Milliken v. Bradley Brief for Bradley Respondents
Public Court Documents
January 28, 1977

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Brief Collection, LDF Court Filings. Milliken v. Bradley Brief for Bradley Respondents, 1977. 7bb40dbe-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/503aecc1-9ea0-430e-9dda-0f0278a90729/milliken-v-bradley-brief-for-bradley-respondents. Accessed June 13, 2025.
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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))