____  41n
Brown V. Board of Education (Brown I), 347

U.S. 483 (1954) __________________________ __ _ 6n, 44
Brown V. Board of Education (Brown II),  349

U.S. 294 (1955)___________________25, 33n, 36, 45n, 48
Brown V. Swann, 10 Pet. [U.S.] 497 (1836)_____  25
Carter V. Gallagher, 452 F.2d 327 (8th Cir.

1971) ________________________________________  33n
Chisolm V. Georgia, 2 U.S. 419 (1793)__________ la
City of Kenosha v. Bruno, 412 U.S. 507 (1973)__  5a
Civil Rights Cases, 109 U.S. 3 (1883)............. ........  2a, 7a
Dandridge V. Williams, 397 U.S. 471 (1970)_____ 8n, 23,

41n, 44
Davis V. Board of School Comm’rs, 402 U.S. 33

(1971)       45n
District of Columbia V. Carter, 409 U.S. 418

(1973) _________________________      7a
Edelman V. Jordan, 415 U.S. 651 (1974) ....3,16,19, 31,

33, 34-38, 39, 42, 43, 4a-6a
Elrod V. Burns, 49 L.Ed.2d 547 (1976)__________  4
Ex parte Virginia, 100 U.S. 339 (1880) .33, 39, 43, 2a, 6a
Ex parte Young, 209 U.S. 123 (1908)___ 3,19, 31, 32, 33,

35-37, 43



V

Fitzpatrick V, Bitzer, 49 L.Ed.2d 614 (1976)___ 3,19, 33,
39, 40, 41, 43, 2a, 3a-6a

Ford Motor Co. V. Dept, of Treasury, 323 U.S.
459 (1945) _____________       37n

Ford Motor Co. V. United States, 405 U.S. 562
(1972) ___________________________ ________ ...._. 25

Franks V. Bowman Transp. Co., 44 U.S.L.W.
4356 (U.S. 1976) .................. ............... ......_ .... . 25n

Gaston County y. United States, 395 U.S. 285
(1969) ___________________________ ___________ _ 27n

Gautreaux V. City of Chicago, 480 F.2d 210 (7th
Cir. 1973) ___________________    33n

Gilmore V. City of Montgomery, 417 U.S. 556
(1974) .................      27n

Griffin V. County School Board, 377 U.S. 218
(1964) ................... .............................. ...................17n, 33n

Haney V. County Bd. of Educ., 429 F. 2d 364 (8th
Cir. 1971) .............................................. ................. 33n

Hans V. Louisiana, 134 U.S. 1 (1890) ...........19, 40, 43, la
Hills V. Gautreaux, 425 U.S. 284 (1976)_______ 31,33,46
Jagnandan v. Giles, 538 F.2d 1166 (5th Cir.

1976), petition for cert, pending, No. 76-832.... 3a
Katzenbach V. Morgan, 384 U.S. 641 (1966)_____ 41n
Keyes V. School District No. 1, 413 U.S. 189

(1973) ................................. ......................................  25n
Keyes V. School District, 521 F. 2d 465 (10th Cir.

1975), cert, denied, 44 U.S.L.W. 3399 (U.S.
Jan. 12, 1976) ............................. ........................ . 16,29

Langnes V. Green, 282 U.S. 531 (1931)______ 8n, 23, 38n
Lee V. Macon County Board of Educ., 267 F.Supp.

458 (M.D. Ala. 1967) 317 F.Supp. 103 (M.D.
Ala. 1970) ______________  27n

Lindheimer v. Illinois Bell Telephone Co., 292
U.S. 151 (1934) ..................................................  8n

Lynch v. Household Finance Corp., 405 U.S. 538
(1972) __________          7a

Minnesota State Senate V. Reems, 406 U.S. 187
(1972) .................................  45n

TABLE OF AUTHORITIES— Continued
Page



VI

TABLE OF AUTHORITIES—Continued
Page

Mitchum V. Foster, 408 U.S. 225 (1971).................  7a
Monroe V. Pape, 365 U.S. 167 (1961)--------- 2a, 4a, 5a-6a
Morgan V. Kerrigan, 401 F.Supp. 216 (D. Mass.

1975), aff’d, 530 F.2d 401 (1st Cir. 1976).....27n, 36n,
41n

Mt. Healthy City School District V. Doyle, 45
U.S.L.W. 4081 (U.S. Jan. 11, 1977)..3, 24n, 43, 5a, 7a 

National League of Cities V. Usery, 49 L.Ed.2d
245 (1976) ______________   --3 ,4 ,3 1 -3 3 ,4 3

North Carolina V. Swann, 402 U.S. 43 (1971)___ 33n
Oliver V. Kalamazoo Board of Education, --------

F.Supp. ------  (W.D. Mich. Nov. 5, 1976), ap­
peal pending __________________     41-42

Plaquemines Parish School Bd. V. United States,
415 F.2d 817 (5th Cir. 1969)________________  27n

Porter V. Warner Holding Co., 328 U.S. 395
(1946) ....................     25

Reagan V. Farmers Loan & Trust Co., 154 U.S.
362 (1884) ______________ ___ _____ -____ ______  42

Rizzo V. Goode, 423 U.S. 362 (1976)__________ 31, 32, 33
Rogers V. Paul, 382 U.S. 198 (1965)-................. . 27n
Soni V. Board of Trustees, 513 F.2d 347 (6th 

Cir. 1975), cert, denied, 44 U.S.L.W. 3702 (U.S.
June 7, 1976) ________________________________  41, 42

Steffel V. Thompson, 415 U.S. 452 (1974)_______  7a
Strauder V. West Virginia, 100 U.S. 303 (1880)— 7a 
Story Parchment Co. v. Patterson Paper Co., 282

U.S. 555 (1931)____ __ ____________ ___ ______  25n
Swann V. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971) _______ ____ ___15, 25, 26, 27n, 45n
United States V. American Ry Express Co., 265

U.S. 425 (1924)______ __ ____________________  8n, 23
United States V. Duke, 332 F.2d 759 (5th Cir.

1964) ___________________ __________ ____ ____ _ 33n
United States V. E.I. Dupont de Neumours Co.,

366 U.S. 316 (1961)..............................................  25n
United States V. Greenwood Municipal School Dis­

trict, 406 F.2d 1086 (5th Cir. 1969) 33n



VII

United States V. Jefferson County Bd. of Educ.,
372 F.2d 836 (5th Cir. 1967)________________  27n

United States V. Louisiana, 380 U.S. 145 (1065) - 25
United States V. Mississippi, 339 F.2d 679 (5th

Cir. 1964) ________________ ___ _____ _________ _ 33n
United States V. Missouri, 523 F.2d 885 (8th Cir.

1975) ____________ __ ____ _____________ _______ 27n
United States V. Schooner Peggy, 1 C'ranch 103

(1801) ___________________ _________ _____ ______ 40
United States V. Scotland Neck, 407 U.S. 484

(1972) __________________________________ _____ 33li
United States V. Texas, 330 F.Supp. 235 (E.D.

Tex. 1971) ___________________________ ____ ___  27n
Usery v. Allegheny County Institution Dist., No.

76-1079 (3d Cir. Oct. 28, 1976) ____________ ___ 7a-8a
Wright V. Council of City of Emporia, 407 U.S.

451 (1972) .................................................... .........27n, 33n
Whitcomb V. Chavis, 403 U.S. 124 (1971)_______  45n
Zenith V. Hazeltine, 395 U.S. 100 (1969)........ ..... 25n
Zwickler v. Koota, 389 U.S. 241 (1967)__________ 7a

TABLE OP AUTHORITIES— Continued
Page

Statutes, Rules and Regulations
Emergency School Aid Act, 20 U.S.C. §§ 1601

and 1606(a) ____________ _______________  1 In, 27-28
20 U.S.C. § 881 (k) .. 19,39

Equal Educational Opportunities Act of 1974__ 14n, 28n,
39, 40, 3a

20 U.S.C'. §1702 
20 U.S.C. § 1703 
20 U.S.C. §1706 
20 U.S.C. § 1708 
20 U.S.C. §1720

___ 41n
19,39,40n 
19, 39, 40n 

39
...... 19,39

28 U.S.C. § 455(a) . 
28 U.S.C. § 1292(b) 
28 U.S.C. §1331.....

________  12n
- ................ ................. 8
19, 42, 2a, 3a, 7a



VIII

TABLE OF AUTHORITIES— Continued
Page

28 U.S.C. § 1343.............-.................................— 3a, 4a, 5an
42 U.S.C. § 1983 .....................................— 19, 42, 2a, 3a-6a
42 U.S.C. §§ 2000c-2 and c-4......................... .........- l l n ,  28
Mich. Stat. A n n . § 15.1023(7) ............................ -  41
Act 48 of Michigan Public Acts of 1970.......... ....... 5
Canon 3A, ABA Code of Judicial Conduct-----------  12n
Rule 54 (b ), Fed. R. Civ. P........ -.............................-  8
Rule 12(h) (1 ), Fed. R. Civ. P.............. ....................  5an
Supreme Court Rule 23(1) (c) ................................ 45n
Supreme Court Rule 40 (1) (d) (2)  .......... ....... .....-  49n
45 C.F.R., Part 180 ............................. ........................ 28
45 C.F.R., Part 185 „ ...........-.............. -........ ............... lln , 28

Other Authorities

W. Prosser, Law of Torts (4th ed. 1971)..... ....... 45
The Supreme Court, 1975 Term, 90 HARV. L. Rev.

56 (1976) ........................... ................................ -..... 32
Stern, When To Cross-Appeal or Cross-Petition,

87 Harv. L. Rev. 763 (1974)___________ ______  8n
B. Schwartz, Statutory H istory of the United 

States: Civil Rights (1970)................ —.......— 2a



In T he

|§upron£ (Emirt sit t!|? Imtfb States
October T erm , 1976 

No. 76-447

W illiam  G. Milliken , et al.,
Petitioners,

— v.-

R onald Bradley, et al.,
Respondents.

BRIEF FOR BRADLEY RESPONDENTS

COUNTER-STATEMENT OF QUESTIONS PRESENTED

1. Given the de jure segregation of the Detroit Public 
Schools, did the courts below have the equitable authority 
to include such ancillary administrative and educational 
relief in the desegregation remedy as was shown neces­
sary to begin to eliminate the continuing effects of the 
segregation violation and to assure the transition to and 
maintenance of a racially non-discriminatory school dis­
trict?

2. Do constitutional principles of federalism, the 
tenth amendment, or the eleventh amendment shield 
State defendants, who have previously been adjudicated 
to have contributed substantially to the de jure segrega­
tion of the Detroit Public Schools, from participating 
generally in implementing appropriate ancillary relief?



2

3. Does the eleventh amendment particularly bar the 
State defendants from sharing in the fiscal consequences 
of implementing such prospective relief?

4. Assuming arguendo the equitable authority and 
constitutional power, did the courts below properly exer­
cise their equitable discretion in ordering such relief 
against State defendants in the particular circumstances 
of this case?

CONSTITUTIONAL, STATUTORY, AND 
REGULATORY PROVISIONS INVOLVED

The pertinent provisions of the Constitution, statutes, 
and regulations involved are reprinted in Appendix B 
attached hereto. They include the tenth, eleventh, and 
fourteenth amendments to the Constitution; 20 U.S.C. 
§§1601 and 1606(a); 20 U.S.C. §§ 1702(b), 1703(a), 
(b), (f) , 1706, 1708, 1720(a); 28 U.S.C. §§ 1331, 1343 
(3) and (4) ; 42 U.S.C. § 1983; 42 U.S.C. §§ 20Q0c-2 and 
c-4; 45 C.F.R. §§180.12, .31, .41; 45 C.F.R. §§185.01 
and .12.

STATEMENT OF THE CASE

A. Introduction

As this Court knows, the Detroit school case has not 
heretofore been marked by procedural simplicity nor gen­
eral agreement on the controlling constitutional or equi­
table principles. See, e.g., Bradley v. Milliken, 484 F.2d 
215 (6th Cir., 1973) (en banc), rev’d in part sub nom. 
Milliken v. Bradley, 484 U.S. 717 (1974) (opinion of 
Burger, C.J., for the Court), 753 (Stewart, J., separate 
concurring opinion), 757 (Douglas, J., dissenting), 762 
(White, J., dissenting), 781 (Marshall, J., dissenting). 
The remedial proceedings in the district court following 
this Court’s remand in Milliken for elimination of the 
de jure segregation within the Detroit Public Schools can 
only be characterized as procedurally flawed and, in sev­



3

eral respects, substantively bizarre. Fortunately, the 
Court of Appeals, despite its express misgivings with the 
limitations set in Milliken (PA 5a-6a and 151a-152a, 
158a n. 3), has acted to reverse the substantive errors 
and has remanded for further proceedings (PA 182a).*

Among the numerous parties, only the State defend­
ants have petitioned this Court to review any portion of 
the judgment of the Court of Appeals, and then only 
with respect to the requirement that they pay a share of 
the costs of four aspects of desegregation relief ancillary 
to pupil reassignments. Without unduly belaboring the 
prior history and record in this cause, we believe that a 
review of the case will show that the State Petitioners 
present considerably narrower equitable and constitu­
tional issues than their rhetoric would admit.

Moreover, such review will provide grounds for this 
Court to find substantial, if not unanimous, agreement 
with the judgment of the Court of Appeals, without 
reaching the monumental constitutional issues expressly 
left open in Ex parte Young, Edelman v. Jordan, Na­
tional League of Cities v. Usery, Fitzpatrick v. Bitzer, 
and Mt. Healthy City School District v. Doyle. Notwith­
standing the representations of State Petitioners and 
their amici curiae friends, this is not the case for the 
Court to decide either to rend or to mend the very fabric

* The opinions and orders contained in the Appendix to the Peti­
tion for Certiorari will be cited in the form, for example, PA 151a; 
reference to prior opinions will be to the official reports, e.g., 484 
F.2d 215 or 418 U.S. 717. Reference to record materials contained 
in the joint appendix will be in the form A 53. Reference to other 
record evidence will be in the following form : e.g., VPX 3 and 22 
VTr 2506 for plaintiffs’ exhibit 3 and volume 22, page 2506, of the 
transcribed testimony from the 1972 violation hearings; MTr 35 
and MSX 5 for page 35 of the transcribed testimony and State 
defendants’ exhibit 5 from the 1973 remedy hearings on Detroit- 
only and metropolitan plans; and RTr 5/20/75 at 65 for page 65 
of the testimony transcribed on May 20, 1975, during the 1975 
remedy hearings on remand from Milliken.



4

of the Constitutional Union with respect to the claim of 
State sovereignty. To put the point somewhat differ­
ently, a review of the prior proceedings will show that 
this is not the case by which to determine under our 
Constitution whether “the States [have been denigrated] 
to a role comparable to the departments of France” rela­
tive to the enumerated National powers, Elrod v. Burns, 
49 L.Ed.2d 547, 567 (1976) (Burger, C.J., dissenting), 
or whether the States have recently been promoted to 
sovereignty virtually as complete as that of France it­
self, even on matters specifically delegated by the Con­
stitution to the previously supreme authority of the Fed­
eral government. See National League of Cities v. Usery, 
49 L.Ed.2d 295, 260-74 (Brennan, J., dissenting).

B. The Pre-Milliken Proceedings

Plaintiffs Ronald Bradley, et al., Detroit school chil­
dren and their parents, filed their Complaint on August 
18, 1970, against the Superintendent and Board members 
of the Detroit Public Schools and against the State Board 
of Education, Superintendent of Public Instruction, At­
torney General, and Governor.1 Plaintiffs alleged that 
defendants and their predecessors in office acted with the 
purpose and effect to foster and to maintain a de jure 
segregated public school system and denied plaintiffs 
equal educational opportunities along racial lines. Plain­
tiffs prayed for complete relief from these unconstitu­
tional practices including, inter alia, complete desegrega­
tion; elimination of the racial identity of every school in 
all respects; maintenance now and hereafter of a uni­
tary, racially non-discriminatory school system; and such

1 Prior to the evidentiary hearings on violation, the Detroit Fed­
eration of Teachers and a white citizens’ group intervened as parties 
defendant. During the remedial hearings following the violation 
findings, the Treasurer of the State of Michigan was joined as a 
party defendant and various suburban school districts were per­
mitted to intervene as parties defendant.



5

further relief as would appear to the district court to 
be equitable and just. See Complaint.

During preliminary proceedings and appeals, portions 
of Act 48 of Michigan Public Acts of 1970 were declared 
unconstitutional because they obstructed and nullified a 
partial, voluntary high school desegregation plan adopted 
by the Detroit Board and “had as their purpose and 
effect the maintenance of segregation.” 343 F. Supp. 582, 
589 (1972) ; 433 F.2d 897 (1970). Upon direction from 
the Court of Appeals, 438 F.2d 945 (1971), evidentiary 
hearings on the merits began in the district court on 
April 6, 1971, and continued for forty-one trial days 
through July 22, 1971. Plaintiffs introduced substantial 
evidence to show not only the pervasive and long-standing 
de jure segregation of pupils, but also racial discrimina­
tion in other aspects of schooling, including faculty and 
staff assignment and the allocation of educational re­
sources. Plaintiffs also introduced substantial evidence 
of the harmful consequences of all these racially discrim­
inatory practices and conditions on the educational oppor­
tunities currently enjoyed by black pupils.2

2 See, e.g., VPX 3 at 72-134, VPX 107 at 294-98, VPX 177-78, 
VPX 154C, YPX 161-66, VJXFFFF, 15 VTr 1611-21, 16 VTr 1805- 
10, 20 VTr 2:180-86, 22 VTr 2506-18, 38 Tr. 4340 (faculty and staff 
segregation) ; 8-9 VTr passim, 16 VTr 1779-91, 37 VTr 4148-56, 41 
VTr 4665-66, 41 VTr 4677-78, VPX 107 at 298, VPX 134, VPX 161- 
64, VDX NNN (allocation of educational resources and opportuni­
ties along racial lines and harmful effects of segregated schooling 
on the pupils). In summary, plaintiffs’ proof showed that the racial 
composition of faculty and staff still mirrored the racial composition 
of student bodies; through 1955 the Detroit Board never assigned 
black teachers to majority white schools; and through 1965, the 
Board assigned black teachers to predominantly white schools only 
if acceptable to that particular school community. Plaintiffs’ proof 
also showed that educational resources were allocated in a pattern 
of “ systematic differentiation parelleling racial lines” 41 VTr less­
ee. Thus, for example, substantially more emergency substitutes 
and inexperienced teachers were assigned to black schools than to 
white; and the average teacher salary in black schools was $1,400 
to $1,800 less than in white schools, VPX 161-64. Finally, plain­



6

On September 27, 1971, the district court, Hon. Stephen 
J. Roth sitting, issued its opinion on violation. 338 F. 
Supp. 582. The court found that both State and local 
defendants, as well as the State of Michigan, acted di­
rectly, jointly and severally through a variety of tradi­
tional segregation practices “with a purpose of segrega­
tion” to create and to aggravate the then current condi­
tion of almost total segregation of pupils. 338 F. Supp. 
at 587-89, 592. The district court, however, rejected the 
similar allegations and evidence with respect to faculty 
and staff assignments, 338 F. Supp. at 589-91, and made 
no findings with respect to the proof of racial discrimi­
nation in the allocation of educational resources and 
opportunities and the harmful effects on the pupils of 
the de jure segregation. On October 4, and November 5, 
1971, the court ordered the State and local defendants to 
submit Detroit-only and area-wide plans to remedy the 
de jure segregation found.3

At the evidentiary hearings in March and April, 1972, 
on the Detroit-only and area-wide plans, the district court 
received substantial evidence from all parties on the need 
for relief ancillary to pupil desegregation. The evidence 
on such ancillary relief supported, inter alia, faculty and 
staff desegregation; elimination of racial discrimination

tiffs proof showed the harmful and stigmatizing consequences of the 
pervasive racial discrimination on “ the hearts and minds’’ (Brown 
v. Board of Educ., 347 U.S. 483, 493-94 (1954)) of the pupils and 
the educational opportunities of black pupils, including particularly 
with respect to reading. E.g., 8 YTr 863-86, 895, 920-21, 935-40, 
950-69 ; 9 VTr 960; VPX 134.

3 The Detroit Board and State defendants filed notices of appeal 
from this order and the violation opinion. Plaintiffs filed a protec­
tive cross-appeal and a motion to dismiss these appeals because the 
order and opinion were not “ final,” adjudicated no substantial rights 
of the parties, and represented no “ judgment” from which to per­
mit appellate review. On February 23, 1972, the Court of Appeals 
dismissed the appeals because there was “ no final order from which 
an appeal may be taken.” 468 F.2d 902, 903, cert, denied, 409 U.S. 
844.



7

in school facilities and other educational resources; elimi­
nation of racial discrimination from curriculum, tests, 
programs, and counseling services; multi-racial and 
remedial curriculum; and in-service training for faculty 
and other staff. No party, including State defendants, 
presented any contrary evidence on the need for such 
ancillary relief as a part of implementing desegregation 
relief.4

In its June 14, 1972, opinion in support of “ Ruling 
on Desegregation Area and Development of Plans” re­
quiring area-wide relief extending beyond the Detroit 
School District, the district court made findings concern­
ing the harmful consequences of de jure segregation on 
the school children and the need for restructuring facili­
ties and reassigning staff incident to pupil reassignment, 
345 F. Supp. 914, 921, 931-33. The court entered appro­
priate school equalization and staff desegregation orders 
“so as to prevent the creation or continuation of [racial] 
identification of schools by reference to past racial com­
position.” 345 F. Supp. at 919. Citing the “uncontro­
verted evidence” received, the court also found that the 
“following additional factors are essential to implemen­
tation and operation of an effective plan of desegrega­
tion,” including, inter alia, multi-racial and other cur­
riculum reforms, in-service training for faculty and staff, 
and nondiscriminatory testing and counseling designed to 
overcome the effects of de jure segregation and residual 
racial discrimination. 345 F. Supp. at 935-36. In its 
order, the court included specific provisions for such an­
cillary relief “to insure the effective desegregation of the 
schools . . .” 345 F. Supp. at 919.

4 See, e.g., MTr 35-36, 312, 353, 404-07, 470-71, 495-96, 586-87, 
782, 1342-43; MSX 5, 8, 10; MPX 2. Some of the added suburban 
defendants, and one of the State Board plans (MSX 8), however, 
proposed equalizing education opportunities as an adequate substi­
tute for pupil desegregation. See 345 F. Supp. 914, 921 n.l.



8

Subsequently, on July 20, 1972, the district court made 
these rulings and orders final pursuant to Rule 54(b), 
Fed. R. Civ. P., and appealable pursuant to 28 U.S.C.
§ 1292(b). The State, Detroit Board, and intervening 
suburban school district defendants appealed.5 These 
appeals focused on the de jure segregation violation find­
ings and the propriety of the area-wide pupil desegrega­
tion relief ordered. The Court of Appeals, sitting en 
bane, basically affirmed the judgment of the district court 
but vacated and remanded to provide all potentially af­
fected suburban school districts with the opportunity to 
be heard. 484 F.2d 215 (1973).

The State and intervening suburban school district 
defendants petitioned this Court to review the violation 
findings against the State defendants and/or the pro­
priety of ordering area-wide relief based upon findings 
of de jure segregation within the Detroit School District. 
Upon reviewing the judgment of the Court of Appeals, 
this Court, on July 25, 1974, reversed that portion of 
the judgment permitting inter-district relief based on 
violation findings that State and Detroit defendants 
caused de jure segregation within the Detroit School Dis­

5 Plaintiffs did not cross-appeal because the “ final” order grant­
ing relief (in contrast to some of the particular findings and rea­
soning) provided all relief prayed for in their initial complaint 
and supported by their evidence: pupil desegregation, faculty and 
staff desegregation, and other ancillary relief designed to overcome 
the harmful effects of de jure segregation on the children, to avoid 
racially discriminatory provision of education opportunities, and 
otherwise to assure the effective transition to and maintenance of 
a unitary, racially non-discriminatory school system. Being a pre­
vailing party entirely satisfied with the “ final” judgment, plaintiffs 
could not appeal to review findings of fact or interim rulings they 
did not like, Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 
151, 176 (1934), and did not need to appeal to preserve their right 
to argue any ground in support of the judgment. Dandridge v. Wil­
liams, 397 U.S. 471, 475-76 n.6 (1970) ; Langnes v. Green, 282 U.S. 
531, 535-59 (1931); United States v. American Ry. Express Co., 
265 U.S. 425, 435-36 (1924). See generally, Stern, When to Cross- 
Appeal or Cross-Petition, 87 Harv. L. Rev. 763 (1974).



9

trict, 418 U.S. at 745-53; provided guidelines for and 
examples of area-wide and boundary violations necessary 
to support interdistrict relief, 418 U.S. at 744-45; and 
remanded for “prompt formulation of a decree directed 
to eliminating the segregation found to exist in Detroit 
City schools,” 418 U.S. at 753.

C. The Post-Milliken Proceedings in the District Court
The State Petitioners suggest (Brief at 18-19) that 

plaintiffs and their experts either opposed or did not 
support, in the courts below, the ancillary relief here at 
issue. This misrepresents plaintiffs’ position in the courts 
below and the testimony of their experts in the district 
court. It also misconceives the dynamics of the remand 
proceedings following Milliken. For throughout the re­
mand proceedings, plaintiffs and their experts supported 
such ancillary relief as a proper adjunct to the primary 
relief of actual pupil desegregation where necessary to 
remedy the continuing harm resulting from the segrega­
tion violation and to insure the transition to and mainte­
nance of a racially non-discriminatory system of school­
ing. Plaintiffs, however, were repeatedly forced to focus 
the attention of the defendants and the district court on 
the primary desegregation remedy lest it be limited by 
the apparent preoccupation with ancillary relief and re­
lated financial concerns. Only with this understanding 
of the context may the remand proceedings be fairly 
understood.

Following the death of District Judge Roth on July 
11, 1974, the case was assigned to District Judge Robert
E. DeMascio for remand proceedings consistent with 
Milliken. Pursuant to the district court’s order, the De­
troit Board and plaintiffs submitted pupil reassignment 
plans in Spring, 1975:6 The Detroit Board plan operated

6 On April 16, 1975, the district court “granted the motions to 
dismiss filed by the intervening suburban defendants and simul­
taneously granted plaintiffs’ motion to amend their complaint to in­



10

on the novel premise that only identifiably white schools 
need be “desegregated,” thus proposing to maintain over 
100 de jure segregated, all-black schools. The Detroit 
Board plan also included extensive discussion, without 
documentation but with “excessive” (PA 13a) cost esti­
mates, of purportedly necessary ancillary relief.

On April 20, 1975, the State defendants submitted a 
“critique” of the Detroit Board’s plan which queried 
whether any ancillary relief was appropriate but con­
ceded that several aspects of the proposed relief (includ­
ing in-service training of staff and non-discriminatory 
guidance, counseling, and curriculum) “deserve special 
emphasis in connection with implementation of a deseg­
regation plan.” Critique at 39, 50. Evidentiary hearings 
on the plans submitted and ancillary relief continued 
from April 29 through June 27, 1975J Substantial evi- 7

clude allegations of inter-district de jure violations.” PA 13a. Sub­
sequently, plaintiffs filed their second amended complaint alleging 
general causes of action for inter-district relief under Milliken. 
Proceedings on a more definite, third amended complaint have been 
stayed pending conclusion of the remand proceedings on Detroit- 
only remedy and of a cost dispute between the parties. See 411 F. 
Supp. 937; PA 168a.

7 During these hearings, plaintiffs moved the court to order 
acquisition of 150 school buses, the minimum number necessary to 
implement either pupil reassignment plan. By order of May 21, 
1975, the district court ordered the State defendants to acquire 
the buses. PA la-2a. On expedited appeal, the Court of Appeals 
affirmed this order with the modification that the Detroit Board 
acquire the buses, with the State defendants to bear 75% of the 
cost. PA 3a-5a, 519 F.2d 679, cert, denied, 423 U.S. 930 (1975). 
This modification was made pursuant to State defendants’ repre­
sentations of their willingness to conform to that procedure con­
sistent with State practice. PA 4a. The district court subsequently 
followed this modified procedure and formula for sharing the costs 
in ordering the acquisition of 100 additional school buses. PA 161a 
n.4. It should also be noted, however, that the Court of Appeals 
specifically directed that State defendants take all necessary steps, 
including utilizing existing funds already allocated, or to be allo­
cated, and reallocating existing or new funds, to pay or reimburse 
the State’s share of such transportation acquisition. PA 5a. The



11

dence was introduced showing the real need for the an­
cillary relief here at issue—in-service training of staff, 
non-discriminatory testing, guidance and counseling, and 
remedial reading—to eliminate the continuing effects of 
the de jure segregation and discrimination and to insure 
the effective transition to non-discriminatory schooling. 
See, e.g., A 7-9, 30-42, 51-61, 67-68, 72-82, 86-89; RTr 
5/8/75 at 24, 66, 95-100; RTr 5/9/75 at 61-62, 72-75; 
RTr 5/15/75 at 42-49; RTr 5/20/75 at 127; RTr 6 /12 / 
75 at 116-17.8

On August 15, 1975, the district judge issued his opin­
ion on remedy. He held that ancillary relief was appro­
priate and would be ordered only to the extent necessary 
to overcome the continuing, harmful effects of the viola­
tion, to remedy continuing racial discrimination in edu­
cational opportunities, or to insure the successful imple­
mentation of a non-discriminatory plan of pupil desegre­
gation (PA 13a, 35a-37a, 55a, 64a-74a, 78a-79a, 81a- 
82a). However, the district judge rejected the constitu­
tional requirement that the plan of pupil reassignments 
must itself eliminate the primary pupil segregation vio­

State defendants concede the propriety of their sharing in these 
costs, did not seek review from these orders, and do not ask this 
Court to review these orders as part of this appeal. See State Peti­
tioners’ Brief at 8 and n.6.

8 The State Petitioners’ suggestion (Brief at 18) that plaintiffs’ 
experts were of the opinion that no ancillary relief was necessary 
to remedy the de jure pupil segregation is incredible. The testimony 
of Drs. Foster and Stolee, only some of which is cited above, was 
that the four aspects of ancillary relief here at issue were essential 
to an effective pupil desegregation remedy and were regularly in­
cluded by school districts throughout the country as necessary 
components in implementing pupil desegregation plans. As the 
former and current directors of the University of Miami Title IV 
School Desegregation Center, they had personal knowledge of these 
facts; for they have assisted literally hundreds of school districts 
in implementing pupil desegregation plans pursuant to their man­
dates from Congress and HEW, and federal funding. See, e.g., 42 
U.S.C. § 2000c-4(a), 20 U.S.C. § 1606(a), and 45 C.F.R. §185.



12

lation found. Thus, the district court adopted the thesis 
that only racially identifiable white schools need be elimi­
nated, and rejected even the Detroit Board’s limiting 
pupil reassignment plan because it accomplished too much 
desegregation (PA 51a-52a, 61a). The district court 
simultaneously issued a Partial Judgment and Order 
denying the relief requested in plaintiffs’ pupil desegre­
gation plan and establishing guidelines and a timetable 
for further planning and submission of a revised plan 
by the Detroit Board.9

Plaintiffs filed their notice of appeal, a stay applica­
tion, and a motion seeking summary reversal of the dis­
trict court’s rejection of their plan. Plaintiffs particu­
larly challenged the premise that pupil reassignments 
need not be extended to black schools, which thereby ex­
cluded from desegregation over 100 all-black schools in 
the three administrative regions of the school district at

9 The district judge in his August 15, 1975, opinion and appendices 
noted that he had proceeded ex parte and entirely outside the record 
with meetings and communications with defendant parties, court 
experts, and non-parties to make specific fact findings and to 
marshall support throughout the State for “his plan” prior to its 
entry. See, e.g., Appendices A-G to the district court’s August 15, 
1975, opinion and PA 13a, 15a, 50a-51a. After the August 15, 
1975, opinion, the district judge’s non-judicial conduct became, 
if anything, even more openly the rule than the exception. These 
extraordinary ex parte contacts with the defendants and non-parties 
were rationalized by the district court as “ reflect [ing] the fact that 
the adversarial phase of this litigation has ended” (PA 116a n.2), 
despite plaintiffs’ specific request for a hearing to present evidence 
on their objections to the revised plans submitted by the Detroit 
Board pursuant to the August 15 guidelines. (Plaintiffs have pend­
ing a motion to recuse the district judge for cause under 28 U.S.C. 
§455 (a) because, inter alia, of such repeated violations of Canon 
3A of the ABA Code of Judicial Conduct.)

[Note: After the preparation of this brief for the printer, the 
district judge, on January 21, 1977, entered an order denying plain­
tiffs’ motion to recuse, except with respect to further proceedings 
on the faculty segregation issue; on that issue, the district judge 
referred questions about his impartialty for decision by the Chief 
Judge of the Eastern District of Michigan.]



13

the very heart of the de jure violation. These matters 
were taken under advisement by the Court of Appeals 
and a briefing schedule set on all appeals.10

On October 16 and October 29, the district court 
issued orders concerning a monitoring commission to be 
implemented by State defendants and a uniform code of 
student conduct to be implemented in conjunction with 
the new pupil desegregation plan. On November 4, 1975, 
the district court entered a memorandum and order ap­
proving with modification the revised pupil reassignment 
plan submitted by the Detroit Board. On November 10, 
1975, the district court issued an order concerning mag­
net vocational schools. On November 20, 1975, the dis­
trict court entered a judgment ordering the Detroit 
Board to implement these plans. During the Fall, the 
Detroit Board also submitted revised proposals for each 
aspect of ancillary relief authorized in the district court’s 
August 15 opinion and order; however, no hearings were 
held and no record was made on these submissions. See 
note 9, supra; and State Petitioners’ Brief at 11 n.7.

On May 11, 1976, while the various appeals of the 
plaintiffs, Detroit Board, and Teacher Federation were 
still pending in the Court of Appeals, the district court 
filed a memorandum, order, and final judgment on magnet

10 Plaintiffs, as well as the Detroit Board and the intervening 
Detroit Federation of Teachers, also appealed from the district 
court’s August 28, 1975, order requiring in each school no more 
than 70% faculty of either race. Cf. PA 83. Plaintiffs believed 
that this order could serve to maintain the continuing racial identi- 
fiability (e.g., RDX 6) of schools solely by reference to staff racial 
composition. (Plaintiffs thus appealed from the first judgment or 
order which denied them complete faculty relief. Contrast note 5, 
supra, with State Petitioners’ Brief at 9.) The Detroit Board appeal 
argued that it should be allowed to implement complete faculty de­
segregation as it had requested, while the Detroit Federation of 
Teachers argued that the district court was without authority to 
order any faculty desegregation.



14

vocational centers,11 uniform code of student conduct, re­
medial reading, in-service training, counseling and ca­
reer guidance, testing, and school-community relations. 
PA 115a-150a. Adhering to the view expressed in its 
August 15, 1975 opinion, the district court was “ careful 
to order only what is essential for a school district un­
dergoing desegregation. . . [T] he court has examined 
every detail in each proposal to ensure that the com­
ponents we order are necessary to repair the effects of 
past segregation, assure a successful desegregation effort 
and minimize the possibility of resegregation.” (PA 
117a). With respect to each component of ancillary re­
lief, the district court made specific findings of their 
necessity under these standards. PA 127a (reading), 
128a (in-service training), 129a (counseling and career 
guidance), 130a (testing).

The State defendants and Detroit Board appealed this 
judgment insofar as it required the State defendants 
and Detroit Board to “equally bear the burdens” of the 
“ excess cost imposed by the provision” (PA 146a-147a) 
requiring these defendants jointly to implement the an­
cillary desegregation relief of remedial reading, in-service 
training, testing, and counseling and career guidance.

D. The Judgment of the Court of Appeals

In resolving the numerous appeals and cross-appeals 
of the parties, the Court of Appeals affirmed, modified, 
reversed, and vacated various parts of the district court’s 
orders, remanding for further proceedings not inconsis­
tent with its opinion. In summary, the Court of Appeals

11 The district court apparently resolved the sharing of costs 
and administration of these magnet vocational centers to the satis­
faction of the State defendants and the Detroit Board. PA 117a- 
119a. Contrary to State Petitioners’ suggestion (Brief at 12 n.8), 
however, there can be no question that this was an aspect of desegre­
gation relief, both direct and ancillary. Compare PA 76a-78a, 
118a, n.5 with 20 U.S.C. ■§§ 1701 et seq.



15

held that the defendant school authorities and the district 
court totally failed to justify the exclusion of over 100 
all-black schools in three administrative regions from the 
pupil reassignment plan. As these schools and regions 
were among those “most affected by the acts of de jure 
segregation” (PA 163a), the Court of Appeals held that 
under Swann v. Charlotte Mecklenburg Bd. of Educ., 
402 U.S. 1, 26 (1971), defendants bore the burden of 
justifying their maintenance as one-race schools; and 
that they had totally failed to explain the continuation 
of such de jure segregation (PA 163a-164a). The Court 
of Appeals affirmed the other portions of the plan for 
pupil reassignments (PA 167a) and affirmed the equita­
ble authority of the district court to order staff desegre­
gation (but vacated for the hearing of additional evi­
dence on the issue (PA 181a-182a)). No party seeks 
review of these judgments in this Court.

With respect to the issues concerning the four particu­
lar “ educational components” before this Court for re­
view, the Court of Appeals held that the district court’s 
findings of fact concerning their necessity as essential 
parts of an effective remedy providing complete relief 
were “not clearly erroneous, but to the contrary [were] 
supported by ample evidence.” PA 170a. After review­
ing the record and the precise claims of error presented 
by the parties, the Court of Appeals held that the in- 
service and testing components were essential to insure 
that staff can “work effectively in a desegregated envir­
onment” and that “ students are not evaluated unequally 
because of built-in bias in the tests administered in for­
merly segregated schools.” PA 170a. Similarly, the Court 
of Appeals “agree[d] with the District Court that the 
reading and counseling programs are essential to the 
effort to combat the effects of segregation.” PA 170a. 
The Court of Appeals concluded (PA 171a) :

[T]he findings of the District Court as to the Edu­
cational Components are supported by the record.



16

This is not a situation where the District Court 
“ appears to have acted solely according to its own 
notions of good educational policy unrelated to the 
demands of the Constitution.” See, Keyes v. School 
District, 521 F.2d 465, 483 (10th Cir. 1975), cert, 
denied, 44 U.S.L.W. 3399 (U.S. Jan. 12, 1976).

The Court of Appeals also rejected State defendants’ 
claim of immunity from sharing in the actual costs of 
implementing this ancillary relief. In essence, the Court 
of Appeals held that the order requiring State defend­
ants to bear a share of the costs of implementation was 
in form and in actual effect an ancillary consequence of 
implementing prospective injunctive relief and, under 
Edelman v. Jordan, was therefore not barred. PA 172a- 
178a. Reviewing the State defendants’ substantial con­
tribution “ to the unlawful de jure segregation that 
exists” in the Detroit Public Schools, the State defend­
ants’ sharing in other costs incident to pupil desegrega­
tion (e.g., acquisition of buses and construction of mag­
net vocational centers), and the relative resources of the 
State and local defendants, the Court of Appeals found 
no abuse of discretion in the district court’s order re­
quiring the State and local defendants to share equally 
in the cost of implementing ancillary relief. PA 178a- 
180a.12

12 The Court of Appeals added:
Our affirmance of the District Court on this issue is not in­
tended as a mandate for a cutback in essential educational 
programs [in the Detroit Public Schools] in order to meet the 
expenses of implementing the desegregation plan. We affirm 
that part of the judgment relating to the costs of the plan, 
but without prejudice to the right of the District Court to 
require a larger proportional payment by the State . . .  if 
found to be required by future developments.

PA 180a (emphasis added). Yet the State defendants claim that it 
is just this supposed “ judicially decreed blank check, to be filled in 
and drawn upon the Treasury of the State . . .  to pay for court- 
ordered educational program expansion, that is before this Court for 
review.” State Petitioners’ Brief at 17. Such hyperbole does not fit



17

Following Justice Stewart’s denial of the State de­
fendants’ application for a stay on September 1, 1978, 
the defendant State Treasurer paid over to the Detroit 
Board the State defendants’ share of the projected im­
plementation costs of ancillary relief. On November 15, 
1976, this Court granted State defendants’ petition for 
writ of certiorari to review the judgment of the Court 
of Appeals concerning the propriety of ancillary relief 
and the State defendants’ sharing in the cost burdens of 
its implementation.

SUMMARY OF ARGUMENT
Plaintiffs appear as Respondents in this Court to de­

fend the judgment of the Court of Appeals on several 
alternative grounds, some of which were not considered 
or relied upon by the courts below. Pursuant to the set­
tled practice of this Court, we do this to assist review 
of a judgment which is correct and raises neither the 
spectre nor the issue of destroying any sovereignty en­
joyed by the State Petitioners under present interpreta­
tions of the Constitution and laws of the United States. 
Contrary to the State Petitioners’ claim that the judg­

the actual judgment which is before this Court for review. First, 
this supposed “judicial decree [sic]" is mere obiter dictum con­
cerning some possible hypothetical “ future developments” which 
have not yet occurred and, therefore, have not yet been fully 
plumbed by the record nor made the subject of any injunction, 
order, or decree. Second, no “blank check” for any “court-ordered 
educational program expansion” was contemplated by the Court of 
Appeals; to the contrary, only a portion of the “ excess costs,” the 
actual increase in costs from present programs incident to imple­
mentation of ancillary relief necessary to remedy the violation, 
was approved by the Court of Appeals. There will be time enough 
to argue this supposed “blank check” issue if the dictum is ever 
reduced to an order. Upon, a proper showing, however, we have no 
doubt that there is substantial support for the proposition that 
educational services may not be substantially reduced as a result 
of desegregation, at least during the transition to a unitary system 
of schooling. See, e.g., Griffin V. Prince Edward County School Board, 
377 U.S. 218 (1964) and Adams v. Rankin County Board of Edu­
cation, 485 F.2d 324, 327-28 (5th Cir. 1973).



18

ment below constitutes a federal judicial raid on the 
State treasury, the issues actually raised although impor­
tant are much narrower and discrete. (See Introduction, 
pp. 21-23, infra).

1. For purposes of analysis, we first address the is­
sue of plaintiffs’ right to relief ancillary to actual pupil 
reassignments wholly apart from any order compelling 
State Petitioners to participate in such relief. A review 
of prior decisions and the record, including the State 
defendants’ representations to the district court, shows 
that non-discriminatory testing and counseling, in-service 
training, and remedial reading are necessary and justi­
fied in this case to overcome the continuing consequences 
of the long-standing and pervasive de jure segregation 
violation and to assure a smooth transition now and ef­
fective maintenance hereafter of a racially non-discrimi­
natory public school system. Thus, the State Petitioners 
entirely misconceive the need for an independent “edu­
cational” violation as a prerequisite for ordering such 
relief as an adjunct to pupil desegregation. (See Argu­
ment I, pp. 24-29, infra.)

2. Assuming arguendo that the ancillary relief or­
dered is proper, we next consider the issue of federal 
judicial power to compel responsible State officials to 
participate in providing such relief generally, without 
regard to the particular money consequences. A review 
of the prior decisions and the record will show that the 
courts below had the constitutional power—notwithstand­
ing principles of federalism, and the tenth and eleventh 
amendments— to order the State Petitioners as active 
constitutional tort-feasors in the de jure violation to 
participate in implementing relief. State Petitioners may 
be ordered to take action beyond or in derogation of 
their authority and duty under State law in order to 
effectuate relief. (See Argument II, pp. 30-34, infra.)

3. We then examine directly whether State Petition­
ers are immunized under the eleventh amendment from



19

the particular participation here ordered, which in­
cludes sharing in any cost burdens incurred in imple­
menting the ancillary relief. There are a number of 
alternative grounds, each of which shows that the 
eleventh amendment does not bar the State Petitioners 
from sharing in these costs. Although this may have 
an impact on the State treasury, the cost aspect of the 
relief is a consequence of complying with a prospective 
injunctive decree and not a payment of an accrued 
monetary liability by the State. Under Edelman v. Jor­
dan and Ex parte Young, therefore, the eleventh amend­
ment does not apply to this form of relief. Assuming, 
arguendo, that the eleventh amendment might apply, 
there are two alternative grounds upon which the Court’s 
prior decisions show that any immunity of Petitioner 
State Board of Education has been lifted or waived. 
First, Congress has specifically authorized federal courts 
to entertain suits against state boards of education for 
such ancillary relief in school desegregation cases. 20 
U.S.C. §§ 1703(a) (b) (f),  1706, 1720 (and 881 ( k ) ). 
Under Fitzpatrick v. Bitzer, the State Board has thereby 
been deprived of any immunity it might otherwise 
possess. Second, by state statute, and perhaps its own 
conduct, Petitioner State Board of Education has waived 
immunity to this suit.

There are several additional, alternative grounds 
which sustain the power of the lower courts here to 
order the relief with cost consequences against State 
Petitioners in the face of their claim of sovereign im­
munity. However, these grounds raise substantial con­
stitutional or jurisdictional issues never previously re­
solved by this Court relating to the direct impact of 
section 1 of the fourteenth amendment, 28 U.S.C. § 1331, 
42 U.S.C. § 1983 and other Reconstruction statutes, and 
Ex parte Young on claims of State sovereignty; and they 
implicate as well the vitality of Hans v. Louisiana with 
respect to federal-question determinations concerning de



2 0

jure racial discrimination. We believe the Court should 
not address these questions in this case unless it cannot 
agree to sustain the judgment below against claims of 
sovereign immunity on the several other alternative 
grounds suggested above. Even then, we respectfully 
submit that this Court’s prior practice counsels that 
these monumental issues not be resolved prior to remand 
to the Court of Appeals for initial determination of its 
views or additional briefing and reargument in this 
Court on these subjects. (See Argument III, pp. 34-44, 
infra.)

4. Finally, assuming arguendo the propriety of an­
cillary relief and the constitutional power of the courts 
below to order the State Petitioners to share in the im­
plementation costs, we address the non-constitutional is­
sue of whether the lower courts abused their equitable 
discretion in the particular circumstances present here. 
A review of the record will show that the lower courts, 
particularly the Court of Appeals, were solicitous of 
State policy in framing relief. Thus, for example, the 
orders directing acquisition and payment for buses, a 
monitoring commission, and magnet vocational schools 
were conformed to State practice and are not at issue in 
this Court. However, State policy was appropriately 
modified to the extent of requiring State Petitioners to 
bear a share of the costs of implementing a portion of 
ancillary relief, given the relative resources and viola­
tions of the parties defendant and the alternatives avail­
able. Although State Petitioners made no claim of error 
in the Court of Appeals and make none in this Court 
on the amount assessed, it may still be appropriate to re­
mand to the district court for hearings to allow State 
defendants to make a record to insure that the actual 
costs previously assessed against State defendants do not 
exceed their share of the costs which have been incurred 
in implementing appropriate ancillary relief over the 
past year. (See Argument IV, pp. 44-49, infra.)



21

ARGUMENT

INTRODUCTION

Plaintiffs Ronald Bradley, et al., appear as Respond­
ents in this Court to defend that portion of the judg­
ment of the Court of Appeals here put in issue by the 
State Petitioners. That judgment requires the Detroit 
Board and State defendants to implement four aspects 
of relief ancillary to actual pupil reassignments:

1. Remedial reading, which is necessary (a) to 
begin to overcome the continuing, harmful educa­
tional effects of the de jure segregation on the 
plaintiff school children, and (b) to insure that 
the transition to desegregated schooling is effec­
tive (PA 170a; 127a; 72a).

2. Non-discriminatory guidance and counseling 
which is essential for a school system undergoing 
desegregation in order (a) to overcome the resid­
ual effects of the de jure segregation which would 
limit the educational opportunities of black 
students and taint the attitudes of all students, 
and (b) to encourage all students to participate 
in a non-discriminatory and non-segregated fash­
ion in the various magnet and vocational schools 
and programs designed to alleviate the de jure 
segregation (PA 170a; 128a-129a; 81a).

3. In-service training for staff, which is necessary
(a) to enable them to cope with the transition to 
desegregated schools, and (b) to overcome their 
own racial attitudes which have been tainted by 
the de jure segregation experience (PA 170a; 
128a; 73a).

4. Non-discriminatory testing, which is necessary to 
insure that black students (a) are not penalized 
in their present schooling for the harmful effects 
of the prior de jure segregation or by the contin­
uing racial bias inhering in the testing program



22

of the Detroit Public Schools, and (b) are not 
resegregated from whites in separate educational 
programs during the desegregation process (PA 
170a; 130a; 78a-79a).

At almost every page of their Brief, however, State 
Petitioners challenge the requirement that they “bear 
equally [with the Detroit Board] the burdens of . . . 
excess cost imposed” (PA 147a, 169a) in implementing 
the decree. See Brief at 16-17, 23-39. This fixation on 
the dollar consequences of injunctive relief hides rather 
than reveals the real interests and issues at stake. Thus, 
for example, the issue of whether relief ancillary to pupil 
desegregation is appropriate has, in the first instance, 
nothing to do with which parties are to be enjoined to 
provide such relief. Rather, the issue is whether plain­
tiffs are entitled to such ancillary relief at all. Yet at 
the outset of State Petitioners’ argument on this issue 
(Brief at 17), they rail against the “judicially decreed 
blank check” on the state treasury.

As another example, the propriety of ordering the 
State defendants to provide such ancillary relief jointly 
with the Detroit Board includes two discrete questions: 
First, is there constitutional power to order state-level 
constitutional tort-feasors to provide injunctive relief 
jointly with local defendants? Second, if so, do the 
State defendants enjoy some special immunity from shar­
ing in any fiscal consequences of implementing injunctive 
relief? But State Petitioners focus their argument (Brief 
at 23-37) almost exclusively on their asserted immunity 
from supposed federal judicial raids on the State 
treasury.

As a final example, assuming the power of the courts 
below to enter the order challenged here, there is still 
a non-constitutional issue: what equitable considerations 
should guide the shaping of the injunction when State 
fiscal policy or administrative practice come into con­



23

flict with such complete relief? Yet State Petitioners in 
their Brief bury such non-constitutional considerations in 
their quest for blanket protection.

We therefore urge this Court to review the discrete 
and much narrower issues actually presented rather than 
State Petitioners’ rhetorical assertions. As will be shown 
in Argument hereafter, this will allow the Court to re­
view, and to sustain, the judgment below without im­
plicating the monumental constitutional issues expressly 
left unresolved by this Court since the adoption of the 
Civil War Amendments and the ensuing Reconstruction 
Legislation.

This narrower approach is particularly appropriate in 
the circumstances of this case where the non-judicial con­
duct of the district judge (see note 9 and discussion, 
supra, pp. 12-13) has prevented the making of a full 
record, even though State Petitioners make no claim of 
procedural error. Plaintiffs therefore appear here as Re­
spondents not to defend the procedures of the district 
court, but to defend the judgment of the Court of Ap­
peals based on the substantial evidentiary support for 
the particular ancillary relief at issue. A review of the 
evidence shows the propriety of ancillary relief in school 
desegregation cases such as this.

In support of the judgment, plaintiffs also urge several 
grounds “whether or not that ground was relied upon 
or even considered by the [lower] court.”  Dandridge v. 
Williams, 397 U.S. 471, 475-76 n. 6 (1970). See also 
United States v. American Ry. Express Co., 265 U.S. 
425, 435-36 (1924) ; Langnes v. Green, 282 U.S. 531, 
535-39 (1931). Application of this settled approach to 
appellate review will materially assist the Court in de­
ciding this case based on existing precedent without 
reaching the unresolved constitutional issues on which 
State defendants and the State amici seek a final, and 
in our view constitutionally destructive, advisory opinion.



24

I.

RELIEF ANCILLARY TO PUPIL DESEGREGATION 
IS APPROPRIATE BECAUSE ESSENTIAL TO REM­
EDY THE CONTINUING HARMFUL EFFECTS OF 
THE DE JURE SEGREGATION VIOLATION AND 
OTHERWISE TO INSURE THE TRANSITION TO 
AND MAINTENANCE OF A RACIALLY NON- 
DISCRIMINATORY DETROIT PUBLIC SCHOOL 
SYSTEM.

State Petitioners’ broadside at all relief ancillary to 
actual pupil reassignments is unwarranted given the 
record below and settled case law. As Petitioners would 
have it, the remedy for a long and pervasive history of 
almost total, de jure segregation is limited exclusively 
to pupil reassignments— regardless of the proof concern­
ing the harmful effects of such state-imposed segregation 
on the educational opportunities of plaintiff children, of 
the record showing the need for ancillary relief to insure 
an effective transition to a non-discriminatory system of 
pupil attendance and schooling, and of the other evidence 
concerning aspects of racial discrimination already exist­
ing in the school district or likely to appear during the 
desegregation process. See Statement, supra, at notes 2, 
4, and 8, and accompanying text.13

The Petitioners’ novel view would also disregard the 
traditional equitable authority and duty of the federal

13 The sweep of Petitioners’ challenge to the authority of the 
chancellor sitting in equity to order any necessary relief beyond 
pupil reassignments may result solely from their concerns about 
the State treasury rather than the propriety of such ancillary 
relief. For that reason, it may be helpful for purposes of analysis 
to consider the propriety of the ancillary relief apart from the State 
sovereignty claims by assuming, arguendo, that the injunction 
runs only against the Detroit Board. Cf. Mt. Healthy City School 
District v. Doyle, 45 U.S.L.W. 4081 (U.S. Jan. 11, 1977) (school 
district “not entitled to assert any Eleventh Amendment immunity 
from suit in federal courts.” )



25

courts to root out the violation by rendering “ a decree 
which will so far as possible eliminate the discriminatory 
effects of the past as well as bar like discrimination in 
the future.”  United States v. Louisiana, 380 U.S. 145, 
154, 156 (1965). “For it is the historic purpose of equity 
to ‘secur[e] complete justice/ Brown v. Swann, 10 Pet. 
[U.S.] 497, 503 (1836).” Albemarle Paper Co. V. Moody, 
422 U.S. 405, 418 (1975). This principle of “'complete 
justice” has always guided federal equity courts:

where federally protected rights have been invaded, 
it has been the rule from the beginning that courts 
will be alert to adjust their remedies so as to grant 
necessary relief.

Bell v. Hood, 327 U.S. 678, 684 (1946). See also Porter 
v. Warner Holding Co., 328 U.S. 395, 397-98 (1946); 
Brown II, 349 U.S. 294, 300-01 (1955) ; Swann v. 
Charlotte-MecJclenburg Bd. of Educ., 402 U.S. 1, 15 
(1971) ; Ford Motor Co. v. United States, 405 U.S. 562, 
575-78 (1972). And the burden is on the discriminator 
not the victim to show that the injury and harm reason­
ably feared to result from the discrimination did not in 
fact occur, at least for purposes of insuring that the 
continuing harmful effects of the violation are remedied.14 
Once plaintiffs have proven a substantial violation, doubts 
about what remedies will provide effective and lasting- 
relief should be resolved in favor of the victims rather 
than the perpetrators of the unlawful conduct.15

In the face of the uncontroverted evidence and settled 
principles of equity, State Petitioners argue that, because

14 E.g., Franks v. Bowman Tramp. Co., 44 U.S.L.W. 4356, 4363 
(U.S. 1976) ; cf. Keyes V. School District No. 1, 413 U.S, 189, 211 
(1973).

15 E.g., Ford, Motor Co. V. United States, supra, 405 U.S. at 575; 
Zenith v. Hazeltine, 395 U.S. 100, 123-24 (1969) ; United States v. 
E. I. Dupont de Nemours Co., 366 U.S. 316, 334 (1961); Bigelow 
V. RKO Radio Pictures, 327 U.S. 251, 265 (1945) ; Story Parch­
ment Co. v. Patterson Paper Co., 282 U.S. 555, 563 (1931).



26

the only violation found in the first violation opinion was 
de jure pupil segregation, Milliken and Swann limit the 
remedy solely to pupil reassignments. In support of this 
argument, State Petitioners (Brief at 18) parrot the 
phrase that “the scope of the remedy is determined by 
the nature and extent of the constitutional violation,” 
Milliken, 418 U.S. at 744. Thus, under State Petition­
ers’ wooden view of violation and remedy, the courts 
below lacked authority to order any relief ancillary to 
pupil reassignments because “there has not been any 
adjudicated constitutional violation with respect to edu­
cational programs in the Detroit school system.” Brief 
at 18.

Yet State defendants’ own conduct and evidence belie 
this unprecedented argument. First, State defendants 
have acquiesced and assisted in implementing other “ an­
cillary relief” ordered in this case—construction of voca­
tional centers, acquisition of and payment for buses, and 
operations of a monitoring commission. See Statement, 
supra, at pp. 13-14; and State Petitioners’ Brief at 8 and 
11-12. Second, the managing agent of State defendants, 
offered as their expert, readily admitted at trial that the 
four aspects of ancillary relief here at issue were either 
“required” or “ deserve some special emphasis”  in imple­
menting a pupil desegregation plan and may otherwise 
serve as a vehicle for beginning to “repair damage done 
by segregation.” A 85-97. Indeed, given the State de­
fendants’ experience with such ancillary relief in the 
many other school desegregation cases in Michigan and 
the testimony of administrators from a Title IV school 
desegregation center that such ancillary relief is regu­
larly included as part of the relief in school systems 
undergoing desegregation, the Petitioners’ argument is, 
literally, incredible. They have no basis for implying 
(Brief at 20-21) that in the twenty-two years since 
Brown, such ancillary relief has had no place in the 
school desegregation process. Thus, State defendants’ ad­



27

missions and experience, as well as the substantial evi­
dence, support the holding of the courts below that such 
ancillary relief is necessary to remedy the continuing 
consequences of the violations found, and is essential in 
the transition to a racially non-discriminatory system of 
schooling.

This conclusion is also supported by case law, express 
congressional authorization, and HEW regulations. First, 
courts have regularly included such ancillary relief in 
desegregation decrees in order (1) to eradicate the re­
sidual resource and educational opportunity discrimina­
tions, as well as the continuing harm resulting from the 
primary pupil segregation violation, and (2) to insure 
the effective implementation of pupil desegregation and 
transition to effective racial non-discrimination in public 
schooling.16 Such essential ancillary relief is included in 
school desegregation decrees precisely because it is “de­
signed . . .  to restore the victims of discriminatory con­
duct to the position they would have occupied in the 
absence of such conduct.” Milliken, 418 U.S. at 746.

Second, Congress and HEW have on several occasions 
analyzed the need for precisely such ancillary relief to 
insure effective desegregation. They have not only found 
it essential, but have provided funding and technical as­
sistance to state and local educational agencies for that 
purpose. See, e.g., Emergency School Aid Act, 20 U.S.C.

16E.g., Morgan v. Kerrigan, 401 F. Supp. 216, 231, 234-35 (D. 
Mass. 1975), aff’d, 530 F.2d 401 (1st Cir. 1976); United States v. 
Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966), 380 
F.2d 385 (5th Cir. 1967) ; Plaquemines Parish School Bd. v. United 
States, 415 F.2d 817 (5th Cir. 1969); United States v. Texas, 330 
F. Supp. 235 (E.D. Tex. 1971); Lee v. Macon County Board of 
Educ., 267 F. Supp. 458 (M.D. Ala. 1967), 317 F. Supp. 103 (M.D. 
Ala. 1970) ; United States v. Missouri, 523 F.2d 885, 887-88 (8th 
Cir. 1975). Cf. Gaston County v. United States, 395 U.S. 285 (1969) 
and Swann, 402 U.S. at 18-20; Wright V. Council of City of Emporia, 
407 U.S. 451, 465 (1972) ; Gilmore V. City of Montgomery, 417 
U.S. 556, 571 (1974); Rogers v. Paul, 382 U.S. 198 (1965).



28

§§1601 and 1606(a); 45 C.F.R. §§180.12, .31, .41; 42 
U.S.C. §§ 2000c-2 and c-4; 45 C.F.R. § 185.12(a) (re­
printed in Appendix B attached hereto).17 Congress and 
HEW, like the courts, have thus expressly recognized 
that the elimination of de jure pupil segregation requires 
more than just pupil reassignments to be effective in 
beginning to overcome the harm inflicted by the violation 
as well as to insure the transition to racially non-dis- 
criminatory schooling.

The point of this judicial, congressional, and adminis­
trative authority is not to give federal judges a roving- 
commission to order general improvements in the educa­
tion offered students in school districts found guilty of 
de jure segregation. Due at least in part to the critical 
examination given the Detroit Board’s initial proposals 
by the plaintiffs (and by the State defendants), plaintiffs 
(and this Court) can be certain that the ancillary relief 
contemplated by the parties and the district court prior 
to the district judge’s remarkable exclusion of plaintiffs 
from further proceedings (see note 9, supra) was care­
fully limited to the equitable tasks at hand— to remedy 
the harmful effects and residual discrimination inhering 
in the de jure segregation violation, to overcome the 
other racial discriminations in schooling of record, and 
to assist the transition to a racially non-discriminatory 
system of schooling. And the Court of Appeals was

17 See also 116 Cong. Rec. 18109-10 (1970); S. Rep. 92-61 at 
8, 13 (1971); H. Rep. 92-576 at 5, 13 (1971); Toward, Equal Edu­
cational Opportunity, Report of the Select S. Comm., on Equal Edu­
cational Opportunity, 92 Cong., 2d Sess, at 129-40, 233-37 (1972) 
(Comm. Print). Cf. Equal Educational Opportunities Act of 1974, 
particularly 20 U.S.C. §■§ 1703(a) (b ) ( f )  and 1713(a). It is also 
relevant that two of the most experienced professionals from one 
of the authorized Title IV School Desegregation Centers carefully 
examined the ancillary relief here at issue to insure that its pur­
poses, programs, and costs were limited to essential adjuncts of 
the pupil desegregation relief rather than providing only generally 
improved educational opportunities. See note 8, supra.



29

thereafter careful to insure that the ancillary relief as 
finally decreed does not present “ a situation where the 
District Court appears to have ‘acted solely according to 
its own notions of good educational policy unrelated to 
the demands of the Constitution.’ See, Keyes v. School 
District, 521 F.2d 465, 483 (10th Cir. 1975).” PA 171a.

Aside from presenting a stone wall to the ancillary 
relief here, State Petitioners therefore offer no reason, 
authority, nor record evidence to suggest any abuse of 
equitable discretion or excess of judicial authority in the 
relief ordered by the lower courts.18 To put the point 
bluntly, State Petitioners’ challenge to the authority of 
the courts below to order any ancillary relief is naught 
but a frolic or detour on the way to consideration of 
their primary claim that they alone among the culpable 
defendants should be free from judicial compulsion to 
implement such manifestly appropriate relief.

18 Thus, State defendants do not argue, for example, that special 
remedial reading is not necessary to overcome the lingering harmful 
effects of the de jure segregation on the educational opportunity 
plaintiff school children will enjoy during desegregation; that non- 
discriminatory testing, guidance and counseling are unrelated to 
avoiding incorporation of these same harmful effects, other racial 
bias, and resegregation in the black school children’s enjoyment 
of the diverse magnet, vocational and other educational programs 
of the Detroit School District; that special in-service training of 
staff is not an integral part of the transition process during pupil 
desegregation. It is also relevant that the Detroit Board has con­
ceded the independent violations of educational opportunity and 
resource discrimination along racial lines which is supported by the 
record evidence. See, e.g., Detroit Board Brief in Opposition to 
Certiorari, at 9; and Statement, supra,.



30

II.

APART FROM THE COST IMPACT, THERE IS NO 
TENABLE CLAIM THAT CONSTITUTIONAL PRIN­
CIPLES OF FEDERALISM, THE TENTH OR ELEV­
ENTH AMENDMENT BAR STATE DEFENDANTS’ 
PARTICIPATION IN IMPLEMENTING THE APPRO­
PRIATE ANCILLARY RELIEF.

For purposes of analysis, we assume in this Argument 
II that the ancillary relief ordered below was proper, 
and we consider only those aspects of State Petitioners’ 
claim of absolute immunity which do not involve the cost 
impact of implementing the relief.1'9 In subsequent sec­
tions, we shall consider the cost impact (see Argument 
III), as well as the non-constitutional factors which may 
guide equitable discretion assuming judicial power (see 
Argument IV). Although the statement of the question 
in this fashion seems to render the answer constitu­
tionally obvious, we believe this approach is analytically 
required because State defendants’ claim of sovereign 
immunity seems to involve more than just an eleventh 
amendment claim of protection from damage awards and 
related money judgments. Thus, for example, Petitioners 
do not here challenge the lower courts’ authority to order 
them to share substantially in the large cost of buses, 
to provide monitoring services, and to implement the 
magnet vocational centers, at least so long as those orders 
conform to State defendants’ view of State policy and 
practice. See Petitioners’ Brief at 8 n. 6, 11-12 n, 8; 
also Statement, supra, notes 7 and 11.

The power of the lower courts to enjoin State Peti­
tioners to assist in implementing appropriate injunctive 19

19 We do not deal with mere fictions, however, for the form of 
the lower court’s decree could just as easily have ordered that State 
defendants implement the in-service and testing components, alone 
rather than joinly with the Detroit Board and thereby avoid al­
together mention of the costs of implementation.



31

relief cannot be seriously doubted once it is remembered 
that these defendants, and the State of Michigan, were 
previously adjudicated to have contributed substantially 
to the de jure segregation of the Detroit Public Schools. 
Bradley v. Milliken, 338 F. Supp. at 589, 484 F.2d at 
238-242, 418 U.S. at 734-35 n. 16. See also Hills v. Gau- 
treaux, 425 U.S. 284, 298 n. 13 (1976). These violation 
findings were manifestly correct, and State defendants 
have not challenged them here. Given this fourteenth 
amendment violation, Ex parte Young, 209 U.S. 123, 159- 
60 (1908), provides the complete rationale, albeit an 
historic “ fiction,” by which the federal courts may order 
injunctive relief against the State officials here to remedy 
the violation and its effects. As stated by Mr. Justice 
Rehnquist for the Court in Edelman v. Jordan, 415 U.S. 
651, 664 (1974), the Ex parte Young “holding has per­
mitted the Civil War Amendments to the Constitution 
to serve as a sword, rather than merely as a shield, for 
those whom they were designed to protect.”

Yet the State defendants seem to suggest that the 
“sword” provided in Ex parte Young has been removed 
sub silentio by the Court’s recent interpretations of the 
tenth amendment and “principles of federalism” in Na­
tional League of Cities v. Usery, 49 L.Ed.2d 245 (1976) 
and Rizzo v. Goode, 423 U.S. 362 (1976). See Petition­
ers’ Brief at 26-31. This constitutionally revolutionary 
assertion will not withstand scrutiny.

First, the tenth amendment holding in the opinions 
for the five-member majority of the Court in National 
League of Cities v. Usery is that Congress may not wield 
its power under the Commerce Clause to enact statutes 
which “ impair the state’s ability to function effectively 
within a federal system,” 49 L.Ed.2d at 257, so as to 
“devour the essentials of state sovereignty,” 49 L.Ed.2d 
at 259— unless, of course, “ the federal interest is demon­
strably greater” under a “balancing approach,” 49 L.Ed.



32

2d at 260 (Blackman, J., concurring). It is inconceivable 
that this decision was intended to modify without men­
tion the long-standing constitutional power and equitable 
authority of federal courts under Ex parte Young to 
order state officials found to have violated the fourteenth 
amendment to implement otherwise appropriate injunc­
tive relief to remedy the violation and all its consequences. 
Speaking for the Court, Mr. Justice Rehnquist said noth­
ing to intimate that this traditional “ sword” of federal 
judicial authority under Ex parte Young to redress par­
ticular denials of the fourteenth amendment was sud­
denly to be sheathed in the face of the tenth amendment. 
The tenth amendment has, after all, been coexisting with, 
but without impeding the reach of, the Civil War amend­
ments for over a century of Constitutional Union and 
Supreme Court decisions.

Second, the “principles of federalism” cited in Rizzo, 
423 U.S. at 380, do not abrogate the constitutional power 
of a federal court to enjoin state officials to remedy their 
own violations of the fourteenth amendment. See The 
Supreme Court, 1975 Term, 90 H a r v . L. R e v . 56, 238- 
41 (1976). For in Rizzo, the Court found that the in­
junctive relief decreed by the lower courts ran against 
city officials who had not themselves committed any con­
stitutional violation, 423 U.S. at 376, 378. Here, in con­
trast, there is no question that State defendants partici­
pated directly in the constitutional violation of de jure 
segregation; and, assuming that Argument I, supra, is 
correct, there is no question that the State defendants 
have been enjoined to redress the violation and its effects 
not to “ fashion prophylactic procedures . . .  to minimize 
misconduct on the part of a handful of employees.” 423 
U.S. at 378. Like Usery, Mr. Justice Rehnquist’s opinion 
for the Court does not suggest that Rizzo limits the power 
of the federal judiciary, upon a proper showing, to order 
state officials under the doctrine of Ex parte Young to



33

redress their violations of the fourteenth amendment.20 
Cf. Hills v. Gautreaux, 425 U.S. 284, 293-300 (1976).

Finally, Rizzo and Usery do not purport to alter in 
any way the traditional power of federal courts to order 
action which exceeds or is in derogation of otherwise 
constitutionally valid state policy or practice where nec­
essary to provide relief from constitutional violations. 
The settled law of this Court, consistently followed by 
the lower courts, is that otherwise valid state law or 
policy must yield or may otherwise be suspended to the 
extent necessary to provide complete relief, even if the 
state policy or practice does not constitute an “ independent 
constitutional violation.” 21 This federal judicial power 
to enjoin state officials to provide necessary relief in­
heres in the Supremacy Clause and the fourteenth amend­
ment which further limits State sovereignty. See Ex 
parte Virginia, 100 U.S. 339, 346-48 (1880); Ex parte 
Young, supra, 209 U.S. at 159-60; Fitzpatrick v. Bitzer, 
49 L.Ed.2d 614, 620-22 (1976); Edelman v. Jordan, 
supra, 415 U.S. at 664.

Thus, the general power of the lower courts to enjoin 
State defendants to participate in implementing relief 
cannot be seriously questioned here. We turn then to

20 Argument IV, infra, considers the issue of how equitable, non­
constitutional considerations may guide or limit the use of this 
constitutional power in light of state policy and practice and prin­
ciples of federalism.

21 Wright v. Council of City of Emporia, 407 U.S. 451, 459 (1972). 
See also, e.g., United, States v. Scotland Neck, 407 U.S. 484, 488-89 
(1972); North Carolina v. Swann, 402 U.S. 43, 45 (1971) ; Griffin v. 
County School Board, 377 U.S. 218 (1964); Brown II, 349 U.S. 
at 300-301; United States V. Greenwood Municipal School District, 
406 F.2d 1086, 1094 (5th Cir. 1969); Haney v. County Bd. of Educ., 
429 F.2d 364, 368-69 (8th Cir. 1970); Carter v. Gallagher, 452 F.2d 
327, 328 (8th Cir. 1971); United States v. Mississippi, 339 F.2d 679, 
684 (5th Cir. 1964) ; United States v. Duke, 332 F.2d 759, 769-70 
(5th Cir. 1964) ; Gautreaux v. City of Chicago, 480 F.2d 210, 214 
(7th Cir. 1973).



34

the common denominator of State Petitioners’ claims, 
i.e., that they are immunized from participating in im­
plementing such appropriate ancillary relief because a 
consequence is that it will cost the State treasury money.

III.

THE ELEVENTH AMENDMENT DOES NOT IM­
MUNIZE STATE DEFENDANTS FROM BEING RE­
QUIRED TO IMPLEMENT JOINTLY WITH THE 
DETROIT BOARD THE PROSPECTIVE ANCILLARY 
RELIEF, INCLUDING SHARING IN THE COSTS 
OF IMPLEMENTATION.

In this section we consider the State Petitioners’ argu­
ment that their sovereign immunity operates to shield 
them from sharing in the costs of implementing ancil­
lary relief. We believe this absolute immunity issue 
should be resolved by reference to decisions construing 
the eleventh amendment. For decisions concerning gen­
eral “principles of federalism” and the tenth amendment 
address either more general, non-monetary relationships 
concerning the supremacy of Federal authority vis-a-vis 
State sovereignty (see Argument II, supra) or the proper 
exercise of equitable discretion assuming the Federal 
judicial power to compel the State to act (see Argument 
IV, infra).

A. The Judgment Below Is Not Barred by the Eleventh 
Amendment Because the Impact on the State Treasury 
Is a Consequence of Complying with Prospective In­
junctive Relief.

As this Court noted in considering the order requir­
ing Illinois to make retroactive payment of wrongfully 
withheld welfare monies in Edelman v. Jordan, 415 U.S. 
at 667, “the difference between the type of relief barred 
by the Eleventh Amendment and that permitted under 
Ex parte Young will not in many instances be that be­



35

tween night and day/’ In Edelman, however, the Court 
articulated the nature of the difference. The eleventh 
amendments bars “ a suit by private parties seeking to 
impose a liability which must be paid from public funds 
in the state treasury,”  415 U.S. at 663, that is, “a suit 
which seeks the [“ retroactive” ] award of an accrued 
monetary liability which must be met from the general 
revenues of a State,” id. at 664, even if “ labeled ‘equit­
able’ in nature,” id. at 666.

In contrast, Ex parte Young permits “prospective” 
relief against States and their officials “ to conform [their] 
future conduct . . .  to the requirement [s] of the Four­
teenth Amendment,” 415 U.S. at 664, even if that re­
lief has “greater impact on state treasuries,” id. at 667. 
This “ancillary effect on the state treasury” is not barred 
by the eleventh amendment to the extent such “ fiscal 
consequences [are] the necessary result of compliance 
with decrees which by their terms [are] prospective in 
nature,” id. at 667-68. Thus, this Court in Edelman 
held that the eleventh amendment barred an order re­
quiring Illinois State officials to make retroactive pay­
ments of previously withheld welfare checks; the order 
was “ in practical effect indistinguishable in many aspects 
from an award of damages against the state. . . .  [It 
was] measured in terms of a monetary loss resulting 
from a past breach of a legal duty on the part of the 
defendant state officials.” Id. at 668.

Applying these criteria to this case, it is as clear as 
most days that the relief sought and ordered below is 
permitted under Ex parte Young rather than barred by 
the eleventh amendment. First, this suit has always 
sought (and still seeks) a racialy non-discriminatory sys­
tem of schooling for plaintiff children now and here­
after not money damages or other retroactive payments 
for an accrued monetary liability. Second, the injunctive 
decree against State Petitioners is prospective in nature;



36

it requires compliance, now and hereafter, with the 
command of Brown II, 349 U.S. at 301, to operate a 
racially nondiscriminatory school district, free of the ves­
tiges of de jure segregation. PA 178a.

These two factors distinguish this decree from the 
retroactive payments in Edelman and show that the 
prime thrust of the decree here is to provide traditional, 
prospective, injunctive relief under Ex parte Young 
which is not barred by the eleventh amendment.22

State Petitioners nonetheless apparently argue that the 
shadow of the eleventh amendment falls over this case 
because the decree includes a provision requiring that 
State and local defendants “ shall . . . equally bear the 
burdens” of the costs of their joint implementation of re­
lief.23 State Petitioners claim that this constitutes a 
direct raid on the State treasury barred by the eleventh 
amendment. Brief at 31, et seq. The fallacy in this 
approach can be most easily seen by assuming for pur­
poses of analysis that the decree, instead of requiring 
such joint implementation of ancillary relief, ordered 
each set of defendants to implement two of the “com­
ponents” separately. Cf. note 19, supra. Such a decree 
might be subject to a challenge on grounds of an abuse

22 Describing the prospective as contrasted to the retroactive 
nature of such ancillary relief, Judge Garrity in the Boston school 
case noted that plaintiffs do not seek relief which would make them 
whole and compensate them as a class, with money damages or other 
compensatory relief, for the “ immense injury . . . already wrought 
by the defendants’ long practiced racial discrimination.” Morgan v. 
Kerrigan, supra, 401 F. Supp. at 231 and n.5. Rather, “ the remedy 
. . . assures that past discriminatory practices will work no fur­
ther harm,” id. at 231, by including measures, inter alia, to eliminate 
“ the persisting effects of past discrimination.” Id. at 234.

23 This provision apportioning implementation costs also guar­
antees that these costs will be strictly limited to the ancillary relief 
actually ordered by the court rather than include costs incident 
to services, programs, or personnel already budgeted by the Detroit 
School District independent of the decree. PA 146a.



37
of equitable discretion (see Argument IV, infra) but it 
most certainly would not be barred by the eleventh 
amendment. For the equally large costs of such direct 
implementation then borne by the State defendants would 
obviously have only an “ancillary effect on the state 
treasury” ; such “ fiscal consequences [would be] the neces­
sary result of compliance with [a] decree which by [its] 
terms [is] prospective in nature.” Edelman v. Jordan, 
415 U.S. at 667-68.

Viewed in this light, the portion of the decree requir­
ing the State defendants to share equally with the De­
troit Board in the costs of joint implementation merely 
apportions these fiscal consequences of future compliance 
with a prospective decree between State and local de­
fendants. This mere apportionment of any implementation 
costs surely does not serve to make what is otherwise 
manifestly a permissible ancillary effect on the State 
treasury into a retroactive payment for an accrued mone­
tary liability barred by the eleventh amendment.24 Thus, 
the decree “requires payment of state funds . . . [only]

24 In posing this hypothetical decree for purposes of analysis, 
we are not asking the Court to’ judge an award which might have 
been tailored differently than the one actually made in this case. 
Cf. Edelman v. Jordan, 415 U.S. at 665-66. Rather the point of the 
hypothetical is to show that the decree actually made in this case 
merely apportions the ancillary effects on the State treasury which 
are otherwise permissible under Ex parte Young and not barred by 
the eleventh amendment. In so doing, it becomes clear that the 
eleventh amendment policy considerations which underlie the result 
in Edelman are not present here : there is no direct drain on the 
State treasury to reimburse (or provide “refunds” to) victims for 
past transgressions of the law but only such ancillary effect on State 
funds as is necessary to' secure future compliance with the command 
of Brown II to insure the transition to' and maintenance of a non- 
discriminatory system of schooling. Cf. Edelman v. Jordan, 415 U.S. 
at 666 n .l l; Ford Motor Co. v. Dept, of Treasury, 323 U.S. 459, 
464 (1945). Indeed, for purposes of analysis under Edelman, there 
is no difference in kind or effect on the State treasury of these costs 
and those incurred with respect to the injunctive relief concerning 
buses, magnet vocational centers, and a monitoring commission, 
which State defendants have previously conceded is not barred by 
the eleventh amendment. See notes 7 and 11, supra.



38

as a necessary consequence of compliance, in the future 
with a substantive federal-question determination” con­
cerning complete relief from a de jure segregation four­
teenth amendment violation, rather than “ as a form of 
compensation to those” injured. 415 U.S. at 668.

The Court of Appeals properly rejected State defend­
ants’ claim to sovereign immunity in holding that the 
“order is directed towTard the State defendants as a 
part of a prospective plan to comply with a constitu­
tional requirement to eradicate all vestiges of de jure 
segregation. Alexander v. Holmes County Board of Edu­
cation, 396 U.S. 19, 20 (1969).” PA 178a. See also PA 
172a-173a.25 Merely requiring the guilty parties to share 
the ancillary fiscal consequences of such prospective relief 
does not convert the remedy into an award of money 
damages nor render the decree retroactive.

B. In the Alternative, Congress Has Specifically Lifted 
Any Sovereign Immunity from This Suit Otherwise 
Enjoyed by the Defendant State Board of Education 
Pursuant to Congress’ Enforcement Powers Under 
Section 5 of the Fourteenth Amendment; and, in Any 
Event, the State Has Specifically Waived Its Immunity 
to Suit Here.

1. Assuming, arguendo, that the eleventh amendment 
might apply to the decree here, any claim of sovereign 
immunity has been lifted by specific Act of Congress 
pursuant to its enforcement powers under section 5 of 
the fourteenth amendment. Congress has specifically au­
thorized suit against the defendant State Board of Edu­

25 This was the sole ground addressed by the Court of Appeals 
in rejecting State defendants’ claim to sovereign immunity under 
the eleventh amendment. Although the alternative grounds dis­
cussed, infra, were not considered by the Court of Appeals, they 
nonetheless support the judgment below and are therefore properly 
before this Court for review. See Langnes v. Green, supra, 272 U.S. 
at 535-59, and cases cited in the Introduction to Argument, supra, 
p. 23.



39

cation for violations of the Equal Educational Oppor­
tunities Act of 1974 and provided federal courts with the 
jurisdiction to hear such cases. See 20 U.S.C. §§ 1703 
(a), (b) and (f) , 1706, 1708, and 1720 (also 20 U.S.C. 
§ 881 (k) which defines the term “ state education agency” 
to include the State Board of Education) (reprinted in 
Appendix B attached hereto). Under Edelman v. Jor­
dan, 415 U.S. at 672, and Fitzpatrick v. Bitzer, 49 L.Ed. 
2d 614, 619-22 (1976), this congressional authorization to 
join the State Board of Education as a party defendant 
in causes of action under 20 U.S.C. § 1701, et seq., lifts 
the immunity which might otherwise be enjoyed by the 
State, at least with respect to the Petitioner State Board 
of Education.

As the Court summarized in Fitzpatrick, 49 L.Ed.2d 
at 620-21, this is so becasue the Civil War Amendments 
constitute limitations on State sovereignty and sanction 
intrusions into the judicial, executive, and legislative 
spheres of autonomy previously reserved to the States 
and/or the people. The Court stated the controlling con­
stitutional principle in Ex parte Virginia, 100 U.S. 339, 
346-48 (1880) :

The prohibitions of the 14th Amendment are . . . 
restrictions of state power. It is these which Con­
gress is empowered to enforce. . . . Such enforce­
ment is no invasion of state sovereignty. No law can 
be, which the people of the States have, by the Con­
stitution of the United States, empowered Congress 
to enact . . . .  [E]very addition of power to the 
General Government involves a corresponding dimi­
nution of the governmental powers of the States. It 
is carved out of them . . . [T]he Constitution now 
expressly gives authority for congressional interfer­
ence and compulsion in the cases embraced within 
the 14th Amendment. It is but a limited authority, 
true, extending only to a single class of cases; but 
within its limits, it is complete.



40

As held by the Court in Fitzpatrick, “we think that the 
Eleventh Amendment, and the principle of state sover­
eignty which it embodies, see Hans v. Louisiana, 134 
U.S. 1 (1890), are necessarily limited by the enforcement 
provisions of § 5 of the Fourteenth Amendment,” 49 
L.Ed.2d at 621. Congress thus acted properly in 20 
U.S.C. §§ 1701, et seq., to authorize suit against the 
defendant State Board of Education even if “constitu­
tionally impermissible in other [i.e., non-section 5] con­
texts,” 49 L.Ed.2d at 622, and thereby “abrogate [d] the 
immunity conferred by the Eleventh Amendment.” 49 
L.Ed. at 619.

The only remaining issues concern whether the Act 
should be used in deciding this appeal and whether its 
terms support the judgment below. First, under this 
Court’s decisions culminating in Bradley v. School Board, 
416 U.S. 696, 711-21 (1974), the provisions of the Act 
should be applied to decide a pending appeal such as 
this. The Act involves “great national concerns,” United 
States V. Schooner Peggy, 1 Cranch 103, 110 (1801), not 
private disputes; and Congress did not limit the Act only 
to prospective effect. Therefore, the “court must decide 
according to existing laws,”  Id. Second, the findings 
and record below concerning the continuing de jure seg­
regation violations and their harmful consequences on the 
educational opportunities of plaintiff children (see State­
ment, supra, pp. 5-7, 10-11), show that a cause of action 
has been made out against the Petitioner State Board of 
Eduction under 20 U.S.C. §§ 1703(a), (b) and ( f ) .26

26 It is also relevant that the drafters of 20 U.S.C. §§ 1701, et 
seq., intended that such ancillary relief be included as remedies for 
de jure segregation violations. See, e.g., 118 Cong. Reg. 8928, 8930 
(1972) (message of Pres. N ixon); Equal Educational Opportunity 
Act, hearings before the H. Comm, on Educ. & Labor, 92d Cong., 2d 
Sess. 10 (1972) (Sec’y Richardson). See also, 20 U.S.C. §§ 1703(f), 
1706, 1713(g). Indeed such ancillary relief was hoped by many of 
the Act’s sponsors to be a complete substitute for pupil reassignment 
beyond the schools in closest proximity to any child’s residence;



41

Thus, the ancillary relief ordered here against the State 
Board of Education, even if the equivalent of money 
damages for an accrued liability, is not barred by the 
eleventh amendment; for the State Board of Education 
has been expressly subjected to such suits by the Con­
gress enforcing its power under the fourteenth amend­
ment. Fitzpatrick v. Bitzer, 49 L.Ed.2d at 620-22.27

2. In the alternative, the State of Michigan has ex­
pressly waived the immunity to suit of the State Board 
of Education. Pursuant to Mich . Stat. A n n . § 15.1023 
(7), the “ state board of education may sue and be sued, 
plead and be impleaded in all courts in this state” (em­
phasis added). Although the courts below did not focus 
on the effect of this statute, the district court did in the 
Kalamazoo school case. See Oliver v. Kalamazoo Board
of Education, ——- F.Supp. ------  (Nov. 5, 1976) (CA
#K-88-71), appeal pending. Relying on Soni v. Board, 
of Trustees, 513 F.2d 347, 352-53 (6th Cir. 1975), cert, 
denied, 44 U.S.L.W. 3702 (U.S. June 7, 1976), the

thus, these sponsors were not overjoyed when the Congress included 
a specific “ savings clause,” 20 U.S.C. § 1702(b), as well, in order to 
guarantee that the power of the federal courts to require pupil re­
assignments to secure compliance with Brown would not be limited 
or modified in any way. See 120 Cong. Rec. S13349-85 (1974); 
120 Cong. Rec. H7389-7419 (1974); Morgan v. Kerrigan, 530 
F.2d 401, 411-15, 419 n.24 (1st Cir. 1975); Brinkman v. Gilligan, 
518 F.2d 853, 856 (6th Cir. 1975), cert, denied, 423 U.S. 1000 
(1976). This “savings clause” in what otherwise might have been 
“ anti-busing” legislation was certainly appropriate for an Act 
purporting in name “to enforce” (rather than “ in effect to dilute” ) 
the fourteenth amendment. See Katzenbach v. Morgan, 384 U.S. 
641, 651 n.10 (1966).

27 As the parties did not focus and the Court of Appeals did not 
pass on this ground, “ it may be appropriate to remand the case 
rather than deal with the merits of the question in this Court.” 
Dandridge V. Williams, 397 U.S. 471, 475-76 n.6 (1970). On this 
particular issue, however, the Court’s settled decisions in Bradley 
v. School Board and Fitzpatrick v. Bitzer, as well as the findings 
and uncontroverted record below, make the decision so obvious that 
remand to the Court of Appeals would serve no purpose.



42

Oliver court found in this statute an express waiver of 
sovereign immunity under the eleventh amendment. Rec­
ognizing that waiver of a State’s immunity to suit in 
federal court must be express, Edelman V. Jordan, 415 
U.S. at 673, the court found that- the phrase “all courts 
in this state” had been advisedly used in contrast to, 
for example, “ state courts” or “courts of this state.” 
Oliver, slip op. at 6. Reviewing other Michigan statutes, 
cases, and practice, the court found no indication that 
this express waiver of immunity was intended to be 
limited to state courts. Thus, the district court in Oliver 
properly concluded that state law expressly waives any 
of the State Board of Education’s immunity under the 
eleventh amendment from suits such as this. Cf. Reagan 
v. Farmers Loan & Trust Co., 154 U.S. 362, 392 (1884). 
For the “consent to be sued inescapably subjects the 
[State Board] to the hazard of having a money judgment 
rendered against it.” Soni v. Board of Trustees, supra, 
513 F.2d at 353.28

C. In the Alternative, the Judgment Below Is Not Barred 
by the Claim of Sovereign Immunity Because Section 
1 of the Fourteenth Amendment, Both in Its Direct 
Impact and as Enforced by Congress Through 42 U.S.C. 
§ 1983, 28 U.S.C. § 1331 and Other Reconstruction Legis­
lation, Supercedes the Eleventh Amendment.

As final alternatives*, we come to other potential limita­
tions of the State Petitioners’ claim to sovereign im­
munity: passage of the fourteenth amendment itself and 
congressional enactment of 42 U.S.C. § 1983, 28 U.S.C. 
§ 1331 and other Reconstruction legislation enforcing the

28 The further question is posed whether the State defendants 
may in the same judicial proceeding’ on one day acquiesce in relief 
which has precisely thei same effect on the State treasury as relief 
which they choose to oppose the next. See notes 7, 11, and 23, supra. 
Or does such conduct mean that the State Board of Education has, 
“ in effect consented to the abrogation of [any eleventh amendment] 
immunity” for this case? Edelman, 415 U.S. at 672.



43

fourteenth amendment. We believe that cases such as 
Ex parte Virginia, Ex parte Young, and Fitzpatrick v. 
Bilzer, implicitly recognize that these historic changes 
fundamentally restructured the Constitutional Union so 
as to authorize suits directly against the States and their 
officers, thereby abrogating their immunity from direct 
money judgments in cases of de jure racial discrimination. 
For, as the Court recognized in Fitzpatrick v. Bitzer, not 
only does exercise of the section 5 enforcement power 
“necessarily” limit the “principle of State sovereignty” 
found in Hans v. Louisiana, but “ the other sections by 
their own terms embody limitations on State authority.” 
49 L.Ed.2d at 622. We also believe that the framers of 
the Civil War Amendments and the Reconstruction legis­
lation, as well as the States themselves, either intended 
or accepted this complete limitation of State sovereignty 
within the reach of the fourteenth amendment. Our rea­
soning in support of these beliefs is outlined in Appendix 
A attached to this brief.29

We recognize, however, that this Court has never pre­
viously resolved these constitutional issues and on many 
occasions has expressly refrained from doing so. E.g., 
Ex parte Young, 209 U.S. at 150; Edelman v. Jordan, 
415 U.S. at 694 n.2 (Marshall, J., dissenting) ; National 
League of Cities v. Usery, 49 L.Ed.2d at 258 n.17; and 
Mt. Healthy City School District V. Doyle, 45 U.S.L.W. 
at 4080-81. See also, Fitzpatrick v. Bitzer, supra. There 
is no need to resolve these fundamental constitutional 
and jurisdictional issues in this case if the Court finds 
the alternative grounds set forth in Arguments III A 
and III B, supra, pp. 34-42, sufficient to affirm the judg­

29 These views may also call into- question the continuing vitality 
of Hans V. Louisiana, 134 U.S. 1 (1890), a decision which we be­
lieve fundamentally misconstrued Justice Iredell’s dissent in Chisolm 
V. Georgia, and, therefore, the purpose and effect of the eleventh 
amendment. Cf. Fitzpatrick v. Bitzer, 49 L.Ed.2d at 622, 623 n.2 
(concurring opinions of Brennan, J., and Stevens, J.).



44

ment of the court below. But if the Court finds these 
alternative grounds alone or in combination inadequate, 
then the Court cannot dispose of this case on the State 
Petitioners’ claim of sovereign immunity without reach­
ing the unresolved constitutional and jurisdictional 
issues.

Although Appendix A outlines the argument on these 
issues, the parties and the court below never focused on 
them. We therefore believe that the prior practice of this 
Court counsels either a remand to the Court of Appeals 
for its initial consideration of these issues, Dandridge
V. Williams, supra, 897 U.S. at 475-76 n.6, or full re- 
briefing and argument on these historic issues as in 
Brown. These unresolved issues are too important, and 
for too long have been expressly avoided, to permit their 
summary resolution.

IV.

IN THE PARTICULAR CIRCUMSTANCES OF THIS 
CASE THE LOWER COURTS DID NOT ABUSE 
THEIR EQUITABLE DISCRETION IN ORDERING 
THE STATE DEFENDANTS TO IMPLEMENT AN­
CILLARY RELIEF JOINTLY WITH THE LOCAL 
DEFENDANTS.

In this section of Argument we assume for purposes 
of analysis that ancillary relief is appropriate (Argu­
ment I), that the lower courts had the power to compel 
State defendants to participate in implementing such 
ancillary relief (Argument II), and that the eleventh 
amendment does not immunize State defendants from 
sharing in the cost burdens of such implementation (Ar­
gument III). In sum, we assume the constitutional power 
of the courts below to order the relief here challenged 
by State Petitioners. In this part we consider whether, 
in the particular circumstances of this case, there are 
nonconstitutional factors which so limit or guide the ex­



45

ercise of equitable discretion as to require reversal or 
modification of the injunction at issue.30 We believe that 
a review of the record will show that the injunction here 
at issue does not exceed equitable limitations and is 
tailored to fit state practice and local circumstances.

First, State and local defendants acted jointly and 
severally to commit long-standing and pervasive viola­
tions of plaintiffs’ constitutional right to a racially non- 
discriminatory system of schooling. It is therefore appro­
priate not only to provide adequate relief from the 
violation to plaintiffs; prima facie, it is also proper to 
shape the injunctive decree so that both wrongdoers share 
in the burden of implementing relief, including any costs. 
Cf. W. P rosser, L a w  op T orts § 52 at 814-16 (4th ed. 
1971).

3<) Although State Petitioners may not have briefed these non­
constitutional, equitable considerations, we recognize that such 
issues are at least implicated in the questions on which this Court 
granted certiorari. Cf. Supreme Court Rule 23(1) (c). In any 
event, it is appropriate for this Court to determine whether there 
has been an abuse of equitable discretion here:

That the court’s discretion is equitable in nature . . . hardly 
means that it is unfettered by meaningful standards or shielded 
from thorough appellate review. . . . [W]hat is required is the 
principled application of standards consistent with [the] pur­
poses [of the right at stake] and not equity which varies like 
the Chancellor’s foot.

Albermarle Paper Co. V. Moody, 422 U.S. 405, 416-17 (1975). As 
this Court has stated in another context, “ the remedial powers of an 
equity court must be adequate to the task, but they are not un­
limited.” Whitcomb v. Chavis, 403 U.S. 124, 161 (1971); Minnesota 
State Senate v. Reems, 406 U.S. 187, 199 (1972). As put in Swann, 
although “ a district court’s equitable powers to remedy past wrongs 
is broad,” 402 U.S. at 15, “ it must be recognized that there are 
limits . . .  as to how far a court may go.”  Id. at 28. Moreover, the 
equity court must inevitably be concerned with “ adjusting or recon­
ciling public and private needs . . .  in shaping its remedies.” Brown 
II, 349 U.S. at 299-300. And the relief should also be tailored “taking 
into account the practicalities of the local situation.” Davis V. Bd. of 
School Comm’rs, 402 U.S. 33, 37 (1971).



46

Second, in shaping State and local defendants’ joint 
participation in relief, the lower courts were solicitous 
of State policy and practice concerning the local adminis­
tration of public schools, general supervision of educa­
tion by State school authorities, and the joint allocation 
of costs for local school operations between federal, state, 
and local revenues. Thus, for example, the Court of 
Appeals modified the district court’s initial order (PA 
la) requiring the State defendants to acquire buses in 
order to conform with State practice so that the Detroit 
Board would purchase, own, and operate the buses and 
the State defendants would reimburse the Detroit Board 
for 75% of the cost (PA 8a-5a). Pursuant to the prac­
tice of State-level supervision, the district court made 
the State defendants directly responsible for the opera­
tion and costs of services to monitor implementation of 
relief (PA 85a, 148a). And the relief hammered out 
between the State and local defendants with respect to 
magnet vocational centers followed federal, state, and 
local policy as a consequence of the district court’s “en­
couragement” (PA 119a). There was no attempt by the 
courts below to restructure the traditional methods of 
administering, supervising, and financing public educa­
tion in the Detroit School District under the guise of 
providing complete relief from the de jure segregation 
found. Thus, equitable considerations inhering in “prin­
ciples of federalism” were followed in shaping relief. 
Cf. Hills v. Gautreaux, 425 U.S. 284, 293-300 (1976).

Finally, that portion of the decree requiring State and 
local defendants together to share in the cost burdens of 
implementing four aspects of ancillary relief causes the 
State defendants, and the Detroit Board, to bear no more 
than their fair share of the costs of remedying their 
wrongs. In fairly apportioning these costs, the decree 
expressly limits the State defendants’ participation to the 
“excess costs” beyond any pre-existing local expenditure;



47
this insures that the State defendants’ “fair share of the 
costs” will be limited to the actual costs of the ancillary 
relief ordered rather than inadvertently include payment 
for any other local programs or operations. (PA 146a- 
147a.) Such a decree constitutes no blank check to be 
drawn on the State treasury at will for educational oper­
ations generally or desegregation relief particularly.

In imposing on the State defendants a share of the costs 
of implementation, the decree also took into account some­
what the relative resources available to the State and 
local defendants. The gravamen of the proof on this 
“resource” issue was not that there was a State school 
financing violation as considered by this Court in Rod­
riguez. As plaintiffs have repeatedly made clear, this is 
a case of hard core racial discrimination, de jure school 
segregation, not a school finance case. But the record 
did amply demonstrate and both District Judges Roth 
and DeMascio made findings (e.g., 338 F. Supp. at 589; 
PA 37a-41a, 58a), affirmed by the Court of Appeals (484
F.2d at 238-42; PA 179a-180a), that:

1. The Detroit School District has been on the verge 
of bankruptcy compared to the relatively dynamic 
State School Aid fund (whose warrants and 
checks are issued under the authority of State 
Petitioners, MSA 3.140(1), 15.1919 (517)).

2. The Detroit Board was not malingering in its 
effort to raise money and suffered from relatively 
severe limitations on its ability to raise addi­
tional money locally.

3. The State, by a series of specific actions (historic 
discrimination in the authority granted for school 
bonding, reimbursement of transportation costs, 
and computing state aid) “created and perpetu­
ated systematic educational inequalities,” 338 F. 
Supp. at 589, which further served to stigmatize 
plaintiffs’ schooling as the state education sys­
tem’s undeserving, black stepchild.



48

The relevance of such findings for this Court’s present 
review is not that they make out an independent consti­
tutional violation (although they may very well). Rather, 
they are factors which the chancellor may properly con­
sider in apportioning the cost burdens of remedy for 
other violations between two sets of wrongdoers over 
which he unquestionably has the constitutional power to 
order either wrongdoer alone to provide relief.

An alternative to requiring the State defendants to 
share in the burdens of implementing relief with the 
local defendants is to enjoin one of the two parties to 
bear the total burden of the ancillary relief. But that 
choice would, of course, allow one set of defendants to 
avoid sharing in the burdens of remedying its own vio­
lation contrary both to the nature of the violation and 
to the State policy of sharing the responsibility for public 
education in Michigan between local school districts and 
the State and its responsible State officials. The other 
alternative would be to require each set of defendants to 
implement alone separate aspects of ancillary relief; but 
that would require some departure from the State policy 
and practice of local administration of schools.

Given these circumstances, and the alternatives avail­
able, the judgment below neither exceeds the equitable 
authority nor constitutes an abuse of the equitable dis­
cretion vested in the courts below to in join the State 
and local defendants to provide necessary prospective re­
lief from the de jure segregation violation and its effects.

The Court of Appeals thoroughly reviewed the ancil­
lary relief ordered as measured against the rights and 
interests at stake and the record evidence. Cf. Brown 
II, 349 U.S. at 299-301. In our view, the Court of Ap­
peals properly held that there had been no abuse of dis­
cretion in the nature and kind of ancillary relief ordered 
to implement plaintiffs’ right to attend a racially non­



49

discriminatory school district as free as possible of the 
present effects of the prior and continuing de jure dis­
crimination. Thus, the Court of Appeals’ judgment rep­
resents “the principled application of standards consist­
ent” with the rights and interests at stake, even if some 
of the district court’s other rulings and its mode of pro­
ceeding (see Statement, supra, pp. 12-13) resemble the 
“chancellor’s foot.” Albemarle Paper Co. v. Moody, supra, 
402 U.S. at 417.31

31 The State defendants made no claim in the Court of Appeals of 
prejudice in the district judge’s extraordinary method of proceed­
ing (see, note 9 and page 13, supra) ex parte without transcrip­
tion and thereby limiting the record on the details, total cost, and 
allocation of costs for ancillary relief. For that reason, the Court of 
Appeals was correct in affirming the judgment of the district court. 
Similarly, the State defendants make no claim of error or prejudice 
in this Court on these procedural grounds. Cf. State Petitioners’ 
Brief at 11 n.7. That may be because the State defendants have a 
basis independent of the record for knowing that the actual costs 
previously assessed are directly related to ancillary relief appro­
priate under the standards described in this brief; this may be par­
ticularly true since the actual costs of implementing ancillary relief 
over the past year may be known to them. However, if State de­
fendants do now challenge on some evidentiary basis the amount 
or the allocation of the costs assessed, remand pursuant to this 
Court’s “plain error” rule, 40 (1) (d) (2) , may be appropriate to 
insure that State defendants have the opportunity to contest and 
to make a record to insure that they bear only their fair share of 
the actual costs of implementing ancillary relief, pursuant to the 
controlling constitutional and equitable principles.



CONCLUSION

WHEREFORE, for the foregoing reasons, Plaintiffs 
and Respondents Ronald Bradley, et ah, pray that the 
judgment of the Court of Appeals on ancillary relief be 
affirmed.

Dated: January 28,1977.

50

Louis R. Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103
Robert A. Murphy 
William E. Caldwell 
Richard S. Kohn 
Lawyers’ Committee for Civil 
Rights Under Law 
Suite 520
733 15th St., N.W.
Washington, D.C. 20005

Elliot S. Hall 
2755 Guardian Building 
500 Griswold Avenue 
Detroit, Michigan 48226

Attorneys for Bradley Respondents

Respectfully submitted,

Nathaniel R. Jones
1790 Broadway
New York, New York 10019
Thomas I. Atkins
451 Massachusetts Avenue
Boston, Massachusetts 02118
Paul R. Dimond
O’Brien, Moran & Dimond 
210 E. Huron St.
Ann Arbor, Mich. 48108



APPENDICES



la

APPENDIX A

OUTLINE OF ALTERNATIVE ARGUMENTS ON THE 
IMPACT OF THE FOURTEENTH AMENDMENT AND 
ENSUING RECONSTRUCTION LEGISLATION ON 
STATE SOVEREIGNTY.

Following, in outline form, are several arguments, 
alternative to Arguments III A and III B in the text 
of this brief, which also require rejection of the State 
Petitioners’ sovereign immunity claims. In our view it is 
not necessary to reach these questions in this case be­
cause our other arguments are dispositive. Should the 
Court reject the sovereignty analyses presented in the 
main Arguments III A and B, however, it would then 
be necessary for the Court to consider the questions 
raised in Argument III C. In that circumstance, this 
outline will be in need of considerable fleshing out, and 
we have accordingly requested (see pp. 43-44, supra) 
the opportunity for full-fledged rebriefing or remand to 
the Court of Appeals for its initial consideration of these 
issues.

1. As a threshold matter, the reach of the eleventh 
amendment does not extend to federal-question claims 
against the states. The purpose of the eleventh amend­
ment was to restore the original understanding of the 
“diversity” clause of Article III, as understood by Jus­
tice Iredell in his dissent in Chisholm v. Georgia, 2 U.S. 
419 (1793), and not to withdraw federal judicial power 
over federal-question claims against the states. The con­
trary interpretation arrived at in Hans v. Louisiana, 
134 U.S. 1 (1890), is mistaken. Hence, wherever Con­
gress has, in the exercise of its Article III prerogatives, 
conferred federal-court jurisdiction over federal-question 
disputes, the states are subject to suit for a full meas­
ure of relief unless the jurisdictional grant provides 
otherwise. (These points are persuasively made in the



2a

Brief Amici Curiae for the Lawyers* Committee for 
Civil Rights Under Law, et ah, filed last Term in No. 
75-251, Fitzpatrick v. Bitzer.)

Here the district court’s jurisdiction was initially in­
voked pursuant to 28 U.S.C. §§ 1348 and 1331, among 
other provisions, and the existence of subject-matter ju­
risdiction with respect to plaintiffs’ fourteenth amend­
ment claims has never been in dispute. The eleventh 
amendment is therefore inapplicable to this case.

2. Even if point 1 is in error in asserting the gen­
eral proposition that all federal-question claims against 
the states are not within the purview of the eleventh 
amendment, it is nevertheless correct insofar as the prop­
osition pertains to federal-question claims arising under 
the fourteenth amendment. By their very terms, “the 
substantive provisions of the Fourteenth Amendment 
. . . themselves embody significant limitations on state 
authority.” Fitzpatrick v. Bitzer, 49 L.Ed.2d 614, 621 
(1976) ; see also Ex parte Virginia, 100 U.S. 339, 345-48 
(1880). Moreover, the fourteenth amendment “ is un­
doubtedly self-executing without any ancillary legisla­
tion so far as its terms are applicable to any existing 
set of circumstances.” Civil Rights Cases, 109 U.S. 3, 
20 (1883) ; accord, Monroe v. Pape, 365 U.S. 167, 198 
(1961) (Harlan, J., concurring) ; B. S c h w a r t z , 1 S t a t ­

u t o r y  H i s t o r y  o p  t h e  U n i t e d  S t a t e s : C i v i l  R i g h t s  
215 (1970). “ [T]he Fourteenth Amendment plainly pro­
hibits a State itself from discriminating because of race.” 
Adickes v. S. H. Kress & Co., 398 U.S. 144, 169 (1970).

Thus, of its own force the supervening fourteenth 
amendment circumscribes the reach of the eleventh. If 
there is subject-matter jurisdiction in the federal courts, 
as there is in this case, therefore, the violation of vested 
fourteenth amendment rights may be fully remedied with­



3a

out regard to the subordinate provisions of the eleventh 
amendment.

3. In Fitzpatrick V. Bitzer, supra, this Court held 
that Congress had the power, conferred by § 5 ôf the 
fourteenth amendment, to enact enforcing legislation 
overriding the eleventh amendment immunity of the 
states. The Court plainly did not (and did not need to) 
reach the question, discussed in point 2, supra, as to 
whether the fourteenth amendment by its own terms lim­
its the scope of immunity afforded by the eleventh amend­
ment. Yet some lower federal courts have construed 
Fitzpatrick as requiring the existence of congressional 
action pursuant to I 5 as a precondition to the express 
terms of the fourteenth amendment being allowed to 
carry the day against a claim of eleventh amendment 
immunity. See, e.g., Jagnandan V. Giles, 538 F.2d 1166 
(5th Cir. 1976), petition for cert, pending, No. 76-832. 
We do not agree to that proposition, for reasons out­
lined in point 2, above. But even if the proposition is 
correct, such § 5 congressional authorization is mani­
festly present in the instant case.

In addition to the Equal Educational Opportunities 
Act of 1974 (discussed in the main text at pp. 38-41), 
such authorization is present in § 1 of the Civil Rights 
(or Ku Klux) Act of April 20, 1871, 17 Stat. 13 (now 
codified as 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983), 
and in the Judiciary Act of March 3, 1875, 18 Stat. 470 
(now 28 U.S.C. § 1331), conferring general federal- 
question subject-matter jurisdiction on the federal courts 
limited only by a, minimum jurisdictional-amount re­
quirement. We shall outline these two latter points 
seriatim.

a. Section 1 of the Civil Rights Act of 1871 plainly 
constitutes legislation under § 5 of the fourteenth amend­
ment to enforce the substantive provisions thereof. The



4a

title of the Act so states (17 Stat. 13), and this Court 
has recognized that the Act “was one of the means 
whereby Congress exercised the power vested in it by § 5 
of the Fourteenth Amendment to enforce the provisions 
of that Amendment.” Monroe v. Pape, 365 U.S. 167, 
171 (1961). The cause-of-action part of the 1871 Act 
(now 42 U.S.C. § 1983) subjects “ [ejvery person who, 
under color of” state law deprives another of fourteenth 
amendment rights, for example, to liability “ in an action 
at law, suit in equity, or other proper proceeding for 
redress.” And the jurisdictional part (28 U.S.C. § 1343
(3)) confers jurisdiction on the federal courts co-ex- 
tensive with the authorized cause of action. See Blue v. 
Craig, 505 F.2d 830 (4th Cir. 1974). Whoever may 
come within the ultimate coverage of this Act (cf. 
Adickes v. S. H. Kress & Co., supra), it is clear that 
“ state officials” (id. at 167 and 168) are a primary 
target.

This would be enough to demonstrate that the state 
officials who are petitioners here have been subjected to 
suit under § 5 legislation, and thereby stripped of their 
eleventh amendment immunity in this case, were it not 
for the following dictum in Fitzpatrick v. Bitzer, supra, 
49 L.Ed.2d at 619 (emphasis added) :

We concluded that none of the statutes relied upon 
by plaintiffs in Edelman contained any authorization 
by Congress to join a State as defendant. The Civil 
Rights Act of 1871, 42 U.S.C. § 1983, had been held 
in Monroe v. Pape, 365 U.S. 167, 187-191 (1961), 
to exclude cities and other municipal corporations 
from its ambit; that being the case, it could not have 
been intended to include States as parties defendant.

If the italicized portion of this quotation is construed 
to mean that state officials, acting in their official ca­
pacities (the situation in Edelman), are not subject to



5a

suit for a full measure of relief under § 1983, then we 
respectfully submit that the dictum is wrong.

We recognize the possible need for reconsideration 
of Edelman’s treatment (415 U.S. at 674-75) of § 1983 
in light of Fitzpatrick, but the answer to this dilemma 
is not found in the Monroe v. Pape holding that mu­
nicipalities are not suable “persons” under § 1983.* 
Whether or not Monroe’s holding in that respect is cor­
rect (and it has been much criticized), it simply cannot 
be extended to state-level officials. The determination 
that cities and counties are not § 1983 persons was 
based on Monroe’s analysis (365 U.S. at 187-92) of the 
circumstances surrounding rejection by the Forty-Second 
Congress of an amendment (and a subsequent revised 
version) to the 1871 Act proposed by Senator Sherman 
of Ohio. He proposed to impose liability upon any “ coun­
ty, city or parish” for property damages and personal 
injuries caused by “ any persons riotously and tumul­
tously assembled together” {id. at 188 nn. 38 and 41) 
even if neither the county, city, or parish nor its em­

* The Fitzpatrick explanation for Edelman’s handling of § 1983 
is made more difficult to comprehend by reason of the Court’s own 
treatment of the § 1983 “person” problem as a mandatory juris­
dictional inquiry. Mt. Healthy City School District V. Doyle, 45 
U.S.L.W. 4079, 4080-81 (U.S. Jan. 11, 1977); City of Kenosha v. 
Bruno, 412 U.S. 507 (1973). If the basis of the decision in Edel- 
man was truly a determination that the suit against the official- 
capacity state officials was in fact a suit against the state which 
“could not have been intended” by § 1983 to be a suable party 
(Fitzpatrick, 49 L.Ed.2d at 619), then the court was without juris­
diction to render its decision on the eleventh amendment and 
should have vacated and remanded as in City of Kenosha v. Bruno, 
supra. (In our view, however, assertions of “non-personhood,” which 
require interpretation of the cause-of-action provision (§ 1983) 
rather than the jurisdictional grant (§ 1343(3)), ought to be treated 
as waivable affirmative defenses, not as defects in subject-matter 
jurisdiction, cf. Bell v. Hood, 327 U.S. 678 (1946); or, at most, 
the problem should be treated as a limitation on jurisdiction over 
the person, which is also waived if not raised in the trial court, cf. 
Rule 12(h)(1), Fed. R. Civ. P.).



6a

ployees were in any way responsible for the damages 
and injuries caused by such persons.

The circumstances surrounding rejection of the Sher­
man amendment are sui generis', and we do not believe 
that a full review of the 1871 Act’s legislative history 
will provide any support for the proposition that a 
state official, acting in his official capacity as the state 
(i.e., when “he acts in the name and for the State, 
and is clothed with the State’s power, his act is that 
of the State,” Ex parte Virginia, supra, 100 U.S. at 
347), is exempt from § 1983’s coverage. Indeed, as the 
principal issue resolved in Monroe (365 U.S. at 171-88; 
see also id. at 192-202 (Harlan, J., concurring)) demon­
strates, § 1983 applies to all officers of the state, wheth­
er they are acting in their individual or in their of­
ficial capacities; and Justice Frankfurter was of the 
dissenting view (id. at 202-59) that the statute applied 
only to the latter category of officials.

A better and more supportable rationalization for 
the apparent tension between Edelman and Fitzpatrick, 
we would therefore suggest, is that the § 1983 cause of 
action in Edelman was for a violation of the Social 
Security Act, which the Court concluded did not con­
stitute a diminution of the state’s eleventh amendment 
immunity, whereas the cause of action in Fitzpatrick 
(Title VII), like the § 1983 claim in the instant case, was 
predicated on the fourteenth amendment, which itself 
embodies limitations on state authority.*

b. Finally, if § 1983 fails the test of § 5 enforce­
ment legislation by being construed as inapplicable to

* Although more supportable, even this explanation may not be 
justified if, for example, Congress has the power under § 5 of the 
fourteenth amendment to vindicate the Social Security Act in the 
federal courts via § 1983. See Blue v. Craig, supra. In that event, 
Fitzpatrick would require full reconsideration of Edelman, in an 
appropriate case.



7a

persons like state officials, the federal-question juris­
dictional statute most surely passes. 28 IJ.S.C. § 1331 
is not encumbered with a “person” limitation. Subject 
only to the jurisdictional-amount requirement (which is 
not in dispute here, cf. Mt. Healthy City School District 
v. Doyle, 45 U.S.L.W. 4079 (U.S. Jan. 11, 1977)), the 
statute confers judicial power to decide fourteenth 
amendment claims such as those presented in this case, 
where the existence and validity of plaintiffs’ four­
teenth amendment cause of action is not contested. Cf. 
Mt. Healthy City School Dist., supra. Section 1331 was 
passed in 1875 and “was, like the Act of 1871, an ex­
pansion of national authority over matters that, before 
the Civil War, had been left to the States.” Lynch v. 
Household Finance Corp., 405 U.S. 538, 548 (1972). 
It “has been regarded as the ‘culmination of a move­
ment . . .  to strengthen the Federal Government against 
the states’ ” (id. at 548 n.14) ; as “ ‘clearly . . . part of 
rather than an exception to, the trend of [Reconstruc­
tion] Legislation which preceded it.’ ”  Id. at 548. See 
also Stejfel v. Thompson, 415 U.S. 452, 463-64 (1974) ; 
District of Columbia v. Carter, 409 U.S. 418 (1973) ; 
Mitchum v. Foster, 408 U.S. 225 (1971) ; Zwickler v. 
Koota, 389 U.S. 241, 246-47 (1967). Section 1331 was 
thus the final part of the Reconstruction package de­
signed to place the protection of individual federal rights 
guaranteed by the fourteenth amendment, inter alia, in 
the hands of the federal judiciary. Since a grant of ju­
risdiction “ is an ordinary mode of protecting rights and 
immunities conferred by the Federal Constitution and 
laws” (Strauder v. West Virginia, 100 U.S. 303, 311 
(1880) ; see also Civil Rights Cases, supra, 109 U.S. at 
12), § 1331 clearly embodies any necessary congressional 
authorization under § 5 of the fourteenth amendment. 
Cf. Usery v. Allegheny County Institution Dist., No.



8a

76-1079 (3d Cir. Oct. 28, 1976). Especially is this so in 
connection with claims arising under the fourteenth 
amendment, which, to the extent of its terms, is self­
executing (see point 2, supra).



9a

APPENDIX B

CONSTITUTIONAL, STATUTORY AND 
REGULATORY PROVISIONS INVOLVED

Constitutional Provisions

Amendment 10:
The powers not delegated to the United States by the 

Constitution, nor prohibited by it to the States, are re­
reserved to the States respectively, or to the people.
Amendment 11:

The Judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com­
menced or prosecuted against one of the United States 
by Citizens of another State, or by Citizens or Subjects 
of any Foreign State.
Amendment 14:

Section 1. All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State wherein 
they reside. No State shall make or enforce any law 
which shall abridge the privileges or immunities of citi­
zens of the United States; nor shall any State deprive 
any person of life, liberty, or property, without due 
process of law; nor deny to any person within its juris­
diction the equal protection of the laws,

*  *  *  *

Section 5. The Congress shall have power to enforce, 
by appropriate legislation, the provisions of this article.

Statutory Provisions

20 U.S.C. § 1601. Congressional findings and purpose
(a) The Congress finds that the process of eliminating 

or preventing minority group isolation and improving



10a

the quality of education for all children often involves 
the expenditure of additional funds to which local educa­
tional agencies do not have access.

(b) The purpose of this chapter is to provide financial 
assistance—

(1) to meet the special needs incident to the elimi­
nation of minority group segregation and discrimi­
nation among students and faculty in elementary and 
secondary schools;

(2) to encourage the voluntary elimination, re­
duction, or prevention of minority group isolation 
in elementary and secondary schools with substantial 
proportions of minority group students; and

(3) to aid school children in overcoming the edu­
cational disadvantages of minority group isolation.

20 U.S.C. § 1606. Authorized activities— Programs and 
projects

(a) Financial assistance under this chapter (except 
as provided by sections 1607, 1608, and 1610 of this 
title) shall be available for programs and projects which 
would not otherwise be funded and which involve ac­
tivities designed to carry out the purpose of this chapter 
stated in section 1610(b) of this title:

S p e c i a l  R e m e d i a l  S e r v i c e s

(1) Remedial services, beyond those provided un­
der the regular school program conducted by the 
local educational agency, including student to student 
tutoring, to meet the special needs of children (in­
cluding gifted and talented children) in schools 
which are affected by a plan or activity described in 
section 1605 of this title or a program described in 
section 1607 of this title, when such services are



l ia
deemed necessary to the success of such plan, activity, 
or program.

P r o f e s s i o n a l  S t a f f

(2) The provision of additional professional or 
other staff members (including staff members spe­
cially trained in problems incident to desegregation 
or the elimination, reduction, or prevention of mi­
nority group isolation) and the training and re­
training of staff for such schools.

T e a c h e r  A id e s

(3) Recruiting, hiring, and training of teacher 
aides, provided that in recruiting teacher aides, pref­
erence shall be given to parents of children attend­
ing schools assisted under this chapter.

I n s e r v i c e  T e a c h e r  T r a i n i n g

(4) Inservice teacher training designed to en­
hance the success of schools assisted under this chap­
ter through contracts with institutions of higher edu­
cation, or other institutions, agencies, and organi­
zations individually determined by the Assistant 
Secretary to have special competence for such pur­
pose.

C o u n s e l i n g

(5) Comprehensive guidance, counseling, and other 
personal services for such children.

N e w  C u r r i c u l a  ; M i n o r i t y  L a n g u a g e

(6) The development and use of new curricula 
and instructional methods, practices, and techniques 
(and the acquisition of instructional materials re­
lating thereto) to support a program of instruction



12a

for children from all racial, ethnic, and economic 
backgrounds, including instruction in the language 
and cultural heritage of minority groups.

C a r e e r  E d u c a t i o n

(7) Educational programs using shared facilities 
for career education and other specialized activities.

I n n o v a t i v e  I n t e r r a c i a l  P r o g r a m s

(8) Innovative interracial educational programs 
or projects involving the joint participation of mi­
nority group children and other children attending 
different schools, including extracurricular activities 
and cooperative exchanges or other arrangements 
between schools within the same or different school 
districts.

C o m m u n i t y  A c t i v i t i e s

(9) Community activities, including public infor­
mation efforts, in support of a plan, program, proj­
ect, or activity described in this chapter.

A d m i n i s t r a t i v e  S e r v i c e s

(10) Administrative and auxiliary services to fa­
cilitate the success of the program, project, or ac­
tivity.

P l a n n i n g  a n d  E v a l u a t i o n

(11) Planning programs, projects, or activities 
under this chapter, the evaluation of such programs, 
projects, or activities, and dissemination of infor­
mation with respect to such programs, projects, or 
activities.



13a
F a c i l i t y  R e m o d e l i n g ; M o b i l e  U n i t s

(12) Repair or minor remodeling or alteration of 
existing school facilities (including the acquisition, 
installation, modernization, or replacement of in­
structional equipment) and the lease or purchase of 
mobile classroom units or other mobile education fa­
cilities.

(b) For the foregoing reasons, it is necessary and 
proper that the Congress, pursuant to the powers granted 
to it by the Constitution of the United States, specify 
appropriate remedies for the elimination of the vestiges 
of dual school systems, except that the provisions of 
this chapter are not intended to modify or diminish the 
authority of the courts of the United States to enforce 
fully the fifth and fourteenth amendments to the Con­
stitution of the United States.

No State shall deny equal educational opportunity to 
an individual on account of his or her race, color, sex, 
or national origin, by—

(a) the deliberate segregation by an educational 
agency of students on the basis of race, color, or 
national origin among or within schools;

(b) the failure of an educational agency which 
has formerly practiced such deliberate segregation to 
take affirmative steps, consistent with part 4 of this 
subchapter, to remove the vestiges of a dual school 
system;

(f) the failure by an educational agency to take 
appropriate action to overcome language barriers 
that impede equal participation by its students in 
its instructional programs.



20 U.S.C. § 1706:
An individual denied an equal educational opportunity, 

as defined by this subchapter may institute a civil ac­
tion in an appropriate district court of the United States 
against such parties, and for such relief, as may be ap­
propriate. The Attorney General of the United States 
(hereinafter in this chapter referred to as the “Attorney 
General” ), for or in the name of the United States, may 
also institute such a civil action on behalf of such an 
individual.
20 U.S.C. § 1708:

The appropriate district court of the United States 
shall have and exercise jurisdiction of proceedings in­
stituted under section 1706 of this title.
20 U.S.C. § 1720:

For the purposes of this subchapter—
(a) The term “educational agency” means a local edu­

cational agency or a “State educational agency” as de­
fined by section 881 (k) of this title.
28 U.S.C. § 1331:

(a) The district courts shall have original jurisdiction 
of all civil actions wherein the matter in controversy 
exceeds the sum or value of $10,000, exclusive of interest 
and costs, and arises under the Constitution, laws, or 
treaties of the United States.

(b) Except when express provision therefor is other­
wise made in a statute of the United States, where the 
plaintiff is finally adjudged to be entitled to recover less 
than the sum or value of $10,000, computed without 
regard to any setoff or counterclaim to which the de­
fendant may be adjudged to be entitled, and exclusive 
of interests and costs, the district court may deny costs 
to the plaintiff and, in addition, may impose costs on 
the plaintiff.

14a



15a
28 U.S.C. § 1343:

The district courts shall have original jurisdiction of 
any civil action authorized by law to be commenced by 
any person:

*  *  #  *

(3) To redress the deprivation, under color of any 
State law, statute, ordinance, regulation, custom or usage, 
of any right, privilege or immunity secured by the Con­
stitution of the United States or by any Act of Congress 
providing for equal rights of citizens or of all persons 
within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or 
other relief under any Act of Congress providing for the 
protection of civil rights, including the right to vote.
42 U.S.C. § 1983:

Every person who, under color of any statute, ordi­
nance, regulation, custom, or usage, of any State or Ter­
ritory, subjects, or causes to be subjected, any citizen of 
the United States or other person within the jurisdiction 
thereof to the deprivation of any rights, privileges, or 
immunities secured by the Constitution and laws, shall 
be liable to the party injured in an action at law, suit 
in equity, or other proper proceeding for redress.
42 U.S.C. § 2000c-2:

The Commissioner is authorized, upon the application 
of any school board, State, municipality, school district, 
or other governmental unit legally responsible for oper­
ating a public school or schools, to render technical as­
sistance to such applicant in the preparation, adoption, 
and implementation of plans for the desegregation of 
public schools. Such technical assistance may, among 
other activities, including making available to such agen­
cies information regarding effective methods of coping 
with special educational problems occasioned by desegre­
gation, and making available to such agencies personnel



16a
of the Office of Education or other persons specially 
equipped to advise and assist them in coping with such 
problems.
42 U.S.C. § 20Q0c-4:

(a) The Commissioner is authorized, upon application 
of a school board, to make grants to such board to pay, 
in whole or in part, the cost of—

(1) giving to teachers and other school personnel 
inservice training in dealing with problems incident 
to desegregation, and

(2) employing specialists to advise in problems 
incident to desegregation.

(b) In determining whether to make a grant, and in 
fixing the amount thereof and the terms and conditions 
on which it will be made, the Commissioner shall take 
into consideration the amount available for grants under 
this section and the other applications which are pending 
before him; the financial condition of the applicant and 
the other resources available to it; the nature, extent, 
and gravity of its problems incident to desegregation; 
and such other factors as he finds relevant.

Regulatory Provisions 
45 C.F.R. § 180.12:

Funds made available pursuant to this subpart shall 
be used for the activities described in paragraph (a) of 
this section and for one or more of the activities described 
in paragraphs (b) through (i) of this section, when such 
activities are requested in accordance with § 180.11(a).

(a) Planning and other activities designed to insure 
that administrators, teachers, and other educational per­
sonnel are not demoted or dismissed on the basis of race, 
color, religion, sex or national origin in the process of, 
or as a result of, desegregation;



17a

(b) Assessment of desegregation-related educational 
needs in one or more public schools;

(c) Development of administrative methods and tech­
niques to cope with special educational problems occa­
sioned by desegregation;

(d) Development of educational programs, materials, 
and methods for use in desegregated classroom situa­
tions ;

(e) Training of administrators, teachers, or other pub­
lic school personnel in the implementation or use of meth­
ods, techniques, programs, and materials designed to cope 
with special educational problems occasioned by desegre­
gation ;

(f) Development of techniques for communications or 
interaction betwen public schools or school systems and 
the groups affected by the desegregation of such schools 
or school systems;

(g) Technical assistance to public school administra­
tive staffs in determining the availability and appropriate 
utilization of funds under other Federal and State pro­
grams which would assist in coping with special educa­
tional problems occasioned by desegregation;

(h) Training of administrative staffs (in school dis­
tricts which are required to desegregate their schools 
pursuant to a final order of a court of the United States, 
a State court, or a State agency or official or pursuant to 
a plan or assurance required by the Secretary) in effi­
cient and educationally sound methods of assigning stu­
dents to and within public schools;

(i) Any other activity which the Commissioner deter­
mines will make substantial progress toward achieving 
the purposes of this subpart.



18a

45 C.F.R. § 180.81:
Any institution of higher education may apply for a 

grant pursuant to this subpart for the operation of short 
term or regular session institutes for special training 
designed to improve the ability of teachers, supervisors, 
counselors, and other elementary or secondary school per­
sonnel (including school board members or trustees) to 
deal effectively with special educational problems occa­
sioned by desegregation. An institute may focus only on 
desegregation on the basis of race, color, religion, or na­
tional origin, only on desegreation on the basis of sex, or 
on both of these types of desegregation.

45 C.F.R. § 180.41:

Any school board may make application pursuant to 
this subpart for a grant to pay, in whole or in part, the 
cost of employing a specialist to advise in problems inci­
dent to desegregation, and of giving to teachers and other 
public school personnel inservice training in dealing with 
problems incident to desegregation. An application may 
focus only on desegregation on the basis of race, color, 
religion, or national origin, only on desegregation on the 
basis of sex, or on both of these types of desegregation.

45 C.F.R. § 185.01:

Programs, projects, or activities assisted under the 
Act shall be for the purpose of achieving one or more 
of the following objectives:

(a) Meeting the special needs incident to the elimina­
tion of minority group segregation and discrimination 
among students and faculty in elementary and secondary 
schools;

(b) Eliminating, reducing, or preventing minority 
group isolation in elementary and secondary schools with 
substantial proportions of minority group students;



19a
(c) Aiding school children in overcoming the educa­

tional disadvantages of minority group isolation.
45 C.F.R. § 185.12:

(a) The following activities are authorized to be car­
ried out with financial assistance made available under 
this subpart when such activities would not otherwise be 
funded and are designed to carry out the purposes de­
scribed in § 185.01. Such activities shall be directly re­
lated to, and necessary to, the implementation of a plan 
or project described in § 185.11:

(1) Remedial services, beyond those provided under 
the regular school program conducted by the local educa­
tional agency, including student to student tutoring, to 
meet the special needs of children (including gifted and 
talented children) in schools which are affected by a plan 
or project described in § 185.11, when such services are 
deemed necessary to the success of such plan or project:

(2) The provision of additional professional or other 
staff members (including staff members specially trained 
in problems incident to desegregation or the elimination, 
reduction, or prevention of minority group isolation) and 
the training and retraining of staff for such schools;

(3) Recruiting, hiring, and training of teacher aides;
(4) Inservice teacher training designed to enhance the 

success of schools assisted under the Act through con­
tracts with institutions of higher education, or other in­
stitutions, agencies, and organizations individually deter­
mined by the Assistant Secretary to have special compe­
tence for such purpose;

(5) Comprehensive guidance, counseling, and other 
personal services for children in schools affected by a 
plan or project described in § 185.11;

(6) The development and use of new curricula and 
instructional methods, practices, and techniques (and the



20a

acquisition of instructional materials relating thereto) 
to support a program of instruction for children from all 
racial, ethnic, and economic backgrounds, including in­
struction in the language and cultural heritage of minor­
ity groups;

(7) Educational programs using shared facilities for 
career education and other specialized activities;

(8) Innovative interracial educational programs or 
projects involving the joint participation of minority 
group children and other children attending different 
schools, including extracurricular activities and coopera­
tive exchanges or other arrangements between schools 
within the same or different school districts;

(9) Community activities, including public informa­
tion efforts in support of a plan, program, project, or 
activity described in the Act;

(10) Administrative and auxiliary services to facili­
tate the success of the program, project, or activity as­
sisted under this subpart;

(11) Planning programs, projects, or activities as­
sisted under this subpart, the evaluation of such pro­
grams, projects, or activities, and dissemination of in­
formation with respect to such programs, projects, or 
activities;

(12) Repair or minor remodeling, or alteration of 
existing school facilities (including the acquisition, in­
stallation, modernization, or replacement of instructional 
equipment) and the lease or purchase of mobile class­
room units or other mobile education facilities.
(Public Law 92-318, sections 702(b), 707(a))

(b) The activities authorized under paragraphs (a) 
(10) and (11) of this section shall be assisted only as 
part of, and in conjunction with, a comprehensive educa­



21a

tional program, project, or activity designed to carry out 
the purposes described in § 185.01.
(Public Law 92-318, sections 702(b), 707(a))

(c) Applications by local educational agencies for as­
sistance under this subpart shall include an assurance 
that in the case of a proposed program or project which 
includes activities authorized under paragraph (a) (3) 
of this section, preference in recruiting and hiring teacher 
aides shall be given to parents of children attending 
schools assisted under the Act.
(Public Law 92-318, section 707(a) (3))

(d) The term “ repair or minor remodeling or altera­
tion,” for purposes of paragraph (a) (12) of this section, 
means the making over or remaking, in a previously 
complete building or facility, of space used or to be used 
for activities otherwise authorized by this section, where 
such making over or remaking is necessary for effective 
use of such space for such purpose and where no other 
space is available for such use. The term does not in­
clude building construction, structural alterations to 
buildings, building maintenance, or general or large-scale 
renovation of existing buildings or facilities. In no case 
may more than 10 percent of the amount made available 
to the applicant under this subpart be used for activities 
authorized under paragraph (a) (12) of this section.
(Public Law 92-318, section 707(a) (12))